scholarly journals REASON AND AUTHORITY IN ADMINISTRATIVE LAW

2017 ◽  
Vol 76 (3) ◽  
pp. 507-536 ◽  
Author(s):  
James A. Grant
Keyword(s):  
Decision Maker ◽  
Judicial Review ◽  
Administrative Law ◽  
Legitimate Authority ◽  
Administrative Action ◽  
Service Conception

AbstractIn judicial review of administrative action, the pivotal distinction between decisions about “jurisdiction” (for the reviewing court) and “the merits of the case” (for the administrative decision maker) is a source of much confusion. This article argues that jurisdiction should be understood as the scope of legitimate authority, the best theory of which is Joseph Raz's service conception of authority. As well as explaining how to determine jurisdiction, this article explains that a legitimate authority's intra-vires decision “pre-empts” the reviewing court's judgment on the merits, and that the concept of jurisdiction precludes any standard of reasonableness for reviewing a legitimate authority.

scholarly journals Two Myths of Administrative Law

2019 ◽  
Vol 9 (1) ◽  
Author(s):  
Mark P Mancini
Keyword(s):  
Supreme Court ◽  
Decision Maker ◽  
Judicial Review ◽  
Administrative Law ◽  
Supreme Court Of Canada ◽  
Statutory Interpretation ◽  
Administrative Action ◽  
The Supreme Court ◽  
The One ◽  
Do So

In an upcoming set of cases, the Supreme Court of Canada will review its approach to the standard of review of administrative action. In this paper, the author suggests that the Court must go back to the foundation of judicial review in redesigning the standard of review, namely, the task of courts to police the legal boundaries of the administrative body. To do so, courts must authentically interpret the legislative grant of authority to the administrative decision-maker, particularly to determine the appropriate intensity of review. To that end, the author suggests that the Court should discard two myths that have pervaded modern administrative law: (1) that administrative decisionmakers should be granted deference based on purported expertise in matters of statutory interpretation; and (2) that jurisdictional questions exist separately from questions of law. The myths may impose a different standard of review than the one discernible with the ordinary tools of statutory interpretation. The author argues that these court-created devices should not exist at the expense of the constitutionally prescribed duty of the courts to exercise their policing function and engage in genuine statutory interpretation to determine the appropriate standard of judicial review in a given case.

Institutional Structures

2021 ◽  
pp. 32-64
Author(s):  
Paul Daly
Keyword(s):  
Decision Making ◽  
Decision Maker ◽  
Judicial Review ◽  
Decision Makers ◽  
Administrative Action ◽  
Institutional Structures ◽  
General Aspects ◽  
Individual Self ◽  
Personal Interests ◽  
Or History

This chapter is concerned with the structure of administrative decision-making institutions. Two general aspects of this important topic are particularly relevant to the law of judicial review of administrative action. First, the no-bias principle ensures that decision-making is impartial, by preventing decision-makers from acting where their personal interests, conduct or history could conceivably raise a concern about their ability to make a dispassionate decision on the merits. Second, the principle that a decision-maker must retain their discretion prevents decision-makers from delegating their powers (subject to an exception in the case of government ministers) and limits the scope for the development of policies about how discretionary powers will be exercised in the future. These principles can be understood as being structured by the values of individual self-realisation, good administration, electoral legitimacy and decisional autonomy.

Standards of Judicial Review of Administrative Action (1890–1910) in the Austro-Hungarian Empire

2021 ◽  
pp. 41-72
Author(s):  
Angela Ferrari Zumbini
Keyword(s):  
Judicial Review ◽  
Administrative Law ◽  
Public Affairs ◽  
Main Theme ◽  
Administrative Procedure ◽  
Administrative Action ◽  
General Principles Of Law ◽  
Liberal Approach ◽  
The Right

This chapter argues that, if France has been the home of administrative courts, Austria has greatly contributed to the development of administrative law with regard to administrative procedure. Thanks to the Austrian Administrative Court, established in 1875, administrative law has been increasingly important in the regulation of public affairs. The chapter analyses the causes, development, and effects of these features. One main theme is, of course, the scope and purpose of judicial review of administrative action. In this respect, the chapter shows the growth of litigation and the liberal approach followed by the Court. Moreover, the role of the Court as lawmaker is examined in the light of the general principles of law that it developed. . Such principles included legality and procedural fairness, with particular regard to the right to a hearing and the duty to give reasons. Considered as a whole, they required public administrations to act reasonably rather than arbitrarily. Finally, it was judge-made law that constituted the basis for the codification of 1925.

The Reasonableness of Proportionality in the Australian Administrative Law Context

2015 ◽  
Vol 43 (1) ◽  
pp. 59-90
Author(s):  
Janina Boughey
Keyword(s):  
Judicial Review ◽  
Separation Of Powers ◽  
Administrative Law ◽  
High Court ◽  
Administrative Action ◽  
Principle Of Proportionality ◽  
Prevailing View

Although the High Court has never ruled on the issue, the prevailing view has been that unless parliaments enact bills of rights, the principle of proportionality does not and cannot play a role in judicial review of administrative decisions in Australia. Yet in Minister for Immigration and Citizenship v Li, a majority of the High Court hinted that this may not be the case. This article analyses the reasons for Australia's longstanding reluctance to embrace proportionality in the administrative law context, and whether the decision in Li has altered this position. It then explores overseas developments in proportionality review which reveal that the principle may take on many forms in the administrative law context, with differing implications for the separation of powers. The article finds that it might be possible to accommodate certain methods of applying proportionality within Australia's judicial review framework, but not without significant broader changes to judicial review of administrative action in Australia.

scholarly journals Administrative Law, Judicial Deference, and the Charter

2014 ◽  
Vol 23 (2) ◽  
pp. 19 ◽  
Author(s):  
Matthew Lewans
Keyword(s):  
Judicial Review ◽  
Administrative Law ◽  
Legitimate Authority ◽  
The Law

The doctrine of judicial deference has been a touchstone in Canadian administrative law for thirty-five years. Put simply, the doctrine recognizes that administrative officials have legitimate authority to interpret the law, which means that judicial review is warranted only if an administrative decision is demonstrably unfair or unreasonable. While the tide of deference has ebbed and flowed over this period, most administrative decisions these days are assessed according to a standard of reasonableness instead of correctness.

Defending Administrative Law

2021 ◽  
pp. 247-262
Author(s):  
Paul Daly
Keyword(s):  
Future Development ◽  
Judicial Review ◽  
Administrative Law ◽  
Moral Foundations ◽  
Administrative Action ◽  
The Core ◽  
Liberal Democratic ◽  
Interpretive Analysis ◽  
System P ◽  
Democratic System

This concluding chapter has two objectives. First, to demonstrate the robustness of the interpretation of contemporary administrative law presented in the preceding chapters, underscoring how useful this interpretive analysis is to understanding the law of judicial review of administrative action and guiding its future development. Second, the chapter defends the legitimacy of the core features of judicial review of administrative action, as these have been developed over the years by judges. In achieving these two objectives, the chapter relies on the criteria for testing the robustness of legal theories set out by Professor Stephen Smith in Contract Theory: fit, transparency, coherence and morality. The interpretation of contemporary administrative law described in this book fits the decided cases, it is reasonably transparent, it is coherent and it rests on recognisably moral foundations. In short, to conclude, contemporary administrative law facilitates the flourishing of individuals, of public administration and of the liberal democratic system.

Contextual review: the instinctive impulse and unstructured normativism in judicial review

Legal Studies ◽  
2020 ◽  
Vol 40 (1) ◽  
pp. 1-21
Author(s):  
Dean R Knight
Keyword(s):  
Rule Of Law ◽  
Judicial Review ◽  
Administrative Law ◽  
The Rule Of Law ◽  
Administrative Action ◽  
Categorical Methods ◽  
Evaluative Judgement ◽  
Judicial Method

AbstractContextual review is a judicial method that rejects doctrinal or categorical methods to guide judicial supervision of administrative action. Judges are invited to assess the circumstances of a claim in the round without any doctrinal scaffolding to control the depth of scrutiny; in other words, intervention turns on an instinctive judicial impulse or overall evaluative judgement. This paper identifies and explains the various instances where this method is deployed in judicial review in Anglo-Commonwealth administrative law. The efficacy of this style of review is also evaluated, using rule of law standards to frame the analysis. Its increasing popularity is a worrying turn, in part because its reliance on unstructured normativism undermines the rule of law.

scholarly journals Contextual Review: The Instinctive Impulse and Unstructured Normativism in Judicial Review

2020 ◽  
Author(s):  
Dean Knight
Keyword(s):  
Rule Of Law ◽  
Judicial Review ◽  
Administrative Law ◽  
The Rule Of Law ◽  
Administrative Action ◽  
Categorical Methods ◽  
Evaluative Judgement ◽  
Judicial Method

© 2020 The Society of Legal Scholars. Contextual review is a judicial method that rejects doctrinal or categorical methods to guide judicial supervision of administrative action. Judges are invited to assess the circumstances of a claim in the round without any doctrinal scaffolding to control the depth of scrutiny; in other words, intervention turns on an instinctive judicial impulse or overall evaluative judgement. This paper identifies and explains the various instances where this method is deployed in judicial review in Anglo-Commonwealth administrative law. The efficacy of this style of review is also evaluated, using rule of law standards to frame the analysis. Its increasing popularity is a worrying turn, in part because its reliance on unstructured normativism undermines the rule of law.

Understanding Administrative Law in the Common Law World

2021 ◽  
Author(s):  
Paul Daly
Keyword(s):  
Future Development ◽  
Judicial Review ◽  
Common Law ◽  
Administrative Law ◽  
Administrative Action ◽  
The Core ◽  
The Common ◽  
The Law ◽  
Pluralist Approach ◽  
Core Features

This book has three goals: to enhance understanding of administrative law; to guide future development of the law; and to justify the core features of the contemporary law of judicial review of administrative action. Around the common law world, the law of judicial review of administrative action has changed dramatically in recent decades, accelerating a centuries-long process of incremental evolution. This book offers a fresh framework for understanding the core features of contemporary administrative law. Through comparative analysis of case law from Australia, Canada, England, Ireland and New Zealand, Dr Daly develops an interpretive approach by reference to four values: individual self-realisation, good administration, electoral legitimacy and decisional autonomy. The interaction of this plurality of values explains the structure of the vast field of judicial review of administrative action: institutional structures, procedural fairness, substantive review, remedies, restrictions on remedies and the scope of judicial review, everything from the rule against bias to jurisdictional error to the application of judicial review principles to non-statutory bodies. Addressing this wide array of subjects in detail, Dr Daly demonstrates how his pluralist approach, with the values being employed in a complementary and balanced fashion, can enhance academics’, students’, practitioners’ and judges’ understanding of administrative law. Furthermore, this pluralist approach is capable of guiding the future development of the law of judicial review of administrative action, a point illustrated by a careful analysis of the unsettled doctrinal area of legitimate expectation. Dr Daly closes by arguing that his values-based, pluralist framework supports the legitimacy of contemporary administrative law which although sometimes called into question in fact facilitates the flourishing of individuals, of public administration and of the liberal democratic system.

8. Abuse of Discretion II

2016 ◽  
Author(s):  
Mark Elliott ◽  
Jason Varuhas
Keyword(s):  
Decision Maker ◽  
Judicial Review ◽  
Administrative Law ◽  
Variable Intensity ◽  
English Law ◽  
Proportionality Test

This chapter examines grounds of judicial review that are substantive in two senses: it reduces the range of substantive options open to a decision-maker, or it involves judicial examination of the quality of the reasons for the decision itself, rather than the quality of the process adopted by the decision-maker. The chapter first considers the doctrine of reasonableness or rationality in administrative law before discussing the doctrine of proportionality and the notion of judicial deference in relation to variable intensity review. It also explores the role of the proportionality test in English law and the question of whether English courts are heading towards jettisoning the reasonableness doctrine in favour of utilizing proportionality in all relevant cases.

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