This is the third piece in a series of comments offered on Paul Daly’s book Understanding Administrative Law in the Common Law World (OUP 2021) at a meeting hosted by the public law cluster at the Essex Law School on 9th March 2022 and gathering Paul Daly, John Bell (click here for his comments), Peter Cane (click here for his comments) and Giacinto della Cananea. Paul Daly provided a summary of his book earlier, available by clicking here. He will kindly reply to the comments.
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- Introduction
Paul Daly’s book(Understanding Administrative Law in the Common Law World, OUP, 2021, to which the citations here refer) is interesting from more than one point of view. Firstly, the intent is to demonstrate that there is an “intelligible structure” to administrative law. This is a healthy antidote to the recurring view that administrative law is no more than a deviation from the (supposedly) orthodox rules of law, if not from the Rule of Law, and is, therefore, ‘unlawful’. Secondly, Daly focuses on principles, specifically those governing judicial review of administrative action, including legality, procedural fairness, and rationality. Lastly, he examines these principles from a comparative perspective. Although his analysis is based on the experience of some Common Law jurisdictions, there is little doubt that the principles considered are relevant to any system of judicial review, even if its formal structure differs from those of the jurisdictions examined, which is precisely the angle I have chosen as a public lawyer in a civil law system, engaged in a comparative study on the ‘common core’ of European administrative laws. For clarity, it should be said from the outset that my comparative enquiry focuses on administrative procedure as distinct from judicial review, which, although it is one of the aspects I cover, is not the main one. Our research interests are thus distinct but close and, in some sense, complementary. There follow a series of more specific remarks, some of which concern Daly’s comparative approach to Common Law jurisdictions, while others focus on continental European legal systems. These are proceeded by a brief methodological discussion regarding the emergence of different methods.
2. Comparing administrative laws: methodological pluralism
Paul Daly does not simply acknowledge that he has learnt much from comparative approaches to administrative law, among other things (p. 25); he makes an important remark well worth quoting:
“There is no right or wrong way to study administrative law, for lawyers are not mathematicians or engineers with theorems to use and hypotheses there to be disproved”.
I could not agree more with his view: it endorses researchers using a range of methods in the same field, in contrast with the traditional belief – still beloved of some public lawyers – that there is a single ‘legal method’. This allows verification of the data produced or referred to, making it possible to ascertain their reliability and thus advancing knowledge.
From this arises a further and twofold consequence. As Daly puts it, the first of these is the “necessity of coherence” (p. 25). Every researcher must be aware that their work will be assessed according to their initial choices regarding the scope of the analysis and the methodology adopted. Furthermore, it must be clear what is meant by ‘comparative law’, which perhaps requires some explanation. Especially in older studies, we may find a juxtaposition of two levels of analysis: administrative law itself and administrative law scholarship. This has led, for instance, to some confusion concerning the thorny question of the ‘birth’ of administrative law. Administrative institutions and their legal regimes have existed independently of any scholarly works recognising their distinctive features, as Paul Craig convincingly argues with regard to UK law ([1]). Moreover, as in other fields of law, administrative law has frequently been more the object of the juxtaposition of national studies than genuine comparison. Interestingly, Paul Daly goes well beyond juxtaposition, engaging in a comparison between various systems according to a well-structured ‘grid’ of principles, including, in particular, legality, fairness, and rationality. The ideas of justice and fairness in Daly’s comparative enquiry are also fundamental for administrative lawyers in other parts of the Western legal tradition and those found elsewhere.
3. Comparing administrative laws in the Common Law world
Daly establishes the limit or scope of his comparative analysis concerning the ‘Common Law world’ with precision. Anyone who engages in comparative analysis has to make choices. Daly’s analysis is interesting in terms of his criteria for both inclusion and exclusion. The former define the specific conditions or features that make it appropriate to include a particular legal order in a comparative study. The latter define the conditions or features that would make it inappropriate to include them.
A) The Common Law jurisdictions selected for comparison
Daly makes a clear choice regarding inclusion: to focus on “a selection of leading jurisdictions of the common law world” (p. 1), namely Australia, Canada, England and Wales (with the notable exclusion of Scotland), Ireland, and New Zealand. These legal systems constitute, he observes, a “network of democracies”, and “Westminster-style” democracies in particular (p. 10). They thus bear, he continues, “a ‘sufficient family resemblance’ to justify comparative study” as they have a ‘filial relationship’ as part of the Common Law tradition of controlling administrative action through supervision by the ordinary courts (p. 27 and 202). His interest is therefore the ‘classically comparative concern’ of ascertaining whether certain rules perform the same function in relation to real problems in similarly situated jurisdictions.
This shows that Daly’s is an overtly functionalist approach, and there is nothing wrong with this in the light of what has just been said about pluralism. However, two quick comments would appear necessary in connection with Daly’s vision of the ‘Common Law world’. The first is that there are some distinctions within the sample regarding the existence of a written constitution (Ireland) or a bill of rights (Canada), for example. Daly himself finds that there are divergences “at the level of details” also in the area of judicial review. This probably explains why he uses the concept of ‘core’, to which I return later. Meanwhile, it can be observed that his starting point, notably the ‘filial relationship’, raises important questions concerning the emergence of other systems of judicial review, such as that of the United States.
B) The Common Law jurisdictions excluded from comparison: US law
US law deserves particular attention, not only because it has provided a number of benchmarks for jurists working within other jurisdictions but also for a reason more directly linked to the ‘Common Law world’. When his Law of the Constitution was first published,Dicey and others took the “fundamental identity of English and American law” for granted, though they were aware of the different roles played by written and unwritten law ([2]). Of course, the existence and development of judicial review of legislation was another fundamental distinctive feature.
It may be argued that other significant differences emerged in the sphere of administrative law in the 20th century. One of these concerns the source of the principles and rules of administrative law. Curiously, at the time of Dicey’s attack on administrative law, this was not codified on both sides of the Channel, which explains why, also in continental legal orders there was no comprehensive and systematic legislation comparable to the contents of civil codes. It thus fell to the courts to define and refine the general principles of administrative law ([3]). In the 20th century, however, with the emergence of the administrative State, several countries adopted one type of legislation or another for administrative procedure. Austria was the first, in 1925, followed by other Central and Eastern European countries ([4]). The US Administrative Procedure Act was adopted in 1946, followed by similar legislation at individual state level. Lack of space prevents any detailed analysis of this legislation, but it is an aspect that explains Daly’s choice, in contrast with studies that still take the traditional ‘unity’ of Anglo-American law for granted.
Another distinctive trait concerns a requirement closely connected with more than one general principle of administrative law: the duty to give reasons. Like several English public lawyers, including Paul Craig or Carol Harlow and Richard Rawlings ([5]), Daly observes that administrative decisions are more robust and acceptable when reasons must be given (p. 6), though they must only occasionally be provided “as a matter of legal obligation”. It is immediately apparent that there exists a marked divergence from US public law in this respect because, as Martin Shapiro showed three decades ago, not only is the giving reasons requirement generalised, but it is sometimes transformed from being a merely procedural requirement (to give a reason, whatever reason) into a substantive one (where reasons cannot be stereotyped) ([6]). Moreover, a sort of ‘dialogue requirement’ is imposed on public authorities in that they must explain why they dissent from the arguments and the evidence brought by private parties (individuals, environmental associations, and so on). Incidentally, some continental legal systems – for example, the Netherlands – follow the US in requiring not only a reason but that it be a good or adequate one. This opens up the field for further analysis within these two parts of the Western legal tradition and other legal traditions globally, a circumstance of great relevance for comparative public law. It would be interesting, for example, to hear from experts in Muslim law whether, and to what extent, reasons must be given in terms of both law and fact.
Two further aspects of divergence between US and British law ([7]) emerge from Daly’s analysis of the core principles of judicial review. One is the British presumption in favour of retaining administrative discretion (to which I will return later), as distinct from the American conception of discretion, which should be exercised according to policy or standards. Another aspect regards standing. Daly contrasts the position of the legal systems he chooses for his sample and the US position, where standing is restricted to those who can demonstrate “a concrete and particularized interest” in the impugned decision (p. 194). This position is, incidentally, very similar to that of continental legal systems, which I will now consider more closely.
4. Comparing administrative laws in Europe: unity and differentiation
A third and last set of remarks is called for from a pan-European perspective. It may be helpful to briefly mention the approaches prevalent in the past before considering the existence of joint and connective elements.
A) Examining both commonality and diversity
The historical antecedents of contemporary comparative methods have been distinguished by Rudolf Schlesinger on the basis of whether they emphasise differences or similarities ([8]). For a long time, until the 18th century, comparison of law and legal matters across political borders was a standard technique for both lawyers and judges, as Gino Gorla’s studies demonstrated ([9]). Subsequently, with the age of codifications, those engaged in comparative studies felt compelled to point out differences rather than similarities. The influence of the German Historic school of law, in this respect, is hardly negligible. A dominant focus on ‘foreign law’ thus emerged.
Both these approaches are descriptively and normatively questionable. From the descriptive point of view, they fail to examine or seek to make sense of some part of the real world. Normatively, they are based on a subjective rather than an objective choice. This also applies to a variant of the integrative strand that has gained ground in Europe, namely the idea that comparative legal analysis should focus on similarities, thus laying the ground for harmonising national laws still further. Such a conception is debatable within the European Union, where several treaty provisions limit the scope of permissible harmonisation, and the Court of Justice has taken a different direction since its Cassis de Dijon ruling (1979). It is even more debatable within the broader Europe of the Council of Europe, within which the ECHR has been adopted, also having legal bearing in England and Wales, as well as in Northern Ireland.
B) The European legal area: common and connective traits
Schlesinger’s theory is also crucial as far as ‘common core’ studies are concerned, asserting that it is essential to bear in mind that modern legal systems are characterised not only by innumerable differences but also by “some common and connecting elements” that do not constitute mere ideals but contribute to shaping our legal institutions. Again, this limited space does not permit an in-depth analysis here, but it is integral to Schlesinger’s stance that lawyers should adopt a different approach to comparison than had been usual up to 1945, simply because the fundamental pillars of modern legal systems have changed since then. This is obviously the case of the European Union, whose treaties recognise the necessity to preserve national traditions while recognising ‘common constitutional traditions’ (Article 6 TEU) with the status of general principles of EU law.
While this is well known, the concrete implications are perhaps less so, and some remarks on the matter may be in order. Firstly, in a growing number of cases, the courts called upon to rule on the action (or inaction) of a public authority in an area involving EU law or the ECHR will usually interpret their domestic laws according to the principles of justice, legality, and procedural fairness or due process shared by European courts. National judges will generally refer to those principles as ‘European’, though they sometimes have a discernible origin in one legal system or another, for example, the protection of legitimate expectations. Consequently, even those who contest the result that the court believes should be achieved in a particular case will not regard it as illegitimate, unavailable, or intolerably beyond the limits of judicial interpretation. On the contrary, the courts’ interpretations will be regarded as a regular part of everyday business. They will be an integral and necessary aspect of public law, confirming that the status of general principles matters more than their origin.
Secondly, while this way of seeing the general principles of law, such as legality, rationality, and fairness somehow veils the national origins of a principle, there are cases where courts either show that they are aware that a norm developed mainly within a national jurisdiction or that it refers to the practice of other judges within the same ‘regional’ organisation when faced with a similar or identical case. This can be explained in terms of theories of adjudication, whereby a court may well consider a number of factors when exercising its discretion, including what other national regulators have done. It may also do so when evaluating the evidence and arguments brought by the parties. For example, the choices other regulators have made in the area of electronic communications may become a point of reference when substantiating the argument that one interpretation of EU law should be favored over another because it reflects a shared vision of how common principles of objectivity and proportionality should be understood. An interesting variant of this situation occurs when a domestic court has to choose between two distinct interpretations of national law and justifies its choice by stating that one is to be preferred since it is consistent with a European principle as interpreted by courts in another legal system. An example of this was when an Italian administrative court ruled that if a disputed administrative measure was legally “intolerable”, then the public authority that adopted it not only had the power but the duty to either void or withdraw it, in explicit harmony with the established case law of the German administrative courts ([10]).
What these remarks show is not the irrelevance of national traditions but the gradual evolution of a legal mindset wherein the preferred interpretation of national law is the one that best fits in with shared values and principles. Of course, there can be – and indeed are – other cases where the courts follow a different line of reasoning. Nevertheless, one thing is clear: if an Italian or Spanish public lawyer were to cite French or German case law, it would not be regarded as being outside what is permissible. This is not only true regarding the application of legal provisions under the ECHR or EU law. It applies all the more so in cases where a legislative framework is clearly influenced by, or imported from, another legal system as happened when the Austrian general legislation on administrative procedure of 1925 was regarded as a prototype.
C) An evolving ‘common core’
While the preceding remarks confirm that Europe is a broad cultural area characterised by both commonality and diversity, they raise a more specific question concerning the possibility of discerning a common core. In this respect, Daly sharpens our understanding from two points of view: his functional approach on the one hand, and historical awareness, and consequent understanding of the dimension of change, on the other. From the functional standpoint, he focuses on the ‘core features of contemporary administrative law’ (p. viii) or “today’s administrative law” (pp. 9 and 25); to put it more precisely, “the core features of judicial review of administrative action” (p. 2).
One important area of the law, examined in the second chapter of the book, is especially suited to our purposes. It concerns the relationship between legality and the ‘no fettering’ rule, seen as a principle (p. 32). This rule or principle is particularly interesting from the comparative perspective. In the 1960s, when Wade analysed the judicial review of administration, he observed that according to the traditional English legal position, once Parliament had granted a public authority the right to exercise its own discretion, it could not be fettered or surrendered ([11]). When Wade’s textbook was translated into Italian, Massimo Severo Giannini laid considerable emphasis on this principle ([12]). He emphasised that, while continental legal systems sought to eliminate the element of discretion in administrative proceedings, English courts showed adequate awareness that discretion could not be eliminated. However, this was not an objective assessment but rather a very inaccurate description of what the courts did in France, Germany, and Italy, for example, by requiring public authorities to define standards in order to “limit and structure discretionary power” and make it accountable. It was precisely because this requirement implied that the policy to be applied should somehow be standardised using administrative rules not included in fully binding government regulations that discretion was not eliminated. French legal culture emphasised this sort of intermediate situation (administration ligotée) between discretionary and bound administration. Giannini’s ‘contrastive’ comparison was thus unfounded. Moreover, things have changed since then. A comparison between two judicial decisions undertaken by the House of Lords, British Oxygen (1970) and Bushell (1981) (to which Daly amply refers: pp. 58-62 and 95-96), shows that in the latter it was held that discretion must be exercised in conformity with the constitutional requirement to perform duties “fairly and consistently”, a proposition with which most lawyers from non-Common Law systems would readily agree.
A general argument that can be made is that methodologically speaking – and this is something we must not lose sight of – the correct starting point is to seek to understand the concepts of commonality and diversity as they are understood here. Cases will arise where the effects of traditional judicial doctrines will be unacceptable to modern eyes, so the principle will have to be modified. More often than not, similar solutions will be found. Consequently, a better understanding of the solution and the underlying background theories can thus contribute to the greater advancement of knowledge.
Posted by Professor Giacinto della Cananea (Bocconi University)
Suggested citation: G della Cananea, “The ‘Core’ of Administrative Law: an Outsider’s View”, BACL, available at https://british-association-comparative-law.org/?p=4543.
[1] P Craig, The legitimacy of US administrative law and the foundations of English administrative law: Setting the historical record straight, Oxford Legal Studies Research Paper, n. 44, 2016; on France, see JL Mestre, Introduction historique au droit administratif français (PUF 1985).
[2] AV Dicey, Introduction to the Study of the Law of the Constitution (10th edn MacMillan 1954), 28.
[3] For further remarks, see G. della Cananea and S. Mannoni (eds.), Administrative Justice Fin de siècle. Early Judicial Standards of Administrative Conduct in Europe (1890-1910) (Oxford UP 2020) (comparing Belgium, France, Italy, the UK, the German Empire and the Habsburg Empire).
[4] See G della Cananea, A Ferrari Zumbini and O Pfersmann (eds.), The Austrian Codification of Administrative Procedure: Diffusion and Oblivion (Oxford UP 2022 forthcoming).
[5] P Craig, The Common law, reasons and administrative justice (1994), 53 Cambridge L.J. 301; C Harlow and R Rawlings, Law and Administration (3rd edn Cambridge UP 2009) 631.
[6] M Shapiro, The Giving Reasons Requirement (1992), University of Chicago Legal Forum, 179, at 186.
[7] On which see D Priel, Conceptions of Authority and the Anglo-American Common Law Divide (2017) 65 Am. J. Comp. L. 609.
[8] R Schlesinger, The Past and Future of Comparative Law (1995), 43 Am. J. Comp. L. 477.
[9] G Gorla, Civilian Judicial Decisions – An Historic Account of Italian Style (1969-70) 44 Tulane L. R. 740.
[10] Administrative tribunal of Trento, Judgment n. 305/2009. German legal theory has been examined, among others, by P Badura, Le role de la jurisprudence en droit public allemand (1984), Rev. int. dr. comp., numéro special, vol. 6, 301.
For further analysis, see M Andenas and D Fairgrieve (eds.), Courts and Comparative Law (Oxford UP 2015) (particularly part IV, including the reports concerning France and Italy).
[11] WHR Wade, Administrative Law (Clarendon 1967) 60, referring to Simms Motor Unit Ltd. v. Minister of Labour (1946). But see also B Schwartz and HWR Wade, Legal Control of Government: Administrative Law in Britain and the United States (Clarendon Press 1972) 106 (noting the difference between UK and US law).
[12] MS Giannini, Presentazione, in HRW Wade, Diritto amministrativo inglese (Giuffrè, 1965) xvi.
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