Administrative law leads a double life. By day, it leads a dreamy existence providing public education, protecting persons from discrimination, and creating free and fair elections. By night, it haunts any law student or practitioner trying to understand it.

“Administrative law hasn’t developed in a coherent way,” explains Professor Jacob Weinrib. “It is plagued by incoherence, excessive attention to detail, and an ever-shifting array of doctrines that leave persons uncertain of their rights and public officials uncertain of their obligations. Administrative law is a nightmare because we lack a theory capable of guiding its principled development. That’s what I want to create.”

It was the bewildering state of Canadian administrative law that led Weinrib to state, upon joining Queen’s Law, that he had no intention of ever teaching it. Yet, a short while later, he found himself teaching administrative law and wondering whether something could be done about its “sorry state.” 

Through a new $55,612 Social Sciences and Humanities Research Council Insight Development Grant, Weinrib aims to develop a unified theory of administrative law. His guiding idea is that the purpose of the administrative state is to realize a class of human rights that cannot be fulfilled apart from government action.

He explains that, “for too long, our theories of human rights have focused on the right to be free from government and overlooked the freedoms that public administration makes possible. We need to understand how human rights both determine the kinds of tasks that administrative agencies must perform and impose legal constraints on the mode of their performance. Administrative law is an idea about human rights to state action.”

With the funding for “Just Administration: A Unified Theory,” Weinrib will work with student research assistants to explore the connection between human rights to state action and the structure of modern administrative law. Ultimately, he hopes his articles and conference presentations will result in greater coherence in the way administrative law is taught and developed both in Canada and around the world.

“The leading theories take the existence of the administrative state for granted and then ask, all things considered, how the law that governs it should be structured,” he says. “But there is a more powerful way to think about it: the same principles that justify the administrative state indicate how the law that governs it should operate. The key to escaping the nightmare of administrative law lies in understanding why we dream.”

By Phil Gaudreau