Unexpressed Principles of Administrative Procedural Law: Fundamental Norms Beyond the Legal Text

Abstract

In this paper, the author identifies and analyses some of the unexpressed principles of administrative procedural law. These principles are not explicitly formulated in any specific regulation – that is, they do not appear in statutory texts – yet they arise from other expressed legal norms. The unexpressed principles discussed here serve as a model that may support further research on the topic, as the author establishes a methodological framework that can also be applied in future research. This theoretical and methodological framework is established primarily on Riccardo Guastini’s theory and his understanding of (unexpressed) legal principles, while also taking into account the contributions of other influential legal theorists. To reveal unexpressed principles, the author begins by analysing selected provisions of two fundamental statutes of administrative procedural law – the General Administrative Procedure Act and the Administrative Disputes Act – together with selected administrative judicial decisions. The unexpressed principles are then constructed using various argumentative techniques (such as a contrario and a fortiori) and methods of interpretation, guided by the purpose or underlying aim of each principle. The author highlights the importance of studying unexpressed principles, as they, too – despite not being explicitly stated – produce legal effects. Among the principles examined and analysed are the principle of the party’s right to be heard in administrative proceedings, the principle of material truth in administrative disputes, ne bis in idem, the prohibition of reformatio in peius, and the principle prohibiting excessive legal formalism. For each unexpressed principle, the paper outlines its key characteristics and provides a legal analysis.