Judicial Deference to Administrative Interpretation of Statutes from a Comparative Perspective.

AuthorMartenet, Vincent

TABLE OF CONTENTS I. INTRODUCTION 85 II. COUNTRIES CONSIDERED AND PURPOSE OF THE COMPARISON 88 III. PRECONDITIONS FOR DEFERENCE IN CASES INVOLVING THE INTERPRETATION OF STATUTES 91 A. Interpretation of Statutes and Margin of Interpretation 92 B. International, Constitutional, Statutory, and Other Constraints 96 C. The Legislature's Intent or Assent 97 IV. THE CASE FOR JUDICIAL DEFERENCE 102 A. Administrative Legitimacy and the Separation of Powers 102 1. Expertise 102 2. Political Accountability 105 3. Independence 107 4. Political Discretion 108 B. Optimal Allocation of Resources 110 C. Judicial Honesty, Transparency, and Humility 111 D. Other Considerations 113 V. THE CASE AGAINST JUDICIAL DEFERENCE 115 A. Separation of Powers and Checks and Balances 115 B. Rule of Law and "Etat de droit" 116 C. Constitutional Role of the Judiciary 119 D. Procedural Safeguards 121 E. Independence 124 F. Risk of Wrong Incentives and Other Considerations 125 VI. THE ROOM FOR DEFERENCE 126 A. International, Constitutional, Statutory, and Other Limits 126 B. Asymmetry of Non-Legal Expertise 129 C. Conceivable Criteria for Deference 135 1. Explicitly or Actively Enabling Judicial Deference 135 2. Implicitly or Passively Enabling Judicial Deference 137 D. Specific Comments Regarding Canada and the United States 143 VII. CONCLUSION 144 I. INTRODUCTION

Different decision-making bodies make administrative decisions. Agencies with some--substantial or limited--independence from government exist, for instance, in several democratic countries. Those agencies' officials and staff are usually specialists with profound knowledge of the field for which they are responsible. One of their tasks consists of interpreting and applying the statutes that they administer. Agencies belong to the executive branch of the government and form functionally separate units within this branch. They may be numerous in some countries, like France, (1) and few in others, such as in Germany. (2)

This Article deals with administrative decisions, that is, decisions taken by administrative bodies or decision-makers, in particular by agencies. Several ideas in this Article may actually apply to the executive branch in its entirety, including to the head of state or government. Nonetheless, courts and scholars have specifically dealt with the interpretation of statutes by agencies or other administrative bodies and subsequent review of this interpretation by courts. The bulk of judicial decisions and scholarly publications are of great interest, particularly from a comparative perspective. Administrative decisions, with some exceptions, can be appealed to courts. Most judges hear cases on a wide range of issues and, accordingly, may be considered as generalists. However, legal interpretation is one of their core competencies--if not their main competency. (3) While reviewing a case, judges may have to assess the administrative interpretation of a statute. Broadly speaking, the judiciary examines a decision of the executive based on an act emanating from the legislature. The separation of powers principle and the concept of checks and balances form the backdrop of this subject.

Judicial review of administrative decisions often raises the question of deference from courts. There can be many instances of judicial deference in a single country, (4) which overlap to a certain or greater extent. (5) The distinction between these various types of deference is the subject of scholarly critique in certain jurisdictions. Some scholars plead for a clearer, more unified understanding of the notions of administrative discretion and judicial deference. (6) This Article's aim is not to elaborate a typology in this regard. Suffice it to say, even after simplifying the approach for considering administrative discretion and judicial deference, these scholars usually acknowledge that the latter would still relate to statutory interpretation, (7) among other elements.

This Article is devoted to judicial deference on questions of legal interpretation, which must be answered by applying relevant principles to the interpretation of the law. A distinction has been made between law-based deference--founded on the statutory delegation, to administrative bodies, of powers to promulgate rules and regulations with the force of law and to adjudicate disputes in specific areas with the force of law--and fact-based deference--grounded in the courts' appreciation of the expertise and experience of the administrative body. (8) In many cases, however, both reasons for judicial deference tend to blend and may actually operate together. (9) This Article actually combines them without blurring the line between them. It is predicated on the idea that a legislature may explicitly or implicitly enable or even require courts to exercise deference with respect to the administrative interpretation of statutes, notably because of the relevant administrative bodies' expertise and experience. Therefore, this Article links a normative dimension of deference--the allocation of interpretive authority--to a factual one--the asymmetry of non-legal expertise between agencies or other administrative bodies and courts.

Specifically, this Article deals with judicial deference in cases involving the interpretation of statutes. The issue is quite straightforward when such a limit to the judges' power is expressly foreseen by the constitution or the applicable laws, bearing in mind that the constitutionality of a law may still be challenged. However, such deference, if and when it arises, is usually not based on a specific constitutional provision or statute. Rather, it results from broader considerations related to inter-branch relations.

This Article focuses on the relationship between administrative bodies and courts when the interpretation of an ambiguous or unclear statute is disputed as opposed to when administrative policy determinations are challenged, except when these raise issues relating to the interpretation of statutes. (10) Judicial deference to administrative interpretation of statutes is possible not only in Canada and in the United States, but also in other countries. (11) Questions relating to the relationship between administrative bodies and courts in statutory interpretation cases arise in several democratic countries, regardless of their legal traditions. (12) They invite us to reflect from a comparative perspective, without ignoring the constitutional, legal, and judicial context prevailing in each country, and being fully aware that generalizations regarding judicial deference should be, if not completely avoided, at least very carefully crafted. A nuanced approach is actually inevitable.

This Article, which includes seven parts, presents a few thoughts on judicial deference to administrative interpretation of statutes, based on a comparative review. Following the introduction (Part I), Part II justifies the choice of the countries considered and explains the purpose of this comparative study. Part III sets out relevant preconditions for deference in cases involving the interpretation of statutes. Parts IV and V respectively make the case for and against judicial deference to administrative interpretation of statutes. Based on this, Part VI evaluates possible limits and criteria for such deference. In the Article's conclusion (Part VII), deference is described as oil in the complex machinery of checks and balances.

  1. COUNTRIES CONSIDERED AND PURPOSE OF THE COMPARISON

    Twenty-seven countries and a special administrative region have been considered in this Article. (13) In addition, the European Union and the Council of Europe have also been included, as the case law, respectively, of the Court of Justice of the European Union and the European Court of Human Rights is relevant in this field. This comparative study is the broadest one among academic articles (14) on the specific issue of judicial deference to administrative interpretation of statutes. (15) Although books have been published in this field, some are limited in geographical scope, while others have a broader focus and do not look specifically at legal interpretation. (16)

    While the choice of countries is also based on the availability of data, it should primarily allow for coverage of most of the countries where adherence to the rule of law may be qualified as strong. (17) Since the topic of this Article relates to legal interpretation and to the relationship among the legislative, executive, and judiciary branches, it is rooted in the rule of law and judicial independence. When the rule of law and judicial independence are not sufficiently guaranteed, it is difficult to conduct a principled analysis of judicial deference to administrative interpretation of statutes. The choice of countries also allows for diversity in terms of legal systems and geography in order to avoid either a European- or a North American-centric view.

    This Article firstly aims to identify preconditions for deference in cases involving interpretation of statutes. The comparative perspective is useful, as it helps to assess whether the issue of judicial deference to administrative interpretation of statutes is closely linked to a particular system. As this Article will demonstrate, the relevant preconditions are quite general and may be met in many countries, which means that this question can arise--and does actually arise--in different legal systems.

    Since judicial deference to administrative interpretation of statutes depends on rather loose preconditions, this Article secondly analyzes the arguments made in favor of or against such deference in several countries. Here also, the comparative perspective is interesting and even fascinating as similar arguments exist in most, if not all, of the countries examined, but are weighed differently. (18) These similarities may lead to a nuanced approach with respect to judicial deference to administrative...

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