PHOTO: University of Ottawa
Over the past few months, the Administrative Law in the Common Law World Blog has hosted a symposium on my recent book on judicial review. The contributions were uniformly excellent. I hope my response matches up…
In Understanding Administrative Law in the Common Law World (Oxford University Press, 2021), I set out to offer a fresh framework for understanding the core features of the contemporary law of judicial review of administrative action, to suggest how common law courts might go about resolving difficult doctrinal questions and to defend the legitimacy of the rapid judicial development of the principles of administrative law in recent decades. The first of these – enhancing understanding of the subject – is the primary goal of the book. You can read Chapter 1 for free.
My framework for understanding the core features of administrative law is composed of four values: individual self-realisation, good administration, electoral legitimacy and decisional autonomy. In a nutshell, common law courts (1) protect individual interests in autonomy and dignity (individual self-realisation), (2) respect the need to expend scarce resources in an efficient and effective manner (good administration), (3) appreciate that weight should be given to the judgements of those who have run an electoral gauntlet (electoral legitimacy) and (4) create spaces for different bodies to perform different functions (decisional autonomy).
Together, these values can be understood to give the core features of the contemporary law of judicial review of administrative action an intelligible structure. Sometimes, the values operate in a complementary fashion. The right to reasons, for instance, has a starting point which can be understood to sound in good administration: there is no general right to reasons, for to recognise one would gum up the works of public administration. But there are exceptions which can be understood to sound in the other values: reasons must be given in important matters (individual self-realisation), where necessary to give effect to a statutory right of appeal created by elected representatives (electoral legitimacy) and where required to allow courts to review the legality of a decision (decisional autonomy). Sometimes, the values need to be brought into a state of equipoise. In the law of procedural fairness, for instance, if individual self-realisation were given absolute effect, the result would be trial-type hearings for the smallest of matters, sacrificing good administration and decisional autonomy. Accordingly, in providing that only ‘some kind of hearing’ is required, contemporary administrative law can be understood to balance the values to the extent they may come into conflict. (Jacob Weinrib provides a fair account of what I mean by balancing, to which I would add only that any balance falls to be struck in a particular context, not in the abstract: see p. 254.)
My approach is pluralistic, in the sense that I reject any monist theory of administrative law grounded in a meta-principle, -value or concept. In addition, I disclaim the elaboration of a unified field theory of the law of judicial review of administrative action.
When I say “core features”, I mean the principles of institutional review (non-delegation, bias, fettering and so on), procedural fairness, substantive review, remedies, restrictions on remedies and the scope of judicial review. These principles are, generally, shared across the five jurisdictions I draw from: Australia, Canada, England and Wales, Ireland and New Zealand. Of course, there are differences in detail, because of the heterogeneity of different areas of administrative law. But across this vast field of core features, the values can be understood to be pervasive.
The alert reader will notice my use of the laborious formulation “can be understood to…” That the term recurs in the book (over 300 times!) is no accident. What I offer is an interpretive framework. I do not seek to explain what exactly each judge had in mind in formulating each of the principles which make up the contemporary law of judicial review of administrative action. It might have been one or more of the values I identify, but it might have been something else entirely, perhaps simply a desire to do justice between the parties to a case, or to stem the tide of litigation for fear of overwhelming the courts. The interpreter is not an explainer or an archivist: the goal is not to dig out the true reasons for the emergence of a principle but to elaborate a structure which makes sense of the principle.
In Chapter 9, I measure my interpretation against a set of criteria – fit, transparency, coherence and morality – developed specifically to test interpretations offered by legal interpreters. I argue that my interpretation measures up very well. Defining the values as I do enhances understanding of the core features of the contemporary law of judicial review of administrative action, scoring highly in terms of fit, transparency and coherence, and offering a morally attractive basis for our current body of administrative law principles.
Indeed, inasmuch as I had something I wanted to get off my chest in writing Understanding Administrative Law, it is that individual self-realisation, good administration, electoral legitimacy and decisional autonomy are pervasive across the core features of administrative law in multiple jurisdictions and that these four values can help to make sense of a vast body of principles running from procedural fairness to the scope of judicial review. None of the contributors to this symposium takes much issue with this.
But an author does not expect unqualified praise from an academic book symposium any more than from a visit to the dentist. One can always brush better, floss more often and eat less sugar. And so the contributors variously take issue with the thinness of my interpretation (Mary Liston, Cora Chan), with its utility in practice (Alison Young, Jason Varuhas) and my articulation of the “core features” (Jacob Weinrib). Let me address these general themes in turn, touching on as many of the specific points raised by the contributors as a blog post of reasonable length will permit.
By my own admission, my interpretation of contemporary administrative law is thin (p. 16), as opposed to thick (or, put another way, weak rather than strong).
Interpretations can be weaker (thinner) or stronger (thicker). A strong-form interpretation might suggest that there is only one set of principles that matches up against the moral ideal set out by the interpreter, and/or that the interpreter’s moral ideal is the best possible moral ideal. “Red is the best colour because it is the most powerful” is a strong-form claim, not just about red but also about what how to determine what the best colour is. This claim could also be given a temporal element, if the interpreter stated that red has “always” been the best colour.
As an Arsenal- and Munster-supporting Corkonian and naturalised Canadian (with a mild affliction also for the Montreal Canadiens), I agree entirely that red is the best colour. But a strong-form interpretation is not the only type of interpretation. A weak-form interpretation might posit that “red is a very nice colour because of its boldness”. There is no claim that red is the best, or that boldness is the sole criterion against which the claim should be measured. My interpretation of the contemporary law of judicial review of administrative action is a weak-form interpretation. It is thin. I do not claim that my four values are the only or best set of values. Nor do I claim that the current set of principles of administrative law is the only possible or best set of principles. Further, my interpretation is of the contemporary law of judicial review of administrative action, a historical snapshot, and I do not claim that my four values provide an intelligible structure for the evolution of administrative law over time. As such, criticisms about the (deliberately chosen) thinness of the values or their disutility in prescribing the legitimacy of individual principles or decisions miss the mark.
More importantly, there is a lot to be said for thin interpretations. By enabling the interpreter to design an intelligible structure capable of fitting the decided cases snugly, a thin interpretation assists in enhancing understanding. Administrative law is a field feared by many – students approach the subject with a sense of foreboding and even seasoned practitioners sometimes speak with a tremor when discussing the law of judicial review. The subject is a deeply complex one and defies ready understanding, for reasons brilliantly outlined by Joanna Bell (in a book previously featured in this forum). By demonstrating that four values are pervasive across the vast field of the law of judicial review of administrative action, I hope to have dispelled the myth that ‘There be Dragons’ and given students, practitioners and curious onlookers from other disciplines a workable framework with which to more easily grasp the principles of administrative law. Neither the doctrinal detail of the standard academic or practitioner textbook nor the high theory of the standard academic monograph can or should perform this function.
This is not a criticism of doctrinal detail or high theory. I would have been unable to write this book without scouring textbooks and monographs for information and inspiration. I hardly think I have produced the last word on administrative law. I look forward, indeed, to thicker accounts of administrative law values and stronger-form interpretations of the balancing exercise in which judges can be understood to have been engaged. One of the virtues of a thin interpretation is that its framework for understanding can also become a framework for future debates. Thicker, stronger-form accounts may not score as highly in terms of fit and general workability, but they may advance a stronger moral account of the subject. An individual-centered account of all of administrative law, as Mary Liston proposes, would be a very valuable contribution and could conceivably call into question long-settled principles. But a thin, or weak-form interpretation is not vacuous: on my interpretation, contemporary administrative law has a recognisable moral basis discernible from the decided cases and, for that reason, can be defended against claims that it is illegitimate.
Lastly, a thin account can facilitate cross-border conversations, which is a valuable function of comparative legal scholarship. I can do no better than quote Cora Chan in this regard:
The thinness of my interpretation of the contemporary law of judicial review of administrative action prompted questions, naturally enough, about its practical utility.
Again, the primary goal of Understanding Administrative Law is to enhance understanding of the contemporary law of judicial review of administrative action. The bulk of the book – chapters 2 through 7 and good chunks of chapters 8 and 9 – is devoted to achieving this goal. As I noted above, I do not think any of the contributors take serious issue with the proposition that my administrative law values are pervasive in contemporary administrative law. Jason Varuhas does interrogate whether my interpretation really does match up to Australian self-understandings of administrative law principles – but here the interpreter must at least be offered the possibility of a dialogue with Australian jurists, to demonstrate that their resistance to the language of values is in serious tension with the principles they have articulated in their decisions.
It seemed to me that enhancing understanding and leaving it at that would render me vulnerable to the critique that my framework is not particularly useful. I was certainly right about that!
Even the analysis of legitimate expectation in Chapter 8 was not enough to ward off the critics. In Chapter 8, I apply my values-based approach to three thorny issues: the enforcement of substantive legitimate expectations; the role of reliance and knowledge for enforceability of legitimate expectations; and the enforceability of ultra vires representations. I carefully explain how each of these issues should be resolved by reference to administrative law values. Thin and all as it is, my interpretation proves capable of resolving difficult issues. That is not to say that that administrative law values alone will provide all of the answers to questions that vex administrative lawyers: indeed, I am explicit about this in general (at pp. 29-30); and in the specific context of legitimate expectations, the operationalisation of my resolution of the issues may vary from jurisdiction to jurisdiction depending on its approach to substantive review (at pp. 239, 241, 244-245).
Put simply, as I emphasise repeatedly, administrative law values guide (pp. 2, 12, 26, 222, 225, 246, 248), they do not dictate, and other considerations may be relevant (pp. 29-30). Readers interested in what a values-based approach to resolving issues in a particular area might look like can consult my essay on “Updating the Procedural Law of Judicial Review of Administrative Action”. Indeed, I am not sure that the approaches suggested by Alison Young and Jason Varuhas are necessarily incompatible with my interpretation of contemporary administrative law. When it comes to a given judge deciding a given issue on a given day, the judge might well look to the guidance offered by Professors Young and Varuhas to supplement that provided by administrative law values and other relevant considerations (such as precedent, constitutional provisions and analytical coherence).
Ultimately, no interpretive framework can conceivably answer every possible question. But it does not follow from the fact that one has not said everything that one has said nothing of interest. To think otherwise risks making the best the enemy of the good.
Any interpretive approach involves a pre-interpretive stage in which the interpreter selects the items to be interpreted. In my case, the items are the principles of institutional review, procedural fairness, substantive review, remedies, restrictions on remedies and scope of judicial review which are common to the five jurisdictions I draw from.
I take Jason Varuhas’s point that these sub-fields can have normative content in their own right and recognise that establishing this normative content is a distinctive exercise. I do not engage in that exercise. Rather, I appeal to the interpretive community of administrative lawyers, positing that they would agree with my choice of sub-fields and relevant principles (p. 28). There is nothing normative about my choices at the pre-interpretive stage. Some would say that in the interpretive community, the only norm is the will of the majority (not necessarily a morally attractive proposition). My point in defining the “core” is, first, to facilitate analysis and, second, to provide a focal point for potential criticism. It may be that some of the principles I have identified are too controversial to count as “core” principles. That, however, is a matter for debate within the interpretive community of administrative lawyers.
Jacob Weinrib, for example, suggests that I understate the role of presumptions in administrative law. Here, I respectfully disagree about the importance of presumptions. Where administrative law principles are expressed in terms of presumptions, the presumption is invariably contingent. It is never simply a matter of using ‘clear’ legislative language, say, to oust procedural fairness or judicial review entirely. It seems to me that legislative language will only be effective when fairness is respected elsewhere in the process or meaningful oversight is channeled into an alternative forum. Both the presumption and the conditions for the presumption to operate form part of the core. This is one of the reasons I use the broad term “principles” to describe the contemporary law of judicial review of administrative action. If one focuses on presumptions, then the problems Jacob Weinrib identifies might arise, but if one sees the presumptions for what I claim they really are (invoking the authority of the interpretive community!) then the problems are avoided with no loss of coherence.
The current symposium (as with others hosted on his marvellous platform) has been a model of respectful scholarly engagement, of taking an argument on its own terms, acknowledging strengths, probing for weaknesses and always searching for a better answer. I hope this discussion and dialogue will continue into the future, with these contributors and others.
Over time I have come to appreciate that legal scholars are in a continual discussion (and sometimes dialogue) with each other and legal practitioners (and sometimes scholars from other disciplines) in a shared project of self-improvement. In our line of work, no principle of law, no interpretive approach, no normative argument is beyond refinement. In the august company of the contributors to this blog, each of whom I admire enormously for their contributions to administrative law and legal theory, many refinements have been suggested. For my part, I undertake to brush better, floss more and eat less sugar.