Governments in Miniature: The Rule of Law in the Administrative State

Abstract

The concept of the rule of law ties together the seemingly disparate strands of administrative law. Indeed, the puzzles and tensions that administrative law evokes cannot be understood without recourse to this foundational concept. This chapter discusses several of the key attributes of the rule of law and explores their relevance for Canadian administrative law, for example: the rule of law as an unwritten constitutional principle; the rule of law as a political ideal which structures institutional relations and competencies; and, the rule of law as a distinctive political morality. The chapter assesses the Canadian articulation of the rule of law in the jurisprudence of the Supreme Court of Canada, then turns to the contemporary judicial review of administrative action. Recent case law illustrates how the rule of law informs how judges engage with statutes, motivates deference to other branches of government, and facilitates the creation of common law constraints on judicial discretion. For Canadian administrative law, the rule of law is best conceived as a principle which gives rise to an open set of institutional practices entailing shared responsibility for upholding its content. This responsibility is distributed within and among coordinate institutions in the Canadian state.

Keywords: Rule of Law, Administrative Law, Legal Theory, Institutional Dialogue, Public Law, Judicial Review, Constitutional Law