The State of the Art in Contemporary Administrative Law

(2021) 28 Australian Journal of Administrative Law 20

Ottawa Faculty of Law Working Paper No. 2021-15

10 Pages Posted: 4 Aug 2021

See all articles by Paul Daly

Paul Daly

University of Ottawa - Common Law Section

Date Written: July 10, 2021

Abstract

This is a comment on Mark Aronson, "Judicial Review of Administrative Action: Between Grand Theory and Muddling Through" (2021) 28 AJAL 6.

Three themes run through Professor Aronson's excellent essay: the tension between generality and specificity in administrative law (and a related, but distinct, tension between rules and standards); the role of apex courts in articulating general principles of administrative law and applying those principles in specific contexts; and the relationship between courts and academic commentators.

I discuss these in turn before turning to what I consider to be an unarticulated theory underpinning Professor Aronson’s essay, suggesting (somewhat mischievously) that he is a legal antipositivist.

In what follows, I first discuss generality and specificity (Part I), second, apex courts and administrative law (Part II) and, third, academics and administrative law (Part III) before concluding as promised/threatened with some more philosophical reflections (Part IV).

Keywords: judicial review, administrative law, legal positivism, legal antipositivism, legal theory

Suggested Citation

Daly, Paul, The State of the Art in Contemporary Administrative Law (July 10, 2021). (2021) 28 Australian Journal of Administrative Law 20, Ottawa Faculty of Law Working Paper No. 2021-15, Available at SSRN: https://ssrn.com/abstract=3884021 or http://dx.doi.org/10.2139/ssrn.3884021

Paul Daly (Contact Author)

University of Ottawa - Common Law Section ( email )

57 Louis Pasteur Street
Ottawa, K1N 6N5
Canada

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