Mary Liston: Of Jell-O and Justification

Many years ago, a former student of mine described Canadian administrative law this way: “it’s like trying to grab a hold of Jell-O while it squishes through your fingers.” In his important new book, Understanding Administrative Law in the Common Law World (OUP 2021), Paul Daly aims to correct this prevailing impression by providing an intelligible, modern structure for administrative law. He does this through a close analysis of key recurring features sourced from a family of like jurisdictions: Australia, Canada, Ireland, New Zealand, and England and Wales. Uniting these features are four values Daly identifies as core: individual self-realization, good administration, electoral legitimacy, and decisional autonomy. These values and this structure are what Daly calls his “recipe” and with this recipe he promises “a meal capable of satisfying a diverse range of palettes” (p25-26), a “gallimaufry” he calls it elsewhere (p254). Considering Daly’s ambitious goal and picking up on my former student’s  remarks, I can only think of Del Griffith’s quip from Plane, Trains and Automobiles: “Whoever said nothing is impossible obviously hasn’t tried nailing Jell-O to a tree.” So, to take my analogy a little further—has Daly achieved the impossible by creating a suitable mold for the supposed Jell-O that is administrative law?

I will begin with structure. Daly’s book presents a thin structure for administrative law. While some might view this statement as a criticism, it isn’t. Not at all. In this area of law, which is simultaneously so very old and so very new (especially in Canada with the latest overhaul of substantive review in Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65), being able to comprehend a basic structure is essential not only for administrative law doctrine, but for future comparative work in public law. This thin structure notably differs from another recent examination of administrative law—Joanna Bell’s The Anatomy of Administrative Law (Hart 2020)—which takes its metaphor to heart through the analysis of the so-called ‘inner’ structure of British administrative law. Putting them side-by-side, I would suggest that Bell presents the endoskeleton of a single administrative law jurisdiction, whereas Daly tries to give us the large exoskeleton of administrative law across several common law jurisdictions.

As it stands right now (and for quite some time or perhaps even forever) administrative law does not have one dominant meta-value—no one ring rules all. I view this state of affairs as a good thing and so am therefore in total agreement with Daly (and also Bell) that a pluralist approach is necessary in order to best comprehend administrative law Administrative law is pluralist in more than its core values. It possesses more than one source. It encompasses a multiplicity of decision-makers and procedures which concretely affect its development. It supervises more than one kind of legal relationship with the result that it is juridically[i] and remedially diverse. Quite simply, it is an extremely complex area of law. To be able to step back (or above) to identify and describe a basic structure or ‘architecture’ of administrative law, then, is a significant achievement. Kudos!

Daly’s thin structure possesses several virtues. First, its framework facilitates the expansion of comparative analyses to other common law jurisdictions. Second, it permits a compare and contrast methodological study between civilian and common law jurisdictions. Third, it may help us see similar principles and values in other areas and forms of law.[ii]

Through his careful analysis of a broad selection of case law, Daly also demonstrates that important convergences can be seen across jurisdictions. I won’t canvass the full range, but a few are worth highlighting. Modern administrative law has shifted away from old-style categorical thinking and unhelpful formalism. Instead, it relies on context and is accompanied by new terminology about the scope and intensity of judicial review. Familiar principles of deference and fairness are joined by new principles like proportionality, with a complementary trend showing a decline in the prevalence of highly deferential forms of substantive review such as Wednesbury review.[iii] As Daly argues, courts can generally be seen to attempt to reconcile rights and goods in their own reasoning. Through reason-giving, however, reviewing courts can also recognize and give proper deference to decision-makers who demonstrate through quality reasons that they have attended to relevant arguments, context, facts, rights, goods, and values. And, as Daly, emphasizes, administrative law constitutes a form of legal pluralism which importantly includes interpretive pluralism. He, however, pulls back from asserting that it represents a deep form of legal pluralism, preferring instead to claim that while administrative law displays structural heterogeneity, it nevertheless also demonstrates conceptual coherence and exhibits significant homogeneity of values (p254).

Despite the clear virtues of this thin structure, Daly’s monograph raises some concerns about the nature of these core values and how they may be used. First, Daly has neatly sidestepped a number of key jurisprudential debates by replacing his original four values (i.e., rule of law, good administration, democracy, and separation of powers) with his preferred set (i.e., individual self-realization, good administration, electoral legitimacy, and decisional autonomy). Rule of law rabbit holes have therefore been avoided—at least at first blush.

His bespoke values are ranked equally and exert a gravitational force in law, though they are not considered principles per se (p143). Because they are sourced from decided cases and other legal texts (where they are “immanent”), they can be consideredlegal values of “unimpeachable validity” (p222). Daly goes so far as to state: “They are legal values. While they may be congruent with understandings of values found in political theory or discourse, they are not political; they do not represent judges’ personal preferences as to how the law ought to evolve.” (p261; emphasis added) This is a second sidestep that Daly makes and one that is oddly formalist. He overtly distances himself from a more Dworkinian understanding of principles as a set of commonly accepted political and moral values that law has turned into principles for the purpose of adjudicating rights and duties. Notably, Dworkin is cited only once.[iv]

Fair enough, perhaps, since Daly has not set out to ‘do’ legal philosophy and he doesn’t claim to be creating a ‘model’ of judicial review (ideal-type or otherwise). His main methodological approach is doctrinal.[v] But with this second sidestep, he avoids taking on the real task of justifying both these values and ultimately judicial review itself. Is it enough that they are sourced from decided cases? After all, decided cases have also promoted more unsavoury values. Why these four and only these four? Why, for example, should we prefer electoral legitimacy over democracy (deliberative, participatory, republican, representative or otherwise)?[vi] So, while perhaps valid, these values ultimately remain unfounded and not fully legitimized. Moreover, is it enough to say that they are not ‘political’ simply because they do not reflect judges’ personal preferences? Such a claim both avoids the significant legal and political science literature on the very legitimacy of judicial review and does a disservice to the political. As suggested above, principles have a source and a second home in politics, and those qualities do not make their pedigree specious; instead, they need to be explicated and justified. Alerting us to this shortcoming is the curious fact that Daly’s set of values, while not to be considered ‘political,’ just happen to coincide with several values found in a conventional liberal-democratic order. In short, Daly identifies and describes the content of his set of key values, but he provides neither a conception of these values nor a defence of their selection over other key legal values/principles (such as, for example, the equally important principle/value of equality which appears to play no role in this monograph).[vii]

A second area of concern—also voiced by other commentators—goes to ranking and weight. Daly contends that each value is equal to the other and none can be ranked first or absolutely. Ideally, they are reconciled with each other in judicial opinions should they conflict in order to construct an “appropriate balance”: “As a result, neither individual right nor good administration reigns supreme.” (p254) But Daly’s values, and their prescriptive use, cause even more concern here. Three of these values—good administration, electoral legitimacy, and decisional autonomy—pose risks for individual self-realization because either alone, or in conjunction with each other, can outweigh the first value unless more weight is specifically allocated to individual self-realization. At the end of the day, when important rights that go to the core of personhood are affected, I am not so sure that I would be comfortable with individual self-realization having equal or less rank and weight against decisional autonomy, good administration, or even electoral legitimacy. Indeed, I am not sure that ‘individual self-realization’ (simply defined as ‘the ability to plan your affairs’) is at all fungible with respect to dignity, autonomy, liberty, equality, human rights, or other similar weighty concepts that Daly treats as ‘synonyms’ for his preferred value.

Let me take a Canadian case as an example: Baker v Canada (Minister of Citizenship and Immigration), [1999] 2 SCR 817. This case concerned an older woman from Jamaica, employed as a domestic worker, who overstayed her visitor’s visa, bore several Canadian children during her stay, and became subject to a deportation order after her humanitarian and compassionate grounds (H&C) application was denied. The immigration official’s decision was ultimately reversed after the officer’s unofficial notes were disclosed and these notes were subsequently treated as the official reasons for the H&C decision by the Supreme Court of Canada. The unofficial reasons, however, disclosed the real basis for the immigration officer’s decision. Now, one can re-imagine the outcome of this case had polished reasons been given by the immigration official in the first place (as I have sometimes asked my administrative law students to do as an exercise). With these polished formal reasons, judicial review would certainly have been much harder to access and win.

One can further imagine communicating the officer’s concerns but using different and less problematic language—perhaps the language of Daly’s four values. These improved reasons could satisfy the values of electoral legitimacy (because Canada has decided as a political community that not every non-citizen is entitled to remain in the country even if they have Canadian-born children), good administration (because polished reasons may demonstrate sound or rational decision-making), and decisional autonomy (because official reasons, rather than the unofficial notes, illustrate expertise and the proper exercise of jurisdiction). So, proper reasons tied to these three values, expressing a more sanitized set of concerns, along with a minimalist interpretation of individual self-realization would lead to the opposite outcome for Mavis Baker. Would that result be wrong? I think it would, so let’s think about this example further. Doesn’t it matter that the decision would still be arbitrary even if the reasons convey the appearance that it isn’t arbitrary (p100)? Is the wrong that Mavis Baker experienced best understood as state interference in her ability to plan her affairs (although it is true she couldn’t really plan her affairs due to the imminent deportation order)? Is this the conception of justice that the Supreme Court vindicated through the first value? I don’t think so.

Instead, a closer reading of the case discloses other values which must be super-added to individual self-realization in order to understand the true nature of the wrong and ultimately the normative role of the courts—values such as respect, dignity, equality, autonomy, family status, and individual self-worth. These harms are not reducible to the inability to plan one’s affairs, but instead each one communicates a different sense of justice. These other values also encompass intersecting forms of discrimination on the basis of race, gender, age, class, family status, and mental disability, the combination of which informed the immigration officer’s decision. Attention to these other values reveals that the legal structure informing the Baker case is one where a significant power imbalance informs almost all aspects of the relationship between the individual and the state. Such an imbalance may require a reviewing court not only to be more vigilant on behalf of the affected person because of their inherent vulnerability but also, and consequently, to weigh self-realization more heavily because the decision-maker, having given more heft to the other three values, could not and did not.

To consider briefly another example, is the legal wrong that Frank Roncarelli experienced in the seminal Roncarelli v Duplessis, [1959] SCR 121 case best understood as the decision-maker acting outside of their jurisdiction? Or that its main take away is that “[e]lectoral legitimacy can, accordingly, be understood to influence the no-acting-under-dictation principle” because the decision-maker has acted against legislative intent (p46)? Again, I say no. Although it was clearly true that the arbitrary denial of his restaurant’s liquor licence hindered Roncarelli’s ability to plan his affairs, the normative dimension of both the value of individual self-realization and the nature of the harm goes much deeper as part of a conception of justice that courts are tasked with making accessible and effective.[viii] It is this conception of justice that remains underspecified in Daly’s monograph. As I have tried to show, Daly’s values may be inherently too thin or may be susceptible to a reductionist approaches to interpretation.  So, his four values remain vulnerable on a number of grounds, and it not clear why one should prefer Daly’s set over his original four or any identifiable alternative.

Finally, Daly’s account of judicial balancing and weighing is altogether too ‘romantic,’[ix] namely: “The courts might be said to be engaged in a process of reconciliation of values which seem to conflict, a process in which no one value has priority and all are accommodated to the extent possible.” (p221) In many administrative decisions—immigration, refugee, aboriginal, and environmental areas of law all readily come to mind—matters cannot be so cleanly and nicely reconciled. Tragic choices amongst incommensurable values will have to be made and acknowledged as such.[x] To return to my introductory paragraph: “A fine romance, my good fellow / You take romance, I’ll take Jell-O.”[xi] Except that I of course won’t settle for Jell-O. Daly’s text may very well represent Minerva’s owl flying into the dusk when it comes to matters concerning legal structure. But in terms of a deeper conception of administrative law, we may also very well be at the very dawn of a new stage of analysis. Will we see a truly complex pluralist theory of administrative law emerge? Will we see a better understanding of the constitutional and constitutive nature of administrative law? Will we see improved jurisprudential guidance on how to enable and constrain exercises of judicial power? Will we see better defences of judicial review in administrative law from the contemporary backlash against the administrative state?[xii] Daly’s book will be of great assistance in charting these future paths.


Mary Liston is an Associate Professor at the Peter A Allard School of Law, University of British Columbia.


[i] As Ian Mackenzie notes in his blog post on Daly’s book, Canadian administrative law deals not only with individual interests, but also important collective interests and relationships such as with Indigenous communities and other communal entities.

[ii] Here I am thinking of the pressing and emerging project of recognizing Indigenous legal orders in Canada and how values may be differentiated, shared and/or translated amongst these different jurisdictions within the Canadian state.

 

[iii] These convergences may also confirm the ‘sub-constitutional’ nature of administrative law. Again, I say this from a Canadian perspective because the constitutional nature of administrative law may be less ‘sub’ in other jurisdictions.

 

[iv] As a justification for a “sensible” interpretivist approach to understanding how judges will use these values (p24). Indeed, almost all major legal philosophers fare equally with minimal to no citation.

 

[v] And here I agree with Jason Varuhas’s  endorsement of sophisticated doctrinal work like Daly’s. I am less enthusiastic about his assessment of so-called “high theory” as “generally [in]capable of aiding resolution of concrete legal problems” if concrete legal problems are of a conceptual, normative and/or structural nature.

 

[vi] See also Cora Chan’s point about decisional autonomy here.

 

[vii] Alison L Young discusses this point as well.

 

[viii] For Canadians, it is interesting to note that Daly only cites Martland J’s decision in Roncarelli and not the more value-laden and better known decision penned by Rand J.

 

[ix] I use this in the same sense that Sheila Wildeman does when she relates the dominant story about the Canadian development of substantive review. See Sheila Wildeman, “A Fine Romance? The Modern Standards of Review in Theory and Practice” in Colleen Flood & Lorne Sossin, eds, Administrative Law in Context (Toronto: Emond Montgomery, 2008). As Wildeman describes, the romantic account of substantive review expresses approval about the aspirational project of judicial review where judges and administrative decision-makers are acknowledged to bring different strengths to the common project of ensuring that the decisions of public bodies are not arbitrary, but justified. But, it often overlooks or ignores the ‘snags.’

 

[x] Jacob Weinrib also emphasizes this shortcoming.

 

[xi] “A Fine Romance,” (1936), lyrics by Dorothy Fields and music by Jerome Kern.

 

[xii] Daly himself suggests that “A subsidiary—but important—aim of this book is to use the framework created for understanding administrative law to defend the contemporary law of judicial review of administrative action against accusations of illegitimacy.” (p11)

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