BOOK REVIEWS
CHRONIQUES BIBLIOGRAPHIQUES
Martin Loughlin, Public Law and Political Theory. Oxford: Clarendon
Press, 1992. Pp. 292 [$40.00]. Reviewed by Ian Holloway*
In his Hamlyn Lectures,’ Professor P.S. Atiyah offered as his premise what
he termed “a fairly uncontroversial suggestion”, namely that “English lawyers
are not only more inclined to be pragmatic and somewhat hostile to the theoret-
ical approach, but positively glory in this preference.”2 In a similar vein, and
perhaps as proof of Professor Atiyah’s contention, in his 1984 Presidential
Address to the Bentham Society,3 Lord Roskill spoke dismissively of “those
academic lawyers who will seek intellectual perfection rather than imperfect
pragmatism.”
Though in many areas of the law this anti-academic prejudice would hold
less true in Canada today than in England – possibly because we have a some-
what longer tradition of academically trained lawyers –
there is one area in
which it hits the mark just as squarely on both sides of the Atlantic: adminis-
trative law. Maybe the best indication of the theoretical impoverishment of
Canadian administrative legal discourse is that, for all intents and purposes,
“administrative law” in Canada means “the law of judicial review”. Law school
courses on administrative law remain largely centred on a study of the judicial
control of administrative action through-the prerogative writs (or, in those juris-
dictions which have “modernized” their administrative law, through the generic
application for judicial review). And in appearances before regulatory tribunals,
the prudent member of the administrative bar still takes pains to “build a
record”, as the expression has it, in anticipation of later recourse to the courts.
Indeed, the Supreme Court of Canada has itself not long ago endorsed an
approach preoccupied with immediate result rather than systemic integrity. In
the now famous case of U.E:S. v. Bibeault, Mr. Justice Beetz said that judicial
*The Australian National University.
McGill Law Journal 1994
Revue de droit de McGill
To be cited as: (1994) 39 McGill L.L 725
Mode de rdfdrence: (1994) 39 R.D. McGill 725
‘Reprinted under the title, Pragmatism and Theory in English Law (London: Stevens & Sons,
21bid. at 3.
3Reprinted under the title, “Law Lords, Reactionaries or Reformers” [1984] Current Legal Prob-
1987).
lems 247.
4Ibid. at 258.
McGILL LAW JOURNAL
[Vol. 39
review was to be an exercise in “pragmatic and functional analysis.”5 Similarly,
in Cuddy Chicks Ltd. v. Ontario (Labour Relations Board), Mr. Justice La For-
est cautioned against Charter-based administrative review amounting to
“abstract ruminations on constitutional theory.’ 6
Running in tandem with this is another strand in Canadian administrative
law teaching. This is the school which advocates the creation of an alternative,
non-judicialized administrative state. This school was most notably exemplified
by the 1979 judgment of Mr. Justice Dickson (as he then was) in C.U.P.E. v.
New Brunswick Liquor Corporation,7 although its Canadian roots can be traced
back to the writings of Professor John Willis in the 1930s. It attempts to deny
that the common law courts, as the historic defenders of individual rights, have
any constructive role to play in the post-modem collectivist state.
Together, these two distinct trains of thought –
an institutional emphasis
on immediate result, combined with an ideological denial of institutional com-
petence –
have left Canadian administrative scholarship in a moribund state.
Moreover, it is a discipline largely bereft of historical context –
save the
sweeping (and predictable) generalization that by their willingness to engage in
review despite repeated legislative admonitions not to do so in the form of priv-
ative clauses, common law judges have been responsible for thwarting the
development of an efficient “public service state”.’
Though it was written primarily with a British audience in mind, Professor
Martin Loughlin’s recent work, Public Law and Political Theory, could go a
long way in redressing this deficiency. Broadly speaking, the book has two main
themes – or perhaps one principal theme and a subsidiary focus. The focus –
for it both precedes and supports the theme –
is an analysis of the development
of English public law thought, while the theme is an argument that if public law-
yers are to meet the demands of the future, they will have to recognize their dis-
cipline as distinctive, and different in kind, from the common law way of think-
ing. In this respect, public lawyers must broaden their purview to take account
not only of the role that law can play (and has thus far played) in controlling
the exercise of state power, but also to be able to discuss the role that it should
so play.
Loughlin begins the book, aptly enough for a Canadian audience, with the
bold statement that “[a]t present, the study of public law is in a curiously unsat-
isfactory condition.”9 In large measure, he notes, this is due to the fact that for
a long time we denied that public law even existed as a discrete branch of the
common law. Figures such as Dicey and Lord Hewart, to name the two most
5[1988] 2 S.C.R. 1048 at 1088, 95 Admin. L.R. 161.
6[1991] 2 S.C.R. 5 at 16, 81 D.L.R. (4th) 121 [hereinafter Cuddy Chicks cited to S.C.R.].
7[1979] 2 S.C.R. 227, 3 O.R. (3d) 128.
8J. Willis, “Three Approaches to Administrative Law: The Judicial, the Conceptual, and the
Functional” (1935) 1 U.T.L.J. 53 at 70. One conspicuous exception to this charge, in my view, is
Professor Alan Cairns’s article, “The Past and Future of the Canadian Administrative State”
((1990) 40 U.T.L.J. 319), though it is worthwhile to note that Professor Cairns is a political sci-
entist, rather than a law teacher.
9Public Law and Political Theory (Oxford: Clarendon Press, 1992) at 1.
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BOOK REVIEWS
prominent advocates of this view, claimed that the notion of a separate body of
administrative law was “utterly unknown to the law of England, and indeed is
fundamentally inconsistent with [its] traditions and customs.”‘” But while much
public law debate remains concentrated on a refutation of Dicey’s assertions
about the nature of the Constitution, Loughlin reminds us that the history of
public law jurisprudence in Britain stretches back to the eighteenth century and
earlier. Not only did Blackstone discuss the nature of executive power in his
Commentaries, but seventeenth century judges like Sir Edward Coke and Sir
Matthew Hale offered an extensive series of pronouncements on what we would
recognize as judicial control of administrative action. Loughlin also takes pains
to introduce the work of John Millar, a Regius Professor of Law at the Univer-
sity of Glasgow in the late eighteenth century, whose work Loughlin considers
to have been “unjustly eclipsed”,” and who he argues was far more prescient
than Blackstone in his assessment of British constitutional arrangements. 2
Loughlin argues that public law thought can be roughly divided into two
broad styles, which he calls “normativism” and “functionalism”. 3 In the norma-
tivist conception, rights precede the State, while a functionalist believes that
rights emanate from the State. Wisely, though, he does not allow himself to be
drawn into a black/white classification exercise, as is so often the case in legal
writing. Rather, he acknowledges that “these styles are amalgams of a number
of forces and are being constantly developed, often in response to internal pres-
sures.”’14
Normativism, as Loughlin sees it, can be traced to two separate and ideo-
logically distinct antecedents: conservatism and liberalism. He uses the writing
of the philosopher Michael Oakeshott as the model of the conservative variant
of normativism, while he offers the work of F.A. Hayek and John Rawls in illus-
tration of the liberal branch. The former eschews broad statements of general
principle as the foundation for social ordering in favour of the collected wisdom
of experience, while the latter believe that a set of rationally justifiable guiding
principles of social order can be articulated. Yet, these “strange bedfellows”‘ 5
share a common belief that the ideal society should not be “purposive” (to put
it in Canadian terms), but rather permissive. In other words, that the chief
responsibility of government is “the specific and limited activity of establishing
and enforcing general rules of conduct which enable people to pursue their
activities with the minimum degree of frustration.”‘” Functionalism, on the other
hand, is positivist and goal oriented in nature. If normativism can trace its line-
age through liberalism and conservatism, functionalism can be similarly related
10A.V. Dicey, Introduction to the Study of the Law of the Constitution, 10th ed. (London: Mac-
Millan, 1960) at 203. See also Lord Hewart, The New Despotism (New York: Cosmopolitan Book,
1929).
“Supra note 9 at vi.
121n a charming gesture, Loughlin also notes that at one point in his career he held the Millar
Chair at the University of Glasgow.
13Supra note 9 at 60ff.
141bid. at 61.
15lbid at 63.
“lbid. at 89.
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to a form of eighteenth century socialism: “the starting point … may be taken
to be the eighteenth century revolutionary movements which gave impetus to
beliefs that social progress was possible and that social organization could be
reconstructed in accordance with rational principles.” 7 Originating in the work
of French philosophers like Auguste Comte and Emile Durkheim, “social pos-
itivism” received a warm reception in Britain (and hence, the Empire) first from
people like Herbert Spencer and the Fabians, and later by the so-called “new
liberals” of the pre-World War I years.
Having set out the competing paradigms of political/sociological thought,
Loughlin proceeds to trace them through the writings on administrative law.
Loughlin argues that since the development of administrative law as we know
it, conservative normativism has been the dominant tradition. This is exempli-
fied by the enduring influence of Dicey’s formulation of the rule of law” and
his denial that there was such a thing as administrative law in England (although
Loughlin does have the charity to note that in successive editions of The Law
particularly the eighth, the last which Dicey himself
of the Constitution –
edited – Dicey had come to accept, however grudgingly, that administrative
law had arrived in Britain to stay). Dicey’s work, as we all know, was echoed
in conspicuous tones in 1929 by Lord Hewart in his book, The New Despotism,
in which, among other things, he said that administrative law “upon analysis,
prove[s] to be nothing more than administrative lawlessness.”‘” Loughlin fol-
lows with an in-depth review of the various functionalist challenges to the views
of Dicey: the works of William Robson, Sir Ivor Jennings, our own John Willis
(whose classic text, The Parliamentary Powers of English Government Depart-
ments,” Loughlin describes as a “powerful corrective to Hewart’s book”‘) and
Harold Laski.’ Interestingly, Loughlin also points out the long and strongly-
held connection between the functionalist style of public law thought and the
London School of Economics, which was founded by Sidney Webb, a leading
Fabian, and in which Jennings, Robson and Laski all taught at one time or
another. The functionalist cudgel has been taken up in the present day by people
like J.D.B. Mitchell, J.A.G. Griffith (whom Lord Denning once described as
“that man Griffith”) and Patrick McAuslan. Each has a connection, either as
teacher or post-graduate student, with the L.S.E. Yet, Loughlin notes that
despite the efforts of these successive generations of functionalists to overcome
the resistance of the “common law mind”, norniativism continued to flourish in
the 1980s. The writings of Sir David Williams and Sir William Wade (both
Oxbridge men, by the way) he offers as cases in point.
Loughlin suggests, though, that it is now liberal normativism which is at
the fore. Whereas conservative normativism “views the rule of law as an expres-
7Ibid. at 107.
‘8lbid. at 140ff.
19Supra note 10 at 6.
20(Cambridge, Mass.: Harvard University Press, 1933).
2ISupra note 9 at 166.
z2Whose work perhaps deserves another look in Canada now that Pierre Trudeau has said what
an effect Laski had on him (see P.E. Trudeau, Memoirs (Toronto: McClelland & Stewart, 1993) at
46).
1994]
CHRONIQUES BIBLIOGRAPHIQUES
sion of a tradition of behaviour” and functionalists “tend to view it as a guide
to political action, ‘ ‘” liberal normativists invoke “rational principle” as the foun-
dation for their vision of social order. As evidence of the ascendancy of this
style of thought, Loughlin offers the fact that juridical conservatives like Sir
William Wade have in recent years come to support the notion of an entrenched
bill of rights in Britain. Wade, he notes, was one of the founding signatories of
the “Charter 88”, which called for not only the adoption of a rationalized enun-
ciation of individual rights, but also a written constitution “anchored in the idea
of universal citizenship.”24 Loughlin suggests, however, that under scrutiny the
current liberal school proves just as open to intellectual dissection as conser-
vative normativism. Among other things, he says, Charter 88 is not just repeti-
tious and ambiguous, but it omits reference to some critical constitutional fac-
tors (like th& role of the monarchy, for instance). Moreover, he submits that even
if Charter 88 is taken at face value as a liberal attempt to find a middle ground
among people of diverse viewpoints, its proponents are so diametrically
opposed in basic philosophy that it is highly unlikely that they could ever agree
on specific detail.
and herein lies his thesis –
Ultimately, in Loughlin’s argument –
all pub-
lic law thought thus far has been deficient because it has tended towards one of
two extremes: it has either failed to take sufficient account of our political and
legal heritage in its advocacy of functionalist change, or it has been guilty of
plain blindness to reality in its defence of the sort of conservative normativist
values embodied in the work of people like Dicey and Lord Hewart. He con-
cludes with an entreatment to all those interested in the study of public law. In
Loughlin’s view, rather than engaging in polemics, public lawyers should
instead be seeking to understand the impact which the administrative state has
had on our conceptions of law. “Public law arises,” he says, “from the recogni-
tion that modem law has, in Dicey’s expression, become officialized.” Since
the horse has already bolted, so to speak, it is no longer an option to rhapsodize
about the past: “Rather than attempt to adhere to a normativist conception of
law and moralize about this development, public lawyers should be seeking to
understand the impact which these developments have had on our conceptions
of legality …” Equally, though, it is of little value to simply attempt to wish
the past away. Instead, the challenge is for public lawyers to engage in a fusion
of philosophy –
to view the past as a bridge leading to the future, rather than
as a dam standing in its way. “Public law,” he concludes, “should adopt as its
principal focus the examination of the manner in which the normative structures
of law can contribute to the tasks of guidance, control, and evaluation in gov-
ernment.”’27
There are several ways in which this book holds interest for Canadians.
The first, as I have already mentioned, is in its value as a history of thought on
23Supra note 9 at 237.
241bid. at 221-22.
2Slbid. at 264.
261bid.
27Ibid.
McGILL LAW JOURNAL
(Vol. 39
administrative law. Loughlin covers all of the schools in enough detail to give
the reader a reasonably solid theoretical grounding in the evolution of public
law. In addition, the work is well-referenced so that anyone wishing to delve
further into one school of thought or another will have little difficulty in choos-
ing an appropriate starting point. Beyond this, many of his points of criticism
notwithstanding that they are directed at contemporary British public law,
–
from which ours now differs in some important ways –
provide food for
thought as we consider the future of Canadian administrative law in the era of
the Charter. It will be evident, for example, that our thinking of the role of the
State is in a period of uncertainty. To use Loughlin’s labels, while in its genesis,
the Charter was meant to be an exercise in liberal normativism, i.e. a rationalist
enunciation of limits on the State’s ability to interfere with our private enjoy-
ment of life, some people are now beginning to urge that it should have a func-
tionalist role –
that the constitutional guarantee of rights ought in some cases
to mandate state action to improve the quality of life.
Similarly, there would seem to be some potential for tension between the
exhortation of Mr. Justice La Forest that Charter-based judicial review should
not amount to “abstract ruminations on constitutional theory”‘
(a statement of
what Loughlin would refer to as functionalism) and Chief Justice Lamer’s
recent declaration that with the adoption of the Charter we turned our backs on
the notion of positivism as the basis of legality29 (an expression of liberal nor-
mativism). Simply put, if the Charter-as-Koran is in fact to be the watchword
for Canadian law, one has difficulty imagining by what standard the appropri-
ateness of administrative decisions can be measured other than their conformity
to the philosophy embedded in our constitutional theory.
One particularly pleasing aspect of Loughlin’s book is his writing style.
Though he can be quite savage with his pen when he wishes,” his style, while
critical, is nonetheless good humoured, occasionally showing a wry and incisive
turn of phrase. In discussing the work of nineteenth century legal positivist John
Austin, for example, he offers a self-effacing comment:
Austin’s project struck a harmonious note with the academic lawyers who, during
the latter half of the century, were just becoming established in the English univer-
sities. This group needed to be able to identify a role for themselves that would
both establish their credibility as legal scientists and aid their 31uest for legitimacy
in the eyes of both the universities and the legal profession.3
Similarly, in considering the popularization in the 1970s and 1980s of mak-
ing reference to sociological and philosophical considerations in legal writing,
he says, “These cogitations – whether of a philosophical or sociological nature
28Cuddy Chicks, supra note 6 at 16.
29″In 1982 we put an end to most legal positivism. Now that’s a revolution. That’s like intro-
ducing the metric system. It is like Pasteur’s discoveries…. Like the invention of penicillin, the
laser. It was a great event” (Interview with J. Sallot, “How the Charter Changes Justice” The
[Toronto] Globe and Mail (17 April 1992) All (quoted in P. Monahan & M. Finkelstein, “The
Charter of Rights and Public Policy in Canada” (1993) 31 Osgoode Hall L.J. 501)).
3See e.g. his review of Judicial Review by M. Supperstone & J. Goudie (1993) 56 Modem L.R.
911.
31Supra note 9 at 21.
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BOOK REVIEWS
– generally remain undeveloped; the importance of a reference to the connec-
tion is felt to be sufficient.”’32 And in discussing the Critical Legal Studies move-
ment, he writes, “This recent attachment to the cult of subjectivity has been
much stronger in the United States, where they tend not to do things by
halves. 33
Loughlin’s criticism of older schools of public law tradition is equally
thoughtful and penetrating, yet without falling into “preachiness” or pedantry.
Hippily, too, his discussion of Dicey and his writings does not display any of
the cockiness that is so often a feature of present-day consideration of his work.
Loughlin’s own depth of knowledge and breadth of thought are made plain by
the range of his references (which include, in addition to the ones already men-
tioned, the poet Matthew Arnold). One thing which I as a lawyer found espe-
cially pleasing was the fact that the book is footnoted. It probably says some-
thing about the strange way in which we in the law have been trained to read,
but I can think of nothing more frustrating than having to shuffle through the
last pages of a book every few minutes in search of an endnote.
In short, Public Law and Political Theory is an intelligently conceived,
thoroughly researched and extremely well-written book. Moreover, it is an
important work. In the course of time, it could well join the ranks of Willis’s The
Parliamentary Powers of English Government Departments and Jennings’s The
Law and the Constitution, as one of the classic expositors of public law thought.
For now, however, it is a definite “must-read” for anyone interested in knowing
more about the philosophical underpinnings of administrative law as it is known
and practised in the common law world.
32Ibid. at 24.
331bid. at 33.