The Rule of Law and Judicial Review: Re-Reading Dicey

• Jurisdiction: South Africa
• Author: Jacques de Ville
• Citation: 2006 Acta Juridica 62
• Published date: 30 August 2019
• Pages: 62-91
• Date: 30 August 2019

The Rule of Law and Judicial Review:

Re-Reading Dicey

JACQUES DE VILLE*

University of the Western Cape

Now when she [Echo] saw Narcissus wandering through the f‌ields, she was

inf‌lamed with love and followed him by stealth; and the more she followed,

the more she burned by a nearer f‌lame; as when quick-burning sulphur,

smeared round the tops of torches, catches f‌ire from another f‌ire brought

near. Oh, how often does she long to approach him with alluring words and

make soft prayers to him! But her nature forbids this, nor does it permit her to

begin; but as it allows, she is ready to await the sounds to which she may give

back her own words.

By chance the boy, separated from his faithful companions, had cried: ‘Is

anyone here?’ and ‘Here!’ cried Echo back. Amazed, he looks around in all

directions and with loud voice cries ‘Come!’; and ‘Come!’ she calls him

calling. He looks behind him and, seeing no one coming, calls again: ‘Why do

you run from me?’And hears in answer his own words again. He stands still,

deceived by the answering voice, and ‘Here let us meet,’ he cries. Echo, never

to answer other sound more gladly, cries: ‘Let us meet’; and to help her own

words she comes forth from the woods that she may throw her arms around

the neck she longs to clasp. But he f‌lees at her approach and, f‌leeing, says:

‘Hands off! Embrace me not! May I die before I give you power o’er me!’ ‘I

give you power o’er me!’ she says, and nothing more.

1

Ovid Metamorphoses translation by FJ Miller (1960) 3. 370–392

I INTRODUCTION

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

* Professor, Law Faculty, University of the Western Cape. The f‌inancial assistance of the

National Research Foundation is gratefully acknowledged. I would also like to express my

gratitude to the conference participants, an anonymous reviewer, and Trevor Allan for their

helpful comments on a previous draft of this article. Dennis Davis, Pierre de Vosand Johan van

der Walt played an important role in the development of the ideas expressed here. Remaining

errors are my own.

1

These last lines are also translated as follows: DE Hill (1985): ‘Hands off, do not embrace

me. I would die,’he said, ‘before I would offer myself to you.’ She answered nothing except, ‘I

would offer myself to you’; R Humphries (1955): ‘Keep your hands off,’ he cried, ‘and do not

touch me! I would die before I give you a chance at me.’ ‘I give you a chance at me’; AD

Melville (1986): ‘He bolted, shouting ‘Keep your arms from me! Be off! I’ll die before I yield to

you.’And all she answered was ‘I yield to you’.

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2006 Acta Juridica 62

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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.

2

These views are not beyond

contention as they seem to challenge the very foundations of administra-

tive law.

3

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.

4

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. Anumber 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 Rechtsstaatsprinzip.

I will argue that in developing a model of the rule of law, that which

Derrida tells us regarding heritage cannot be ignored. Derrida

5

points out

that we cannot choose a heritage. It rather elects us in a violent manner.

The heritage furthermore contains a double injunction or a contradictory

assignation. This double injunction entails that we have to not simply

accept the heritage (it chooses us), but that we have to choose to keep it

alive; we thus have to ‘relaunch it otherwise’. A continuation of tradition

is in other words called for as well as an interruption; being unfaithful in a

spirit of f‌idelity. Derrida explains this as follows:

If our heritage assigns contradictory tasks to us (to receive and yet to choose,

to welcome what comes before us and yet to reinterpret it, etc.), this is

2

See TRS Allan ‘Doctrine and theory in administrative law: an elusive quest for the limits

of jurisdiction’ 2003 Public Law 429.

3

See P Craig ‘The common law, shared power and judicial review’ (2004) 24 Oxford

Journal of Legal Studies 237.

4

See eg Bato Star Fishing (Pty) Ltd v Minister of Environmental Affairs 2004 (4) SA 490 (CC)

para 45; C Hoexter ‘The future of judicial review in South African administrative law’(2000)

17 SALJ 484.

5

J Derrida and E Roudinesco For What Tomorrow. . . (2004) 3–6.

63THE RULE OF LAW AND JUDICIAL REVIEW

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