New Paper — A Defence of Administrative Law Doctrine
I was honoured to contribute to a recent symposium on the work of Professor TRS Allan. I have posted my paper “A Defence of Administrative Law Doctrine” to SSRN:
Doctrine fits uneasily in Professor TRS Allan’s theory of law: on the one hand, for Professor Allan, “law” is the outcome of a process of all-things-considered moral reasoning which takes account of all relevant factors; but on the other hand, Professor Allan’s scholarship is firmly anchored in a common law tradition which limits the scope for moral reasoning by committing lawyers to protecting a “set of norms”. This uneasy fit is reflected in Professor Allan’s scholarship: he has assailed administrative law doctrine as “empty” and “pernicious” but has nonetheless referred approvingly to “doctrine” and “general principles” as features of the common law.
I will argue that there is a place for administrative law doctrine in Professor Allan’s theory. Properly understood, administrative law doctrine is not empty, despite Professor Allan’s powerful critique to that effect. Nor is administrative law doctrine necessarily pernicious: on the contrary, setting out systemic conceptions of the principles, rules and standards of administrative law advances the rule of law. And, I argue, as long as administrative law doctrine rests on morally recognisable foundations it constrains judges pro tanto in their adjudication of individual cases. However, it remains open to the judge to revisit doctrine where their all-things-considered moral judgement demands making an exception to an existing principle, rule or standard or overruling a precedent.
In Parts I and II, I critically analyse Professor Allan’s claim of emptiness, by reference to three propositions found in Professor Allan’s work relating to (A) debates about the constitutional foundations of judicial review, (B) the well-known ‘heads’ of judicial review in Commonwealth jurisdictions (legality, rationality and procedural propriety) and (C) the general principles of judicial review. Although I accept some of Professor Allan’s propositions in whole or in part, I conclude that administrative law doctrine is not empty as Professor Allan would have it.
In Part III, I tackle the claim that administrative law doctrine is pernicious because it deflects judicial attention away from the moral, contextual judgement which must be exercised in judicial review cases. Rather, I argue, judicial and scholarly focus on doctrine in administrative law enhances the legitimacy of the judiciary: jurists who develop administrative law doctrine advance rule-of-law desiderata such as generality and clarity. Moreover, doctrine is not a straitjacket rendering the judge incapable of responding to injustice. Situating Professor Allan’s scepticism of doctrine in relation to his sophisticated theory of law, I suggest that taking doctrine seriously is not at odds with the pursuit of justice.
Download it here. I will be posting extracts from the paper in the coming weeks.
This content has been updated on October 7, 2022 at 15:40.