Paul P. Craig, University of Oxford Faculty of Law, has posted Natural Justice in English Administrative Law: Continuity and Change from the 17th Century, which is forthcoming in Liber amicorum per Marco D'Alberti (Torino: Giappichelli, 2022):
This chapter is concerned with the historical development of natural justice from the early 17th century onwards. It is a rich and interesting story. It is also important for the overall thesis of a book that I am writing on English Administrative Law 1600-2022: Continuity and Change. Contrary to popular belief, England developed a system of administrative law from the 17th century onwards, with origins that date back considerably earlier. Natural justice/due process was central to that system, as it is to any regime of administrative law. The reality is that the courts developed a sophisticated body of jurisprudence from first principles concerning both the right to be heard and the rule against bias. It was applied not only to public bodies broadly defined, but also to clubs, trade associations and mutual associations alike. The courts thus reasoned across the public/private divide. The structure of the ensuing argument is as follows.
Credit: NYPL
The story begins with the foundational case law concerning the right to a hearing, which is followed by discussion of its applicability and content. The focus then shifts to analysis of bias, with discussion of the doctrinal foundations, followed by consideration of the breadth of its application. The analysis thereafter is on the 20th century case law prior to the 1960s, which exhibited elements of continuity with the earlier case law, but also change, in the sense of limitations engrafted on natural justice that were not present in the earlier case law. The final section of the chapter examines the seminal decision in Ridge v Baldwin, which reconnected with the case law from the 17th-19th centuries and struck down a number of the limitations imposed in the earlier part of the 20th century. The remainder of this section charts the continuity and refinement of natural justice in the modern law when viewed in the light of the historic jurisprudence.
--Dan Ernst
