The Democratic Necessity of Administrative Justice

• Jurisdiction: South Africa
• Author: Jeffrey Jowell QC
• Pages: 13-22
• Date: 15 August 2019
• Published date: 15 August 2019

The Democratic Necessity of Administrative

Justice

JEFFREY JOWELL QC*

University College London

I INTRODUCTION: THE BOUNDARIES OF PUBLIC LAW

Public law governs the boundaries between the respective realms of the

citizen and the citizen’s government. The calibration of the balance

between those two realms is one of the most complex in all of legal

philosophy and political theory. It has grave consequences for democracy

which, to a large extent, it def‌ines.

Until recently in the United Kingdom the subject of public law was

divided into constitutional and administrative law. The purpose of

constitutional law was to def‌ine the powers of the state. Administrative

law then had a subsidiary purpose, which was to regulate the exercise of

those constitutionally-def‌ined powers by ensuring that public off‌icials

acted within their scope. Most of the attention of administrative law was

therefore absorbed in the interpretation of the power – express or

implied – conferred upon administrators. Two questions predominated:

Should the grant of wide discretion be construed literally or purposively?

And to what extent should a general duty of fairness or reasonableness be

subsumed within the grant of off‌icial power?

Initially, these questions were resolved within the overriding aim of

enabling administrators to further the public interest. Public power

should, it was said, self-evidently be exercised in the cause of the interest

of the public as a whole, and not in the interest of any individual or group

of individuals alone. Private concerns were not to obstruct that overall

mission.

As administrative law developed, another aim asserted itself, most

often described as the promotion of ‘good public administration’. This

notion shifted the perspective of administrative law in the direction of the

consumer – those persons affected by off‌icial decisions. However, the

qualities of ‘the good’ in public administration were not grounded in any

clear theoretical or constitutional basis. Later the courts articulated the

‘grounds’ of administrative law – lawfulness, fairness and reasonableness.

These more specif‌ic criteria were useful as guides to the content of ‘good

administration’, but they were still considered duties of the administrator

to provide, rather than rights of the individual to receive.

* Professor of Public Law, University College London.

13

2006 Acta Juridica 13

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