A Defence of Administrative Law Doctrine, Part III, The Moral Character of Administrative Law Doctrine

This is an extract from my paper “A Defence of Administrative Law Doctrine

I argued in Part II that administrative law doctrine is not empty, as it precludes judicial conclusions in concrete cases. In this Part, I will argue that administrative law doctrine is not pernicious either. Setting out a systemic conception of doctrine is a useful activity, whether undertaken by a scholar or a judge.[1] Taking doctrine seriously does not lead to an “abdication of judicial responsibility”, as Professor Allan feared.[2] There are two strands to my argument in this Part, one about legal certainty, the other about legal legitimacy, and one fundamental point: administrative law doctrine does not stand in the way of contextual judgement but rather cabins it, helping to avoid muddled morality.

A.     Legal Certainty

Let us begin with the proposition that doctrine contributes to legal certainty. The role of doctrine is “to provide a framework for those lawyers that advise clients; to help define the problem for those that seek to develop the law in order to achieve policy goals; to help those who would persuade others, on the basis of empirical evidence, that the existing law is failing to achieve its aims; and to ensure that there is confidence in the integrity and objectivity of the legal system”.[3]

Administrative law doctrine allows people to plan their affairs. Individuals know, with the aid of legal assistance, when they have legitimate grounds on which to challenge administrative action. Those working in public administration are given the tools to predict whether administrative action is likely to be seen as lawful or unlawful. Even legislatures can use the principles of judicial review of administrative action to adjudge how best (if at all) to legislate on substantive issues or the relationship between public administration and the courts. Judges, too, are able to draw on doctrine – assisted by the arguments of counsel – to perform their role accurately.

Any systemic conception of the body of principles which bear on the lawfulness of administrative action should help to achieve the rule of law desiderata set out by Professor Fuller.[4] A systemic conception of administrative law will be general in nature, publicly accessible, non-contradictory, relatively stable and feature prospectively applicable rules and standards. To the extent that administrative law doctrine is not empty, a systemic conception of judicial review of administrative action will also be (tolerably) clear, capable of implementation and ensure congruence between the law in the books and the law in action. An approach emphasizing case-by-case contextualism will have greater difficulty satisfying the Fullerian desiderata:[5] “Law thrives when citizens can reliably identify the normative rationale of its doctrines”.[6] There is therefore a role for « les faiseurs de systèmes » in helping those who wish to assess the lawfulness of administrative action to exercise judgement.[7]

B.     Legal Legitimacy

I do not think that Professor Allan would quibble with the preceding subsection. In the scholarly work in which he sets out his theory of law (which sees moral and legal judgement as inextricably intertwined), he does not treat “doctrinal development”[8] or “general principles”[9] as evil. Indeed, analysis of leading cases with a view to establishing general propositions about adjudication is central to Professor Allan’s scholarly method.

The difficulty with doctrine, from Professor Allan’s viewpoint, is that it may impede moral judgement: “legal certainty has value only when the rule of law is upheld, enforcing rules that serve an intelligible account of justice and the public good”, such that “wider considerations of justice” might require a rule to be modified to take account of the circumstances of an individual case.[10] Here, I think, Professor Allan channels Yeats: “Too long a sacrifice / Can make a stone of the heart”.[11]

I would suggest, nonetheless, that the development and faithful application of administrative law doctrine enhances the legitimacy of the judiciary.

In the first place, doctrine helps to channel moral judgement. Understanding the doctrinal superstructure in which a particular case falls to be decided avoids muddled morality. Recent Australian experience with the “materiality” doctrine is illuminating. In a series of decisions, the High Court of Australia has attempted to define what it means for an error of law or fact committed by an administrative decision-maker to be “material” so as to justify a finding of unlawfulness and the granting of a remedy. These are murky doctrinal waters but in its most recent foray the justices were able to draw careful distinctions between different doctrinal senses of “materiality” and make a clear-eyed judgment about where the “onus” of proving materiality lies in any given case.[12] Where the onus lies can safely be described as a moral question, as it relates to the balance of power between the individual and the state; but without doctrinal clarity, there is a risk of muddled morality as judges attempt to determine where the onus ought to lie.

Furthermore, doctrine reduces the scope for judicial arbitrariness. Respect for doctrine will circumscribe the role of the judge: constrained by doctrine, the judge in an administrative law case is “not a knight-errant, roaming at will in pursuit of his own ideal of beauty or of goodness”[13] and thus the risk of judicial arbitrariness, which is best avoided, is reduced.[14] Doctrine thereby enhances the legitimate authority of the judge, by helping her to fend off accusations that she seeks to advance personal interests based in public policy or ideology rather than justice and the common good. It helps to answer the question ‘But how can that be law  for me?’[15]

Indeed, administrative law doctrine is valuable in its own right, as any systemic conception of administrative law will perforce set out a coherent basis for the organisation of the relevant principles, rules and standards; there is a commitment to showing administrative law in a positive light. For example, I argue in a recent monograph that the general principles of judicial review of administrative action have a recognisably moral character drawn from the four values of individual self-realisation, good administration, electoral legitimacy and decisional autonomy which provide administrative law with an intelligible structure that “facilitates the flourishing of individuals, of public administration and of the liberal democratic system”.[16] Again, the « faiseurs de systèmes » have a role to play here in teasing out the recognizably moral principles “embodied within our practice”,[17] helping to ensure respect for the “morally valuable” institution of judicial review.[18]

Ultimately, taking doctrine seriously would not prevent an Allanite judge from “seeking coherence within the body of rules and principles that regulate the relationship between citizen and state”,[19] as part of a “continual process of adaptation and refinement”; rather, their task would be to interrogate “the reasons that underpin and justify” a particular doctrine, in order to determine whether the doctrine should be revisited.[20] Just as stare decisis is not a straitjacket, administrative law doctrine does not eliminate judicial discretion to make changes where changes are justified: the balance of reasons relevant to the decision in a given case includes the utility of maintaining a doctrinal position and preserving legal certainty, as weighed against the consequences of an unjust result.

Just as there was nothing pernicious, in my view, about my doctrine of deference, there is nothing pernicious either about the general principles of administrative law, properly understood. Far from being pernicious, administrative law doctrine can enhance judicial legitimacy even in cases where a judge seeks to revise doctrine. Any justification of a departure from doctrine based on an all-things-considered moral judgement will be stronger if the constraining force of doctrine is acknowledged and the overriding demands of justice clearly explained. The legitimacy of judicial development of doctrine and the resolution of individual cases can thereby be strongly defended. As such, respect for doctrine is not necessarily incompatible with Professor Allan’s judicial ideal. Too long a sacrifice need not make a stone of the heart.

[1] This is certainly more feasible for scholars than judges (Peter Cane, “Taking Disagreement Seriously: Courts, Legislatures and the Reform of Tort Law” (2005) 25 Oxford Journal of Legal Studies 393) but contemporary common law judges nonetheless spend significant time in their reasons on demonstrating how their analysis of a particular issue ‘fits’ with the decided cases.

[2] “A Critique of ‘Due Deference’” (2006) 65 Cambridge Law Journal 671, at p. 689.

[3] Martin Dixon, “A doctrinal approach to property law scholarship: Who cares and why?” (2014) 3 Property Law Review 160, at p. 164.

[4] The Morality of Law, rev. ed. (Yale University Press, New Haven, 1969).

[5] Dean Knight, Vigilance and Restraint in the Common Law of Judicial Review (Cambridge University Press, Cambridge, 2018), chapters 5 and 6.

[6] George Letsas, “What’s Good About Parliamentary Sovereignty?”, at p. 13.

[7] Jean Rivero, « Apologie pour les « faiseurs de systèmes » » (1951) 23 Dalloz 99.

[8] The Sovereignty of Law: Freedom, Constitution and Common Law (Oxford University Press, Oxford, 2013), at p. 221.

[9] TRS Allan, “Constitutional Rights, Moral Judgement, and the Rule of Law” in James Goudkamp, Mark Lunney and Leighton McDonald eds., Taking Law Seriously: Essays in Honour of Peter Cane (Hart, Oxford, 2021), p. 95, at p. 110.

[10] TRS Allan, “Constitutional Rights, Moral Judgement, and the Rule of Law” in James Goudkamp, Mark Lunney and Leighton McDonald eds., Taking Law Seriously: Essays in Honour of Peter Cane (Hart, Oxford, 2021), p. 95, at pp. 109-111.

[11] William Butler Yeats, “Easter 1916”.

[12] MZAPC v Minister for Immigration and Border Protection [2021] HCA 17.

[13] Benjamin Cardozo, The Nature of the Judicial Process (Yale University Press, New Haven, 1921), at p. 141.

[14] Timothy Endicott, “Arbitrariness” (2014) 27 Canadian Journal of Law & Jurisprudence 49.

[15] David Dyzenhaus, “More Protestant than Luther or Dworkin? TRS Allan on Law and Morals”, at p. 24.

[16] Paul Daly, Understanding Administrative Law in the Common Law World (Oxford University Press, Oxford, 2021), at p. 262.

[17] Michael Foran, “Common Law and the Common Good”,  at p. 11.

[18] Tom Adams, “The Rule of Law and Respect for Persons”, at p. 8. See also Janet McLean, “The Public Service, Democracy and the Rule of Law”.

[19] TRS Allan, “Constitutional Rights, Moral Judgement, and the Rule of Law” in James Goudkamp, Mark Lunney and Leighton McDonald eds., Taking Law Seriously: Essays in Honour of Peter Cane (Hart, Oxford, 2021), p. 95, at p. 121.

[20] TRS Allan, The Sovereignty of Law : Freedom, Constitution and Common Law (Oxford University Press, Oxford, 2013), at p. 121. See Matthew Lewans, “Administrative Law from the Internal Point of View”.

This content has been updated on October 17, 2022 at 14:05.