Over the last eight weeks, Liz Fisher, Joe Tomlinson and Paul Daly have published excellent blog posts engaging with my new monograph, The Anatomy of Law. The first thing I want to express is my very sincere thanks to the contributors for taking the time to read so carefully, and comment so thoughtfully. It has been an utter joy to read their offerings.
The contributors have done a wonderful job in drawing out the key themes of the book. Rather than rehearsing my arguments, I want here to return the favour. Two themes seemed to me to run across the contributor’s posts. Here, I offer some brief reflections on each.
- General Principles; Specific Legislation
The first theme which struck me is the intellectual challenge which comes from studying a subject characterised by two dimensions which, at first sight, do not fit well together. On the one hand, administrative law is the study of the general: general grounds of review which can be invoked in challenges to different decision-makers and decisions; general principles which inform the construction of different statutes; general values which we seek to uphold across our legal system. On the other, administrative law case law also often requires close attention to legal specifics: in the background to any given challenge will usually be an Act of Parliament conferring a specific set of powers, and often supplemented by (sometimes very detailed) Regulations and policy. The primary focus of a huge proportion of administrative law adjudication is on making sense of these type of provisions, and of how the general principles apply in the context of them.
It may be tempting to see these dimensions – the general and the specific – as being, in some sense, in competition with one another. This temptation might lead us to ask, for instance, whether judicial review is a practice of applying general grounds, or of interpreting statutes on a case-by-case basis. Similarly, we might be drawn to asking whether the primary aim of scholarship should be to explicit the general principles, or instead to understand how administrative law operates in particular contexts. Tomlinson usefully reminds us, however, that to argue that attention should be paid to one is not to denigrate the importance of the other. There is, in other words, no choice between the two. There is a simple reason why there is no choice: it does not reflect the legal reality. Administrative law adjudication is, by its nature, legally intradisciplinary. This is not a ‘pure’ legal field, characterised by neat boundaries and a distinct logic. Legal overlaps are at its heart.
The legal interdisciplinarity of administrative law poses considerable challenges for those who study it. The contributors express the challenges beautifully, and in different ways. Fisher extols the virtues of ‘being botanical’ in the study of administrative law: a ‘steady legal precision’ is needed to open up our specimen and understand its complexity. Tomlinson frames the challenge in terms of achieving a ‘balance’ between administrative law’s dimensions. For Daly, administrative law scholarship involves navigating a way between the poles of ‘meta-theory’ and ‘nihilism’. Another way of putting it is that administrative law requires an intellectual nimbleness. To be nimble is to be capable of quick thought when faced with new things. This is certainly an important skill of the administrative lawyer: new things – legilsation, policy, changes in administrative practice – crop up all the time and give rise to important legal issues. More than this, however, nimbleness also requires sensitivity. There is a need, in other words to fully understand the various legal standards in play: where a ground of review meets a statute, a court must fully understand and grapple with both.
- Getting Beyond Appellate Court Decisions
A second important theme running through the blog posts is the question of what role first instance decisions should play in our search for meaning in administrative law. In researching for the book I (like Sarah Nason in her excellent monograph) certainly spent a good deal of time working with Administrative Court case law. The contributors have, I think, slightly different takes on this endeavour. Tomlinson’s view is that there is a general and unfortunate tendency to neglect ‘the routine work of judicial review… in favour of appellate-level decision-making.’ Daly, meanwhile, locates his interest firmly in ‘black-letter law as expounded by apex courts… not first-instance judicial review decisions by busy judges.’ Daly is not, I think, doubting that study of first instance decision-making can be illuminating. But apex courts are his personal intellectual centre of gravity.
There are, of course, good reasons for closely studying apex or appellate court decisions. Our system of precedent means that these rulings set a doctrinal framework within which lower courts operate. By definition, furthermore, cases at the appellate levels either raise important points of principle and policy, or there is some other compelling reason to hear them.
In my view, however, we risk overlooking important things in our study of administrative law if we look only at these decisions. In saying this, I in no way mean to detract from the work of those, like Daly, who make apex courts their focus. Fisher posits that ‘while not all administrative law scholars need to be botanists, some of them definitely should be.’ Similarly, to say that there are benefits in looking beyond the appellate courts, is not to say that all scholars must immediately turn to the task.
I think there are several ways in which we (using the term in a collective sense) can learn things of enormous value by engaging more with what is happening in the lower courts. In Anatomy, for instance, I make the point that looking to first-instance decisions can offer a reality-check and help to prevent us from making mountains out of molehills. I offer legitimate expectations, where common academic concerns about a lack of structure and an excess of interventionism are not borne out in the case law, as an example.
Let me here add one more reason why I think expanding the case law we allow into our purview is important. In a common law system, decided cases (at all levels) are our building blocks. Courts, unlike legislatures, do not have a completely free hand in the development of the common law: what they do must be grounded in decided cases. As a result, to a court or practitioner the most elegant account, if built from clever ideas but not precedent, is of little use. To steal an image from Kenneth Culp Davis, lawyers are neither bricklayers, nor architects: they are both. Constructing a workable building requires big-picture thinking. But it also requires a detailed understanding of the building materials available. Looking below the appellate levels, to the large swathes of first instance case law, is important because it offers a fuller understanding of the materials we have to work with.
Joanna Bell is an Associate Professor and Tutorial Fellow in Law at St Edmund Hall, University of Oxford.