The operation of the maxim "what cannot be done directly cannot be done indirectly" in public law

Abstract

This thesis is concerned with a formal problem which arieses in the judicial review of laws limiting the range of governmental powers. Vast problems of a legal nature are posed in the observance of limitations imposed on governmental powers. Presumably the solution must be found in the working of judicial machinery - courts being the watchdog of consitutional provisions; no-one would deny the role played by courts in the growth and develpment of consitutionalism. The judicial practice involves a set of "unwritten" rules for the guidance of courts in the undersatning (or interpretation) of "written" laws, including written consitutions, One of such rules is the observance of "good faith" in the exercise of governmental powers, and it is implied in the maxim "What cannot be done directly cannot be done indirectly." This study is confined to English language systems, and to predominantly English common-law systems; South Africa is included, but the South African cases considered are also mainly English common-law in their ideological background. Nevertheless, the range of constitutional and administrative systems is reasonably wide. In casual conversation, even among lawyers, one of ten gets an impression that the maxim has not much force in limiting the acts or actions of governments, since so many schemes, which may be of great consequence politically or otherwise, have received the approval of courts even though they were designed to achieve something that was not permissible, or have been carried through without judicial challenge. Here an attempt is made to examine the implications and intricacies in the operation of the maxim and assess its importance or usefulness as a rule of constitutional interpretation, It is a selective, not an exhaustive, study. The aim is to focus attention on the problems emphasised here and stimulate further detailed examination from a similar point of view. The discussion is mainly on the level of legal formalism, and no attempt is made to analyse the impact of social, economic or political factors on judicial practice. Show more