Professor Paul Daly’s new book, Understanding Administrative Law in the Common Law World, represents a major contribution to thinking about administrative law in common law systems. I very much enjoyed reading it and gained a lot from it. It is a book that is likely to be very widely read and is destined to shape understanding of administrative law.
In this post I make three points in relation to the book. First, I offer some observations on the current state of administrative law scholarship. Second, I discuss the book’s values-based approach. Third, I consider the book’s use of comparative material.
The State of Administrative Law Scholarship
First, I wish to commend Professor Daly for offering a sustained account of administrative law, in the light of its normative underpinnings.
The book is a work in doctrinally-grounded theory. Professor Daly starts with a close understanding of doctrine and from that foundation develops a normative framework with the aim of deepening our understanding of the justifications for the legal norms we have. Development of such a framework can significantly advance legal knowledge, and may hold out the potential for guiding and critiquing legal decision-making, so as to facilitate legal coherence. Such scholarship is illustrative of the sort of distinctive contribution that legal scholars can make to the study of law, which can be practically useful. It takes an incredible amount of time, effort and intellect to produce such work.
Production of this type of scholarship should be at the very heart of the legal academy’s work. However, in contrast to other fields, such as private law, such scholarship has been in short supply in public law and part of the reason may be a turn to other methods within the public law academy, some of which are questionable.
Particularly since Brexit there has been a rise of ideology. There is an increasing tendency for scholars to give their ideological opinions or react to legal developments based on their partisan political commitments. Where they do so, legal scholars are not contributing anything to society that is distinctive. The same contributions could be made by a MP or lobby group. Moreover, these sorts of interventions could undermine the position of the academy as a reliable source of independent expertise in society.
There has been a turn to very high theory, involving exploration of highly abstract ideas, removed from time or place. Such theories are interesting. But they are of limited practical utility in that they do not seek to advance understanding of the law as it exists, nor are they generally capable of aiding resolution of concrete legal problems.
There has been a turn to empirical and ‘law in context’ work. Much of this work is valuable. But it does not advance legal understanding in the following sense: it does not adopt an internal perspective, seeking to understand the law according to received legal methods, but rather it adopts an external perspective seeking to understand how the law operates, deploying methods derived from other disciplines, such as sociology. More recently some have gone so far as to claim that empirical work could replace doctrinal work, but that is because these commentators do not understand doctrinal work. To offer a serious doctrinal account requires application of sophisticated methods of systematisation and the articulation of a theoretically-grounded framework for understanding the law, and no regression analysis or rudimentary exercise in case coding can do that.
Most recently we have seen the rise of a genre of public law scholarship which has as its principal aim to stress how complex public law is. These scholars, having glimpsed the rise of high theory and turn to ideology, have reacted like an ostrich, burying their heads in the legal materials. These scholars seem to consider any sort of abstraction to involve impermissible reductionism. It is one thing to be skeptical of big ideas. But this ‘doctrinal fundamentalist’ turn is an over-correction. Everyone knows the law is complex; it does not deepen understanding for the reader to have the law repeated back at them in labyrinthine detail. What would significantly advance understanding is development of a map to navigate the legal labyrinth, and that can only be attained through abstraction.
Some of these methods which have grown in prominence over time have merit, others less so. But none of them can substitute for the sort of contribution that doctrinally-grounded theoretical work can make. That is an approach that works from the messiness of doctrine to develop an analytical framework which makes sense of doctrinal rules and principles and the connections between them, and deepens our understanding of those norms by explaining their normative underpinnings. To fully understand a rule you need to understand the reason for the rule, and if you do not have this deeper understanding you cannot claim full understanding of the law.
Importantly, providing such understanding is a contribution the legal academy can make that no other group in society is equipped to make. Yet such work has been rare in public law, and our legal understanding is impoverished as a result. For the foregoing reasons I am glad Professor Daly has taken up the mantle, and I hope his work will inspire others to pursue such scholarship.
The Values-Based Approach: A Critique
Doctrinally-grounded theory or interpretivism holds out the benefits I have discussed. But there are different types of doctrinally-grounded theory.
Does the values-based approach articulated in the book fully realise these benefits? In my view the values-based approach is an important and significant contribution. But it also suffers drawbacks, and thus does not fully realise the potential of interpretive methods.
The book articulates four values: individual protection, good administration, electoral legitimacy and decision-making autonomy. The book’s central claim is that these values are immanent across administrative law, and recognising this fact will deepen our understanding of the law. Let us examine this values-based account.
First, where is the rule of law?
Second, the four values are set at a very high level of abstraction because they have to do a lot of work. They need to comprehend all of administrative law. The book adopts a very thin definition of each value. That the content of these values is thin enables Professor Daly to show these values are immanent across the entirety of administrative law. The theory thus scores highly in terms of ‘fit’. But this approach does significantly limit the degree to which the framework is capable of deepening our understanding of the law because the values have such thin normative content. For example when it comes to individual interests there is no attempt to articulate a framework for why certain interests are protected by the law but not others. No distinction is made between a rule that is specifically constituted to protect individual interests, and one which does so only incidentally by its operation: both rules would be conceptualised in the same way under the book’s framework, as rules that implicate the value of individual protection. When it comes to democratic values, no conception of democracy is elaborated. It follows that we are left with a general reference to electoral concerns. To know some vague idea of electoral legitimacy is immanent in administrative law doctrine does not tell us a great deal.
The values identified in the book are common to other areas of law. That is, they are not unique to administrative law. Tort, constitutional and human rights law could for example be explained by reference to these values. There is a risk with such broad values that in being able to explain everything, one may end up explaining nothing.
This leads to a deeper point, that it is not clear how these values provide an account of administrative law specifically. They do not explain why we should treat administrative law as a normatively significant category, because there is no attempt to argue these values are peculiar to administrative law. This seems is a significant issue when one’s aim is to understand administrative law specifically.
Further, it is not clear whether and why procedural fairness, substantive review and legitimate expectations should be treated as normatively significant categories to be analysed separately, given that on the book’s normative framework they all share the same normatively significant features; that is, the four values are immanent in all of those areas. One reason why it is important to understand the distinctive nature of such categories is because categorising a rule within one or the other category has normative consequences. For example, procedural fairness is judged on a correctness basis, whereas substantive review is not.
There are questions over the practical utility of the account.
Take the chapter on procedural fairness, a longer chapter at 39 pages. In that chapter I do not recall an instance where there is a sustained critique of the law, for example that some principle or judgment is incoherent or illegitimate. And the reason is that because the values are so broad there is probably no development that cannot be understood on the basis of them. If one can show a development implicates one of these broad values, which is not difficult as the values are all-encompassing, then the decision will cohere with the analytical framework that governs administrative law – and will not be open to critique on the basis of incoherence.
In this way there is a risk that the framework could operate as an apology for bad decisions – it could legitimise nearly every change in the law. Nothing can ever be incoherent. This is troubling because it seems to destroy any prospect of judicial accountability; there is no concrete benchmark against which we can scrutinise decisions and hold judges accountable.
This leads into a linked concern, that albeit the book maintains that the values framework is useful in guiding legal development, I have reservations. The framework sets out four extremely broad values, and the book favours an approach whereby judges decide on how to develop the law by weighing up these values. This does not seem to provide much guidance; rather it suggests a subjective mode of case-by-case adjudication according to which it is inevitable that different judges will conceptualise values differently, apportion different values different weight, and strike balances differently.
Chapter 8, on legitimate expectations, seeks to show that the values framework does provide guidance. But in that chapter the book articulates one view of how the balances should be struck in the field of legitimate expectations – Professor Daly’s view. But a judge may simply take a different view. And we cannot say that the judge is wrong or that they have developed the law incoherently because the only criterion for coherence is that their decision is a product of the values. If we critique the judge’s decision, they will say: ‘You would balance the values that way, but I have balanced them this way. Both views are legitimate, but I win as I have judicial power’. And we shall lack the intellectual resources to offer a response.
Lastly, there is a concern of aimlessness. On a values-based approach everything comes down to how the judge weighs the values from one case to the next. It follows that rather than a doctrine such as procedural fairness having a recognised function, such as promoting individual autonomy, the goals of that field shall be capable of being reconstituted from one case to the next. There is thus a real risk of the law descending into uncertainty, arbitrariness and inconsistency. One case might strongly support individual autonomy. But in the next case the value may be given no weight. Again, we shall lack the capacity to critique the fact that these decisions strike out in different directions, because they can each be said to engage the values, and there is, on the book’s account, no rule as to which values should be given priority or greater weight. It seems that everything is up for grabs.
Treatment of Comparative Material
Chapter 1 introduces the book as a work in comparative law, which considers the law of five jurisdictions: England and Wales, Ireland, New Zealand, Australia and Canada.
The book’s analysis is certainly enriched by its engagement with a range of jurisdictions. However, I have some concerns.
First, I would welcome further elaboration of the way in which the book is comparative. There is not a great deal of comparison of different jurisdictions. Rather, particular cases are picked out from jurisdictions to illustrate given propositions, and those propositions are woven into an overarching theory of administrative law. It is notthe case, for example, that there is a systematic treatment of the law of each jurisdiction, and then a comparison of the results.
Second, it is said the book adopts a functionalist method. But what is the function being compared? It is stated that the given function is how the different jurisdictions responded to the abolition of the prerogative writs. But is that a function? Furthermore, the writs have not been abolished in all of the countries that form part of the study. They persist in New Zealand (Judicial Review Procedure Act 2016, s 11), while in Australia, far from being abolished, the writs have been ‘constitutionalised’ (Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57; Commonwealth of Australia Constitution Act, s 75(v)).
Third, if the aim of the book is to understand administrative law then local context matters, even on a functionalist method. As Professor Harlow has argued in criticising the global administrative law movement, administrative law in each jurisdiction is different because it has been shaped by local context, which in turn makes it impossible to generalise from any one system.
Yet in the book there is very little engagement with local context. In the book’s Introduction there is a very good account of the historical development of administrative law, but there is a heavy bias towards the English story, particularly in the emphasis placed on abolition of the prerogative writs in the 1970s and enactment of the unified review procedure.
More generally while there may be some broad similarities between the jurisdictions there are also very significant differences. Some are federal, some devolved, others unitary. Parliament is sovereign in some but not others. In some there is a supreme bill of rights, others a statutory bill of rights and in Australia no federal bill of rights. Some have written constitutions, others do not. In some there is a system of merits tribunal review. In settler states there are significant issues concerning Indigenous peoples. Different conceptions of the judicial role prevail in different jurisdictions.
In each system administrative law will have been shaped by these fundamental structural features, and to understand the law of each one must understand those features (see Professor Saunders’ work on this topic). Yet in the book there is only limited engagement with context. Indeed subordination of all of these systems to one analytical framework may operate to airbrush out important differences. For example the book only makes one incidental reference to the Treaty of Waitangi. Yet Te Tiriti – and tikanga – are of growing importance within New Zealand administrative law (see eg Justice Palmer’s chapter in Varuhas & Stark (eds), The Frontiers of Public Law (Hart 2020) ch 6, and see the chapters in Part 2 more generally).
In some systems, such as Canada, a values-based account is eminently plausible. But others fit less easily within a values-based account. Australian lawyers and judges would seldom engage in values-based reasoning, and indeed would positively eschew such reasoning, this reflecting a more general skepticism towards big ideas, a focus on statutory interpretation, and a strict conception of the judicial role. This is a problem because one of the book’s own criteria for the success of a theory is that judges would recognise the type of explanation given by the theory.
Moreover, there are important variations in terms of the law across jurisdictions. For example, the book provides an account of procedural fairness which places individual dignity at its core. But the Australian courts have adopted an instrumentalist conception based in the idea of ‘practical injustice’ (Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex Parte Lam [2003] HCA 6, [37]); what ultimately matters is whether adherence to some procedural requirement could have made a practical difference to the outcome (MZAPC v Minister for Immigration and Border Protection [2021] HCA 17).
More generally, Justice Brennan’s judgment in Attorney-General (NSW) v Quin ((1990) 170 CLR 1, 34-40) eschews analysis in terms of individual interests and that judgment has shaped contemporary Australian administrative law fundamentally. The book’s values-based framework accords no built-in priority to any of the four values. But this seems at odds with the logic of Australian administrative law, within which individual protection is systematically a low priority. In this connection there may be a concern that an account of Australian administrative law which maintains that protection of the individual is normatively equal to other values depicts the law as more humane than it really is.
Let me conclude by congratulating Professor Daly on the publication of Understanding Administrative Law in the Common Law World. The book is a major achievement. I have gained a great deal from engaging with the work – and I look forward to continuing the debate!
Jason N E Varuhas is Professor of Law and Director of the Centre for Comparative Constitutional Studies at Melbourne Law School.
Administrative Law in the Common Law World 