Reconciling with the Past: John Willis and the Question of Judicial Review in Interwar and Postwar England

Peter L. Lindseth, University of Connecticut School of Law

Abstract

This contribution was prepared for a conference at the University of Toronto Faculty of Law in honor of John Willis, the late Anglo-Canadian administrative law theorist who died in 1997. It will appear in a forthcoming issue of the University of Toronto Law Journal. Throughout his career, John Willis puzzled over the way in which both popular and elite opinion in England (not to mention throughout the Commonwealth and in the United States) persistently, and in his view uncritically, equated the "Rule of Law" in important respects with judicial review in the administrative state. Willis believed this attachment to judicial review as a legitimating mechanism was the result of a misguided focus on "the problem of reconciling," as he called it. This referred to the adjustments needed both in the structures of administrative governance as well as in public law so that, on the one hand, effective state intervention could proceed but, on the other, it could still be understood as "constitutional" and "democratic" in a historically recognizable sense. This article views Willis's discomfort with the "problem of reconciling" as itself problematic. His disparaging attitude toward the place of judicial review in the administrative state was an outgrowth of a limited and one-sided conception of historical change that focused on structural evolution while in effect dismissing its cultural dimension except as a force of obstruction and resistance. Part I of this article summarizes the debates over legislative delegation and administrative justice in interwar England in order to give a sense of the legal-political environment in which Willis came of age as a scholar. Part II turns to the two decades after 1945 to examine efforts by legal and political actors in England to arrive at a more or less stable settlement over the role of judicial review in the administrative state. Willis did not participate directly in these postwar debates because of his move to Canada in the mid-1930s; nevertheless, he continued to view English developments as a kind of analytical baseline for examining the interaction of administrative governance and parliamentary democracy more generally, whether in Canada or elsewhere in the Commonwealth. This paper concludes by reflecting on the writings of Willis at the end of his career in light of efforts in postwar England to achieve a constitutional settlement over the place of judicial review in administrative law.