Edited by Susan Rose-Ackerman and Peter L. Lindseth
Chapter 26: Judicial Review of Questions of Law: A Comparative Perspective
Paul Craig* All systems of administrative law must face and resolve a remarkably similar set of issues. They will have to elaborate tests for review of law, fact and discretion. Comparative law enables us to analyze diverse approaches to the same issue, while being properly mindful of legal/cultural reasons for those differences. It is possible through comparative discourse to consider whether doctrinal variations across legal systems are relatively minor, so that the respective regimes, in effect, do the same thing in slightly different ways, or whether doctrinal variants reflect a deeper normative divergence. With that question in mind, this chapter focuses on the test for judicial review of questions of law in the UK, USA, Canada and the EU. The topic is an important aspect of judicial review and is fertile for comparative analysis. The analysis reveals the divergences between the legal systems, and sets out the four principal judicial strategies used. They are judicial substitution of judgment over jurisdictional legal issues; substitution of judgment by the reviewing court on all issues of law; substitution of judgment on certain legal issues and rationality review on others where the principal criterion for the divide is legislative clarity in defining the disputed term; and, finally, substitution of judgment and rationality review where the criterion for the divide is a broader range of functional considerations. Exigencies of space preclude detailed treatment of the kind found in the relevant domestic literature. However, the comparative analysis, drawing on this literature, will, I hope, inform the...
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