Thinking about Administrative Law: Some Recent Articles

There has been renewed interest in recent years in the theory of administrative law. As I commented a few years ago:

It seems to me that it is no accident that contemporary administrative law scholars have focused their academic energies on (relatively) grand theories of the subject. With the general principles of legality, rationality and procedural fairness now well established, attention has turned to identifying higherlevel principles, purposes or values that animate administrative law, tracing cross-border influences and analysing large databases of decisions against sophisticated quantitative and qualitative metrics. A concern for doctrinal coherence has been supplanted by interest in the construction of theoretical frameworks; comparative analysis is growing in relation to jurisdiction-specific studies; and there is new or renewed interest in the work of lower courts and front-line decision-makers as opposed to that of apex courts.

Three recent contributions offer very different suggestions about how to think about the subject. Each is worth reading, both for the quality of writing and clarity of thought but also for providing a sense of where administrative law theory currently is.

First, “In Defence of Classical Administrative Law” by Professor Mark Elliott and Dr Philip Murray:

The classical account of administrative law, which holds that unlawful administrative acts are void ab initio and that judicial review remedies such as quashing orders are merely declaratory of such acts’ legal status, appears to be placed in doubt by a range of recent legislative developments, judicial pronouncements and academic commentary. However, the classical account is not only capable of withstanding those apparent challenges: it is constitutionally imperative if collateral challenge is to be maintained, and the rule of law thereby upheld.

The conclusion gives a neat summary of the argument:

This article is not a plea for an administrative law that is unduly technical or which eschews concern for fundamental principles. But we do not believe that the classical account of administrative law is a barrier to the promotion of good administration, legal certainty and the rule of law. Nor do we believe it can be wantonly jettisoned without risking significant constitutional harm. Regardless of whether one conceives of administrative law as rooted in the common law’s independent development of the rule of law, or whether one sees it, like us, as concerned with vindicating Parliament’s own intention that public power is exercised in accordance with the rule of law,219 naked invocation of the rule of law, unmediated through the more specific grounds of judicial review, shaped according to statutory text and relevant context and orientated towards the jurisdiction, or vires, of an administrative decision-maker, risks making administrative law a wilderness of single instances,220 unduly reliant on unpredictable and retrospective adjudicative discretion. Doctrine matters. It provides guidance to the courts, administrators and ultimately citizens (or their legal advisers). And the classical concepts of jurisdiction, voidness and nullity matter in particular, allowing citizens to withstand the onerous consequences of illegality by means of collateral challenge. An administrative law that abandons classical doctrine is one that will ultimately undermine, not vindicate, the rule of law.

It is for these reasons that we have sought to defend the classical account of administrative law against three new threats. We have shown that Parliament has, often contrary to the preference of the courts, leveraged the classical account of administrative law to its own ends, utilising the concepts of jurisdiction and vires to provide for more flexible judicial review remedies, statutory delimitations of devolved legislative competence and new ouster clauses which balance the competing demands of adjudicative finality and the rule of law. Parliament clearly recognises the importance of classical administrative law, and is willing to work with, rather than against, its grain. We believe the courts should follow suit. There are glimmers of this in the recent case law on ouster clauses. But it will ultimately fall to the Supreme Court, reversing the counter-orthodox tendency of its recent case law, to take up the baton. Classical administrative law is a constitutional imperative. There is every reason to encourage its reinvigoration and reinterpretation in contemporary public law, and we hope the courts will do so.

Second, “Administrative Law as a Source of Rights” by Megan Pfiffer:

This article challenges the pervasive assumption that judicial review of administrative action is not concerned with rights. Making a break from this orthodoxy, it proposes a theory of judicial review that suggests that its purpose is to protect distinctive administrative law rights held by those subject to public administrative power. This rights-based theory makes sense of the structure of applications for judicial review in which, paradigmatically, an individual subject to an administrative decision makes a claim against the state that the public official responsible for that decision failed to meet the relevant administrative law standards, and accordingly demands a remedy. The bulk of the article is dedicated to addressing the major objections to a rights-based theory, including those arising from public interest standing and the nature of judicial review remedies. The analysis shows that each of these objections fails, clearing the ground for a fuller development of a rights-based theory of judicial review in future work.

The rights-based theory is as follows:

Consider how you might explain the law of judicial review to a friend without legal expertise. To help them understand the stakes, you might ask them to imagine that they have been subject to an administrative decision. The explanation would run as follows: suppose some public agency or official subjects you to a decision that you think is wrong. Perhaps they denied your application for social security benefits, or revoked your driving license, or enacted a bylaw that prevents you from using your property in the way you would like to. You might wonder what avenues of recourse are available. If you consulted a lawyer, they might suggest that you bring an application for judicial review. This is a procedure that allows you to bring a legal claim against the government concerning the validity of a public decision that affects you. Your lawyer would explain that there are several grounds upon which you can challenge an administrative decision through judicial review. They could help you make arguments before a court on one or several of those grounds. These arguments would be made on your behalf in service of the conclusion that the decision is not legally valid, and in pursuit of a legal remedy.

This sketch is admittedly crude, but it captures something that I take to be fundamental about the law of judicial review. In the paradigmatic case, judicial review involves a person making a claim in court that a public decision-maker subjected them to a decision that fell afoul of basic administrative law standards, and accordingly demanding that they receive a remedy. This, at bottom, is a rights-based picture. It centres the people subject to administrative decisions, and highlights what administrative law entitles them to claim or demand from the state in virtue of that position.

From later on:

Amid the growing body of administrative law theory, there is a common approach to the task of theorising about the law of judicial review. It involves identifying an abstract legal, political, or moral value or goal, and arguing that it best explains the legal doctrines that make up the law. To the extent that the form of administrative law norms are described in any detail, theorists tend to speak in terms of the duties of administrative officials, and either leave open who (if anyone) those duties are owed to, or specify that they are owed to the public at large. This strategy fails to provide a clear explanation for why people subject to administrative decisions have the primary standing to make claims for judicial review. Indeed, the people subject to administrative decisions drop completely out of the frame. Refugees, prisoners, welfare recipients, licence holders, and similarly situated individuals whose claims drive the system are treated as triggers for applications for judicial review, and nothing more. This is a signal that something has gone wrong.

Third, David Vitale, “Reimagining the Trust Conception of Legitimate Expectations“:

This content has been updated on December 5, 2025 at 12:32.