THE CULTURE OF JUSTIFICATION IN ADMINISTRATIVE LAW: RATIONALES AND CONSEQUENCES.

• Author: Boughey, Janina

In recent decades, apex courts across the common law world (and beyond) have reoriented key principles of judicial review of administrative action around the idea of a "culture of justification". The term was coined by South African professor Etienne Mureinik to describe "a culture in which every exercise of power is expected to be justified; in which the leadership given by government rests on the cogency of the case offered in defence of its decisions, not the fear inspired by the force at its command." (1)

Mureinik's vision was extraordinarily ambitious, perhaps even radical. (2) It encompasses "every exercise of [government] power" (3): legislative, administrative, and judicial powers, as well as powers which may not fit neatly into any of those categories. It applies to powers that affect fundamental rights, as well as those that do not. It is not restricted to executive power; and indeed much of the academic discussion on the rise of the culture of justification has focused on constitutional review, and the rise of proportionality reasoning in particular. (4) Clearly, the form that justification should take must vary depending on which public institution or individual is exercising power, and the type of power exercised. A parliament enacting general legislation will be required to justify its choices in a different way from an unelected government officer applying the law to an individual's circumstances. Thus, Mureinik's theory included a range of constitutional, interpretive, and administrative law principles which apply variously to the institutions that exercise public powers. (5)

In the context of administrative law, a culture of justification means that the lawfulness of administrative action depends on, among other things, whether the government has provided a rational justification for it. (6) While administrative law has long required administrative decision makers to act "reasonably", the concept of reasonableness has not always been concerned with the justification actually provided by an administrative decision maker. Nor have common law courts historically demanded that administrative decision makers provide reasons for their decisions. There have been shifts in both of these areas of administrative law in recent decades, which scholars have argued is evidence of the more general trend in public law towards a culture of justification. (7)

Although the trend towards a culture of justification in administrative law might be apparent, "its characteristics [are] less so". (8) It remains unclear precisely what such a culture demands of decision makers. For instance, when must they provide justifications? To whom must justifications be directed (and comprehensible)? What standard determines whether a justification is adequate? And what are the legal consequences of a decision maker's failure to provide an adequate justification? These are just a few of the practical questions on which recent case law yields conflicting answers. Another, related question recently became a point of (obiter) disagreement between justices of the Supreme Court of Canada: is a reviewing court able to supplement a decision maker's flawed justification with additional reasons found in the surrounding context and history of the decision to support the outcome reached by the decision maker? The majority in Canada (Minister of Citizenship and Immigration) v Vavilov took the view that supplementation is not "ordinarily appropriate" on the basis that the responsibility of decision makers is to justify their decisions to the affected party, and supplementary reasons by a reviewing court do not fulfil this same function. (9) In contrast, Abella and Karakatsanis JJ "support a flexible approach to supplementing reasons, which is... sensitive to the 'day-to-day realities of administrative agencies"'. (10)

The answers to these practical questions hinge on a more fundamental question: why should administrative decision makers be required to provide justifications? If, for example, the principal purpose of administrative justification is to demonstrate respect for the dignity of those affected by a decision, it is unacceptable for a reviewing court to supplement a decision maker's inadequate reasons. Whereas, if the central purpose of administrative justification is to satisfy reviewing courts that the decision is reasonable, then judicial supplementation of administrative reasons might be acceptable in certain circumstances.

The many virtues of administrative reasons are well-known and oft-repeated. They include facilitating review, respect for individuals, public confidence in administration, and improving decision making. (11) And theorists have dedicated a great deal of attention to the why question in the broader context of the constitutional theory of a culture of justification. (12) But, as judges across the common law world have developed the principles of judicial review of administrative action to increase the justificatory burdens of administrative decision makers, little attention has been paid to how theoretical rationales translate into doctrine and how the various rationales for and benefits of administrative justification interact with one another. The result is the current lack of precision about what a culture of justification entails.

In this article, I examine the range of theoretical and practical answers given to the fundamental question of why a culture of justification should apply to administrative decision making. I unpack the relationships between the various rationales for administrative justification and analyze the practical implications of different rationales for administrative decision makers. I argue that although the various theoretical and practical rationales for administrative justification are largely mutually supportive, there appear to be certain doctrinal points of tension between them: issues on which different explanations for why the executive must justify its actions have different practical implications for decision makers and reviewing courts. To provide clarity about what a culture of justification requires of the administrative state and the standards their justifications must meet, there must be a method for resolving the points of tension that arise between the various rationales for requiring administrative justification, or clear reasons for preferencing one rationale over another when tensions arise. That method can only be devised once there is a clear and consistent answer to the question of why a culture of administrative justification matters.

I begin in Section I by briefly outlining the nature of the shift in judicial review of administrative action (13) towards a culture of justification, focusing on key developments in Canada, the United Kingdom (UK), and Australia. I highlight similarities and differences between the jurisdictions with the goal of exploring the features of this culture of justification which commentators have observed has developed across the common law world. (14)

In Section II, I examine the rationales given by courts and academics for requiring the executive branch to justify its decisions and analyze the practical ramifications of each of these rationales for administrative decision makers. My analysis shows that there are certain doctrinal points on which different rationales yield different outcomes: issues such as the timing of reasons and supplementation. I draw on recent examples from each jurisdiction to illustrate points of tension and inconsistencies that have arisen between the different rationales when courts have translated the theory of a culture of justification into practice. I also draw on recent cases in which courts in those jurisdictions seem to have implicitly prioritised one rationale over another.

In Section III, I analyze how these points of tension interact and briefly consider some methods through which they might be resolved, returning to the disagreement about supplementation of reasons in Vavilov to illustrate. My objective is not to propose a solution to the tensions that I identify. Nor do I make a normative argument as to which rationale for administrative justification ought to be prioritized when points of tension arise. Rather, I simply seek to highlight that the rationales commonly given for administrative justification do not always translate into coherent doctrine, and that doctrinal choices might unintentionally prioritize certain rationales over others. Creating a culture of administrative justification with clear expectations of administrative decision makers requires courts to engage with the constitutional and normative issues I have raised in this article as to why a legal system demands that the administrative state provide justifications for its decisions.

It is worth noting at the outset that I conflate arguments for justification and the giving of written reasons to the affected person. This is because, as I see it, reason-giving is a specific procedural form of justification, and it is the form to which greatest attention has been given in the administrative law context. Indeed, reasons are at the centre of Dyzenhaus's theory of deference as respect, which he argues "connects the value of equality with the rule of law through the idea of a legal culture of justification". (15) It is Dyzenhauss theory which has influenced key developments in Canada. (16) So while a culture of justification in the context of administrative decision making may involve activities other than giving statements of reasons (though no one has yet suggested what these might be), it makes sense to focus on reason-giving in analyzing arguments for justification generally, given its pervasiveness and importance to Dyzenhauss theory.

1. THE DEVELOPMENT OF A CULTURE OF JUSTIFICATION IN ADMINISTRATIVE LAW

   Numerous scholars and some courts and judges have argued that a culture of justification is developing in judicial...