The Concept of Non-Decisions

Decisions are fundamental to law, whether in its creation, application, or disputation. Decision-making is so closely linked to law, that law is inconceivable without it. While previous research has focused on decisions and decision-making processes, autonomy, and options, this post-doctoral research project addresses a vital but previously neglected aspect of decision-making by examining the textual opposite of a decision—viz, the non-decision. By exploring different ways of conceptualising non-decision-making such as delegation, the passage of time, or procedural law rules—and tracing them in each branch of government—it aims to show how the admin­istra­tion and courts must fill gaps when legislatures fail to make decisions, whether by general clauses, constitutional construction, regulatory gaps, or directives. The study also examines the tactical use of non-decisions to facilitate dialogue between international courts (eg Federal Constitutional Court and European Court of Justice) and non-decisions attributed legal value outside the national context, such as state silence in customary international law or abstentions in international organisations. Among its insights, investigating non-decisions in their various forms aims to shed much needed light on (and to improve) our understanding of relations and contexts of power-dynamics.
Located at the intersection of public law, legal theory, and comparative constitutional law, this project addresses a combination of contextual, legal, and theoretical questions that arise in the foundations and doctrinal structures of public security law. Methodologically, it employs a blend of legal theory, doctrinal analysis, legal comparison, and interdisciplinarity. Preliminary results suggest that genuine non-decisions are extremely rare and that maintaining the status quo is also a decision. Positioned at the ‘fundamentals’ level of the Department’s tripartite topical matrix, the project’s multi-dimensional research outcomes include improving decision-maker awareness of their own deliberations and actions (micro-level), enhancing knowledge of inter-organ relationships between delegator, decision-maker, and decision-recipient (meso-level), and fostering a more rigorous understanding of the theoretical foundations of non-decision-making (macro-level).