The Ages of Administrative Law

As I find myself drafting the introductory chapter to the next edition of Administrative Law in Context, here are some thoughts on the evolution of administrative law…

The advocates of the 20th century welfare state envisaged a government which would take care of its citizens from the cradle to the grave. The contemporary administrative state touches every aspect of our lives, from sunrise to sunset and all through the night. Its tentacles reach into every corner of economic activity. 

The story of the administrative state can be told from two perspectives and spans three distinct periods. One perspective is the perspective of judicial review of administrative action. This is the story of how the courts came to control many aspects of the administrative state. The other perspective is that of administrative justice, which is focused on what citizens are entitled to expect from the state in terms of how decisions are made. 

The administrative law and administrative justice stories span three periods: a pre-modern period; a period of rapid growth and rationalization; and most recently a period of the elaboration of a set of general principles to govern public administration and its relationship to the citizen.

In the pre-modern period, the administrative state was characterized by an ad hoc proliferation of decision-making bodies, some entirely private in character and none following from a centrally agreed template. There was no conception of or concern with administrative justice as such, simply a preoccupation with creating decision-making structures which would achieve certain goals of state policy. In the common law tradition, state policy was for many centuries set by the Crown and its representatives with democratic institutions slowly and haltingly supplanting pure executive power. Trade in Canada was regulated by royal decrees from London and Paris, imposing price controls and limiting economic activity to serve the goals of the metropoles.

Administrative law developed from the so-called prerogative writs which were originally designed by the Crown’s judges in London to control local courts in the furthest-flung reaches of England. Through a painstaking process of evolution, these writs were adapted over the years to be applied to the proliferation of administrative bodies.

The ad hocery of the pre-modern period lasted a long time. Still in the Victorian era there was no set template for the creation and oversight of administrative decision-making bodies. This is not particularly surprising. Central government did not regulate many aspects of public and private life in the 19th century. In Canada, for example, the early years post confederation were marked by an absence of central government control. Moreover, the notion of responsible government was still developing and the electoral franchise remained limited, such that the creation of a vast governmental apparatus would not have a democratic imprimatur.

Changing social conditions in the 20th century, however, provoked a period of rapid growth and rationalization. The explosion in the growth of government in the wake of the First and Second World War – between which was sandwiched the Great Depression of the 1930s — created a need for large expansions of government. Governments assumed managerial and welfare functions that they have not exercised previously. Responsible government morphed into representative government, with politicians required to fulfil a new set of demands from a new clientele as the franchise was extended. The ad hoc proliferation of administrative tribunals and other bodies which were established to manage the various new government programs soon needed to be rationalized. Reform efforts in this area were administrative justice avant la lettre, focused on the development and implementation of uniform procedures for decision-making. Equally judicial oversight required rationalization. The rapid growth of governmental activity outpaced judicial retrofitting of the prerogative  writs to new forms of decision-making. Indeed, the halting and incremental application of the prerogative writs to a new and vast machinery of government created complications which had material impact on the lives of citizens who wished to challenge governmental action in the courts. Procedural reforms designed to streamline the process of judicial review of administrative action were made across the common law world; Canada was no exception, with Parliament and provincial legislatures passing legislation to simplify judicial review.

With the machinery of government and the means of judicial control of government rationalized, the search turned in the late 20th century and 21st century to the elaboration of general principles of administrative justice and administrative law. Influential models of administrative justice were created, with ambitious digitization initiatives undertaken to place the citizen at the heart of governmental decision-making. Citizens were also conceived of as users, consistent with the efficiency and effectiveness agenda associated with the so-called New Public Management (with the user focus creating some tension with administrative justice models). In the courts, a judiciary freed from the shackles of the prerogative writs developed new principles of reasonableness and procedural fairness to govern the activities of a wide variety of bodies, including some private bodies exercising public functions. Areas of state activity, such as immigration and prisons, were exposed to judicial oversight for the first time. As a result, the character of judicial review changed: the courts invented and applied new constraints on government, designed at least in part to enhance the legitimacy of governmental decision-making.

This content has been updated on October 20, 2020 at 15:29.