Joe Tomlinson: Embracing Complexity and Diversity in the Principles of Administrative Law

Editors: This is the second in a series of posts engaging with Joanna Bell’s new book – The Anatomy of Administrative Law (Hart 2020).

There are two unfortunate imbalances that run through much contemporary administrative law scholarship, at least in my own jurisdiction. The first is a preoccupation with common law principles as applied in judicial review, and a corresponding neglect of the critical role of legislation and the wider systems of administrative justice through which public law is administered and experienced. The routine work of judicial review is also overlooked in favour of appellate-level decision-making which speak more directly to the questions this frame of analysis foregrounds. The second imbalance is that much of administrative law scholarship increasingly trades on abstractions and is studied at a ‘general’ level dislocated from fields such as social security law, local government law, and housing law. A result, at least in places, is that we neglect practice and scholarly discourse risks collapsing into a ‘product of abstraction that, at times, overemphasizes certainty and simplicity in a search for systematic coherence… even where none exists.’ The routine—and worrying—upshot of these imbalances is that much contemporary administrative law scholarship appears to neglect the realities of the state, and scholarly discourse on administrative law drifts further away from state (including judicial) practice with passing time. Given that the core task of administrative lawyers, in my view, should be to focus on examining techniques that provide for the efficient implementation of public policy while ensuring justice for individuals, I worry that the current dominant path in scholarship is taking us in the wrong direction.

There is a sense in which we have seen a similar moment in administrative law scholarship before. In 1928, Kier and Lawson, in one of the leading texts of the day, boldly claimed that ‘[k]nowledge of the constitution can best be acquired by a study of the leading cases in constitutional law which create an abiding impression not of historical change, but of the permanence of the Common Law’ (D.L. Kier and F.H. Lawson, Cases in Constitutional Law (Clarendon Press, 1928). In their account, statutes are marginalised because they are, for the most part, ‘only a fleeting interest.’ Such a framing was not sustainable against a backdrop of sweeping social, economic, and governmental change—driven by legislative action—and came under heavy fire from scholars of the functionalist style. Functionalism made great progress in the 20th Century, including by putting doctrine in its proper context: law was the technology of the modern state and its study was to revolve around statute-based topics, such as tax law and commercial law (see e.g. W. Ivor Jennings (ed.), Modern Theories of Law (Oxford University Press, 1933). This was accompanied with a clear ‘hostility to active judicial review of governmental action on the grounds that, being shot through with discretion, review involves an exercise of political choice that non-elected, conservative judges are unlikely to exercise wisely’ (see e.g. H.J. Laski, ‘Judicial Review of Social Policy in England’ (1926) 39 Harvard Law Review 839; J.A.G. Griffith, The Politics of the Judiciary (Fontana, 1977)). These styles of public law thought have, as at least in some quarters, become increasingly muddled in the last few decades, and the time seems ripe for the emergence of a new approach which takes both doctrine and its context seriously.

It is important to be clear that my view on the current state of administrative law scholarship does not mean that we should abandon the study of common law principles, judicial review, or that we should jettison all hopes of achieving some sense of ‘principle.’ Instead, these critical aspects of our administrative law need to be carefully studied alongside the wider role of law in the administrative state, including both systems and principles. Moreover, when we do study doctrine and judicial decision-making then it should be with a clear-eyed view on how the whole range of judicial decisions fit into the reality of the modern state apparatus. These lines of inquiry will often entail using empirical methods and more systematic modes of analysis, moving beyond traditional doctrinal approaches. It does not, however, necessarily lead us to being sceptical of the role of judges vis-à-vis the administrative state (or at least more sceptical than others who exercise state authority). Indeed, in my view it calls for judges who pragmatically engage with the position of the courts, the law, and the modern state—and a scholarship of judicial decision-making in administrative law which does the same.

Against this assessment of the field, Joanna Bell’s The Anatomy of Administrative Law is to be warmly welcomed as an attempt to ‘build in’ the nature of the state and judging into a more convincing articulation of the general principles of administrative law. The book states its goal is to further our understanding of administrative law and adjudication by exploring the ‘anatomy’ of the subject, revealing it to be complex and diverse. It suggests that this complexity and variety exists on three levels: administrative law doctrine interacts with a broad array of legislative frameworks; administrative law adjudication seeks to accommodate a variety of legal values; and administrative law is concerned with legal relationships of different kinds. The book achieves this through a combination of general discussion and detailed case studies, which consider procedural review, legitimate expectations, and standing. For those familiar with Bell’s other work, it will not be a surprise that all of this content is scholarly and well-written, with plenty of valuable insights on topics of contemporary controversy—the case studies are valuable as independent discussion of the issues, not just substantiation of the book’s thesis.

As Liz Fisher pointed out in her recent review of this book, the major contribution of this book is that it proposes a ‘distinctive scholarly method in the study of administrative law adjudication.’ That method is one which rejects quixotic quests to articulate grand theories of administrative law doctrine and, instead, acknowledges and embraces the inherent complexity and diversity that a set of judicial principles which seek to regulate the modern public sector inevitably possesses. The implications of this for administrative law scholarship and teaching are serious and challenging—indeed, the closing passages of the book, which discuss some of these implications, brings to mind Justice Scalia’s famous line that ‘administrative law is not for sissies.’

Bell’s book is an important scholarly project that fits the present moment of administrative law scholarship. It is also a project to that a number of other administrative law scholars are sympathetic to and also engaging with, albeit in potentially subtly differing ways (see e.g. Sarah Nason’s Reconstructing Judicial Review (Hart, 2016) and Paul Daly’s ‘Plural Public Law’). If this style of analysing administrative law doctrine continues to grow in influence, and I hope it does, then the Anatomy of Administrative Law will no doubt be seen as amongst the most important books on the topic of administrative law doctrine in first quarter of the 21st Century.

Dr Joe Tomlinson is Senior Lecturer in Public Law and Research Director of the Public Law Project.