June 07

What is the ‘common law world’ insofar as administrative law is concerned? Reflections on editing Questioning the Foundations of Public Law (Hart 2018).

I have generally been skeptical about whether there is much analytic utility to the idea of ‘administrative law in a common law world’.  Simply put, I do not think that common law jurisdictions are coherent enough, or distinctive enough, in their treatment of administrative law to meaningfully distinguish such treatment from the various ways that administrative law is handled in civil law jurisdictions.  For example, I think one could make a colourable claim that the American administrative law system bears greater similarity with that of France than it does that of England.  This has been a point of some discussion between my friend, colleague and ‘Administrative Law in the Common Law World’ blog co-founder Swati Jhaveri and myself.

In Spring of 2015, the National University of Singapore hosted a workshop which invited a number of scholars from different jurisdictions and disciplines to discuss Martin Loughlin’s magisterial opus, Foundations of Public Law (OUP 2010) [Foundations].  Foundations is Loughlin’s effort to explicate a ‘pure theory of public law’, as initially advanced in the concluding chapter of his earlier book, The Idea of Public Law (OUP 2004).  The papers from that conference have recently been published by Hart under the title Questioning the Foundations of Public Law, edited by Michael A. Wilkinson of the LSE and myself.  And I think it sheds valuable light on the disagreement I have been having with Swati.

One of the major issues explored in that workshop involved just how ‘pure’ a theory of public law could be.  Loughlin develops his pure theory by exegesis from a very impressive intellectual history of how the idea of public law came together in Western Europe and later, the North Atlantic.  His is a ‘pure’ theory in that it does not claim to be constrained to a particular time or place.  In this sense, it contests both my own and Swati’s positions.  If there is a pure theory, then the common law / civil law distinction is insignificant (at least from the perspective of theory) – and by extension so is the idea that the common-law world has a distinct form of public law.  How did the workshop, and the resultant volume, inform my disagreement with Swati?

At first glance, the workshop and edited volume seem to support my skepticism.  They included two presentations that were expressly from the perspective of common law jurisdictions, Mark Tushnet looking at Foundations from the American perspective, and Mathew John looking at it from the perspective of India; and one presentation, that of Denis Baranger, looking at Foundations from a expressly civilian perspective, namely that of France.  Consistent with my perspective, both John and Tushnet do not see Foundations as accurate representations how public law is conceived in their respective jurisdictions – Tushnet in particular refers to it as “scratching an itch we [Americans] don’t currently feel.”  On the other hand, Baranger focuses on commonalities between the French experience of administrative law and that of the English, arguing that both French and English administrative law share an important commonality in that neither is really the ‘autonomous’ legal phenomenon described as described by Foundations – arguing that in fact that in both France and the UK the doctrines of administrative law derived from those that comprise the private law (which, it might be added, would further distinguish the systems of England and France from that of the US, as I will discuss further below).

But I think it might be more complicated than that.  Tushnet in particular suggests that Loughlin’s opus is addressed to distinctly British concerns, and in particular the complexities of Britain’s experience with integrating into the EU (the workshop was held prior to Brexit).  But I would go further than that.  There has long been a certain ‘exceptionalism’ that the English have attached to their legal system (see Penny Darbyshire, “‘British Justice is the Finest in the World’: An Examination of Anglo-American Boasting” (dated 2015) eprints.kingston.ac.uk/33454/3/Darbyshire-P-33454.pdf).  Recall, for example, that the Dicey advanced his germinal conceptualization of administrative law as it operated in England principally by distinguishing it from what he saw as the dysfunctional administrative law system of France.  More recently, J.G.A. Pocock would refer to this exceptionalist mindset – this particular collection of experiences and concerns, particularly as it operated in the context of English constitutional law – as ‘the common law mind.’  I suspect that distinctions that Tushnet draw between the English and American public law systems are not simply a product of integration into the EU, but also a reflection of this larger attitude of exceptionalism.

Seen in this light, there might indeed be meaning in the idea of ‘administrative law in the common law world’.  It’s just that ‘the common law world’ is not a world delineated by a particular collection of territorial jurisdictions, but by a particular collection of understandings regarding the nature and relationship of the state, its law, and its people.  Consider again, along these lines, Baranger’s analysis of how Foundations comports with French administrative law, Baranger finds that the principal differences lie not so much in differences between the English and French systems in legal doctrine or process, but in differences in the way that public law as a legal field is conceptualized.  Foundations portrays public law as a conceptually autonomous field, France does not.

Some (including Loughlin himself) will undoubtedly find my characterization of Foundations as articulating a ‘common law’ vision of public law puzzling.  In fact, Foundations actually seems to draw more heavily on concepts and ideas found in French and Germany legal, political and philosophical thought than from English public-law scholars.  At the same time, it is quite skeptical of American public law thinking.  But in fact, I would argue that American administrative law (and public law more generally) is not actually part of the common law world in the way I am identifying it.  In contrast to that of Britain, American administrative law is the product of positive statute, and not of the ‘common law’ in the sense of organic juridical interpretation of law as articulated incrementally through cases brought before the judiciary.  By contrast, as shown by Foundations, public law as it emerged on the European continent – and particularly in France – has historically had a distinctly organic, common law character (see for example L. Neville Brown and John S. Bell, French Administrative Law 5th ed. (OUP 1998)) — although that may be changing given recent French efforts to begin codifying its administrative law (see Dominique Custos, “The 2015 French Code of Administrative Procedure: An Assessment” in Susan Rose-Ackerman, Peter L. Lindseth and Blake Emerson (eds), Comparative Administrative Law 2nd ed. (Edward Elgar. 2017)).  In this sense, France is more a part of the ‘common-law world’ insofar as administrative law is concerned than is the United States – and I think this point is well reflected in the use Foundations makes of French public law concepts (particularly that of droit politique) in particular vis-à-vis those developed in the US.

That the common law as a legal system embodies a particular collection of social constructs and ideologies is a perspective that is often lost from view, especially in the context of public law.  As Frederic Maitland noted in his inaugural 1888 lecture at Cambridge University, “Why the History of the Common Law is not Written”: “I think it true, that the earlier ages of English law are so little studied because all English lawyers are expected to know something about them. . . . But on enquiry we shall find that the practical necessity for a little knowledge is a positive obstacle to the attainment of more knowledge.”  Foundations performs an invaluable service in this regard, as it is the most extensive exploration of the particular constructs and ideologies that inform the common law’s understanding of public law of as they operate at present.

But Foundations is also incomplete, in that it presents itself as exploring a ‘pure’ theory of public law, rather than a common law theory of public law.  A ‘pure theory’ is a theory without borders.  The common law world, by contrast, is a world for which there are borders – borders that distinguish that world from other kinds of legal-systemic or legal-theoretical worlds.  Foundations gives us no way of identifying these borders.  It gives us no insight into where its common law world is located in the larger world of ‘public law’ per se.

And while not expressed in such terms, I found both the NUS workshop and attendant edited collection extremely valuable in delineating the where the borders of this common law world lie and where it sits in relationship to other ways of approaching public law – borders that only become visible when exploring Foundations from perspectives that lie outside the common law world, such as those of post-colonialism, legal pluralism, Marxism and ‘material constitutionalism’, and continental theories of the state and its relationship to law and society.  None of these refute the central premise of Foundations per se – they simply point to aspects of public law that Foundations’ distinctly common-law world does not well capture.

In sum, the workshop and volume show me that Swati (and this blog) was right all along: that there is important meaning in the idea of ‘administrative [public] law in the common law world’.  It’s just that that ‘world’ turned out to be in a different place than where I thought it would be.

Michael Dowdle is an Associate Professor at the National University of Singapore.