Liz Fisher: Should Administrative Law Scholars Be More Like Botanists?

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

In a 1995 article Michael Beloff QC noted that ‘Council of Civil Service Unions v Minister for the Civil Service…. is manifestly inadequate as a classification of all the flowers in the judicial review garden’ (‘Judicial Review 2001 – A Prophetic Odyssey’ (1995) 58 MLR 143, 150). I have always loved the vividness of that statement. It struck me as not only legally correct, but also capturing something essential about the nature of judicial review. Although exactly what I could never articulate. The temptation was thus to dismiss it as an evocative turn of phrase, albeit recognising that those can be in short supply in administrative law scholarship.

The picture of the beautiful rose on the front of Joanna Bell’s new book – The Anatomy of Administrative Law (Hart 2020) might also be easily dismissed as a pretty adornment to dry scholarly analysis. But it isn’t. As Bell shows, there is a lot that an administrative law judgment and a flower have in common.  

Bell’s book is a study of the doctrines that emerge from administrative law adjudication. Bell makes an elegant plea against a singular ‘master theory’ account of that body of doctrine. She eschews monism. She deftly deconstructs doctrines such as legitimate expectations and procedural fairness to show they are not crafted in terms of a single ‘meta value’. And more significantly, she pushes back against scholars such as Jason Varuhas who in some writings have aimed to provide single organising concept of the subject. That short description might tempt you to classify it primarily as yet another parley in the ongoing debate about whether general principles of administrative law exist.

But Bell’s book is not fundamentally about that debate. Rather, as its title makes clear, it is a book about the anatomy of administrative law. Or more precisely it is a book about the scholarly methods we use to make sense of that anatomy. And that is where the flower on the cover is relevant.

In the introductory chapter (Bell, 7) Bell describes a story told by the Nobel prize-winning physicist, Richard Feynman. In his typical style, Feynman took objection at his friend describing the scientific dissection of a flower as turning it into a ‘dull thing’. Of the friend, Feynman states, ‘I think he’s kind of nutty’. He then goes onto to state ‘I see much more about the flower than he sees. I could imagine the cells in there, the complicated actions inside, which also have beauty’. For Feynman, understanding the flower in scientific terms ‘only adds to the excitement, the mystery and the awe of the flower’.

Bell, unlike Feynman, does not see her colleagues as ‘kind of nutty’ – she has too much intellectual empathy for that. But she does see the ‘awe’ of judicial review in the process of dissection. Unlike the artist Georgia O’Keefe who thought that the ‘real meaning of things’ was only discovered ‘by selection, by elimination, by emphasis’ (Bell, 247), Bell sees ‘real meaning’ in literally pulling a judgment apart to examine its legal elements.

Thus, in Chapter 3, she shows that to understand the anatomy of administrative law there needs to be an understanding of: the interrelationship between doctrine and legislation; that administrative law protects a range of different values, purposes, and interests; and that administrative law adjudication involves different types of legal relationships. Bell is like a botanist dismembering a judgment, studying it closely, and accurately recording what she sees. What she sees is often unexpected, for example the relationship between grounds of review and standing doctrines. But more significantly in carrying out this she is encouraging readers to look at administrative law cases in a different way. This is not just in a different light. Rather she wants scholars to go deeper into the structure of administrative law adjudication.

A consequence of this is that Bell puts a lot on the examining table for administrative law scholars to scrutinise. It is not just that she reminds us that legislation is legally relevant, but she pins a statutory provision out like a botanical specimen so we can see exactly why its legally relevant and the legal function it is playing (eg Bell, 110). She doesn’t just state the doctrine is complex, but in her analysis of standing, legitimate expectations, and procedural review she carefully labels the complexity she sees. She is not arguing that administrative law has no larger structure. Rather she is pointing to that structure being more anatomical than normally understood. For example, to use a very bad pun, she shows that procedural fairness is less ‘Protean’ (as Lord Wilson described it in R (on the application of Moseley) v London Borough of Haringey [2014] UKSC 56), and more like a protea.

That brings me back to Beloff’s statement from 25 years ago. Beloff was pointing to the organic nature of administrative law. Administrative law adjudication is not static, it evolves, and scholars need to study its evolution. More than that however, any study needs to examine a lot. As he himself pointed out (Beloff, 150), to talk in terms of flowers and gardens, also requires thinking about nutrients and fertilisers. Why Beloff’s statement appealed to me is that it evoked that scholarly challenge. Bell is doing more than evocation. She is showing not only that there is a ‘judicial review garden’ but there is a great virtue in being botanical about its study.

Metaphors are an essential part of legal imagination (Maks Del Mar, Artefacts of Legal Inquiry: The Value of Imagination in Adjudication (Hart 2020). All metaphors have their limits, however. Bell never pushes her metaphor beyond its limits, but my last couple of paragraphs were probably a step too far. Let me phrase myself differently.

The fundamental virtue of this book is that Bell is making an argument for a distinctive scholarly method in the study of administrative law adjudication. One that requires us to look at an administrative law case with a steady legal precision, that while not unknown in administrative law scholarship, is not necessarily part of daily discourse. In essence, Bell shows the benefits of studying legal structures and legal reasoning in more detail. One might think of that method as being more ‘scientific’ than what legal scholars usually do but given how often the scientific method is misunderstood that is not a helpful way to think about it. That is particularly when what is being analysed is not just the anatomy of, but also the ‘mystery’ of, judicial review.

That scholarly method yields a lot to think about and having so much to legally think about can be disconcerting. It also doesn’t yield immediate insights. But having such a method in the repartee of administrative law scholarship does strengthen understanding and thus the expertise of administrative law scholars. That is to not to argue this is the only way of studying administrative law cases. Rather it is to point out that while not all administrative law scholars need be botanists, some of them definitely should be.

Liz Fisher, Professor of Environmental Law, Faculty of Law, University of Oxford.

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