How Legal Traditions Shape Bureaucratic Discretion: Administrative Judicial Review as an Arena for Agency Oversight or Policy Articulation in Canadian and Swedish Asylum Politics

Administrative judicial review gives courts a powerful ability to shape bureaucratic discretion in policy implementation. Review is often seen as an antagonistic relation between court and state. This article introduces a contrast: review as a collaborative arena. Rather than similar across states, review is explored as institutionally embedded in ideas of law and politics. The article studies asylum law in two states with similar immigration histories but different legal traditions: Canada and Sweden. The data consists of 60 precedent-setting cases comparing the treatment of Afghan refugees. The results show how, in Canada’s balance-of-powers heritage, courts are informed by case law and focus on whether agencies have overstepped their authority. In Sweden’s popular-sovereignty heritage, courts are informed by prepatory works and focus on articulating principles and technical blueprints for agencies. The findings challenge a widespread view of courts as protecting rights in migration policy. Instead, they point to how the expansion of the law means different things in different legal cultures. Sweden’s administrative law tradition gives lawmakers ability to govern courts, generating legal uniformity at the expense of refugees. The tradition in Canada generates more independence for judges and openness to refugees, but also a less uniform body of law.