Presenting Administrative Law Values: a Note on the Inaugural Public Law Conference
Last week I presented my paper “Administrative Law: a Values-Based Approach” at the inaugural Public Law Conference at the University of Cambridge. I hope to have a few posts on the conference, focusing on panels that I attended. But I will start with a post on my own paper.
By way of general comment, I greatly enjoyed the Conference. It was nice to be back in Cambridge for a few days, to catch up with many old friends and make some new ones. Events like this also focus one’s attention: papers that might otherwise go unread get the careful consideration they deserve; jurisdictions whose jurisprudence seems other-worldly are demystified; and new historical work unsettles one’s views about the past. I am already making plans to attend the second installment in 2016. Mark Elliott and Anna Katharina Mangold have also posted some general thoughts about the event.
In terms of my paper, the constructive criticism I received was much as I anticipated. In particular, the four values — the rule of law, good administration, democracy and separation of powers — do not provide determinative guidance on the outcome of individual cases. But do they need to be determinative? My goal in this paper was to better understand what drives arguments and doctrinal development in administrative law. As I put it in my presentation, I followed an interpretivist approach for pragmatic reasons, not out of philosophical conviction. Very simply, the values provide a framework that facilitates understanding. For this reason, I included a discussion of remedies. Often, remedies are passed over by judges and scholars. I suggest, however, that they can be knitted into the fabric of administrative law, because remedies are cut from the same cloth as substantive and procedural review.
Facilitating understanding is, however, only one part of my overall ‘values’ project. The next step is to ask and answer questions of legitimacy: (1) the legitimacy of judicial enforcement of the four values in deciding cases and developing doctrine; and (2) whether the enforcement of these values enhances the legitimacy of the administrative state. My tentative answer is that the enforcement of liberal-democratic values is both legitimate per se and legitimacy-enhancing. Although these questions animate my paper to some extent, they are not posed directly.
Why treat the values on an equal footing? One commenter suggested that the rule of law is the organizing principle of administrative law, and that good administration, democracy and the separation of powers should be treated as aspects of it, rather than as separate values. The difficulty with putting the rule of law first is two-fold: first, it tends to privilege a “rights-based” approach to judicial review doctrine, an approach that fails to explain large areas of modern doctrine; second, it is open to the objection (made by David Dyzenhaus in his paper, “Towards a Formal Theory of Public Law”) that it is a covert libertarian position designed to maximize individual autonomy at the expense of broader social interests. Problems would also arise if other values were privileged: for example, putting good administration front and centre risks marginalizing individual interests; emphasizing democracy above all else might imperil the rule of law; and the difficulties in employing the separation of powers as an organizing principle are well known and numerous.
Nonetheless, to better respond to this and the other criticisms, I may in future work need to advocate overtly for a pluralist approach. In private law, Munzer’s A Theory of Property maps out such an approach, refusing to accept any one theory of property as the theory of property but instead recognizing that the leading theoretical approaches may each be useful in the context of a particular problem.
This post is rather theory-heavy, which is somewhat unfortunate, given that my paper is concerned with doctrine. The proper place of theory in public law was raised by David Feldman at the end of the Conference: I hope to return to the issue in a future post.
I’ve not identified those from whom I received feedback, but feel free to comment!
This content has been updated on September 24, 2014 at 13:22.