The Unity of Public Law?: Doctrinal, Theoretical and Comparative Perspectives PDF
Preview The Unity of Public Law?: Doctrinal, Theoretical and Comparative Perspectives
THE UNITY OF PUBLIC LAW? This major collection contains selected papers from the second Public Law Conference, an international conference hosted by the University of Cambridge in September 2016. The collection includes contributions by leading academics and judges from across the common law world, including senior judges from Australia, Canada, New Zealand and the UK. The contributions engage with the theme of unity (and disunity) from a number of perspectives, offering a rich panoply of insights into public law which significantly carry forward public law thinking across common law jurisdictions, setting the agenda for future research and legal development. Part 1 of the volume contains chapters which offer doctrinal and theoretical perspectives. Some chapters seek to articulate a unifying framework for understanding public law, while others seek to demonstrate the plurality of public law through the method of legal taxonomy. A number of chapters analyse whether different fields such as human rights and administrative law are merging, with others considering specific unifying themes or concepts in public law. The chapters in Part 2 offer comparative perspectives, charting and analysing convergence and divergence across common law systems. Specific topics include standing, proportionality, human rights, remedies, use of foreign precedents, legal transplants, and disunity and unity among subnational jurisdictions. The collection will be of great interest to those working in public law. ii The Unity of Public Law? Doctrinal, Theoretical and Comparative Perspectives Edited by Mark Elliott Jason NE Varuhas Shona Wilson Stark HART PUBLISHING Bloomsbury Publishing Plc Kemp House, Chawley Park, Cumnor Hill, Oxford, OX2 9PH, UK HART PUBLISHING, the Hart/Stag logo, BLOOMSBURY and the Diana logo are trademarks of Bloomsbury Publishing Plc First published in Great Britain 2018 Copyright © The editors and contributors severally 2018 The editors and contributors have asserted their right under the Copyright, Designs and Patents Act 1988 to be identified as Authors of this work. All rights reserved. No part of this publication may be reproduced or transmitted in any form or by any means, electronic or mechanical, including photocopying, recording, or any information storage or retrieval system, without prior permission in writing from the publishers. 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Library of Congress Cataloging-in-Publication data Names: Public Law Conference (2nd : 2016 : Cambridge, England) | Elliott, Mark, 1975- editor. | Varuhas, Jason, editor. | Stark, Shona Wilson, editor. Title: The unity of public law? : doctrinal, theoretical, and comparative perspectives / edited by Mark Elliott, Jason N.E. Varuhas, Shona Wilson Stark. Description: Oxford [UK] ; Portland, Oregon : Hart Publishing, 2018. | Includes bibliographical references and index. | “This major collection contains selected papers from the second Public Law Conference, an international conference hosted by the University of Cambridge in September 2016”—ECIP data view. Identifiers: LCCN 2017053833 (print) | LCCN 2017055290 (ebook) | ISBN 9781509915200 (Epub) | ISBN 9781509915187 (hardback : alk. paper) Subjects: LCSH: Public law—Congresses. | Law and globalization—Congresses. Classification: LCC K3150.A6 (ebook) | LCC K3150.A6 P83 2016 (print) | DDC 342—dc23 LC record available at https://lccn.loc.gov/2017053833 ISBN: HB: 978-1-50991-518-7 ePDF: 978-1-50991-519-4 ePub: 978-1-50991-520-0 Typeset by Compuscript Ltd, Shannon To find out more about our authors and books visit www.hartpublishing.co.uk. Here you will find extracts, author information, details of forthcoming events and the option to sign up for our newsletters. Foreword JOHN BELL In founding the journal Public Law 60 years ago, John Griffith wrote that ‘[t]he problems of constitutional and administrative law are the oldest and the most fun- damental in any society … The problems are those of power, of individual rights and of the nature of the social organisation under which we live; and the paradox is that public law is so often spoken of as a new subject’.1 Although the problems may be ancient, in organisational terms, common law public lawyers have spent much of the subsequent years playing catch-up with private law colleagues. Compared to the substantial growth in public law writing and teaching in Germany and France, espe- cially since the last quarter of the nineteenth century, the common law has had to wait almost until the last quarter of the twentieth century for public law to achieve equal prominence. But that is very much a problem of the past. The Second Biennial Public Law Conference held in Cambridge in 2016, from which this book arises, brought together over 200 scholars, judges and practitioners from over 20 jurisdic- tions, to examine The Unity of Public Law?. The vibrancy of the gathering, enhanced by the presence of so many younger scholars from across the common law world, demonstrated that public law scholarship is recognised as central to dealing with the most fundamental problems of our societies. In 1956, Griffith eschewed a definition of ‘public’ law. For him, ‘Public law is both part of the administration of affairs and of the ways in which that administra- tion is controlled.’2 That statement neatly avoids a distinction familiar to continen- tal jurists between ‘public law’ (the rules governing the competence and exercise of power: Öffentliches Recht, droit public) and ‘public law litigation’ (Öffentliche Gerichtsbarkeit, contentieux public). But, despite Griffith, much scholarship has tended to focus on the prioritisation of the latter over the former; within the latter, to a concentration on courts at the expense of other forms of complaint mechanism. The Public Law Conference retains the broader vision that Griffith set out. As David Feldman put it: ‘public law is treated as including both the rules governing the alloca- tion of power and responsibility between different tiers and agencies of government and those controlling the relationship between the institutions of government and private citizens’.3 The theme of unity was approached in the conference from a number of perspec- tives. Unlike many continental European legal systems, common law systems do not 1 [1956] PL 1. 2 ibid, at 2. 3 D Feldman, English Public Law (Oxford, Oxford University Press, 2004) ix. vi Foreword tend to differentiate public law from private law by having different courts in which such matters are litigated. Typically, common law courts handle both public law and private law matters, at least in the higher courts. Procedure is one of the less- helpful criteria for differentiation. Much more significant is the preoccupation with the control of the power of government. Public law finds its unity not in procedure (eg different rules on standing to bring an action) nor in techniques (eg the use of proportionality as a test for the exercise of powers) but in fundamental values about how government should be conducted. Lawyers naturally pay attention to the rule of law as a core value, both in the narrow sense of government according to law and in the wider sense of government conducted with respect for the fundamental rights of the governed and for their human dignity. But there are other features within the portfolio of values which underpin all public law. Public service requires decisions to be taken for the common good. It is not simply a matter of ensuring that officials are not corrupt or furthering personal interests. Public service has a higher ambition—that decisions are taken in the long-term interest that will enable all the governed to flourish, even those of whose lifestyles the governors do not nec- essarily approve. Process matters in public law as much as outcomes. Participation in decision-making is a way of respecting the value of individuals in society. People don’t just vote every few years and then leave representatives to get on with the job of governing. Participation reflects the importance of allowing individuals to have a say in decisions which affect them. Even if people have views and interests which are in the minority, they have to be allowed the opportunity to express their point of view in a meaningful way. The law is one mechanism for ensuring this happens. Accountability for decisions is also important. Those who govern do not simply have to have authority for the decisions they make. They need to explain them and be open to questioning and criticism both from supporters and from opponents of their actions. In this way, power is controlled and the value of those who are gov- erned is respected. These values of legality, respect for fundamental rights, public service, participation and accountability pervade the different branches of public law. That is not to suggest that these values are not also respected in other branches of the law, but the nature of the relationship of the governors and the governed in a democratic society makes the control of power distinctive from that within con- tractual or family relationships. For a comparative lawyer, one of the interesting features of both the presentations at the conference and the papers collected in this volume is the breadth of knowledge of other common law jurisdictions that is on display. Often for linguistic reasons, European public lawyers tend only to know their own system and the laws of the European Union and the European Convention on Human Rights. By contrast, it is not unusual to listen to a New Zealander discussing recent Canadian or South African developments or for an Irish lawyer to refer to Australia and the United States, as well as to England. There is a significant unity of the common law which cannot be mirrored in Europe, despite the efforts of authors like Jürgen Schwarze.4 4 See his Zukunftsaussichten für das Europäische Öffentliche Recht (Nomos Verlag, Baden-Baden, 2010). Foreword vii If the European influence on public law within the UK is likely to diminish in future (whether due to Brexit or simply to the decline in the study of modern languages) then the debate amongst common lawyers is likely to be of increasing significance in the future. A shared language and shared legal traditions are the basis for a fruit- ful cross-fertilisation of ideas. The location of Melbourne for the third Public Law Conference should ensure that Asian countries are significantly represented within these debates. That Conference will reflect the continuing growth, vibrancy and strength of public law scholarship across the whole of the common law world. viii Contents Foreword by John Bell ...........................................................................................v Contributors .........................................................................................................xi Table of Cases .....................................................................................................xiii Table of Legislation .........................................................................................xxxiii 1. Introduction ..................................................................................................1 Mark Elliott, Jason NE Varuhas and Shona Wilson Stark 2. The Unity of Public Law? ............................................................................15 Dame Sian Elias Part 1. Doctrinal and Theoretical Perspectives 3. Taxonomy and Public Law ..........................................................................39 Jason NE Varuhas 4. On Being Reasonably Proportionate ............................................................79 Audrey Macklin 5. Administrative Law: Characteristics, Legitimacy, Unity .............................101 Paul Daly 6. Unity, Disunity and Vacuity: Constitutional Adjudication and the Common Law ...............................................................................123 Roger Masterman and Se-shauna Wheatle 7. A Matter of Feel? Public Powers and Functions in South Africa ................149 Cora Hoexter 8. Fault and Accountability in Public Law .....................................................171 Ellen Rock 9. Interpretive Presumptions Assessed against Legislators’ Understanding .....193 Hanna Wilberg 10. ‘It All Depends on the Circumstances’: The Decline of Doctrine on the Grounds and Intensity of Review ....................................................219 David Stratas Part 2. Comparative Perspectives 11. The Globalisation of Public Law: A Quilting of Legalities .........................231 Robert French AC
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