John Willis and the Challenges for Public Law Scholarship in a Neoliberal Globalizing World

Abstract

I Introduction John Willis was vigorously engaged in the central public law debates of his day. An eloquent spokesman for his cause, Willis championed the administrative state that was emerging over the course of his career. Together with his functionalist contemporaries elsewhere in the common law world, Willis challenged conventional legal discourse and developed a powerful critique of formalism, the then-dominant school of legal scholarship. These scholars sought to connect public law with what they saw as the modern realities of government. In doing so, they asserted a new way of conceptualizing the state and public accountability in a democratic society. In the three decades since the publication of Willis's last scholarly article in 1974, the field he left is, paradoxically, both little changed and scarcely recognizable. On the level of doctrinal development in administrative law, Willis would have been on sure footing. The lines of reasoning familiar to him have continued to evolve in ways that he would have easily recognized. On the level of governmental and administrative practice, however, Willis could be expected to be astonished. While the doctrinal arguments of lawyers have changed comparatively little over the last thirty years, the actual practice of administration by government ministries and agencies – and the context in which this practice takes place – has changed utterly. Globalization and neoliberalism have transformed the realities of governance in Canada, as elsewhere, in ways that are increasingly apparent and are acknowledged in public discourse. What would Willis have made of this disjunction? He would, one suspects, have been keen to observe that lawyers' discourse was lagging behind contemporary realities. Yet, as I shall argue in this paper, the transformation wrought by globalization and neoliberalism upon contemporary governance has also challenged the assumptions upon which Willis's own scholarship was grounded. If public law doctrine appears out of touch with the realities of public governance, Willis's writings seem no less so. Nevertheless, Willis's scholarship remains important for public law scholars. Willis, too, was witness to a transformative change in public [End Page 869] governance over the course of his career. Today, he provides an example of a scholar dedicated to remaking the field of public law in line with a new and emerging vision of public governance. II Willis and the functionalist challenge to formalist scholarship Willis's era was marked by the continuous and often dramatic expansion of the administrative state. From the Depression to the 1970s, new public needs, services, and goods were identified throughout the industrialized world as necessary to manage a modern, socially responsible economy. While different countries took different approaches, the intellectual tide of the time favoured state expansion and administrative solutions to new social and economic issues.1 This was the political context within which Willis was working. His opponents were those lawyers and judges who sought to resist the expanding administration, through judicial review and appeals to individual rights and natural justice. Willis, a self-declared 'government man,' saw judicial obstruction as an obstacle to the needs of modern good government. He criticized as 'theological' the reflexive imposition of an '18th century constitution' of due process upon administrative action, without regard to its impact upon the practical ability to advance the public interest.2 Willis spent a good part of his scholarly career deriding the claims of mainstream administrative lawyers. With wit and passion, he disparaged the rule of law as ideology. He sought to deflate its self-important rhetoric, to ridicule its claims to transcendent justice, and to accuse its proponents of peddling outdated abstractions when the issues of the day required a modern, contextualized analysis. One of the key contributions of Willis's functionalist scholarship concerns his insistence on a real-world approach to the issue of accountability and administrative action. Willis argued that analysis should be based upon a pragmatic assessment of 'what actually happens' as...