Leading Works in Public Law: De Smith’s Judicial Review of Administrative Action

I am currently working on a chapter for “Leading Works in Public Law”, a collection edited by Ben Yong and Patrick O’Brien. My chapter is on SA de Smith’s Judicial Review of Administrative Action. Each contribution will discuss “The Work”, “The Context”, “The Significance” and “The Legacy”. Here is the introductory material; I will post drafts of the other sections in due course.

Abstract

Before and for several years after the publication of SA de Smith’s seminal treatise on the common law of judicial review of administrative action, the activities of statutory bodies were controlled by the so-called “prerogative writs” of certiorari, prohibition, mandamus, quo warranto and habeas corpus. As such, as with the common law generally prior to the reforms effected by the Judicature Acts in the late nineteenth century, there was no “administrative law” as such; there was a “law” relating to certiorari, prohibition and so on but there was no coherent body of principles which, as a whole, could be described as “administrative law”. In the same way as there was no “law of tort” or “law of contract” but rather a “law” of diverse writs of action, “administrative law” as a body of principles did not exist but had to be brought into being.

At the time de Smith published his treatise, what bodies were reviewable, and what types of error might be put in issue before the superior courts of record, depended on the scope of the prerogative writs. This depended in turn on a tripartite classification of administrative decisions into rigid, formal categories – “administrative” and “legislative” decisions taken free from judicial oversight and “judicial” decisions subject to the full rigours of natural justice and (such as it was) superior court scrutiny.

In giving life to “administrative law”, de Smith was a key figure, as his treatise teased out principles which were common to the prerogative writs, enabling the creation of a body of “administrative law”. Once common lawyers were able to free themselves from the shackles of the prerogative writs (by profiting from de Smith’s insights) it was possible to eliminate the troublesome tripartite classification and, more grandly, to conceive of the procedural reforms that swept the common law world in the 1960s, 1970s and 1980s. These reforms created a unified application for judicial review,
abolishing the intricacies of the prerogative writs and (along with de Smith’s work) paving the way for the development, most notably from the 1980s onwards of a bespoke set of principles for judicial control of public administration, a development ably charted by successive iterations of De Smith’s treatise, now in its 8th edition.

Introduction

In his classic text, Judicial Review of Administrative Action, Professor de Smith “provided the academic systematization of the principles of judicial review…”[1] Published in 1959, de Smith’s book wove a principled pattern from disparate strands of jurisprudence. De Smith’s landmark work set the scene for the development of a common law tapestry of judicial review of administrative action, which by the end of the century had definitively replaced the earlier patchwork quilt of case law. He “reshaped administrative law as an academic subject”.[2]

I begin with an introduction to the author of the text and a description of the 1959 text (“The Work”). Subsequently, I explain the background against which the text was written (“The Context).  I then consider its importance in the development of contemporary administrative law (“The Significance”). I conclude by considering the evolution of Judicial Review of Administrative Action in the decades after its progenitor’s death and the evolution of the law of judicial review of administrative action (“The Legacy”). In both its creation and its evolution in the hands of others, Judicial Review of Administrative Action has been of central importance to the common law tradition of administrative law.

[1] John Bell, “Comparative Administrative Law” in Mathias Reimann and Reinhard Zimmermann eds., The Oxford Handbook of Comparative Law (Oxford University Press, Oxford, 2006), p. 1259, at p. 1285.

[2] “Professor S.A. de Smith” (1974) 33:2 Cambridge LJ 177.

This content has been updated on April 10, 2020 at 14:56.