Administrative Law and Judicial Deference

by Matthew Lewans

Overview

In recent years, the question whether judges should defer to administrative decisions has attracted considerable interest amongst public lawyers throughout the common law world. This book examines how the common law of judicial review has responded to the development of the administrative state in three different common law jurisdictions - the United Kingdom, the United States of America and Canada - over the past 100 years. This comparison demonstrates that the idea of judicial deference is a valuable feature of modern administrative law, because it gives lawyers and judges practical guidance on how to negotiate the constitutional tension between the democratic legitimacy of the administrative state and the judicial role in maintaining the rule of law.

Product Details

ISBN-13:	9781509921133
Publisher:	Nomos/Hart
Publication date:	04/26/2018
Series:	Hart Studies in Comparative Public Law
Pages:	272
Product dimensions:	6.00(w) x 1.25(h) x 9.00(d)

Table of Contents

Acknowledgements vii

Table of Cases xi

Table of Legislation xxi

1 A Question About Administrative Law 1

I Jurisdictional Error 2

II Judicial Deference 5

III The Argument in Brief 10

2 Rethinking the Diceyan Dialectic 14

I The Diceyan Dialectic 16

II Rethinking the Diceyan Dialectic 27

A Berlin's Dilemma 28

B Dicey's Dilemma 31

III Revisiting the Question about Administrative Law 38

3 The Legacy of the Diceyan Dialectic 42

I Jurisdictional Error and the Diceyan Dialectic 44

A Deference as Submission 49

B Correctness Review 54

II Judicial Review and Public Law Theory 58

A The Textbook Tradition 59

B Functionalism and the Political Constitution 65

C Recycling the Dialectic: The Ultra Vires Debate 70

III Proportionality and Judicial Deference 73

A Proportionality and Submissive Deference 80

B Proportionality and Correctness Review 85

IV Conclusion 86

4 Constitutionalism, Judicial Restraint, and Administrative Law 90

I Constitutionalism and Judicial Restraint 94

A Democratic Constitutionalism 94

B Pragmatic Constitutionalism 103

II Judicial Restraint and Administrative Law 114

A Contextual Constitutionalism and the Administrative State 114

B Functionalism, Due Process, and Administrative Law 123

III Conclusion 134

5 From Formalism to Reasonable Justification: The Transformation of Canadian Administrative Law 138

I The Formal and Conceptual Era 141

A The Constitution and the Administrative State 142

B Jurisdictional Error 148

II The Pragmatic and Functional Era 156

A Procedural Fairness 159

B Judicial Deference 162

C A Constitutional Right to judicial Review 165

D Deference and Constitutional Rights 167

E Fairness and Reasonable Justification 171

III The Dis-Functional Era 175

IV Conclusion 180

6 Authority, Legitimacy, and Legality in Administrative Law 184

I Legitimate Authority and the Administrative State 188

A Law and Legitimate Authority 191

B Democratic Legitimacy and Legislative Authority 194

C Legislative Authority and Institutional Settlement 198

D Reciprocity and Democratic Legitimacy 201

II Legality and the Legitimacy of Administrative Law 207

A Formal Legality 211

B Legality as Fairness 214

C Legality as Reasonable Justification 217

III Administrative Law and Judicial Deference 221

Bibliography 224

Index 245