Reasonableness in Administrative Law

Abstract

It has traditionally been a concern of Western legal orders to keep arbitrariness at bay.1 Benjamin Constant only emphasized this. The idea that administrative discretion must be limited, so as to prevent arbitrariness, was shared as well by the most prominent 19th-century Victorian constitutional lawyer, Albert Venn Dicey. Dicey held the view that administrative discretion can easily give rise to arbitrary decisions—unlessit was kept in control by law, which he identified with the ordinary law of the land. This led him to reject the French paradigm of a separate legal regime for the administration, that is to say droit administratif, which, in sympathy with Alexis de Tocqueville, he saw as the realm of unbridled discretionary powers.2 This was largely a myth, however, since Victorian England witnessed increasing intervention on the part of public authorities in the social and economic sphere. That said, it was a useful myth. Other lawyers, on the other side of the Channel, believed in the idea that discretionary powers could, and had to, be limited, on the model of the English example. One such person was Guido Zanobini, an influential Italian administrative lawyer. In the 1920s he worked out a sort of standard positivist view of the principle of legality, arguing that an administration can do only what is explicitly provided for by specific laws (see Zanobini 1956, 25).