Explaining the Growth of Judicial Review
Over at the United Kingdom Constitutional Law Association blog, I have written a post about my forthcoming article on the “Culture of Justification” in administrative law, penned in response to a recent post by Professor Jason Varuhas. As he observes, the procedural and substantive law of judicial review has changed greatly in recent decades, a change he links to to the rise of rights-based review and systemic review.
I offer a different hypothesis:
In a forthcoming article prepared for the 2020 Osgoode Constitutional Cases Conference, “Vavilov and the Culture of Justification in Contemporary Administrative Law”, I offer some thoughts about the recent growth in the breadth and depth of judicial review of administrative action, which may also shed light on the procedural changes observed by Professor Varuhas.
I set out in the article to explain the rise of the “culture of justification” in administrative law. I identify the culture of justification with an increased emphasis on reasoned decision-making, demonstrated expertise, responsiveness and contextualism? Recognizing that it is impossible to provide a conclusive explanation of the rise of the culture of justification, I note that it is by contrast perfectly feasible to develop a hypothesis. Broadly speaking, the hypotheses relating to the rise of the culture of justification can be placed on a spectrum running from exogenous at the one end to endogenous at the other.
Exogenous factors would treat the culture of justification in administrative law as epiphenomenal, a manifestation of broader cultural, economic, social or political forces. It could be a product of the post-Renaissance rise of rationality, which is not easily compatible with top-down assertions of authority. Similarly, the idea that governmental action having an effect on individual interests must be justified (and is unlawful if not) might be thought to be cohesive with the post-World War II emergence of human rights law. Relatedly, the underlying theory of popular democracy, which emerged in its fullest form across the Western world only in the last century, is that individuals are entitled to have a say in how they are governed, carrying with it the implication that governmental decisions adverse to individuals’ interests ought to be justified. General declines in levels of social trust, or trust in authority, might also explain increased demands for justification. And, as at least one leading judge has suggested, the decline in the perceived effectiveness of the accountability of the executive to the legislature led courts to occupy the “dead ground” vacated by political actors (R v. Secretary of State for the Home Department, ex parte Fire Brigades’ Union  2 AC 513, at p. 567, per Lord Mustill).
Not being an historian, political scientist, philosopher or sociologist, I am not as interested in exogenous factors as I am in endogenous factors. Two appear to me to be relevant: the development of context-sensitive, general principles of administrative law; and the more expansive reasons and records on which administrative decisions are nowadays based. My hypothesis is that there is a symbiotic relationship between these two factors.
Read the whole thing here. And do also read Professor Varuhas’s excellent post.
This content has been updated on July 6, 2020 at 19:32.