Remoulding Administrative Law: An Essay For Gerard Hogan (Part I)
This is the first of three parts of an essay for an edited collection celebrating the career of Gerard Hogan, currently a judge on the Irish Supreme Court
Introduction
Administrative law famously made itself anew in the latter half of the 20th century. Lord Lord Diplock’s aphorism is familiar: “Any judicial statements on matters of public law if made before 1950 are likely to be a misleading guide to what the law is today”.[1] Today, we could echo those sentiments: nothing before 1980 is of any relevance; the law has developed drastically during Gerard Hogan’s career.
Rereading some of Hogan’s early academic writings alongside his more recent judicial contributions underscores the profound changes that have taken place: jurisdiction and the ultra vires doctrine no longer capture the zeitgeist of administrative law, replaced by responsiveness and reasonableness as the touchstones of the legitimate exercise of public power; and administrative lawyers no longer rely, as they once did, on formal categories to uphold the venerable principle that the individual should not be subject to unlawful administrative action, engaging instead in context-sensitive substantive analysis to identify the appropriate limits on public power and safeguard individual interests. In what follows, I first cast my eye over some of Mr. Hogan’s early work with a view to focusing the discussion. I then introduce the more recent contributions of Justice Hogan on the broad topics of ‘reasonableness’ and ‘responsiveness’ that illustrate the significant shifts that have occurred over the course of his professional life.
Given Gerard Hogan’s fondness for history and our American cousins, some introductory wisdom from Oliver Wendell Holmes seems appropriate: “In order to know what [the law] is, we must know what it has been, and what it tends to become”.[2] As Gerard Hogan would no doubt agree, studying the evolution of legal concepts is critically important to understanding contemporary law and its likely future trajectory – doing so through the prism of his work is highly illuminating.
The Past is a Different Country: They Do Things Formally There
I begin by turning the clock back to the 1980s, to the very first edition of Administrative Law[3] and to a pair of journal articles, “Remoulding Certiorari: A Critique of The State (Abenglen Properties) v Dublin Corporation”[4] and “Reflections on the Supreme Court’s Decision in Tormey v. Attorney General”.[5] My journey to the past will be relatively brief, stopping only to capture some of the principal points made by Hogan the law lecturer.
The late Conor Gearty, in his review of Administrative Law in Ireland, described judicial review as “the meat of administrative law”.[6] The meat of the meat was jurisdiction and ultra vires – a decision-maker is a creature of statute and must not stray beyond the jurisdictional limits – vires – set out by legislation. In the 1980s, Hogan and Morgan confidently stated: “Judicial review of administrative action is founded on the doctrine of ultra vires”.[7] Similarly, in “Remoulding Certiorari”, the reader is told “the doctrine of ultra vires is the very cornerstone of our administrative law”.[8] And in “Reflections on Tormey”, the author celebrates the prospect that “the doctrine of jurisdictional error would [henceforth] have a constitutional foundation”[9] in the supervisory jurisdiction of the High Court.
Further, Mr. Hogan saw jurisdictional error as inextricably linked to the protection of the individual and, accordingly, expressed deep scepticism of the suggestion made in Abenglen that judicial discretion could be used to withhold a remedy for unlawful administrative action either on the basis that the unlawfulness had no demonstrable consequence or on the basis that the individual had not exhausted alternative avenues of recourse. For “a citizen is entitled to resist unlawful administrative action as of right”[10] and, “being entitled to live by the rule of law”, any “general rule that a citizen must pursue an administrative appeal before he may challenge the legality of an administrative act, simply because it has been judicially determined that this alternative remedy is adequate and more convenient than certiorari proceedings, is unwarranted”.[11] In policing the boundaries of jurisdiction, wielding the doctrine of ultra vires, judges were in the service of the individual.
This has recently been described as the “classical” vision of administrative law, according to which “breach of any of the grounds of judicial review renders an administrative act void ab initio, making judicial review’s function primarily declaratory, not constitutive, of the legal status of impugned administrative acts”.[12] In its 1980s version, however, judicial vision was almost laser-focused on “jurisdiction”. What mattered most – indeed, almost exclusively – was whether the holder of a statutory power remained within the four corners of the statute granting the authority. Within those four corners, the scope for judicial intervention was extremely limited.
Indeed, judicial intervention was possible only where a decision “departs so radically from the normal standards of cost, convenience, morality, respect for individual rights, etc. that no reasonable public authority could have come to it”.[13] The standard was rarely used “because it entails deciding questions of judgment in highly political areas, where courts prefer not to tread”.[14] In the 1980s, the protection of the individual was bound up with the enforcement of jurisdictional limits on public power, not with close scrutiny of the manner and consequences of its exercise.
I would characterise the position in the early years of Hogan’s career as having two key related features. First, the 1980s version of judicial review was formal in the sense that it sought to allocate authority on a categorical basis, drawing clear lines between courts and decision-makers based on the intention of the legislature; hence the power of the ‘four corners of the statute’ metaphor in capturing judicial practice at that time. Here, as will become clearer in the next section, form is the antithesis of substance, which relies on contextual considerations to allocate authority. Second, in the 1980s, the organising principle of judicial review was jurisdiction – all turned on compliance with jurisdictional limits. Even the notion of unreasonableness was understood in terms of a decision-maker acting so unreasonably as to effectively leave the boundaries of its jurisdiction, trespassing outside those all-important four corners of the statutory scheme. However, these features no longer characterise the law of judicial review, a point that Justice Hogan’s jurisprudence amply and elegantly demonstrates.
[1] R v Inland Revenue Commissioners, ex parte National Federation of Self- Employed and Small
Businesses Ltd [1982] AC 617, 649.
[2] The Common Law (Little Brown, Boston, 1888), at p. 1.
[3] (Sweet & Maxwell, London, 1986).
[4] (1982) 17 Irish Jurist (N.S.) 32.
[5] (1986) 8 Dublin University Law Journal 31.
[6] “Administrative Law in the 1980s” (1987) 9 Dublin University Law Journal 21, a24.
[7] Administrative Law, 183.
[8] “Remoulding Certiorari”, 41.
[9] “Reflections on Tormey”, 44-45.
[10] “Remoulding Certiorari”, 47.
[11] “Remoulding Certiorari”, 54.
[12] Mark Elliott and Philip Murray, “In Defence of Classical Administrative Law” (2025) Cambridge Law Journal
[13] Administrative Law, 311, anticipating with remarkable prescience the formulation offered by Henchy J in State (Keegan) v. Stardust Victims’ Compensation Tribunal [1986] IR 642 [Keegan]: “the test of unreasonableness or irrationality in judicial review lies in considering whether the impugned decision plainly and unambiguously flies in the face of fundamental reason and common sense”. And see also O’Keeffe v. An Bord Pleanála [1993] 1 IR 39 [O’Keeffe].
[14] Administrative Law, 311.
This content has been updated on February 5, 2026 at 16:01.