Understanding Administrative Law in the Common Law World (OUP 2021), by Paul Daly

I am happy to describe myself as a comparative lawyer. I studied law in my native Ireland, before doing an LLM in the United States and a PhD in the United Kingdom (where I later taught for several years). I also worked in Canada – both in the civilian tradition at the Université de Montréal and its common law counterpart at the University of Ottawa. Over time, and in part due to the insights of excellent graduate students, I came to learn more about other common law jurisdictions, especially Australia and New Zealand. By nurture if not by nature, I am a comparative administrative lawyer.

These studies and scholarly activities form the personal and professional backdrop to Understanding Administrative Law in the Common Law World (OUP, 2021). In this book, I develop a novel and fresh theoretical framework for understanding those core features of the judge-made law of judicial review of administrative action which are common to Australia, Canada, England, Ireland and New Zealand. I do so conscious of the fact that I am wandering lonely territory. Administrative law has been “relatively neglected by the boom in comparison” across private and public law in recent decades.[1]

This comparative neglect of comparative administrative law is not especially surprising. Comparative lawyers can be extremely ambitious, if not messianic.[2] Take Zweigert and Kötz, who claimed that only comparative law can pave the way for a true legal science. For them, comparative law “permits us to catch sight, through the differences in detail, of the grand similarities and so to deepen our belief in the existence of a unitary sense of justice”.[3]

Such lofty objectives might dissuade those who would consider engaging in comparative administrative law analysis. For public lawyers have long appreciated that the institutions of public law “arise not only from deliberate design (typically from the national legislator or national legal professions) but from both history and underlying social problems, such as religious or linguistic diversity”.[4] Arguably, then, comparative analysis in the field of public law “assumes a shared understanding of political, social and economic functions of the state that cannot be taken for granted”.[5] 

My primary claim is that four values derived from the decided cases– individual self-realisation; good administration; electoral legitimacy; and decisional autonomy – can be understood as providing an intelligible structure for the core features of administrative law in the five Commonwealth jurisdictions. Individual self-realisation is concerned with how individuals are treated by administrative decision-makers, in particular, their ability to plan their affairs and their interest in being treated with concern and respect by officials. Good administration involves judicial solicitude for effective and efficient public administration, permitting administrative decision-makers to develop and implement policies without running down their scarce resources. Electoral legitimacy involves respect for the mandates won by elected politicians who sit in legislative assemblies and exercise decision-making authority. Finally, decisional autonomy respects the distinctive roles played by distinctive bodies – the judiciary, administrative decision-makers and private actors – in the contemporary legal system. These judicially created, normatively attractive values can be understood to be present, I say, throughout the law of judicial review of administrative action. Mine is an interpretive approach, based on teasing out an intelligible structure from the decided cases.

Given these immodest goals, how do I respond to the difficulty of assuming a “shared understanding” among the five legal systems included in my book? My comparative-law approach is decidedly functionalist. In my focus on these five jurisdictions I am comforted by the knowledge that “the common law tradition involving in particular England, Ireland, Canada, Australia, New Zealand…has been an active forum of debate” because there is “a significant commonality in traditions and approaches”: they bear a “sufficient family resemblance” to justify comparative study.[6] These Westminster-style jurisdictions have a “filial relationship”[7] as part of the common law tradition of controlling administrative action through supervision by the ordinary courts.[8] Indeed, “a New Zealand lawyer [say] not perceiving their own law as a form of common law is virtually one-eyed”.[9] Moreover, these jurisdictions have faced a common problem since the end of the 1970s. With the abolition of the prerogative writs, it has become necessary to replace the old structure with a new framework for judicial control of public administration. My concern in this book is therefore a classically comparative concern, with those “rules which perform the same function and address the same real problem…” in similarly situated jurisdictions,[10] and my orientation avowedly functionalist.

What of the scope of my study? By “core” I mean those rules found in leading cases and textbooks relating to institutional structures, procedural fairness, judicial scrutiny of the substance of administrative decisions, remedies judges may issue, restrictions on remedies, and the scope of judicial review of administrative action, which any administrative lawyer anywhere in the Commonwealth would instinctively recognise as central to judicial review of administrative action. The “parameters” of the core are determined “by the consensus of those familiar with the law”.[11] To put the point in concrete terms: where I refer to cases, it is on the assumption that they could safely be cited to a judge in Australia, Canada, England and Wales, Ireland or New Zealand. Historically, there has been a considerable amount of jurisprudential cross-pollination between these jurisdictions, allowing me to make claims about a shared core more readily than other comparatists (such as European private lawyers, for example). My functional approach, therefore, seeks to identify the core and construct an intelligible, values-based framework around it.

In all of this, I am nonetheless keenly aware of national differences. An Australian barrister could not parachute into an English or Canadian courtroom and adequately conduct proceedings; similarly, a lawyer from Calgary teleported to Canberra would have significant difficulties, not just because the accents and intonations are different but because the minutiae of the law and the procedures of the courts are different. Equally, however, “it would be wrong to think that comparative enquiries which aim at unification or harmonization cannot accept difference”.[12] Even a sceptic of universal theories must admit that “theorizing can be of great practical value, in making the law more coherent, applying the law to new issues, and explaining law to students and to the general public”.[13] My goal is not to provide an exhaustive account of every doctrinal twist and turn administrative law has taken throughout the Commonwealth. Rather, the argument advanced is that there is an intelligible, values-based structure which can help law students, lawyers, judges, those from other disciplines and citizens to understand the core features of judicial review of administrative action, about which there is a remarkable degree of agreement across the common law world for historical reasons not necessarily present in other areas or other subjects. That is not to say there is consensus – and where there is none I acknowledge it to be the case – but that as far as the core is concerned, differences are not especially profound, certainly not unmanageably so.

That said, it would be naïve to claim that these values alone are responsible for the structure of contemporary administrative law. Different jurisdictions might have different constitutional rules; to take a well-known example, Australian judges are constitutionally prohibited from exercising non-judicial power, something that imposes limits on the doctrinal rules that courts can develop in the area of judicial review of administrative action.[14] Similarly, the law in a particular jurisdiction might have developed by way of precedent and tradition so as to rule out a particular innovation; in Australia and Canada, for example, judges have repeatedly – and strongly – insisted that substantive enforcement of legitimate expectations by courts cannot be countenanced, which greatly reduces the scope for creative judicial innovation in this area in those jurisdictions.[15] Finally, analytical arguments might be made, perhaps on the basis of incoherence in the application of concepts (e.g. jurisdictional error) or perhaps on the basis of consistency with other areas of domestic law (e.g. if there is no reliance requirement for, say, estoppel, it is inconsistent to have one for legitimate expectations). These will have greater or lesser force depending on the historical development of the law in a particular jurisdiction. In general, the lower the level of abstraction, the greater the weight these other considerations will have. As to the core features of judicial review of administrative action, the intelligible structure provided by individual self-realisation, good administration, electoral legitimacy and decisional autonomy can be clearly perceived; but as one delves into the minutiae of national legal systems, they will tend to fade from view, albeit that even here they might be useful in guiding the development of the law.[16]

To conclude, I should say that Understanding Administrative Law in the Common Law World is motivated by a desire to break down barriers to understanding and discussion. One reason for writing this book was to bring together areas of the law of judicial review of administrative action which have heretofore been studied, taught, and argued about in silos. Another was to bring lawyers from different jurisdictions into conversation around the shared core features of administrative law and a common values-based framework that can be understood to structure those core features. Without seeking to minimise cross-border differences, I hope this book contributes to an appreciation of the commonalities across the vast field of the law of judicial review of administrative action, and the common law world.

Posted by Paul Daly (University Research Chair in Administrative Law & Governance, University of Ottawa)

[1] Janina Boughey, “Administrative Law: the Next Frontier for Comparative Law” (2013) 62 International and Comparative Law Quarterly 55, 56.

[2] Cf Mathias Siems, “Malicious Legal Transplants” (2018) 38 Legal Studies 103.

[3] Konrad Zweigert and Hein Kötz, An Introduction to Comparative Law, trans. Tony Weir, 3rd ed. (Oxford University Press, Oxford, 1998), 3. See also Mauro Bussani and Ugo Mattei, “The Common Core Approach to European Private Law” (1997) 3 Columbia Journal of European Law 339, 341.

[4] John Bell, “Public Law in Europe: Caught between the National, the Sub-National and the European?” in Mark Van Hoecke ed., Epistemology and Methodology of Comparative Law (Hart, Oxford, 2004), 259, 265. See also Otto Kahn-Freud, “On Uses and Misuses of Comparative Law” (1974) 37 Modern Law Review 1, 17.

[5] Mathias Siems, Comparative Law, 2nd ed. (Cambridge University Press, Cambridge, 2018), 34.

[6] John Bell, “Comparative Administrative Law” in Mathias Reimann and Reinhard Zimmermann eds., The Oxford Handbook of Comparative Law (Oxford University Press, Oxford, 2006), 1259, 1266.

[7] Geoffrey Samuel, An Introduction to Comparative Law Theory and Method (Hart, Oxford, 2014), 57.

[8] Han-Ru Zhou, “A Contextual Defense of ‘Comparative Constitutional Law’” (2014) 12 International Journal of Constitutional Law 1034, 1037.

[9] Jaako Husa, A New Introduction to Comparative Law (Hart, Oxford, 2015), 69.

[10] Konrad Zweigert and Hein Kötz, An Introduction to Comparative Law, trans. Tony Weir, 3rd ed. (Oxford University Press, Oxford, 1998), 10.

[11] Stephen Smith, Contract Theory (Oxford University Press, Oxford, 2004), 9.

[12] Gerhard Dannemann, “Comparative Law: Study of Similarities or Differences?” in Mathias Reimann and Reinhard Zimmermann eds., The Oxford Handbook of Comparative Law (Oxford University Press, Oxford, 2006), 383, 402.

[13] Brian Bix, “The Promise and Problems of Universal, General Theories of Contract Law” (2017) 30 Ratio Juris 391, 400.

[14] Huddart, Parker & Co Pty Ltd v Moorhead (1908) 8 CLR 330; Shell Co of Australia Ltd v Federal Commissioner of Taxation [1931] AC 275; R v Kirby; ex parte Boilermakers’ Society of Australia (1956) 94 CLR 254.

[15] Reference Re Canada Assistance Plan (BC) [1991] 2 SCR 525; Minister for Immigration and Border Protection v WZARH [2015] HCA 40; (2015) 256 CLR 326.

[16] See e.g. Paul Daly, “Reasons and Reasonableness in Administrative Law: Delta Air Lines Inc. v Lukacs” (2018) 31 Canadian Journal of Administrative Law & Practice 209.