Dear Administrative (An)Nihilists … A West Coast rejoinder from Mary Liston, Cristie Ford and Alexandra Flynn

Recently, Mark Mancini and Léonid Sirota at Double Aspect took issue with the arguments we made in our posts on the Vavilov decision which Paul Daly had kindly published at Administrative Law Matters. Paul has since generously offered us space to respond. We aim to keep our rejoinder short and spicy, but we also want to suggest that there is both more overlap and deeper differences than they have presented in their post and therefore we, in turn, take issue with a number of their arguments.

To begin, it is undoubtedly true that we support the administrative state. But, contrary to our interlocutors, we are far from being so-called “administrative supremacists,” “scare-mongering” subverters of key foundational principles, or “Maoist-inspired magnifiers” of 1000-flower pluralism. Properly understood, our embrace is one of principled pragmatism, and it is this stance about which we are unapologetic. Even we have critiques of the administrative state, a perspective which would have been made clearer if we were all in actual (rather than virtual) conversation – or if our friends had read our work.

On our understanding, Léonid and Mark rely on a largely formalist and significantly impoverished understanding of public law principles and interpretive matters for their criticisms. By constructing ‘straw-woman’ arguments, they also attribute to us views which we do not hold. Let’s start with the principle of democracy. None of us suggest that an administrative decision is “democratic in the same way as a statute.” What we do claim, however, is that the democratic principle manifests itself variously throughout the state and not always in the same guise. This is because we understand democracy can take different forms, sometimes complementary and sometimes competing, in the Canadian state: parliamentary, majoritarian, counter-majoritarian, republican, social democratic, deliberative, and participatory. Our friends rely on a bare majoritarian conception best expressed by the principle of parliamentary sovereignty.

At this conceptual level, James Madison is in fact with us and not with Mark and Léonid. Madison’s vision of government was capacious. He – and following him, scholars like Cass Sunstein, Frank Michelman, and others – rejected simplistic democratic construction in favour of a deliberative, federalist republic, intentionally large enough to allow diversity of opinion to flourish, and attuned to local conditions by design. Madison, like Quentin Skinner within the Westminster tradition, would look far more favourably on the thousand rule of law flowers that bloomed in the pre-Vavilov administrative state than Mark and Léonid suppose.

A second point of distinction between our views and theirs concerns the separation of powers, especially where they ironically invoke a separate Madisonian conception that is in deep tension with how a Westminster parliamentary system actually functions. As they surely know, rather than a “subversion” of the distinctiveness between the three branches, Westminster systems specifically contemplate and frequently legitimize such overlaps.[i] We would recommend a look at recent literature from legal and political philosophy which argues that the concept of the separation of powers is no longer useful given the empirical reality that the three branches often share each other’s functions and, in doing so, both counter and cooperate with each other.[ii] On this more accurate and contemporary footing, the architecture of the administrative state is neither the “‘very definition of tyranny’” nor risks the improper concentration of powers in one branch. A better understanding of the separation of powers is one that recommends a general division of labour among the branches, while also acknowledging shared functions between institutions, and supplementing institutional design with appropriate counterbalances (both positive in encouraging action and negative in constraining action). It comports with classically-derived notions of a mixed constitution.

We do, however, agree that “the mere fact of delegation does not speak to the intensity of review.” We have always supported the view that courts should pay heed to the contextual signals of deferential review located in the home statute: the privative clause, discretionary language, and evidence of expertise. As we said in our posts, it is this loss of explicit attention to these contextual factors as part of the statutory interpretation exercise that worries us. Regarding judicial review in the United and Kingdom largely taking a non-deferential form, we would ask Léonid and Mark to nuance their take on that particular model as well as judicial review in Australia and New Zealand.[iii]

Third, we take issue with core principles of administrative law – rule of law, deference, judicial review, and interpretation – as espoused by Mark and Léonid. We agree that the rule of law as a legal principle includes stable, clear, consistent and predictable rule-making (hello Lord Bingham, Lon Fuller, and Joseph Raz!). We further clarify that the rule of law, following Jeremy Waldron and Walter Bryce Gallie, is an essentially contested concept whose content is not exhausted by a formalist interpretation.

Fundamentally—and perhaps at the crux of the profound differences in our points of view—we see the act of interpretation on a deeper plane. In a nutshell, humans are makers and interpreters of meaning. All of us interpret law, but we only accord authority to recognized institutional actors. Without a doubt, judges have expertise in legal interpretation, but interpretation in public law represents an interface with factual reality and relevant non-legal considerations about which other actors may have superior knowledge (and this is, as they point out, the epistemic basis for deference to expertise). We—and many, many others—have argued that judges do not have the monopoly on interpretive power and resulting legitimacy. What appellate judges have, as Hobbes emphasized, is final institutional authority about matters of legal interpretation and it is this final say that has spurred debates about the legitimacy of judicial power for the last fifty years. So, we see this as a complicated, nested problem which is not solved by demanding judicial supremacy and “unwilling” the existence of the administrative state.

Our students can attest that none of us endorse—tacitly or otherwise—an unadulterated presumption of expertise for all administrative decision-makers.[iv] We have long argued that deference must be earned, not presumed, and that the best form of deferential judicial review rests on fulfilling these essential conditions: administrative decision-makers will be entitled to deference when they use fair procedures and make reasoned decisions that are expressed in written reasons. Expertise can be shown in many ways, but it has always been a flaw in the jurisprudence that the concept has been undertheorized.

Finally, in our view the 1930s and the New Deal may in fact be a “good time from which to borrow ideas” if we are thinking of the leadership of Franklin Delano Roosevelt in a parallel time of crisis, the major advancements in legal thought produced by the legal realism school, and the development of early leading Canadian scholars of public law such as John Willis. Those times underscore the need for collective action to care for the political community, innovation in governance, and a renewed appreciation of what it means to be part of a “public.” We do not want to return to a time in administrative law where issues were framed by preliminary or collateral questions and tribunals asking themselves ‘the wrong question’.[v] That would indeed be a return to “pre-historic days” where the only tyrannical entity in sight is one called Rex.[vi]

[i] Political and legal problems with such overlaps are a different matter that take us beyond the scope of this response.

[ii] See, for example: Bruce Ackerman (‘The New Separation of Powers’, 113(3) Harvard Law Review (2000)), Richard Albert, Nick Barber, Eoin Carolan, Mogens Herman Hansen (“The Mixed Constitution versus the Separation of Powers: Monarchical and Aristocratic Aspects of Modern Democracy,” (2010) 31:3 History of Political Thought 509), Aileen Kavanagh, and Dimitrios Kyritsis among others. The voluminous literature on ‘institutional dialogue’ also supports this conception of a functional division where institutions both counter and cooperate with each other.

[iii] Regarding judicial review in the United Kingdom and related common law jurisdictions, see Janina Boughey, Paul Daly, Mark Elliott, Dean Knight, Hanna Wilberg and others.

[iv] Andrew Roman also points this out in his comment following Mark and Léonid’s post.

[v] In some respects, the recent Bell decision maps onto the much disliked older Bell decision from an earlier era dominated by such textualist approaches to legal interpretation. We would like to thank Audrey Macklin for this insight.

[vi] ‘Checks and balances’ originated from a historical period when arbitrary monarchical power, termed ‘tyrannophobia,’ was much feared.

This content has been updated on June 1, 2020 at 12:11.