A Simple Common Lawyer: Essays in Honour of Michael Taggart by David Dyzenhaus, Murray Hunt and Grant Huscroft (eds)
| DOI | http://doi.org/10.1111/j.1468-2230.2009.00763.x |
| Date | 01 July 2009 |
| Published date | 01 July 2009 |
REVIEWS
Davi d Dyzenhaus, Murray Hunt and Grant Huscrof t (eds), A Simple Common
Lawyer: Essays in Honour of Michael Taggart
,Oxford: Hart Publishing,
2009,344 pp, hb d45.00.
ASimpleCommonLawyeris a collection of essays by distinguished common
law academics and judges in tribute to Professor MichaelTaggart, New Zealand’s
leading administrative law scholar. Given that Taggart has been instrumental
in the revival of the festschrift genre, it is entirely appropriate that Taggart’s
contribution to Commonwealth public law has been recognised in this
form. Although the honorand has canvassed the challenges of review ing festschrif-
ten with characteristic scepticism (‘Gardens or Graveyards of Scholarship?
Festschriften in the Literature of the Common Law’ (2002) 22 OJLS 227), this
review will focus on the contributors’ approaches to three of Taggart’s domi-
nant concerns: the standard of review of discretionary decision-making; the
changing nature of the state and the public/private law divide; and intellectual
legal history.
In a prodigious article,‘Proportionality, Deference,Wednesbury’ [2008] NZLR
423,Taggart advocates a bifurcated ‘rainbow of review’ in relationto discretionary
decision-making. Cases engaging human or other fundamental rights are to
be governed by proportionality methodology, he argues, counterbalanced
by deference considerations. In cases involving public wrongs,Wednesbury unrea-
sonableness ought to apply as a residual safety net. Taggart’s desire for ‘willing
cartographers’ to help map the rainbow of review is met by several contributors
to this volume.
The chapters by Murray Hunt, Dame Sian Elias, and Grant Huscroft andPaul
Rishworth all attempt to reconcile the competing instincts ofadministrative and
human rights lawyers on the appropriate role of the courts. Hunt rejects Taggart’s
rights/public wrongs bifurcation approach as ‘seriously retrograde’ (103), but
argues thatTaggart’s nuanced appreciation of the constitutional interrelationship
between reason-giving, scrutiny for justi¢cation, proportionality and due defer-
ence is the key to attaining a more uni¢ed conception of public law. Taggart’s
bifurcation stems from a fear that proportionality methodology will fail to con-
strain judicial discretion, unmoored from the rights context. However, Hunt
regards due deference as the conceptualpan aceafor calibrating intensity of review
across thee ntire rainbowof review, particularlygiven its sensitivity todemocratic
legitimacyconsiderations. Hunt postulates that deference is ‘the inescapable cen-
tral question of public law in any legal system with a pretence to constitutional-
ism’ (118), notwithstanding the recent death knell for deference sounded in the
United Kingdom (Huang v Secretary of State for the Home Department [2007] 2 AC
167, [14]).
r2009 The Authors. Journal Compilation r2009 The Modern LawReview Limited.
Published by BlackwellPublishing, 9600 Garsington Road,Oxford OX4 2DQ,UK and 350 Main Street, Malden, MA 02148, USA
(2009) 72(4) 669^692
To continue reading
Request your trial