Table Of ContentTHE 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
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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) |
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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
