The Culture of Justification in Administrative Law: Rationales and Consequences

Abstract

Numerous leading commentators and judges have observed that a ‘culture of justification’ is emerging in administrative law across the common law world. They have cited developments in the duty to give reasons, and judicial decisions which link reasons with the unreasonableness standard of review in support of this argument. However, different common law jurisdictions have developed different approaches to these issues; there are divergences in when justifications must be provided, to whom, their content, and the consequences of a failure to give an adequate justification. There are also conflicting approaches to these practical questions within jurisdictions. This gives rise to questions about precisely what commentators and judges mean when they speak of a 'culture of justification' in administrative law. To whom must the administrative state justify its actions, and for what purpose? This article explores those questions by examining the theory and practice of justification in administrative law in the UK, Canada and Australia.

Keywords: administrative law, comparative law, reasons, administrative decisions, judicial review, justification