Judicial Review and Questions of Law: A Comparative Perspective

Abstract:     
There is not surprisingly much commonality in the issues faced by legal systems. Thus, in administrative law they will have to elaborate tests for review of law, fact and discretion. Comparative law is valuable in enabling us to appreciate diverse approaches to the same issue, while being properly mindful of legal/cultural reasons for those differences. Comparative discourse invites moreover inquiry as to whether doctrinal variations across legal systems are relatively minor, such that the respective regimes in effect do the same thing in slightly different ways, or whether the doctrinal variants are reflective of deeper normative divergence. This chapter focuses on the test for judicial review of questions of law in the UK, USA, Canada and the EU. The topic is important within the schema of judicial review and fertile for comparative analysis. The ensuing analysis reveals the divergences between the legal systems, and the four principal judicial strategies that have been used: judicial substitution of judgment over jurisdictional legal issues; substitution of judgment by the reviewing court on all issues of law; substitution of judgment on certain legal issues, rationality review on others, the principal criterion for the divide being legislative clarity of meaning as to the disputed term; and substitution of judgment and rationality review where the criterion for the divide is a broader range of functional considerations. Exigencies of space preclude detailed treatment of the kind found in the relevant domestic literature. The comparative analysis, drawing on this literature, will, it is hoped, inform this debate and shed light on the normative differences between the systems, as well as the efficacy of the test for review of law enshrined in each regime.

Number of Pages in PDF File: 33

Keywords: judicial review, law, comparative law, agencies

Accepted Paper Series