Swati Jhaveri: What’s so “common” about common law approaches to judicial review?

Research in the field of comparative administrative law, in contrast to comparative constitutional law, remains largely underdeveloped.  There has been renewed interest in undertaking broad comparative administrative law studies across a wider range of jurisdictions on a wider range of issues.  The field has benefited from this renewed interest in understanding the design of different systems of administrative law and justice. However, the scope of comparison remains relatively narrow in the specific context of common law studies. A forthcoming volume, edited by myself and Michael Ramsden, proposes that one area ripe for further study is to refine our understanding of ‘common law’ systems of administrative law. In current comparative studies, common law systems are typically identified as a family of systems that share a range of characteristics. Typically these characteristics include: a role for the ordinary courts in holding executive bodies to account; the nature of the court’s role (review on the grounds of the ‘legality’ versus the ‘merits’ of a decision, with the latter being the preserve of the executive or administrative tribunals); grounds of judicial review that manifest this distinction between legality and merits-based review (jurisdictional error, procedural fairness, ‘legality’); the institutions outside of the courts used to achieve the ends of administrative law (tribunals, ombudsmen, independent anti-corruption commissions); the aims of administrative law (coalescing around broadly shared understandings of ‘legitimacy’, transparency, compliance with statutory frameworks for decision-making, ‘fair’ and inclusive decision-making processes that engage relevant stakeholders (civic, expert, political)); and a sense of how courts and political branches are supposed to interact in the overall administrative law industry (with different systems plotting themselves along different points of a spectrum in the balance of power between courts and the political branches). There will be differences of opinion on the optimal design of a common law system of administrative law but the designs will, in common, utilise these features.

The aim of the forthcoming volume is to push back on the view that common law systems tend to coalesce around this group of concepts and ideas.  The volume considers how a wide range of common law systems have received and adapted English common law to the needs of their own socio-political context.  The book covers Scotland, Ireland, the USA, Canada, Israel, South Africa, Kenya, Malaysia, Singapore, Hong Kong SAR, India, Bangladesh, Australia and New Zealand. Comparative public lawyers will have a much greater range of common law models of administrative law – either to pursue conversations about their own common law system or to sophisticate their comparison of their system (civil law or otherwise) with common law systems.

The premise of the volume is that there is a significant amount of variance that it is necessary to explore and which only becomes apparent when specifically considered from the perspective of divergence. The volume specifically considers the issue of divergence by asking how far different common law jurisdictions have deviated from their original English law roots of administrative law. The contributors to the volume investigate the continued utilisation of English law across common law systems that traditionally imported, or were modelled on, English law. The contributors consider the origins of English law within the jurisdiction (doctrines, concepts, structures, constitutional underpinnings); the range of adaptations made to English law and the autochthonous forces that influenced this adaptive process. The objective is to evaluate not just the continuing impact of the English law transplant in a multitude of common law jurisdictions, but also the broad range of causal factors and agents that influence the development of the common law.  This multi-jurisdictional conversation will help develop a much more refined and robust understanding of ‘common law’ administrative law that is not skewed towards an understanding coming out of the usual jurisdictions of comparison, especially for the benefit of ‘newer’ common law jurisdictions which are undergoing a more nascent development of administrative law and looking for inspiration on modes of development. It will also provide a more refined definition of ‘common law’ approaches to judicial review for studies cutting across the common law and civil law divide, which have until now tended to be driven by a ‘unitary’ or narrow understanding of ‘common law’ systems as a, more or less, unified group of systems with certain shared characteristics.   One of the major conclusions of the volume is that multiple categories of common law systems can be identified once these systems are studied from the perspective of divergence. While common law systems may share a common vocabulary, there is greater variance and nuance in the approach to judicial review that needs to be appreciated.   

Briefly, it is possible to start to map out a typology of common law systems based on how they position themselves on the above issues. At least five such subcategories are apparent:

  • Modified Westminster systems. These are systems that, while highly referential of concepts and doctrines from English administrative law, have tweaked the law with different degrees of retention of ‘Diceyan’ distinctions (law versus merits; degree of embrace of substantive review; degree of distinctiveness in dealing with, e.g., private law issues involving public bodies; balance struck between courts and the executive). They also differ in whether they adopt these distinctions for ‘red-light’ or ‘green-light’ reasons.
  • Constitutionalised systems. These are systems where judicial review is on a stronger and more visible/written constitutional footing, where the latter informs the scope of judicial review significantly. These jurisdictions deal with additional issues relating to the overlap/conflicts between any such constitutionalisation or codification and the common law – which impact on the scope of cases that come before the courts and the grounds utilised at common law.
  • ‘Multi-layered’ legal systems. These are jurisdictions where the common law co-exists with other systems (Syariah, indigenous, international law) or where there is a stronger influence from international law through a monist approach or a soft(ening) and thin-(ning) dualist approach to international law. There is then the question of how much the separate system fertilizes the common law (with thick or thin influences being apparent across these jurisdictions).  
  • Systems influenced by systemic ‘transition’ or development issues. These are jurisdictions where the common law is under pressure to be a tool to assist in transitional or development deficiencies in the broader system of governance.   
  • A possible fifth category is apparent if we consider the US. This creates a further class of common law systems: non-derivative common law systems. In the US, while the style of judicial reasoning follows the common law tradition or style of reasoning and the outcome of adjudicative processes in the courts are binding sources of law, there are differences in the framework of administrative law (governed largely by the Administrative Procedure Act and agency autonomy over interpretation via the Chevron doctrine). American administrative law, while using overlapping conceptual vocabulary on occasion (deference, reasonableness), has not tracked or tethered itself to English administrative law for content. It sits apart.

This is just one proposal for possible subcategories. There are a number of questions that will need to be explored in future studies. Two such questions are immediately apparent. First, there is a degree of porosity between the categories where certain jurisdictions can be classified under multiple headings. A second issue is the need to further stratify the categories.  These issues will need to be worked through further. The above is just a start at subclassifying common law systems. This is the ambition of the volume: to expose the diversity of common law systems by illuminating the multi-event, multi-author, and multi-causal nature of the development of common law administrative law in a broader catchment of common law systems than has been studied to date.