Judicial Deference to Administrative Interpretation of Statutes from a Comparative Perspective

64 Pages Posted: 18 Sep 2020 Last revised: 30 Jun 2021

See all articles by Vincent Martenet

Vincent Martenet

Center for Public Law; University of Lausanne

Date Written: June 29, 2021

Abstract

This Article examines, from a comparative perspective, how judicial deference to administrative interpretation of statutes takes place and whether it is constitutionally admissible. Since constitutions and statutes rarely deal expressly with this issue, courts may have to determine whether or not such deference is permitted, and, if so, whether generally or in certain cases only. The constitutional, legal, and judicial context prevailing in each country is particularly important in this regard. Nevertheless, it may provide courts with little, if any, guidance on the specific issue of deference to administrative statutory interpretation. In this respect, a nuanced approach along all or part of the following lines may be appropriate: When (i) in light of the applicable methods and canons of construction, a statute allows a margin of interpretation, (ii) the administrative interpretation of the statute remains within this margin, and (iii) the applicable international, constitutional, statutory or other constraints permit or, at least, do not exclude judicial deference either generally or in the case at hand, then courts may or, depending on the country, must defer to the administrative interpretation of the statute, especially when or, depending on the country, provided that (iv) this interpretation requires non-legal expertise, (v) the administrative body enjoys an asymmetry of such expertise as compared to courts, and (vi) the legislature was or should have been aware of both this necessity and this asymmetry. The level of courts’ expertise in the relevant subject-matter should, in principle, be determined after taking account of the measures available to judges, including the appointment of experts. The proposed test may notably be followed where the disputed interpretation requires a prediction, appraisal or assessment.

Keywords: Judicial Deference, Agencies, Statutory Interpretation, Separation of Powers, Administrative Law, Comparative Law

Suggested Citation

Martenet, Vincent, Judicial Deference to Administrative Interpretation of Statutes from a Comparative Perspective (June 29, 2021). 54 Vanderbilt Journal of Transnational Law 83-146 (2021), Available at SSRN: https://ssrn.com/abstract=3667769 or http://dx.doi.org/10.2139/ssrn.3667769

Vincent Martenet (Contact Author)

Center for Public Law ( email )

Lausanne, 1015
Switzerland

University of Lausanne ( email )

Quartier Chambronne
Lausanne, Vaud CH-1015
Switzerland

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