Values, Doctrine and Decisions in Judicial Review of Administrative Action
In his London School of Economics Ph.D. thesis, Dean Knight offers an interesting theoretical perspective on judicial review doctrine. Grouping writers and judges into four broad groups, ranging from those who prefer more formalistic, bounded approaches to those who embrace thorough contextual inquiry, he assesses each group against Lon Fuller’s ‘internal morality of law’. Knight’s conclusion is that the optimal approach, at least in terms of complying with Fuller’s desiderata, is a mix of formal categories and contextual analysis. Entitled Vigilance and Restraint in the Common Law of Judicial Review: Scope, Grounds, Intensity, Context, it can be accessed here. Knight summarizes his thesis:
The mediation of the balance between vigilance and restraint is a fundamental feature of judicial review of administrative action in the Anglo-Commonwealth. This balance is realised through the modulation of the depth of scrutiny when reviewing the decisions of ministers, public bodies and officials. While variability is ubiquitous, it takes different shapes and forms. In this thesis I identify the main approaches employed in judicial review in England, Canada, Australia and New Zealand over the last 50 years or so: (a) scope of review, based on an array of formalistic categories which determine whether judicial intervention is permissible; (b) grounds of review, based on a simplified and generalised set of grounds of intervention; (c) intensity of review, based on explicit calibration of the depth of scrutiny taking into account a series of constitutional, institutional and functional factors; and (d) contextual review, based on an unstructured (and sometimes instinctive) overall judgement about whether to intervene according to the circumstances of the case. This thesis has three dimensions. In the doctrinal dimension, I isolate the four schemata from the case law throughout the Anglo-Commonwealth. Professor Stanley de Smith’s acclaimed judicial review textbook – particularly its changing language and format – is used to provide structure for the study. In the conceptual dimension, I identify the conceptual foundations of the schemata, exposing their commonality and differences. I use the scholarly debate about the constitutional underpinnings of judicial review to provide insight into the justifications advanced for the different approaches. In the normative dimension, I evaluate the virtues of the different schemata. The qualities of the different approaches are drawn out, using Fuller’s rule-of-law-based criteria to guide the assessment of efficacy. Overall, the grounds and intensity of review schemata generally display the most virtue when measured against these criteria.
Knight is surely correct to say that there are several different approaches to formulating administrative law doctrine, but that the proponents of the different approaches do not often, if at all, explain their preference for one over another. Considering Knight’s thesis has prompted me to think about my recent work on values (see here and here), in particular what I have termed “institutional considerations“.
I would lay out my chain of reasoning as follows: Values –> Doctrine –> Decisions. Values influence doctrine which influences decisions. (Others might prefer to go straight from values to decisions.) But, of course, other things also influence doctrine. Beyond the points I have already mentioned in my ‘values‘ essay, here are some suggestions:
First, in the common law world at least, judges are limited in the sources they can legitimately look to, the consultation they can engage in, and how widely they can range in deciding cases.
Second, there may be constitutional considerations which rule out various options. For instance, in Australia, the understanding is that judges cannot exercise non-judicial functions, including ‘merits review’ of administrative decisions.
Third, legal culture may constrain judges. For instance, there may be a preference in some places, like Australia, for rules (what Knight calls the “scope” and “grounds” approaches) but in other places, like Canada, for standards (what Knight calls the “intensity” and “context” approaches).
Fourth, 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.
These are some preliminary thoughts, of course, but it seems to me that Knight is right to observe that this type of consideration is an important factor in the development of administrative law and that he does a valuable service in bringing it to the fore.
This content has been updated on March 4, 2016 at 15:24.