Judicial review of questions of law: A comparative perspective

All systems of administrative law resolve similar issues. They elaborate tests for review of law, fact and discretion. Comparative law enables us to analyze diverse approaches to the same issue, while being mindful of legal/cultural reasons for those differences. Comparative discourse facilitates consideration of whether doctrinal variations across legal systems are relatively minor, so that the regimes do the same thing in slightly different ways, or whether doctrinal variants reflect deeper normative divergence. With that question in mind, this chapter focuses on judicial review of questions of law in the UK, USA, Canada and the EU. The topic is important and is fertile for comparative analysis. The analysis reveals the divergences between the legal systems, and sets out the four principal judicial strategies used. They are judicial substitution of judgment over jurisdictional legal issues; substitution of judgment by the reviewing court on all issues of law; substitution of judgment on certain legal issues and rationality review on others, where the distinguishing criterion is legislative clarity in defining the disputed term; and, finally, substitution of judgment and rationality review where the criterion for the divide is a broader range of functional considerations. Exigencies of space preclude detailed treatment of the kind found in domestic literature. However, the comparative analysis, drawing on this literature can inform debate over judicial review of law and shed light on the normative differences between the systems, as well as the efficacy of the test for review in each regime.