Friday, June 21, 2019

Craig on English Administrative Law History

Paul P. Craig, University of Oxford Faculty of Law, has posted English Administrative Law History: Perception and Reality, which is forthcoming in Judicial Review in the Common Law World: Origins and Adaptations, ed. S. Jhaveri and M. Ramsden:
The history of English administrative law remains to be written. It is a task of considerable magnitude, given that it requires understanding of case law, regulatory legislation, government and politics spanning a period of circa 450 years. The task is more especially daunting given the range of different areas that were subject to governmental regulation broadly construed. It is, therefore, unsurprising that the intellectual task has not been fulfilled. This has not, however, translated into a dearth of opinion as to English administrative law history. To the contrary, as will be seen below, there are views in this regard, and some are strongly held. There is, as in any intellectual endeavour, the danger of an inverse relationship between the strength of a person’s conviction and the depth of their knowledge.

This chapter is not a history of English administrative law, since that would, as noted, require a book in itself. It does, however, offer a lens through which to view two different conceptions of that history, which are termed perception and reality. These terms are admittedly tendentious, in the sense that they convey, by their very semantic meaning, my view as to the more accurate picture of administrative law as it developed over time. There is, however, nothing special in the use of language in this regard, since those who adhere to the opposite position deploy language that is equally tendentious.

The discussion in this chapter is part of the larger study concerning the export and reception of administrative law in other common law jurisdictions. The effect of the disjunction between perception and reality on such export is interesting. The causation is contestable, and does not necessarily always pull in the same direction. Thus, perception of administrative law as being relatively modern may have hampered its development elsewhere, and at the same time encouraged other jurisdictions to feel freer in adapting its precepts to local circumstance.

The essence of the argument presented over the following pages is as follows. The commonly held view about English administrative law is that it is of recent origin, some dating it from the mid-twentieth century, some venturing back to the late nineteenth century. This view, when unpacked, is premised on assumptions concerning doctrinal case law and regulation. There is an empirical and a normative foundation underlying both assumptions. This ‘intellectual package’ constitutes the commonly accepted picture of administrative law as it unfolded in England. This, then, is the perception, grounded in four central constructs concerning case law and regulation, viewed from an empirical and normative perspective. It is set out in the first part of the chapter.

The discussion thereafter is concerned with what I term the reality. It mirrors the discourse concerning perception, insofar as it considers case law and regulation from both an empirical and normative perspective. It will be argued that the commonly held view does not cohere empirically with reality concerning case law or regulation, and that the normative assumptions underlying the perceived view do not square with the general approach of the legislature or the courts during the foundational period of administrative law, which runs from the mid-sixteenth century onwards, with earlier origins. This disjunction between perception and reality could have had an impact on the ultimate exportability of English administrative law. The chapter concludes with a sketch of the implications for comparative study of other jurisdictions. These implications are the subject of discussion in the remaining chapters of the volume.
--Dan Ernst