However, as we have noted, the formalistic dimension of the law is also evolving. Several elements point to such a trend. This was the case with the requirement of a certain legal quality of laws provided for in the Guidelines for Certain Codification Methods or the federal consultation procedure. This is also the case with the extension of popular participation in the ratification process of certain international treaties, which adds an additional formal condition to the validity of ratification. The second aspect of the principle of legality is commonly referred to as a “reservation of law”. This is the principle of requirement of the legal basis and means that, except in cases of force majeure, all state activities must be based on legal regulation (Schindler 2014: 118). This aspect of the principle of legality allows individuals to foresee the consequences of their actions, but also ensures that they will be treated equally. This chapter deals with the principle of legality. The version of legality defended here as an integral part of the convention system is that which requires that official action in a democratic state be positively authorized by law. The version of legality contained in the European Convention on Human Rights and human rights law is consistent with the democracy-oriented model outlined in this chapter. The first section examines legality and the “rule of law.” The second part deals with representative democracy, the European Convention and the principle of legality.

The third section deals with the importance of legality in enforcement. The last section deals with the common law. Common law challenges to legality are raised without a legal status that raises questions of legitimacy. The distinction between formal and substantive law has its origins in German constitutional theory (Popelier 2012: 19 ff.). It limits the prince`s power by defining the areas in which he needs the support of Parliament. In France, after 1789, a different conception of law developed: law rests only on institutions that jointly exercise the legislative function. The government then exercises the executive function and enacts laws to put the law into practice. In the French case, therefore, the idea of substantive law was inconceivable. In both cases, therefore, the explanatory criterion lies in the democratic legitimacy of formal law. It is drawn up by a democratic body, Parliament.

This legitimacy justifies its primacy over the actions of governmental or administrative authorities. As Chief Justice Gleeson noted twelve years ago, the principle of legality is an important aspect of the rule of law in Australia, especially since few fundamental rights and principles are constitutionally protected from legislative interference. But the decision in the Anufrijeva case illustrates the internal tension in this action between the protection of these rights and principles and the idea that the law must have its ordinary and natural meaning. Notification is essential for a person to be able to challenge an adverse administrative decision in court if they so wish. The general terms of the Regulation were not sufficient to replace this basic principle. The government`s failure to make the payments was illegal. The objective of this chapter was to present two fundamental legal concepts of Swiss law, both crucial for public administration: the law and the principle of legality. From the concept of law, it has emerged that law consists not only of written laws adopted by parliament (formal law), but also includes norms adopted by the executive and public authorities (substantive law). The two aspects (“rule of law” and “legal basis requirement”) of the principle of legality are equally lawful. Their description clearly showed that formal and substantive law are part of Swiss law. In the Federal Council`s dispatch on the total revision of the Constitution, the term law was defined as a reference to the Constitution, the law and ordinances (Bundesrat 1997: 134).

This tension was evident in the House of Lords` decision in R. v. State Secretary, Ministry of the Interior; Ex parte Anufrijeva. Ms Anufrijeva was an asylum seeker. A government official rejected his asylum application in November 1999. Her social security benefits were subsequently cancelled, but this decision was not notified to Ms. Anufrijeva until April 2000. Ms Anufrijeva challenged the cancellation of her payments by the government during this period. The relevant regulation states: “In the case of an application for refugee protection that […] is noted as designated by the Secretary of State”, the person loses his or her entitlement to payments “on the date on which he or she is so registered”. 177 See, for example,.