The Ages of Administrative Law: Introduction
I have posted “The Ages of Administrative Law“, my contribution to this year’s Public Law Conference, to SSRN. Here is the introduction. Thoughts and comments very welcome.
The advocates of the 20th century welfare state envisaged a government that 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 contemporary economic activity and fashion the fabric of much of our cultural and social lives.
In this paper, I tell the story of the administrative state from two perspectives in a tale spanning three distinct periods. One perspective is that of the structure of the state, which is focused on the entities created to carry out legislative policy. The other is the perspective of judicial review of administrative action. This is the story of how the courts came to oversee the administrative state. The stories I am setting out to tell will, I hope, resonate with readers around the Commonwealth, though for reasons of space (and lack of knowledge) I focus mostly on Canada; I do not address the United States directly – given the volume of recent commentary on the history and trajectory of American administrative law, another paper entirely would be required[1] – but I will highlight analogues here and there.
The judicial review and structure of the state stories span three periods: a pre-modern period running to roughly the beginning of the 20th century (the Age of Invention); a period of rapid growth and rationalization running to the 1970s and 1980s (the Age of Expansion); and most recently a period of the elaboration of a set of general principles to govern public administration and its relationship to the citizen (the Age of Principle). These “Ages” are not hermetically sealed compartments (and so some of the same phenomena can be glimpsed in more than one era) but have, nonetheless, notable characteristics.
In the Age of Invention or pre-modern period, the administrative state was characterized by an ad hoc proliferation of decision-making bodies, none following from a centrally agreed template. There was simply a preoccupation with creating decision-making structures which would achieve certain goals of state policy. Meanwhile, judicial review 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 (a structure which extended to the colonies). Through a painstaking process of evolution, these writs were adapted over the years to be applied to the proliferation of administrative bodies.
Changing social conditions in the 20th century, however, provoked a period of rapid growth and rationalization: the Age of Expansion. The explosion in the growth of government in the wake of the First and Second World Wars – between which was sandwiched the Great Depression of the 1930s – created a need for large expansions of state power. Governments assumed managerial and welfare functions that they had 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 decision-making bodies which were established to manage the various new government programs soon needed to be rationalized. 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 with 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 – the Age of Principle – to the elaboration of general principles of administrative justice and administrative law. Waves of privatization displaced the state from the front-lines of the economy, consistent with the efficiency and effectiveness agenda associated with the so-called New Public Management; many governmental functions were outsourced, the command-and-control approach to regulation was abandoned, and ambitious digitization initiatives were undertaken to place the citizen at the heart of governmental decision-making. In the courts, judges freed from the shackles of the prerogative writs developed new principles 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; the character of judicial review changed, as the courts invented and applied new constraints on government.
Inasmuch as a thesis underpins the stories I tell in this paper, it is that they illuminate different periods of state and judicial activity, explaining the institutional forms which were prevalent at different times, as well as the focus of legal scholarship and litigation.[2] This paper is designed to assist in explaining why lawyers might remark that anything said about administrative law before 1950 is likely obsolete,[3] why older textbooks, statutes and regulatory regimes seem foreign to modern eyes, and why many contemporary public law discussions concern general principles of administrative law and administrative justice. Describing and distinguishing between the Age of Invention, the Age of Expansion and the Age of Principle from the perspectives of the structure of the state and judicial review is therefore analytically useful. It is also possible that it might help us “to better shape our future”.[4]
[1] And even fifty years on, it would be hard to top Richard Stewart, “The Reformation of American Administrative Law” (1975) 88 Harvard Law Review 1667.
[2] See similarly Grant Gilmore, The Ages of American Law, 2nd ed. (Yale University Press, New Haven, 2015).
[3] Inland Revenue Commissioners v National Federation of Self-Employed and Small Business Ltd [1982] AC 617, at p. 640, per Lord Diplock.
[4] Michael Taggart, “Prolegomenon to an Intellectual History of Administrative Law in the Twentieth Century: The Case of John Willis and Canadian Administrative Law” (2005) 43 Osgoode Hall Law Journal 223, at p. 233.
This content has been updated on June 3, 2022 at 16:15.