n Acta Juridica - The rule of law and judicial review : re-reading Dicey : the constitutional context

Volume 2006, Issue 1
  • ISSN : 0065-1346
  • E-ISSN: 1996-2088



The remaining traces of formalism in administrative law are under attack in a number of common-law countries. Formalism in administrative law is usually equated with attempts to invoke a distinction between errors that are jurisdictional or non-jurisdictional in nature, between void and voidable decisions or by relying on a classification of functions as a means to determine the outcome of review proceedings. There can be little doubt that this type of formalism is in steady decline. Some academics who have a wider view of formalism also oppose the distinctions drawn between law and policy, legality and merits, law and fact and even between different grounds of review. These views are not beyond contention as they seem to challenge the very foundations of administrative law. The question that inevitably arises upon the demise of at least some of the traditional distinctions in administrative law is what they should be replaced with. In many common-law countries it has now become fashionable for the courts to hold and for academics to argue that the context of every case should guide decision-making. These contextual approaches, apart from stipulating the factors that must be taken into account, usually do not tell us how choices should be made between different contextual factors or how these factors should be weighed in review proceedings. Some form of pragmatism seems usually to dictate the answer. A number of attempts have recently been made in the administrative law context to provide a theoretical model of the rule of law to guide judicial decision-making in the era of contextualism. The most prominent theoretical accounts of the rule of law in the current administrative law context are those of Trevor Allan and David Dyzenhaus, which I will discuss briefly later on. In this article I will focus primarily on the general ability of models of the rule of law to guide judicial decision-making. This will include a reference to discussions by mostly South African authors of the German .

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