False Dichotomies in Administrative Law: From There to Here

This article revisits our administrative law journey since the Second World War (1939-1945). It is a journey worth recounting because it reveals how starkly our administrative law has changed over a short, finite period of time. The transformative nature of this change beguiled some into believing that judicial review was a strictly post-war phenomenon. This was palpably not so; judicial review has an absorbing history reaching back to the early jurisdiction of the Court of King’s Bench. This article critiques nine judicially-constructed dichotomies that dominated administrative law following the war. These dichotomies were fixed and unforgiving, portraying administrative law as rigorous and analytical. They lent respectability to a subject that naturally spawned suspicion. Senior judges denounced the subject as “Continental jargon” and the work of “academicians”. The irony is that the dichotomies employed to invigorate the subject were transparently false. They stultified administrative law reasoning and checked the courts’ ability to be effective purveyors of public accountability