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  • Print publication year: 2007
  • Online publication date: June 2012

23 - Administrative law judicial remedies

Summary

A rational system of law would start with matters of substance – it would prescribe legal norms. It would separately prescribe legal remedies for breach of those legal norms. It would provide a single procedure for a person claiming to be affected by a breach of a legal norm to apply to a court for a legal remedy. It would ultimately allow the court to grant whatever legal remedy was appropriate to the breach found. Unfortunately, a rational system of that nature has not been the legacy of the common law which has instead fastened ‘not upon principles but upon remedies’. Much of the development of administrative law in the last 150 years has involved attempts in various ways to create a system in which principle prevails and in which remedies are functional and subservient.

The historical legacy

It is sometimes forgotten that the whole of the common law was once administered through a system of ‘writs’. The writs were numerous but finite in number. Each had its own ‘uncouth name’. Each contained a unique command of the sovereign. Each was founded on a ‘form of action’ expressed or ‘endorsed’ on the writ in rigid and formulaic terms. The substantive law was constrained to fit the formulaic terms of the form of action but often strained against them. When a form of action failed to meet the demands of justice, the form prevailed and a ‘fiction’ was invented.