Against Unification

H. Wilberg and M. Elliott (eds), The Scope and Intensity of Substantive Review: Traversing Taggart’s Rainbow (Oxford: Hart, 2015).

University of Cambridge Faculty of Law Research Paper No. 28/2015

43 Pages Posted: 11 May 2015 Last revised: 2 Mar 2016

See all articles by Jason N. E. Varuhas

Jason N. E. Varuhas

University of Melbourne Law School; Centre for Public Law, University of Cambridge

Date Written: May 4, 2015

Abstract

It is increasingly common for commentators to argue that common law judicial review and human rights law are merging to form a unified field of public law, characterised by common functions, norms, concepts and methods, and/or that the two fields ought to be so unified. Such commentators typically favour unification of public law as a whole around human rights and other constitutional values, and proportionality method. The idea of unification increasingly finds support among the higher judiciary, particularly in decisions concerning substantive review at common law.

This paper argues (i) that administrative law and the law under the Human Rights Act of 1998 are fundamentally distinct fields of law which perform radically different functions, and (ii) that the fields ought not to be synthesised. Consideration of fundamental doctrinal features of each field shows that common law review is concerned principally with ensuring public power is exercised properly and for the common good, whereas human rights law is principally concerned to protect and vindicate basic individual rights and interests. Given these different functions it is only natural that the two fields would be characterised by different norms, concepts and methods. Further, it is difficult to see how a public-regarding field and an individual-regarding field could sensibly be unified, nor why unification is desirable: each field performs distinctively valuable public law functions, so that something of real value would be lost if the two fields were reduced to a single function. The paper considers normative arguments for and against unification, and critically evaluates two models of unification favoured by commentators: constitutionalisation and privatisation.

Keywords: Public Law, Administrative Law, Judicial Review, Human Rights Act 1998, Constitutional Law, Bifurcation, human rights, Principle of Legality, Anxious Scrutiny, Proportionality, Wednesbury, Culture of Justification

JEL Classification: K1, K4, K19, K23, K39

Suggested Citation

Varuhas, Jason N. E., Against Unification (May 4, 2015). H. Wilberg and M. Elliott (eds), The Scope and Intensity of Substantive Review: Traversing Taggart’s Rainbow (Oxford: Hart, 2015).; University of Cambridge Faculty of Law Research Paper No. 28/2015. Available at SSRN: https://ssrn.com/abstract=2602124

Jason N. E. Varuhas (Contact Author)

University of Melbourne Law School

University Square
185 Pelham Street, Carlton
Victoria, Victoria 3010
Australia

Centre for Public Law, University of Cambridge ( email )

10 West Road
Cambridge, CB3 9DZ
United Kingdom

Register to save articles to
your library

Register

Paper statistics

Downloads
230
Abstract Views
2,019
rank
136,113
PlumX Metrics