Administrative Justice
| Date | 01 June 1954 |
| Published date | 01 June 1954 |
| DOI | http://doi.org/10.1111/j.1467-9299.1954.tb01305.x |
Administrative
Justice
By
LORD
COOPER
A
lecture
by
the
Lord Justice General
of
Scotland
and
Lord
President
of
the
Court
of Session
given
to the
Edinburgh Group
on
26th
March,
1954.
HEN
I
was a law student long ago
I
was taught the then current view
W
that the stability of the British and American constitutions rested
upon the separation
of
the powers of the three great organs of government
-the Legislature, the Judicature and the Executive-or, at least, upon a
carefully adjusted balance betwccn them.
It
was essential to the working
of a Parliamentary democracy, so we were assured, that this
‘<
separation
of powers” should be maintained. The rule was regarded as axiomatic
and fundamental, and it had been so regarded on both sides of the Atlantic
for a century and a half.
That,
as
I
say, was long ago; and since then we have learned a lot.
Early in the present century the excessive availability of the common law
courts as a check upon the Executive resulted, especially in the United States,
in a threatened paralysis
of
administration; and the pendulum began to
swing. With the unhappy tendency of all pendulums, it swung too far-
stimulated by the First World War, when private rights were almost totally
submerged beneath the national necessity, and later by that social and political
transformation of which most of us have been eye-witnesses, and of which
the prime characteristic has been an enormous expansion in the functions
of the State. Since the Second World War the pendulum has oscillated
about a position very far removed from that defined by the classical constitu-
tional theory of the 18th and 19th centuries, and a growing demand has
arisen
for
a new position
of
stability, a demand which comes from several
different sections of the community, and which is even more vocal in America
than here. Stated in its simplest form it has arisen thus.
Private law (in the scnse of the system of rules which regulate the normal
relations of citizen and citizen) has been receding all along the line by com-
parison with public law (in the sense of the system of rules-if system is
not too flattering a word-which determines the rights and duties of public
authorities
inter
se,
or
in a question with individual citizens)
;
in that situation
the question which is being asked is
:
“
By what agency, and subject to what
conditions, should decisions be given in controversies arising under public
law between citizens and some organ
of
the executive, central
or
local
?
”
Fifty years ago that question was one which could hardly be asked, for the
situation rarely arose. Today
it
is being asked repeatedly, and is being
eagerly canvassed by the academic jurists of two continents.
For
myself
the qucstion has a special interest,
for
during the last
40
years
or
so
I
have
had the privilege (denied,
I
imagine, to everyone else in this room)
of
being
at different times a member
of
all three organs of government-the Legislature,
the Judicature and the Executive, both on the Ministerial and the official
level
;
for let me reveal to
YOU
that
I
was once a civil servant, and, as John
Bunyan would say, but for the grace of God
I
might have been a civil servant
yet! Anyhow,
I
have seen the problem from every possible angle
;
I
have
165
What
is
the problem?
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