The Road to Dunsmuir or, On Re-Reading Administrative Law's Bumpy Kinky Chain Novel in the Fading Light of "a Culture of Justification"

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Dunsmuir, Administrative Law, Canada, Supreme Court of Canada, Standard of Review


I was asked to write something on "the background to Dunsmuir" and, more pointedly, "why it was necessary in 2008 to reformulate administrative law".

This led me to think about the stories we tell about administrative law, against which background a judgment like Dunsmuir comes to stand out. I mean stories in the dominant mode of administrative law scholarship: "constructive interpretation," in Dworkin's terms, bringing together doctrine and theory in ways that strain to make sense of this complex and variegated field and so to rationalize the distribution of power among the central institutions of government. We seek to knit up the raveled sleave of power with purpose and coherence. We tell stories about administrative law (those of us who write and think in this tradition) in an effort not simply to tell it like it is, nor simply to predict, but to make it the best it can be. But what moves us to tell the stories we do? What informs our sense of (and disagreements about) what counts as a good story?