Pure or Mixed? The Evolution of Three Grounds of Judicial Review of the Administration in British and Israeli Administrative Law

in European Journal of Comparative Law and Governance
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This article challenges common understandings about the distinct features of the so-called “mixed jurisdictions”. One of the main features found in this group of legal systems, it is argued, is that they are civil-law in nature in the sphere of private law, while their public law sphere is typically Anglo-American. I argue that this may be correct as far as the structural elements of these two branches of law, for example with regard to the court structure; it may also be relevant in the context of the general, overarching values underlying both branches of law. However, as far as the detailed arrangements are concerned, a variety of set-ups reflect different types of mixes and combinations in all legal systems, including “mixed jurisdictions”: innovation, transplantation and adoption of which can be traced inter alia to global crosscutting between these two families of legal systems.

This argument is developed through an analysis of the evolution of three grounds of review of the administration-unreasonableness, proportionality and legitimate expectations/ administrative promise-in the United Kingdom, the “ancestor” of the common law family of legal systems, and in Israel, currently considered a mixed jurisdiction. I show that both innovation and reliance on civil law constructs can be found in both systems just as much as common law constructs. The influence of EU law, especially ECtHR jurisprudence, renders the public law of the United Kingdom, to a certain extent, to be more civil-law-like than its so-called daughter system. Whether this mix of patterns is an unavoidable result of the irresolvable tension between exclusionism and openness, both willful and subjected, or matter that is particular to the distinct nature of administrative law and its case-by-case development in common law systems is a matter for further consideration. Clearly, though, legal reality, at least in the field studied in this article, challenges the viability of the distinction between “pure” and “mixed” legal systems.

  • 15)

    M. Taggart (2008) “Proportionality Deference Wednesbury” New Zealand Law Review (2008) p. 427 and sources cited in note 16 therein.

  • 31)

    A. Le Sueur“The Rise and Ruin of Unreasonableness?”Judicial Review (2005) p. 32 (recognizing four levels of review: non-justiciable light touch review ordinary Wednesbury and the fourth mode of “anxious scrutiny”/”enhanced level scrutiny”/”rigorous examination”/”super Wednesbury”; for a succinct review see id at 39-40); H. Woolf J. L. Jowell and A. Le Sueur De Smith’s Judicial Review (6th ed; 2007) pp. 594-598. For British decisions employing the strict test see R v Lord Saville of Newdigate ex parte A [2000] 1 WLR 1855 at 1867; R v Lord Saville of Newdigate [2002] WLR 1249 at 1254.

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  • 35)

    European Communities Act 1972Section 2(1). This subjection was finally formally recognized only in 1992 in R v Secretary of State for Transport ex parte Factortame (No 2) [1991] 1 AC 603.

  • 38)

    Jowell J and Lester A (1987) ‘Beyond Wednesbury: Substantive Principles of Administrative Law’ Public Law 368 at 371-73; Jowell J (1999) ‘Is Proportionality an Alien Concept?’ 2 European Public Law 401; Craig 1999 supra at 30 91-92; de Búrca supra at 18 573-577.

  • 52)

    Craig 1999supra note 30; P. Craig “Proportionality Rationality and Review” New Zealand Law Review (2010) p. 265.

  • 70)

     See Craig 1996supra note 66.

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    Mixes in the Evolution of Three Grounds of Review: A Comparison.

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