Paul P. Craig (University of Oxford - Faculty of Law) has posted Taxonomy and Public Law: A Response ( Public Law) on SSRN. Here is the abstract:
There are, unsurprisingly, various ways in which to organize the material that comprises public law broadly conceived. The criteria that are brought to bear vary considerably, as does the purpose of the enterprise. The consequences of the organizational endeavour can differ significantly, ranging from the semantic to the substantive. Jason Varuhas has proposed a taxonomical division in public law, which is hard-edged and substantive. He claims to have detected a dangerous malaise that besets judicial reasoning in UK public law cases, which can only be cured by a firm dose of taxonomical rigour. He contends that common law judicial review and that practised in human rights cases are wholly different, with the former being public-regarding, and the latter individual-regarding. The more precise meaning of these terms will be explicated below. Varuhas argues that clarity in this regard is essential for a properly ordered public law, that only by doing so can the malaise that he believes to exist in judicial reasoning be cured, and that recognition of his suggested dichotomy provides the key to the cure.
The idea that there are, and should be, some differences in judicial review as between rights-based and non-rights-based cases is commonly accepted by academics and the judiciary alike. The differences play out in various ways, most obviously in the varying intensity of judicial review of discretionary determinations in the two types of case. I fully accept such differentiation.
Public law is not, however, beset by the malaise that Varuhas claims to identify. The proposed rigid taxonomical division is not sustainable from the perspective of positive law, or in normative terms, and the divide should not have the doctrinal consequences that he claims.
The structure of the ensuing argument is as follows. The article begins with elaboration of Varuhas’ thesis for a rigid taxonomical divide between the two types of case. The following sections challenge the two conceptual premises of his thesis. It will be seen that common law judicial review and rights-based review cannot, as matter of positive law, be characterized as purely public-regarding and purely individual-regarding respectively, and nor is this sustainable in normative terms. To the contrary, the law in both areas reveals elements that are public and individual-regarding, and this accords with sound normative precepts. The other conceptual premise underlying Varuhas’ thesis is that there is a firm distinction to be drawn between judicial review directed towards fulfilment of the legislative purpose, and review directed towards placing limits thereon, with common law review said to be entirely about the former, and rights-based review to be about the latter. This rigid distinction does not withstand examination.
The discussion thereafter shifts to the doctrinal evidence proffered by Varuhas for the taxonomy that he constructs. The evidence does not, however, sustain that dichotomy. To the contrary, it shows merely that there are some differences between the two types of case, which is, as noted above, accepted by all. The focus in the penultimate section turns to consideration of the doctrinal consequences that it is said should flow from the proposed taxonomy. The arguments in this respect are misplaced. There are, as is inevitable, a plethora of contending opinions as to the desirability, or not as the case may be, of various heads of review. Varuhas’ taxonomical distinction does not, however, resolve such issues, and it is laden with implicit value assumptions that are highly contestable. The final section of the article considers some of the normative implications that underpin the taxonomy.