The Ages of Administrative Law

34 Pages Posted: 9 Jun 2022

See all articles by Paul Daly

Paul Daly

University of Ottawa - Common Law Section

Date Written: May 31, 2022

Abstract

In this paper, I tell the story of the administrative state from two perspectives, in a tale spanning three distinct periods. The first perspective is the perspective of judicial review of administrative action. This is the story of how the courts came to control many aspects of the administrative state. The other perspective is that of administrative justice, which is focused on what citizens are entitled to expect from the state in terms of how decisions are made. The stories span three periods: a pre-modern period (the Age of Invention); a period of rapid growth and rationalization (the Age of Expansion); and most recently a period of the elaboration of a set of general principles to govern public administration and its relationship to the citizen (the Age of Principle).

In the Age of Invention, the administrative state was characterized by an ad hoc proliferation of decision-making bodies, some entirely private in character and none based on a centrally agreed template. There was no conception of or concern with administrative justice as such, simply a preoccupation with creating decision-making structures which would achieve certain goals of state policy. Meanwhile, judicial review developed from the so-called prerogative writs. Through a painstaking process of evolution, these writs were adapted over the years to be applied to the proliferation of administrative bodies.

Changing social conditions in the 20th century provoked a period of rapid growth and rationalization, the Age of Expansion. The explosion in the growth of government in the wake of major wars – between which came the Great Depression of the 1930s – created a need for large expansions of the state. The ad hoc proliferation of administrative tribunals and other bodies which were established to manage the various new government programs soon needed to be rationalized. Similarly, procedural reforms had to be made to streamline judicial review of administrative action, as the retrofitting of the prerogative writs to new forms of public administration proved problematic.

The focus in the late 20th century and 21st century was on the elaboration of general principles of administrative justice and administrative law: the Age of Principle. Influential models of administrative justice were created, whilst, in the courts, a judiciary freed from the shackles of the prerogative writs developed new principles of reasonableness and procedural fairness to govern the activities of bodies exercising public power.

To these two perspectives and three periods can be added a political thread. In the pre-modern period, individuals fought for responsible government, eschewing government by royal decree for government controlled by an elected assembly. The period of rapid growth and rationalization was marked by the rise of representative government, where the electoral franchise was extended to adults, driving the state to look after its citizens by satisfying their material desires. And the period of elaboration of general principles is also the period of responsive government, where elected officials are constantly in contact with citizens and continually revising policies to better reflect and respond to their perceived desires.

Keywords: administrative law, administrative justice, judicial review, New Administrative Law, administrative tribunals, history, regulation, independent agencies

Suggested Citation

Daly, Paul, The Ages of Administrative Law (May 31, 2022). Ottawa Faculty of Law Working Paper No. 2022-16, Available at SSRN: https://ssrn.com/abstract=4124674 or http://dx.doi.org/10.2139/ssrn.4124674

Paul Daly (Contact Author)

University of Ottawa - Common Law Section ( email )

57 Louis Pasteur Street
Ottawa, K1N 6N5
Canada

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