This chapter discusses how Canadian constitutional issues come before the courts. Its primary focus is on litigation arising under the Charter of Rights and Freedoms. Since the entrenchment of the Canadian Charter in 1982, traditional legal process doctrines, such as standing, intervention, costs, and reference opinions have seen significant expansion. Though initially cautious, Canadian courts have recognized that the ability to initiate constitutional claims is integral to the principle of legality. The mechanisms by which constitutional issues are judicially reviewed, and decisions regarding who may participate and how such litigation may be supported, are crucial determinants of substantive constitutionalism in Canada.
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.
Jeffrey S. Lubbers
The US system of administrative adjudication in which our federal agencies decide disputes with private parties themselves with administrative hearings, with an internal appeal, followed by judicial review based on the administrative record in the federal courts is familiar to American lawyers. But that is not the system that is followed by most countries around the world—where agency decisions are typically made in a very informal manner, with any requested hearings taking place in administrative courts or tribunals and sometimes with further review in the ‘regular’ courts. This dichotomy between the US system of internal administrative adjudication and external administrative adjudication around the world reveals that the United States is the outlier. This chapter describes this dichotomy in more detail and examines its implication in terms of administrative justice and other qualitative measures of the different models.
T. V. Somanathan
This chapter explores how India’s constitutional law has addressed the administrative and regulatory State as it has evolved outside the traditional branches of government, and how judicial review is exercised over it. It begins by providing a background on constitutional issues relating to the administrative State as it functions within the executive branch, before turning to a discussion of the major regulatory bodies that either are explicitly called ‘regulatory’ or exercise regulatory functions. It then considers the constitutional position of the administrative and regulatory State based on judicial decisions and on the Indian Constitution. It also examines the conceptual underpinnings of, and justification for, the regulatory State, along with some specific concerns arising from the regulatory State such as legal uncertainty and excessive delegation. The chapter concludes by analysing some of the issues associated with the emerging constitutional jurisprudence on the regulatory State.
This chapter explores decision-making at the frontline of public administration. It begins by asking what might be meant by ‘the frontline’, who frontline decision-makers are, and why they are worthy of study. It proceeds to identify the contribution of administrative justice scholarship to initial decision-making before sketching wider disciplinary engagement with frontline administration and the research methods adopted. With this platform in place, the chapter adopts the micro-, meso-, and macro- levels of sociological inquiry to structure the analysis of various factors that influence decision-making on the frontline. This main section of the chapter reviews empirical studies of administrative agencies, from tax inspectors and welfare-to-work officials to reviewers of criminal appeals and police officers. The chapter concludes by reflecting on what administrative justice’s particular analytical focus and scholarly preoccupations might yet offer the study of frontline decision-making, drawing attention to juridification, agency statutory interpretation, and ethical duties.
Simon Halliday and Colin Scott
Administrative justice receives varying emphasis in different jurisdictions. This article explores empirical legal studies, which fall on either side of the decision making-and-review dividing line. It then seeks to link research on the impact of dispute resolution and on-going administrative practices. The article also highlights limitations in existing impact research, focusing on the tendency to examine single dispute resolution mechanisms in isolation from others. Furthermore it suggests some future directions for empirical administrative justice research. It also explores the potential of legal consciousness research for empirical administrative justice scholarship, and suggests new territories for administrative justice researchers: criminal justice processes and administrative activities of private agencies. It concludes by presenting an argument that a mapping of administrative justice institutions, both historically and cross-jurisdictionally, can reveal much about how relationships between citizens and administrative agencies may shift across time and space.
The debate about codification in general has been going on for centuries. This chapter focuses on a more recent debate in the context of administrative justice. With reference to country-specific examples, the chapter identifies the main ways in which administrative justice may be codified as well as two deviations from the legislative norm. It then examines arguments for and against codifying the grounds and principles of judicial review. Codifying judge-made law has presentational benefits which may in turn improve accessibility and have educative effects. Codification also enhances democratic legitimacy and may be the only way to achieve swift and systematic law reform. However, the examples also illustrate many potential pitfalls of legislating judge-made law, including increased uncertainty, complexity, unintended consequences, and the problem of resistance. The chapter concludes that the reasons for even a modest exercise in codification would need to be quite compelling to make the exercise worthwhile.
Robert A. Kagan
Most modern administrative agencies employ a body of authoritative rules, designed to guide and constrain officials and to promote administrative justice. Decades ago, however, American ‘legal realist’ scholars questioned whether legal rules can in fact control official decision-making. This essay, drawing on sociolegal research, first shows that through social and organizational processes, administrative agencies and offices develop ‘cultures of rule application’ that make rules matter. Secondly, the essay discusses variation across administrative agencies in their cultures of rule application, resulting in interpretive styles that range from legalistic to flexible and consequence-oriented. Finally, the essay discusses organizational, contextual, and political variables that influence agencies’ development of particular cultures of rule application.
Administrative Justice and Empirical Legal Research: Debunking the Ordinary Religion of Legal Instrumentalism
For many years, most studies on administrative justice were written from a doctrinal legal perspective. More recently, however, administrative justice has also become the subject of a growing body of empirical research. This chapter provides an overview of empirical administrative justice research in three fields: administrative decision-making, redress mechanisms, and the impact of redress mechanisms on administrative practice. In legal doctrine, ‘legal instrumentalism’ has become central to thinking about administrative justice. However, the findings from empirical research provide little support for the underlying assumptions of instrumentalism. In this way, empirical legal research forces us to rethink the relationship between administrative law and administrative justice. The chapter concludes that while in some cases law and legal institutions may be an effective instrument to promote administrative justice in other cases, the direct impact of law is severely limited and law may even have a negative effect on the quality of administrative justice.
Using digital tools in administrative decision-making—from automation of relatively simple decisions to artificial intelligence judgements—both enhances and challenges the operation of administrative justice. By beginning with an understanding of digital algorithms as comprising computer code, digital data, and use context, this chapter highlights challenges for administrative justice in administrative discretion, data challenges, automating decisions and errors, information about administrative justice, appealability and accountability responsibility, and explainability. The chapter then examines legal, policy, and technological responses to strengthen administrative justice, including expanding digital rights, bolstering review rights via providing explanations and software code, and instituting organizational governance innovations and technical standards.
Eric C. Ip
This chapter studies the institutions of administrative justice—administrative procedure, judicial review of administrative action, and administrative redress—in contemporary non-liberal democracies. It reviews the theoretical literature pertaining to administrative justice, with special emphasis on the principal-agent model. It examines two case studies of administrative justice, one national and one local, both from the People’s Republic of China, the world’s most populous authoritarian state: Mainland China and the Hong Kong Special Administrative Region. It reveals that authoritarian administrative justice is, at the end of the day, deeply paradoxical. Autonomous bureaucratic oversight mechanisms empower autocratic rulers to resolve agency problems through discovering information of maladministration, but remain permanently under the temptation to compromise the autonomy of administrative justice, so that the latter would never evolve into a threat to regime security.
Street-level bureaucrats’ discretionary powers play an increasingly important role in public service provision and law enforcement. In order to deal with societal challenges, legislators and policy-makers leave room for professional judgment by formulating open laws, rules, and policies. In making responsive decisions, however, that is, when treating different cases differently, street-level bureaucrats do not necessarily attach less value to treating similar cases alike. This chapter discusses how two notions of fairness—treating similar cases alike and treating dissimilar cases differently—are studied in street-level bureaucracy literature, and sheds light on the factors that influence how bureaucrats behave in this regard. Subsequently, it is explored how street-level bureaucrats could enhance equality of treatment when rules run out. The chapter concludes with an agenda for future research.
Avishai Benish and Jerome Pélisse
This chapter explores the still largely uncharted territory of administrative justice in the private sector. The chapter presents a theoretical and empirical account of the extension of administrative justice norms and institutions into the private sphere. It does so by mapping and analysing the different paths by which administrative justice is diffused in privatized and contracted out services and in originally private services. It draws upon illustrative examples of such diffusion for each of these private realms. The chapter concludes with insights into the convergence of public and private models of decision-making and dispute resolution and the hybrid nature of this field.
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 chapter examines the administrative state in relation to modern constitutional theory. To explain the administrative state, it draws on three frameworks that are grounded in constitutional law, democratic theory, and institutional epistemology, respectively. The first framework involves the constitutionality of the administrative state, the second its democratic credentials, and the third its epistemic capacity. The chapter describes each framework before turning to a discussion of how each affects the others. It suggests that constitutionalists, democratic theorists, and epistemic technocrats engage in a never-ending shifting series of alliances. More specifically, each of these camps tends to see the claims of the other camps as side constraints to be complied with at the lowest possible cost, while seeing their own concerns as goals to be pursued to the maximum possible extent. In other words, there will always be competition among law, democracy, and knowledge in trying to control the administrative state.
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.