The Administrative State Goes to Market (and Cries 'Wee, Wee, Wee' All the Way Home)

I Introduction

What is administrative law? What shapes it? What is transforming it?

For almost as long as administrative law has existed as a socio-political reality, a legal-conceptual category, an academic field of study, or a specialism for practising professionals, debate has raged over how to define it. Is administrative law 'ordinary law' writ small, as A.V. Dicey insisted, or should administrative law be conceived as one amongst the diverse array of interacting, semi-autonomous regimes that make up our legal system?¹ This disagreement has fuelled many of the most interesting theoretical debates in administrative law – between normativists and functionalists,² between red-light and green-light theories of administrative law,³ and between lawyers' values and civil servants' values.⁴

The first view, which insists on the primacy of 'ordinary' law, informs much of the traditional discourse of administrative lawyers. It rests on the assumption that normative coherence is possible, desirable, and essential within any national legal system. Coherence is to be achieved by ensuring compliance by all institutions and agents of the state with its fundamental juridical assumptions (the 'rule of law') through the application of conclusive presumptions derived from the imperatives of the rule of law itself ('legality,' 'rationality'), of explicit constitutional guarantees ('access to the courts,' 'the Charter') and their analogues ('universal human rights'), or of default rules of statutory interpretation ('procedural fairness,' 'no retroactivity'). Legally orthodox versions of the rule of law require that this coherence be enforced by a hierarchy of 'superior' courts mandated to review the exercise of 'delegated' powers, the content of 'subordinate' legislation, and the proceedings of 'inferior' tribunals unless (and, seemingly, even if)⁵ the legislature indicates otherwise.

The second view – shared by legal realists, pluralists, functionalists, and other rule of law sceptics – insists on the uniqueness and at least partial autonomy of administrative law. It disputes the traditional view on empirical grounds (there is no such thing as 'ordinary law,' no normative coherence within or between judge-made and statute law, no adjectival or institutional form that is not historically contingent). It challenges the traditional view on functional grounds (institutional differentiation is necessary for operational reasons if the administration is to achieve its mandated goals; reviewing judges are uneducated and ineducable with regard to operational requirements and institutional design). And it proposes an alternative normative perspective ('ordinary law' and superior courts tend to favour not transcendent values, but the interests of the rich and powerful; distinctive administrative regimes – properly used – are politico-legal technologies for the achievement of social justice).

Because judicial review is the means by which adherents of the traditional view of administrative law seek to trump the claims of those who favour administrative autonomy, theoretical disputes over its legitimacy, scope, and consequences tend to dominate debates between the two camps. But it turns out that judicial review is not quite as powerful in practice as it is in theory. Courts are often more intrusive, and legislatures and administrative bodies more elusive, than theory assumes. Not all questionable administrative action is actually reviewed, and much non-questionable action is; not all reviewing courts base their decisions on the principle of legality – antipathy to the state, sympathy for individual interests, ignorance of social context, and doctrinal confusion all influence outcomes; and not all review proceedings produce the intended consequences – legislatures find ways to constrain review or to cure its unwanted effects, while administrative bodies develop techniques to immunize themselves against its invocation or consequences.

The result is that the administration enjoys both more autonomy and less autonomy in practice than it does in theory. Nonetheless, theory is what drives academic and professional debates. Those debates – and the unique empirical, functional, and normative characteristics of the administration that fuel them – provide...