Key debates in administrative law often play out within the contours of ‘accountability’. This chapter suggests that the concept of accountability is normatively and analytically useful in comparative administrative law, provided that there is clarity as to the level of abstraction at which the term is used. The chapter proposes a three-tier approach to the concept of accountability—accountability as a political ideal (‘level 1 accountability’), as a specific set of normative commitments (‘level 2 accountability’), and as an empirical phenomenon (‘level 3 accountability’). It argues that the usefulness (and contestability) of comparative approaches will vary as one moves from one tier to the next. Next, it discusses three case studies that illustrate specific institutional manifestations of accountability and demonstrate how the operation of accountability differ based on the background constitutional structure. Finally, the chapter presents certain key challenges to accountability that implicate different tiers of accountability.
This chapter focuses on important debates at the intersection of regulatory law, constitutional structure, technical competence, and public participation. It concentrates on the representative democracies that are at the heart of this volume. In such polities, delegation of policy-making authority to the executive branch is inevitable as the state confronts the social and economic problems of modern life. Statutory and constitutional language is incapable of eliminating policy discretion given the complexity of these problems and the need to respond quickly to changed circumstances. Such delegation, however, appears to violate democratic norms that view the legislature as the only source of legitimacy. Even in a system with a popularly elected president, executive-branch policy choices must confront the issue of democratic legitimacy. These choices may bear little or no relationship to promises made during the electoral campaign, and they may involve only minimal legislative involvement. Thus, although policy delegation is inevitable, it is also democratically problematic. To further the democratic credentials of executive policy-making, this chapter defends the use of administrative procedures that require transparency, citizens’ input, and public reason-giving.
Giacinto della Cananea
This chapter focuses on the changing relationship between administrative law and the nation-state. The starting point is, simply, that the nation-state now operates in an increasingly complex web of national, transnational, and supranational legal processes. The chapter asserts that this is no mere incremental change. Arguably, it requires us to reconsider, both normatively and empirically, the traditional paradigm according to which administrative law is a sort of national enclave. Normatively, it is important to understand that at the basis of this paradigm there is not just a set of ideas and beliefs about the particularities of each national legal culture or tradition, but there is a certain vision of the state. Empirically, there are various forms of interaction between national, international, and supranational legal orders that are worth considering. As such, the chapter draws upon some case studies and argues that the jurisprudence of international and supranational courts can help us to understand both why the general principles shared by most, if not all, legal orders are relevant for the public authorities that act beyond the states and why such principles must be taken into account within national systems.
Administrative Law Values and National Security Functions: Military Detention in the United States and the United Kingdom
Laura A. Dickinson
This chapter focuses on the case of extraterritorial military detention by the US and the UK—two countries that quickly deployed and then repeatedly refined their detention policies during the nearly two decades following the terrorist attacks of September 11, 2001. Military detention is arguably one of the quintessential national security functions where deference to executive discretion is strongest. As such, it is an activity that differs markedly from the types of practices that form the core work of many domestic administrative agencies, and administrative law scholarship tends to ignore the national security domain. Yet even here, in a realm seemingly so insulated from administrative law norms, agencies in both the US and the UK have implemented a variety of administrative rules and procedures, as well as non-judicial administrative tribunals to assess the status of detainees. Although the US and the UK followed different pathways, both countries have ultimately come to embrace administrative law frameworks for military detention. And both countries have gradually moved to protect, at least to a limited extent, the core administrative law values of rationality, transparency, participation, and procedural protection even as they have rejected fully judicialized detention processes. This comparative case study therefore illustrates the significance of administrative law values in the area of national security and points toward the need for further scholarship at the intersection of national security law and administrative law.
This chapter compares the respective roles of administrative institutions and administrative power on the one hand, and other governmental institutions and powers on the other, in dealing with drug use, possession, and trafficking in China and Victoria (Australia). Comparison of these two jurisdictions provides both opportunities and challenges. Though one is a nation-state, the other a sub-national state within a federation, both have jurisdiction to regulate drug use-related harms and offending. There is thus comparability in terms of jurisdiction. More importantly, the opportunities and challenges for comparison stem from the divergence in fundamental political system; one authoritarian and one liberal democratic, and the nature of the relationship between state and citizen that flows from this. This divergence has implications for selection of both comparative methodology and the subject matter of comparison.
This chapter concerns administrative procedure—the rules governing the process of decision-making. ‘Administrative procedure’ ultimately refers to a how governmental organizations actually conduct business and manage responsibilities. Today there are a bewilderingly large and diverse number of administrative procedures. Whilst the first general administrative procedure acts (APAs) focused on the so-called ‘administrative act’ (typically a unilateral decision made by public bodies), their reach progressively broadened as the responsibilities of the executive branch and public administrations grew. APAs branched out to deal with other legal acts, such as rules and regulations, agreements under public law, guidelines and administrative guidance, as well as setting general principles to which administrative activities would be subject.
This article begins with a discussion of the constitutionalization of affirmative action and its side effects. It examines the legal underpinnings of affirmative action in two relatively well-endowed developing countries and former British colonies — Malaysia and South Africa — where the disadvantaged groups that receive the benefits of affirmative action are numerical majorities from the start. It also considers the case of India, where the disadvantaged groups targeted for affirmative action initially are numerical minorities. The discussion then turns to the non-constitutionalization of affirmative action and its side effects. In countries where affirmative action has not been constitutionalized and where the beneficiaries (women excepted) are minority groups, the legal validity of a program of this kind will depend upon whether it meets a set of formal requirements. The most important of those is arguably that the outcome of the decisional process by which scarce goods are being allocated should not be exclusively determined by group membership. The soft, gender-focused, ‘discrimination-blocking’ EU affirmative action model and the (exceptional) US affirmative action regime are examined.
This chapter explores the idea of a ‘tradition’ of comparative administrative law (CAL) in the trans-Atlantic Anglosphere. It first deals with a period from the early eighteenth to the late nineteenth century. At this time, Western comparative public law was predominantly an Anglo-European affair. The chapter next focuses on a period between about 1880 and 1940, a time of heavy intellectual traffic between England and the US, in which the birth of an identifiably Anglo-American tradition in comparative administrative law may be witnessed. Finally, the chapter is concerned with the impact on the Anglo-American tradition of the US Administrative Procedure Act (APA). The APA marked the maturation of American administrative law as a legal category concerned above all with judicial control of administrative power.
Ulrich K. Preuß
Associative rights cover those constitutional guarantees which deal with the joint actions of individuals. The promise of associative rights to individuals is the most effective means of their empowerment in the polity. At the same time, this guarantee gives rise to a decentralized power structure in society which has a major bearing on the modes of how collective decisions are made in the polity. Three constitutional rights are pertinent in this respect, ranging in the order of increasing empowerment and, consequently, structural effects on the polity: the right to petition for the redress of grievances, the right to the freedom of assembly, and the right to the freedom of association. This article presents a comparative overview of associative rights and considers only those constitutions which effectively shape the character of the polity, where, in other words, collective actions of citizens are an inherent element of an entrenched sphere of socio-political autonomy.
This chapter examines the legal status and consequences of the asymmetrically federal provisions included in the Indian Constitution. In particular, it considers constitutional amendments relating to autonomy arrangements in India’s North-eastern region, along with the ‘special status’ of Jammu and Kashmir. After providing an overview of the significance of asymmetric federalism in India, the article discusses the administration of tribal areas under the Fifth and Sixth Schedules. It also explores provisions aimed at mitigating intra-State inequalities in the States of Gujarat, Andhra Pradesh, Maharashtra, and Karnataka; the Indian Supreme Court’s rulings on the asymmetric features of the Constitution; and the role of the courts in upholding asymmetrical provisions and protecting the rights of territorially concentrated minorities in the context of democratic politics.
Po Jen Yap
This chapter examines authoritarian regimes in relation to the configuration of political power/parties that is central to how autocracy is practised and sustained within the respective constitutional system. First, it discusses dominant party democracies—semi-democratic regimes that have been ruled by the same dominant political party or coalition since the nation’s independence or transition to a new constitutional system. Next, the chapter explores independent military democracies. In such democracies, the military is an independent branch of government and is not under the firm control of the civilian government. Finally, there are the communist regimes, where elections are a sham, and all levers of state power—the executive, the legislature, the military, and the judiciary—are subjected to the singular control of the country’s Communist Party. These three regime types are not exhaustive of all the authoritarian configurations of power in the world, but they are the predominant ones in Asia, from which this chapter’s case studies are drawn.
This chapter examines the uses of automated decision-making (ADM) systems in administrative settings. First, it introduces the current enthusiasm surrounding computational intelligence before a cursory overview of machine learning and deep learning is provided. The chapter thereafter examines the potential of these forms of data analysis in administrative processes. In addition, this chapter underlines that, depending on how they are used; these tools risk impacting pejoratively on established concepts of administrative law. This is illustrated through the example of the principle of transparency. To conclude, a number of guiding principles designed to ensure the sustainable use of these tools are outlined and topics for further research are suggested.
This article explores the connections between bioethics and basic rights partly by analyzing the basic legal norms of bioethics, and partly by comparing thematic cases from the jurisdictions of the European Court of Human Rights and the US Supreme Court, as well as some cases from other jurisdictions. It focuses on two major lines of thought in contemporary bioethics: the first is concerned with the boundaries of life (e.g., issues of embryo research, assisted reproduction, and end of life decisions) and the second is related to the contemporary exploration of the frontiers of the human body (issues such as the use of human tissues and human DNA for research and other purposes).
Carving Out Typologies and Accounting for Differences Across Systems: Towards a Methodology of Transnational Constitutionalism
This article outlines and assesses the role of ‘typologies’ in comparative constitutional thought. It discusses the transnational context of comparative constitutionalism, constitutionalism in world society, the form and substance of constitutionalism, and the law's troubled relation to society.
Albert H. Y. Chen
This chapter discusses comparative administrative law (CAL) in China. It begins with the introduction and reception of Japanese administrative law in China in the late Qing Dynasty. The chapter then surveys the study of comparative law and the influence of foreign law on the development of Chinese administrative law in the Republic of China era and after the establishment of the People’s Republic of China. Major developments in Chinese administrative law in both the Republican era and the Communist era are also briefly outlined as the context of administrative law scholarship. The chapter shows that the story of the study of comparative and foreign administrative law in modern China is very closely intertwined with the story of the development of Chinese administrative law itself.
This article highlights the trials and tribulations of citizenship in a world of increasing mobility and diversity. The discussion is divided into three parts. Section I provides a concise overview of citizenship's multiple meanings and interpretations. Section II constitutes the bulk of the discussion. It begins by exploring questions of membership acquisition and transfer, which legally determine ‘who belongs’ within the boundaries of a given political community, either by birth or naturalization. It then assesses three recent developments: the growing recognition of dual nationality; the revival of debates about involuntary citizenship revocation; and the ‘cultural turn’ in citizenship discourse, which often makes inclusion in the body politic more difficult for those deemed ‘too different’ from the majority community. Section III charts the major challenges and opportunities facing citizenship in the twenty-first century.
The Common Real-Life Reference Point Methodology—Or: ‘The Mcdonald’s Index’ for Comparative Administrative Law and Regulation
This chapter reviews the conceptual and methodological difficulties in the field of comparative administrative law. It seeks to present a new and different conceptual and practical tool for the study of comparative administrative law (CAL). This suggested methodology is based on using a common real-life reference point such as McDonald’s branches, and testing the ways in which various legal regimes apply to them in each and every different legal system. The chapter first presents the various difficulties and fallacies of current CAL research. It then demonstrates the proposed methodology and discusses its potential, as well as some constraints and problems that should be taken into account. The chapter concludes by inviting the community of comparative public lawyers to join the project of mapping the field of CAL and developing a new common legal language that would enable everyone to benefit from comparative legal research.
Stefanie A. Lindquist and David M. Searle
This chapter concerns positive political theory (PPT) within the context of comparative administrative law. In general, PPT posits that governmental actors—whether elected or appointed—have preferences over policy outcomes, respond rationally to incentives produced within their political and institutional environments, and anticipate the actions and preferences of other influential players in the policy-making game. In this light, the chapter first describes the application of PPT to the delegation of discretionary power to administrative agencies in the US. It then reviews the literature that has extended PPT to understand the design and performance of administrative agencies in other governmental systems and through comparative analysis, including in parliamentary and authoritarian governments. Lastly, the chapter addresses issues of corruption and transparency in government, and concludes with recommendations regarding fruitful avenues for future research.
John S. Bell
Comparative administrative law is a long-standing discipline. The study of other administrative law systems both in order to understand one’s own system better and to find models for improvement has been occurring for over 150 years. It is closely bound up with national institutions and traditions, as well as national constitutional values and ways of operating. Any comparative approach has to take full account of the institutional context in which a particular problem or procedure occurs and to ensure that full account of these nationally specific features is taken before any attempt is made to generalize or compare. This article describes the scope of the subject, the values served by administrative law, and influences shaping administrative law. It also compares the powers, organizations, and procedures of the administration, as well as legal redress.