Academic accounts of administrative law have a reputation that is horrible and well-deserved. They are known for heaping one granular technicality upon another, avoiding comparative engagement, and being allergic to overarching principles. Professor Daly’s new book, Understanding Administrative Law in the Common Law World, departs from each of these unfortunate tendencies. His aim is to show that beneath the thicket of endless doctrinal details lies an intelligible structure. This structure is extraordinarily simple – it consists in the imperative to realize four potentially conflicting values. This structure, he claims, not only illuminates administrative law in whole and part, but does so in each of the common law jurisdictions that he explores. His book is refreshing, ambitious, and important. While I am sympathetic to Daly’s claim that administrative law has an intelligible structure, the structure that he articulates does not capture it.
Daly’s organizing idea is that administrative law is best understood not in terms of a single overarching value, but in terms of a plurality of values that inhere in the practice of the law (1, 13). These values include: (a) individual self-realization (or what we might call human dignity); (b) good administration, (c) electoral legitimacy, and (d) decisional autonomy.
If these are the values, what does administrative law do with them? Daly’s answer is simple: administrative law must realize these values in the varied domains of its operation. In easy cases, these values pull in the same direction. But in hard cases, the values pull in different directions, with the result that each value cannot be realized undiminished. In these cases, Daly’s claim is that administrative law reconciles the conflicting values by balancing.
In public law, the term balancing refers to different ideas. Daly doesn’t say very much about what he means by balancing, but he says enough to make clear that when values are balanced, (a) no value “reigns supreme” (254), (b) no value enjoys “absolute priority” over any other (68, 13), (c) no value is expendable (68), and (d) values will have different weights in different contexts (254). On this view, when administrative law confronts us with conflicting values, we do not order the values in a hierarchy in which one value might be eviscerated in order to modestly further another. Instead, Daly insists, conflicting values must be reconciled through a balance that ensures each is “accommodated to the extent possible” (222).
What is most concerning about Daly’s book is not the claim that administrative law has an intelligible structure – it must, unless everyone who practices and studies it “proceeds on the basis of not knowing what they are doing”. What is most concerning is the claim that balancing is always the way in which administrative law resolves conflicting values. It is true that administrative law sometimes resolves conflicts in this way, but it often does not. And this suggests that it is not yet time to call off the search for administrative law’s intelligible structure.
To see this, think for a moment about how the law of procedural fairness is structured. The law distinguishes between threshold (which concerns whether one is entitled to a fair process) and content (which concerns the kinds of processes that fairness demands in different contexts). Daly’s account of balancing fits Canada’s approach to the content of procedural fairness. That area of the law determines the kinds of procedural protections that persons are entitled to by considering different values, including the dignity of the individual and effective administration. Certain values will, depending on their significance in a given context, weigh more heavily in the balance and therefore call for a more or less stringent set of procedures. And that’s just as Daly says. Conflicts between values are to be resolved through a balance in which the weight of each value is assessed and none is abandoned.
However, when one turns from the content of procedural fairness to threshold, one is confronted by an entirely different kind of structure. The basic idea governing threshold is that anyone whose rights, privileges, or interests are impacted by an administrative decision has a right to a fair process. This right is presumptive – it persists unless it is rebutted by an explicit legislative act. Now, suppose the legislature explicitly rebuts the presumption. Here, we have conflicting values. Dignity demands a fair process and the value of electoral legitimacy (and perhaps good governance as well) denies it. So, how is this conflict to be resolved?
Here, one would expect Daly to rely on his conception of balancing, insisting that no value has priority over any other and that each must be reconciled with every other. That is, after all, the intelligible structure he attributes to the whole of administrative law. But when it comes to threshold, the law doesn’t work that way and Daly is, of course, aware of that (80-1). He recognizes that the law imposes an all-or nothing structure in which the value of dignity either persists undiminished or is ousted by a value that enjoys priority over it. And so it seems that balancing, as Daly conceives of it, resolves the clash of values in some areas of administrative law but not in others. But if that’s the case, then Daly’s intelligible structure does not animate the whole of administrative law.
The problem extends beyond procedural fairness, arising wherever administrative law resolves the clash of values through common law presumptions rather than balancing. Consider a substantive presumption expounded by Canada’s greatest judge in Canada’s greatest case. In Roncarelli v Duplessis, Justice Rand states: “no legislative Act can, without express language, be taken to contemplate an unlimited arbitrary power exercisable for any purpose…”. Again, note the presumptive structure here: administrative officials may not cancel a liquor license for a reason extrinsic to liquor regulation – say, because the official does not like the colour of the license holder’s hair. But as Justice Rand makes clear, if the law expressly authorizes such a power, the presumption is rebutted, and the constraint that the dignitarian value imposes on the arbitrary exercise of discretion simply dissolves. That value is not preserved and reconciled, as Daly’s intelligible structure demands. That value is simply ousted.
Here’s the crucial point. Balancing and presumptions have different structures. Balancing, as Daly conceives of it, has a realize this and also that structure.In contrast, a presumption has a realize this unless that structure. Whereas balancing preserves competing values, presumptions recognize the power of one value to force another from the field. Accordingly, the intelligible structure that Daly attributes to administrative law is at variance with any doctrine that has a presumptive structure. Since administrative law in the common law world is replete with common law presumptions, the intelligible structure that traverses the whole of administrative law remains unarticulated.
How can we take Daly’s contributions and work our way back to a claim about the intelligible structure of administrative law as a whole?
One option would proceed by way of accommodation – to accept that balancing captures the structure of administrative law in some domains but not others. If the intelligible structure of administrative law is to be expounded, we would need not only a theory of how to balance, but a theory of when to balance, a further theory of when not to balance, and, finally, a theory of what to do on those occasions when balancing is inappropriate. Perhaps an account along these lines can be formulated, but the structure would be far more complex than Daly’s book suggests and require far more resources than it offers.
A further response would involve elasticizing the meaning of balancing, stipulating that it means different things in different contexts. In some contexts, balancing means that each value must be preserved and none is expendable. In other contexts, balancing may refer to an operation in which one value excludes another. At times Daly seems inclined to follow this path (76, 80-1). But this path is dangerous for his purposes because if the notion of balancing is diluted to the point where it bears both the meaning that Daly attributes to it and the opposite of that meaning, Daly can neither claim that his account is coherent (253-6) nor that it guides the principled development and application of the law (2, 247).
Similarly, it is no answer to defend Daly’s account by emphasizing the conditions that must be present before a common law norm is ousted – for example, that the ouster must be, as Daly notes, clear and express (80). As we have seen, the claim that animates Daly’s conception of balancing is not that certain conditions must be satisfied before one ousts a value, but that no value may be ousted.
A more radical response would insist that every conflict of values should be resolved through balancing, as Daly conceives of it. To the extent that presumptions depart from balancing, they fail to exhibit the intelligible structure of administrative law. Of course, the difficulty here is that administrative law abounds with presumptions that structure the interaction between common law norms that protect the dignity of persons and exceptions to those norms imposed by statute. One cannot both deny a core feature of administrative law and claim that the resulting account is interpretive, an explication of practices that every public lawyer knows (24-6). Understanding Administrative Law in the Common Law World reveals the promise and the perils of conceiving of balancing as the intelligible structure of administrative law. So long as we seek to understand administrative law in the common law world without an understanding of common law presumptions, something fundamental to the structure of administrative law will remain lost in the balance.
Jacob Weinrib is an Associate Professor in the Faculty of Law at Queen’s University. This post follows on another piece Jacob recently published in the Modern Law Review criticizing attempts to justify administrative law in terms of values that could, in principle, be realized apart from it. The full paper is available here.