The Ages of Administrative Law: Conclusion

I have posted “The Ages of Administrative Law“, my contribution to this year’s Public Law Conference, to SSRN. Here is the conclusion. Thoughts and comments very welcome.

I have set out, in this paper, an analytical framework for explaining developments in administrative law over time. I identified an Age of Invention, in which the basic forms of the structure of the state and judicial review were developed; an Age of Expansion, in which state functions multiplied and courts struggled to retrofit their old judicial review techniques to new realities; and an Age of Principle, in which judges, academics and others have attempted to account in principled terms for administrative justice and the law of judicial review of administrative action.

To these two perspectives and three periods can be added a political thread, which has further explanatory force.[1] In the Age of Invention, individuals fought for responsible government, eschewing government by royal decree for government controlled by an elected assembly. State policy was for many centuries set by the Crown and its representatives with democratic institutions slowly and haltingly supplanting pure executive power.The goal of reformers was that the policies pursued would not simply reflect the desires of the Crown and nobility but rather the interests of a political and economic elite. The move from royal to responsible government, with courts and governments gaining independence from the monarch, only occurred definitively in the 19th century (and, in Canada, only in the latter half of that century).

The period of rapid growth and rationalization of the Age of Expansion is marked by the rise of representative government, where the electoral franchise was extended to adults, driving the state to look after its citizens by satisfying their material desires.  Expansion was an understandable response not only to the exigencies of war and economic catastrophe but to the emergence of mass voting and popular political parties competing for ballots. Reform to judicial review, to give citizens another means of holding an increasingly active government to account, comes as no surprise either.

And the period of elaboration of general principles is also the period of responsive government, where elected officials are constantly in contact with the citizenry and continually revising policies to better reflect and respond to the perceived desires of individuals. Griffith and Street remarked in the 1950s that “[r]esponsibility to Parliament is not the only kind of responsibility to the people but so far the other kinds have not been developed”:[2] in the Age of Principle, however, politicians and public officials are embedded in interlocking webs of accountability, responsive not just to parliamentary questions but also to popular pressure; this pressure is channelled less through political parties, which have been hollowed out, than it is through interest groups and social media. In an era in which responsiveness has become so important, it is no accident to see contemporary courts imposing requirements of reasoned decision-making on public administration.

The Ages of Invention, Expansion and Principle may, then, be products of their time, shaped by the current style of politics as by anything else. What of the future? Perhaps in a decade or two we will look back on the end of the Age of Principle from the Age of Populism, with central banks treated like any other administrative agency,[3] automation and digitization initiatives sidelined by public backlash,[4] technocratic expertise treated as a means to achieving the ends of the People rather than a thing of value in itself,[5] and courts limiting the intensity of judicial oversight of policy-infused governmental action.[6] With changes in the style of politics, what was recently unthinkable can become the defining features of a new era.

[1] Cf 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, making the case for the virtues of intellectual history in explaining the development of administrative law and administrative justice. See also Yves-Marie Morissette, “Appellate Standards Then and Now” (2017) 18 Journal of Appellate Practice and Process 55, on differing approaches to the notion of “error”.

[2] John Griffith and Harry Street, Principles of Administrative Law (Pitman, London, 1952), at p. 25.

[3] Peter Conti-Brown, Yair Listokin and Nicholas Parrillo, “Towards an Administrative Law of Central Banking” (2021) 38 Yale Journal on Regulation 1.

[4] Joe Tomlinson, Justice in the Digital State: Assessing the Next Revolution in Administrative Justice (University of Bristol Press, Bristol, 2019), at pp. 90-93.

[5] Christopher Bickerton and Carlo Invernizzi, Technopopulism: The New Logic of Democratic Politics (Oxford University Press, Oxford, 2021).

[6] Adrian Vermeule, Common Good Constitutionalism (Polity, Cambridge, 2022).

This content has been updated on June 28, 2022 at 18:42.