[Editor’s Note: In this installment of I•CONnect’s Book Review Series, Alyssa King reviews Public Law Adjudication in Common Law Systems: Process and Substance (John Bell, Mark Elliott, Jason NE Varuhas, Philip Murray eds., Hart 2016)]
—Alyssa King, PhD Candidate, Yale University, Resident Fellow at the Yale Law School Information Society Project
Public Law Adjudication in Common Law Systems: Process and Substance features a Kadinsky painting on its cover, a clear sign that the publisher expects the material to be difficult or arcane. Such covers grace advanced calculus texts and obscure works of literary theory. Yet, as much of this collection proves, the subject of public law adjudication need not be so intimidating.
The book, based on a conference on “Process and Substance in Public Law” held in September 2014 at the University of Cambridge, includes essays from scholars across several common law jurisdictions, including England and Wales, Australia, Canada, and the United States. They take on several major themes relating to the values underlying administrative law, whether and how distinctions between process and substance should be made in a given context, and the relationship between judges, administrators, and elected officials.
One question that emerges from the choice of themes as well as the choice of jurisdictions is how many of the chapters take on issues that illuminate features of public law specific to the common law world. Many chapters grapple with themes central to public law in consolidated democracies. The common law does not necessarily have a distinctive approach to such issues.
The first set of chapters addresses the search for values in public law. All three authors are centrally concerned with how courts should judge other branches of government in a democracy. They begin with a keynote address offered by Jerry Mashaw in which he argues both that public reason as currently theorized is deeply problematic and that it remains necessary to democracy. Mashaw then offers thoughts on requirements for reason-giving by administrators. Paul Daly searches for administrative law values in English law doctrine. Jason NE Varuhas also starts from doctrinal analysis in his argument that a “public interest conception” of administrative law has now developed in England. Varuhas warns against conflating different areas of public law—the “collective good” sought by the public interest approach to remedies is inapposite when it comes to human rights, which are individual (p. 85).
A large number of chapters focus on the central theme of the relationship between process and substance. The authors seek to elucidate areas in which the two have been merged, and sometimes confused, in doctrine. Some seem steeped in matters internal to their jurisdictions, as with Philip Murray’s meditation on jurisdictional and non-jurisdictional errors of law or Andrew Edgar’s analysis of Australian judicial review of delegated legislation. Others are explicitly comparative, as with Matthew Graves and Greg Weeks’ discussion of how approaches to legitimate expectations diverge in England and Australia. Mark Aronson explains how Australian judicial review has become more substantive, which he defines as asking “not whether something was done, but . . . how well it was done” (p. 114, emphasis in original). Aronson takes no strong position on this development—noting that previous limits on substantive review were unsatisfactory, but criticizing the current lack of legal certainty in the extent of substantive review and questioning the additional burden it places on the government. Christopher Forsyth sees English trends in this direction as a rise in pragmatism that threatens to politicize the judiciary, with odious Americanisms like “confirmation hearings” (p. 163). In Canada, Mary Liston observes a similar phenomenon, which she views as the merging or “transubstantiation” of procedure and substance. Unlike Aronson, she wholeheartedly endorses this development in part because it burdens both government and court to give reasons, which in turn facilitate institutional dialogue and citizen participation.
Two groups of co-authors, Carol Harlow and Richard Rawlings, and Maurice Sunkin and Varda Bondy, demonstrate the value of single-jurisdiction empirical studies in answering the conference’s larger questions. Harlow and Rawlings demonstrate how the tug of war between the English judiciary and Parliament has led to procedural changes that make seeking judicial review of administrative action more difficult. Sunkin and Bondy pick up a similar theme—restrictions on access to justice, from a different angle. Their chapter attacks the evidence behind cuts to legal aid for administrative challenges, effectively cutting down several of the government’s primary justifications.
The book concludes with chapters that aim to tie together the disparate perspectives and methods that have come before. Cheryl Saunders summarizes the various contributions by concluding that “the common law remains more cohesive, and its family members more interdependent, than might have been supposed” (p. 354). In particular, she cites a shared tendency towards pragmatism by generalist courts and the challenge of executive-judicial relations. David Feldman sounds a note of caution about abandoning doctrine in search of administrative law values. He sees a “struggle to hold together justifying theories for exercising coercive power in the name of the state with the ordinary practices of administrative and judicial institutions” (p. 378). Both Feldman and Saunders note that the set of jurisdictions examined in this book is relatively limited and call for a future conference to expand its geographical reach.
While many chapters in this collection will stand on their own, offering needed doctrinal and empirical analysis or useful theoretical interventions, Feldman and Saunders point to a central difficulty in framing. The set of cases selected is too similar to allow the reader to determine whether the phenomena involved are characteristic of common law adjudication, or of administrative law in a consolidated liberal democracy.[1] The relationship between administration and judiciary is also of central concern to judges in the French and German traditions. French administrative law judges and their counterparts on the Court of Justice for the European Union both rely on general principles to define certain rights in public law. The French doctrine of “service public” also raises questions about a public interest conception of public law.[2] Likewise, tensions with legislators and the executive are hardly unknown across the channel. However, there may be ways in which these issues are mediated that are specific to common law structures, and to doctrinal evolution that starts from a common base in English law. Generalist judges chosen from the ranks of senior lawyers likely interact with other branches of government very differently from administrative law judges chosen in law school. Almost every common law jurisdiction outside of the United States will find points of departure in concepts like Wednesbury unreasonableness.
To better get at the features of public law adjudication specific to the common law, future conferences should take Saunders’ and Feldman’s suggestion of expanding the jurisdictions considered. With the exception of a discussion of South Africa in Kent Roach’s contribution, no chapter engaged with the many common law jurisdictions in Africa or Asia. Doing so would allow participants to examine common law in a greater variety of political contexts and thus to disentangle features of public law that reflect unique common law structures from those specific to consolidated democracy.[3]
The search for public law values may reflect democratic sensibilities more than common law ones. Mashaw’s work does so explicitly. Other matters might be more common law specific. Do political branches “strike back” at judges in the same way when they lack an electoral mandate? How have various governments manipulated used civil justice reform to keep judicial reviews out of court and are common law rules uniquely vulnerable to some strategies? Doctrines such as legitimate expectations and jurisdictional error might well have a life in a “soft authoritarian” regime like Singapore. Resource constraints may be a much more serious barrier to access to justice in India, than Australia or England, necessitating a different scale of triage between public law plaintiffs. By bringing the experiences of a more diverse set of jurisdictions to the table, scholars can better define what is common in the common law.
Suggested Citation: Alyssa King, Review of “Public Law Adjudication in Common Law Systems: Process and Substance”, Int’l J. Const. L. Blog, Sept. 24, 2016, at: http://www.iconnectblog.com/2016/09/book-review-alyssa-king-public-law-adjudication
[1] Most chapters focus squarely on administrative law, but there are some exceptions such as Mashaw and Roach.
[2] See generally Jacques Chevallier, Le Service Public (7th ed. 2008).
[3] See Ran Hirschl, The Question of Case Selection in Comparative Constitutional Law, 53 Am. J. Comp. L. 125, 139-42 (2005) (describing the use of “most different cases” in comparative constitutional law).
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