Interpreting Dicey Lewans, Matthew
The University of Toronto law journal,
10/2023, Volume:
73, Issue:
4
Journal Article, Book Review
Peer reviewed
Review essay of Mark Walters, A.V. Dicey and the Common Law Constitutional Tradition: A Legal Turn of Mind (Cambridge, UK: Cambridge University Press, 2020).
Mark Walters's book examines the ...intellectual development and legacy of Albert Venn Dicey, one of the most influential constitutional theorists of the twentieth century. By sifting through an impressive array of published and unpublished sources, Walters reconstructs Dicey's characteristic legal turn of mind and invites readers to interpret it in the best possible light by highlighting implicit, but unarticulated, connections between his theory of constitutional law and the much older tradition of common law constitutionalism. The book deepens one's understanding of the historical context that enveloped and informed Dicey's distinct legal perspective and convincingly debunks the popular assumption that his influential constitutional theory repurposes Austinian conceptions of law and sovereignty. Furthermore, the book questions whether other aspects of Dicey's constitutional theory - particularly, his provocative excursus on the relationship between the rule of law and 'droit administratif' - should be reconsidered in light of subtle revisions in his later works. While Walters's pluralistic interpretation of Dicey's assessment of 'droit administratif' is more tentative, it sheds an important new light on how his highly influential constitutional theory might be rehabilitated to enable contemporary public lawyers and theorists to grapple with otherwise intractable problems through the common law method of reasoning.
Over the course of her impressive legal career, Justice Rosalie Abella has been a champion for the administration of justice - a constitutional paradigm in which the legislative, executive, and ...judicial branches of government all share a fundamental duty to ensure that constitutional principles and values are sustained in practice. Thus, she has repeatedly urged judges to exercise restraint when assessing the legality of administrative decisions because administrative officials have valuable experience and expertise regarding the purposive interpretation of legislation. Understanding this constitutional paradigm helps one to identify unifying themes in Abella J's administrative law jurisprudence and draw important connections between her work and other leading Canadian jurists like Justices Ivan Rand and Bora Laskin. Moreover, it helps one to distinguish this constitutional paradigm from another formalistic constitutional perspective that perceives the judicial role primarily in terms of maintaining an institutional hierarchy in which judges have an interpretive monopoly to determine the content of the law. While the tension between these two constitutional paradigms is apparent in 'Canada (Minister of Citizenship and Immigration) v Vavilov', Abella J's work provides important insights on how to grapple with this tension in a productive and principled manner.
DUNSMUIR’S DISCONNECT Lewans, Matthew
The University of Toronto law journal,
12/2019, Volume:
69, Issue:
1
Journal Article
Peer reviewed
Over the past ten years, Dunsmuir v New Brunswick has become a focal point in scholarly and judicial discourse regarding the law of judicial review. But, despite its influential status, the author ...argues that the reasoning in Dunsmuir cannot be easily reconciled with paradigmatic cases in Canadian administrative law, which regard transparency, fairness, and reasoned justification as essential rule-of-law safeguards against arbitrary governmental action. By juxtaposing Dunsmuir with a principled understanding of these paradigmatic cases, the author concludes that the reasoning in Dunsmuir serves to undermine, rather than reinforce, the fundamental principles which might otherwise ensure the legitimacy of administrative law.
Should judges defer to administrative decisions? This book examines how the common law of judicial review has responded to the development of the administrative state in three different common law ...jurisdictions-the United Kingdom, the United States of America, and Canada-over the past one hundred years.
Dunsmuir ’s Disconnect Lewans, Matthew
The University of Toronto law journal,
01/2019, Volume:
69, Issue:
1
Journal Article
Peer reviewed
Over the past ten years, Dunsmuir v New Brunswick has become a focal point in scholarly and judicial discourse regarding the law of judicial review. But, despite its influential status, the author ...argues that the reasoning in Dunsmuir cannot be easily reconciled with paradigmatic cases in Canadian administrative law, which regard transparency, fairness, and reasoned justification as essential rule-of-law safeguards against arbitrary governmental action. By juxtaposing Dunsmuir with a principled understanding of these paradigmatic cases, the author concludes that the reasoning in Dunsmuir serves to undermine, rather than reinforce, the fundamental principles which might otherwise ensure the legitimacy of administrative law.
This article investigates the distinct character of Randian constitutionalism and how it may have been inspired by American discourse on constitutional values. More specifically, the author examines ...how Justice Rand’s brand of constitutionalism is distinguishable from the more dominant strain of Diceyan constitutionalism that was prominent among Canadian jurists during the twentieth century. The author argues that the difference between Randian and Diceyan constitutionalism can be explained largely by the central role that “citizenship” played in Justice Rand’s understanding of the Canadian constitutional order.
The author further argues that Justice Rand did not invent his conception of citizenship, but borrowed it from American constitutional jurisprudence regarding the Fourteenth Amendment to the Constitution of the United States. Accordingly, Justice Rand’s opinion in Roncarelli and other cases shows how his constitutional vision was shaped by a series of strong dissenting opinions concerning the now-defunct Privileges or Immunities Clause in the Fourteenth Amendment. By doing so, Justice Rand sought to install in Canadian public law the same fundamental principles of equality and non-discrimination that the American Congress intended to establish by adopting the Fourteenth Amendment.
Rethinking the Diceyan Dialectic Lewans, Matthew
The University of Toronto law journal,
2008, Volume:
58, Issue:
1
Journal Article
Peer reviewed
This essay identifies a blind spot in administrative law theory concerning the legitimate legal authority of administrative institutions. More specifically, the essay examines the root cause of this ...blind spot, arguing that it is attributable to A. V. Dicey's constitutional theory, which asserts that the English constitution rests upon the legal principles of parliamentary sovereignty and the rule of law. Dicey argued that the existence of administrative law was precluded by the nature of the English constitution, because it assigned exclusive legal authority to either Parliament or the common law courts. The essay criticizes Dicey's argument on two separate grounds. First, it argues that Dicey's theory was empirically mistaken, because it does not adequately account for common constitutional practices whereby legal authority is delegated to administrative institutions. Second, it argues that one can gain a better understanding of Dicey's theory if it is recast as a contestable political statement regarding the legitimacy of the administrative state. By engaging with Dicey's controversial ideological assumptions, we can set the stage for a more elaborate and robust constitutional theory that can better explain and justify the legitimacy of administrative authority.
Renovating judicial review Lewans, Matthew
University of New Brunswick law journal,
01/2017, Volume:
68
Journal Article
"Our administrative law is a never-ending construction site where one crew builds structures and then a later crew tears them down to build anew, seemingly without an overall plan."
