Judicial review of administrative action: England, France, and Germany (1860s–1910s)

Thesis

This thesis explores and compares the history of judicial review in England, France, and Germany between the 1860s and the 1910s. It focuses on three subject-matters: the institutional arrangement of decision-makers (both the reviewing courts and the decision-makers subject to review), review on the ground of an unlawful decision-making procedure, and review for error of law.

The principal argument postulates that the institutional and doctrinal frameworks for judicial review were carefully crafted around specific notions of ‘judicial’ and ‘administrative’ powers in France and Germany, but less so in England. Although in slightly different ways, France and Germany during the 19th century installed separate administrative courts for the purpose of overseeing ‘administrative’ powers and decision-makers in a technical sense. England had no separate administrative courts. Further, the variety of processes and remedies which constituted judicial review in England did not specifically target the oversight of ‘administrative’ powers or decision-makers. As a means of resolving complex legal questions, English judges at times characterised certain powers as ‘judicial’ or ‘administrative’. However, the distinction caused significant confusion. In England, the judicial-administrative divide lacked a clear institutional, legislative and constitutional foundation.

The principal argument touches upon institutions, processes and remedies, the precepts of review, as well as the constitutional foundations of judicial review in each legal system. Such a broad scope is suitable to compare three fundamentally different models of judicial review and of administrative law more broadly. In addition to the principal argument, the thesis makes a number of claims with a limited scope for each of the three subject-matters.

Authors: Langemeyer, J

• DOI: 10.5287/ora-2z4yddngx
• Type of award: DPhil
• Level of award: Doctoral
• Awarding institution: University of Oxford
• Language: English
• Keywords: procedural fairness; error of law; judicial review; separation of powers
• Subjects: Judicial review; Comparative law; Administrative law; Law--History