Over the last half century, courts around the common law world have transformed the principles of judicial review of administrative action. Administrative law’s scope and depth have increased dramatically. Increasingly intrusive grounds of review – including for factual error and, in some jurisdictions, breach of substantive legitimate expectations – are available against a wide variety of public and private actors performing governmental functions. Assessing the legitimacy of this judicial creativity has been an important concern of administrative lawyers. However, an assessment of legitimacy cannot be performed without an understanding of the nature of administrative law.
I argue in this paper, building on previous work, that administrative law is marked by three characteristics. It is open, contestable and dynamic. These characteristics give the body of administrative law doctrine developed by judges a unique nature which must be understood prior to assessing its legitimacy.
Its openness results from the breadth of legislative grants of power to administrative decision-makers and the open-textured nature of organizing concepts such as reasonableness and fairness. Determining the limits of these powers and concepts requires interpretation, a process which in the common law tradition is infused with value judgments. Its contestability results from the clash of competing values, such as the rule of law, good administration, democracy and separation of powers. By giving effect to these values in the context of particular factual situations, judges decide individual cases and develop administrative law doctrine. Its dynamism results from the contestable nature of these values. Differing conceptions and constellations of the values drive doctrinal change, because the values will be differently conceived and applied by judges from different backgrounds, legal traditions and temporal periods.
Against this backdrop, common to the whole body of judicial review doctrine, challenges to the legitimacy of administrative law can be properly assessed. The development of new fetters on administrative decision-makers has occurred in the absence of express legislative authorization permitting judges to impose restrictions on discretion. Equally, however, legislatures have generally not elected to erect barriers to judicial creativity. Given the openness, contestability and dynamism of administrative law, the question is not whether judicial creativity is permissible, but how best it can be channelled. To the extent that the values to be found in decided cases are consistent with the basic commitments of modern liberal democracy, there can be no objection to judicial application of the rule of law, good administration, democracy and separation of powers. However, a pluralist approach is preferable, one in which judges strive to harmonize these values, balancing private rights against public interest while respecting indicators of legislative intent and ensuring that distinct bodies play distinct institutional roles.