Abstract

CHIRLE-VILLADANGOS, PÍA. A Defense of Administrative Rule-making Powers. Rev. Derecho Estado [online]. 2022, n.51, pp.197-226.  Epub June 05, 2022. ISSN 0122-9893.  https://doi.org/10.18601/01229893.n51.07.

This article seeks to offer a critique to the idea that rulemaking powers exercised by the Administration are illegitimate or somehow unlawful. I suggest that four "myths" are commonly accepted by a considerable group of scholars devoted to the research of the theory of the State (and, to some extent, jurisprudence), and are even sometimes supported by existing constitutional texts. The myths are: 1. Separation of powers requires separation of "types of powers"; 2. The role of the Administration is limited to the enforcement of legal rules; 3. Administrative rulemaking power contradicts moral principles of law, and 4. 'Enforcement of legal rules' and 'creation of rules' exclude each other. These myths have prevented the elaboration of a strong defense in favor of administrative rulemaking power in the modern State. This is why I present some arguments that allow for their review.

Keywords : Rulemaking power; Administrative State; separation of powers; enforcement of legal rules; integrity.

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