Craig, Paul --- "Judicial Review of Questions of Law: A Comparative Perspective" [2010] ELECD 828; in Rose-Ackerman, Susan; Lindseth, L. Peter (eds), "Comparative Administrative Law" (Edward Elgar Publishing, 2010)

Book Title: Comparative Administrative Law

Editor(s): Rose-Ackerman, Susan; Lindseth, L. Peter

Publisher: Edward Elgar Publishing

ISBN (hard cover): 9781848446359

Section: Chapter 26

Section Title: Judicial Review of Questions of Law: A Comparative Perspective

Author(s): Craig, Paul

Number of pages: 17

Extract:

26 Judicial review of questions of law: a comparative
perspective
Paul Craig*


All systems of administrative law must face and resolve a remarkably similar set of issues.
They will have to elaborate tests for review of law, fact and discretion. Comparative law
enables us to analyze diverse approaches to the same issue, while being properly mindful
of legal/cultural reasons for those differences. It is possible through comparative dis-
course to consider whether doctrinal variations across legal systems are relatively minor,
so that the respective regimes, in effect, do the same thing in slightly different ways, or
whether doctrinal variants reflect a deeper normative divergence.
With that question in mind, this chapter focuses on the test for judicial review of
questions of law in the UK, USA, Canada and the EU. The topic is an important aspect
of judicial review and is fertile for comparative analysis. The analysis reveals the diver-
gences between the legal systems, and sets out the four principal judicial strategies used.
They are judicial substitution of judgment over jurisdictional legal issues; substitution of
judgment by the reviewing court on all issues of law; substitution of judgment on certain
legal issues and rationality review on others where the principal criterion for the divide
is legislative clarity in defining the disputed term; and, finally, substitution of judgment
and rationality review where the criterion for the divide is a broader range of functional
considerations.
Exigencies of space preclude detailed treatment of the kind found in the relevant
domestic literature. ...