Why administrative law

The good governance principle of transparency is a democratic right of citizenship, a kind of transparency that courts have been notably unwilling to provide; 71 indeed, classical administrative law systems, set up for the protection of private rights and interests, may actually characterize government information as private property, to which the public has no right of access.

In the United States, the AAPA 73 opened up space to interested parties in rule-making procedures, which citizen action groups later claimed in the name of democratic participation. From the perspective of constitutional theory, this raised legitimacy questions, discussed below; from an administrative law perspective, it raised second-order questions of rights of standing and intervention in judicial review applications.

In the US, the success was largely short-term, 74 and a marked reluctance to expand the rules of standing characterizes the jurisprudence of the ECJ.

It is wider recognition of participation as an administrative law principle — a crucial aspect of s and s American administrative law — that Aman sees as most in jeopardy from globalization. In the course of the dispute, those countries most affected by the new legislation claimed that the US had an obligation to apply principles of equal treatment and not to discriminate arbitrarily or unfairly against different countries.

This, they argued, must involve a further right of participation at the rule-making stage. The question of participation arose again at the second, judicial stage of the proceedings.

The Panel had permitted interventions by a cluster of environmental NGOs, attached by the United States to its submissions. Although this was far from the generous welcome given by some common law courts to amicus curiae briefs, it could be the first step for NGOs towards a right of participation in transnational litigation. Expansive, theoretical notions of participation were not of course at issue before the AB nor should they have been. It is not the task of an adjudicative panel to settle issues of great constitutional import; the danger is rather that they will slip blindly into so doing.

Indubitably, courts are powerful in the United States, but they operate nonetheless in the context of a vibrant representative democracy, with vigorous political institutions and interest groups, though also powerful, rooted in a politically active civil society where established and functional political parties operate, their role well understood.

For some years unthinkingly accepted, their credentials to stand in as representatives of civil society have recently come under scrutiny. These wider questions, crucial to the legitimacy of global administrative law, will be reserved for the final sections of this article. Due process rights are accepted by all common law systems 80 and receive recognition in many others.

Again, the attributes of procedural justice have been said to centre on impartiality, the provision of a hearing and a reasoned decision. Again, English law does not recognize a general administrative duty to give reasons, though most administrative lawyers believe that it should. The ECJ has, however, now adopted and constitutionalized the access principle in the leading case of Johnston , 86 where it held that EC law did not permit the jurisdiction of the courts to be ousted by a preclusive clause in national legislation, where EC law is involved, while France had to give way to EC law in Heylens , 87 a case that established i the general principle of effective judicial protection in administrative proceedings, and ii a duty to inform parties to an administrative decision of the reasons for that decision.

But we should not jump too quickly to this conclusion. Cultural uniformity is not an unconditional good. In essence they are common law standards, imported by the ECJ, allegedly in response to protests from multinational enterprises, threatening non-compliance with EC competition law and voiced through the UK Government.

Due process rights, reflecting classical rule of law preoccupations with equality before the law; the non-retrospectivity principle; an impartial or independent judge; and fair trial; have found their way too into modern human rights texts.

But as due process rights have found a place in human rights texts, their ambit has widened steadily. This is a questionable development; it seems to elevate to the level of fundamental freedoms a bureaucratic failure to answer a letter. From a secure basis in human rights texts, it is a short step to claim universality for due process standards in the name of human rights. The next step is to move due process rights on to a higher plane by claiming them as principles of a universal constitutional law.

The idea has, however, certainly received a setback in a recent European judgment. Giving the lie to the idea of these due process norms as universal, the Court refused to intervene on procedural grounds. The underlying argument of this paper has been that a universal set of administrative law principles, difficult in any event to identify, is neither welcome nor particularly desirable; diversity and pluralism are greatly to be preferred.

Administrative law is largely a Western construct, taking its shape during the late 19th century as an instrument for the control of public power. Dominated by a philosophy of control, administrative law has played an important part in the struggle for limited government, its core value being conformity to the rule of law.

This is a framework in which the function of administrative law was seen as the supply of structures and procedures through which, on one view, government policy could be implemented and, on another, government could be controlled. This suggests too that the norms of administrative law evolve and are capable of operating inside different value systems.

At the same time, however, they are value-laden. In national systems, administrative law functions within the framework of an accepted political system and constitution, to both of which it is very closely linked. Further, the constitutionalization of norms in domestic systems aimed at allowing administrative law values and doctrine to transcend both the borders of public administration and private management and also of public and private law.

There is, as the body of this paper has suggested, no shortage of candidates for a set of universal values. Indeed, an ideological battle is raging in global space between proponents of very different views.

Even within the systems in which modern administrative law developed and where it is well understood, there is much disparity of principle. At least four administrative law families have been identified within the EU alone. In the second wave of Europeanization that took place at the end of the nineteenth century, accompanying trade wars and imperialism, it was French institutions and principles that became the vogue: French law was highly influential in inter-war China and modern Thailand possesses a full-scale imitation of the French Conseil d"Etat.

The Scandinavian administrative law tradition differs again; here ombudsmen have evolved as the primary institution for the resolution of administrative disputes and share a significant norm-setting function with administrative courts.

The office of ombudsman is today accepted by and in widely differing regimes throughout the world. Much the same is true of administrative law principles. The bias towards Anglo-American legal systems in the lists cited in Section 2 of this article has already been pointed out. It represents a double colonization. Although this may often occur spontaneously, the process has been hastened by the influence of the powerful transnational juristocracy that has recently come into being, working in human rights courts and the EU courts.

There is, of course, no particular reason why administrative law norms borrowed from Western systems should not be successfully diffused throughout the world. The Ottoman Empire possessed an advanced administrative system, whose rules and principles no doubt fell broadly within the definition of administrative law; equally, the rules observed by the sophisticated Chinese mandarin class over a period of several dynasties are also properly labelled administrative law.

But these competitor systems have lost ground to, and have been largely overtaken by, waves of Westernization, in the main favouring common law systems. The first came with empire. Further waves of acculturation occurred at the end of World War II. In countries such as Japan or Ethiopia, Western legal institutions were, for their own good reasons, voluntarily adopted. From this perspective, the transplant of a Western ideology of administrative law represents no more than a further wave of cultural imperialism, mirroring that already taking place in public administration.

Leben sees this process as already under way in the field of EU human rights. As we shall see, the Union is going to extend and organize systematically a policy of encouraging and defending democracy, human rights and fundamental freedoms, and the rule of law.

Miller attempts an answer to at least some of these questions. The prestige of a foreign model may lend rational authority to a process of reform. Good governance in this all-embracing sense is, however, simply not obtainable which is not to say that efforts should not be made to make it more so.

Only wealthy and well-supported individuals could, for example, have pushed their case for return of their frozen funds and assets as far as the European Union courts. Moreover, we need to realize that, if a legal transplant is not truly voluntary but is, for example, conceded by a developing country as an unfavourable term in a trade treaty, it will not be thoroughly implanted.

Thus, studies of China are beginning to point to seriously defective implementation of the WTO rule of law requirements, put down in some cases to hostility at grassroots level. States also promote as best protecting the interests of their citizens before international tribunals or international bureaucracies those rights and procedures familiar to them as available within the state.

Although this set of attitudes is difficult to dislodge, it need not necessarily attract a negative interpretation. This principle, notably missing from the debate so far, is surely the basic and fundamental tenet of any system of global administrative law. The argument is, however, circular. Other less benign situations provoke fears which may be less concerned with democratic legitimacy than with accountability : the potential in the procedures of self-regulating agencies, such as the Commission on Food Safety, for self-interest; the development of transnational networks of governmental officials into self-serving coteries; and so on.

Democracy is fragile. Sceptics of legal globalization are in the main more concerned with structures than with principles. It must, however, remain highly questionable whether an international society can emerge with a capacity to be in this sense democratic. High on the list of sites in which a global administrative law can be said to be evolving stand transnational courts and other, less formal adjudicative arrangements, such as the Dispute Settlement Panels of the WTO.

It is axiomatic that the emergence of transnational systems of governance and human rights treaties has led to a general empowerment of judges. The role of the ECJ as a constitution-maker responsible for the selection, creation and promulgation of overarching, general principles of law is, for example, beyond dispute.

But could global administrative law help open space for global politics? In a thoughtful study of the relationship of law with globalization, Aman is optimistic. Otherwise, the likely contribution of global administrative law will be to stifle what is democratic and legitimate what is not. See also the Introduction to this Symposium. No prediction is made here as to the ultimate fate of this document.

The unwritten, common law British constitution, an apparent exception, is not formally a Separation of Powers constitution, but it strongly recognizes the independence of the judiciary and the embargo on judicial policy-making: see J. Wade and C. Forsyth, Administrative Law 8th edn. Debbasch, Institutions et droits administratifs , at See for Italy, S. Cassese, Le Basi del diritto amministrativo 3rd edn.

Davis, Administrative Law Text 3rd edn. The four classical sub-categories of review in French administrative law—illegality, irrationality, procedural error, and wrong purpose—are not entirely confined to the procedural, though in practice the procedural grounds for review dominate the case law: see generally, J.

It is sometimes said that Italian law does not observe these principles, but see the Administrative Procedures Law of 7 Aug. Stone Sweet, W. Sandholtz, and N. Fligstein, The Institutionalisation of Europe , at And see generally H. Nehl, Principles of Administrative Law Aronson, B. Dyer, and M. Groves, Judicial Review of Administrative Action 3rd edn. Supreme Court has established three different levels or standards of judicial deference in three landmark cases: Chevron U.

NDRC , U. Robbins , U. Swift , U. First, under Chevron deference , the courts apply an extremely deferential standard of review, in which the courts defer to agency interpretations of such statutes unless they are unreasonable. Second, under the Auer deference, courts defer to the agency interpretations of its own ambiguous regulations. Category: Governmental Organization, Power, and Procedure. Please help us improve our site! No thank you.

Administrative Law Primary tabs Definition Branch of law governing the creation and operation of administrative agencies. Overview Administrative law encompasses laws and legal principles governing the administration and regulation of government agencies both Federal and state. Administrative Law--Structure of Agencies While some textualist scholars argue that administrative agencies are unconstitutional, particularly because of unconstitutional delegation of law-making power, the current jurisprudence in administrative law deems agencies constitutional, and necessary in the current society in the functional and pragmatic sense.

Statutory Regulation of Agencies However, despite their enormous powers, the governmental agencies must still act within Constitutional and statutory parameters. Administrative Law -- Judicial Review of Agency Actions One important aspect of the administrative law is the judicial deference given by the courts to the agencies.

See generally the Code of Federal Regulations. They have purview over a wide variety of economic functions, such as telecommunications, the financial market, and social issues, such as instances of racial discrimination. Administrative law governs such federal agencies as the U. Such boards have the power to determine whether injured workers are entitled to receive compensation related to injuries sustained in connection with their occupations.

The authority outlined by administrative law details the constraints within which the boards must operate, how each case must be handled, and ways disputes are to be resolved. The increasing number of regulatory agencies and new layers of bureaucracy means administrative law must be established or amended to guide these operations. Each agency, department, or division of government must have administrative regulations that establish the scope and limits of its authority.

The powers granted to government institutions can include the right to draft, enact, and enforce policies to which industries, companies, and private citizens must adhere. An example of how administrative law works involves the issue of internet neutrality. Internet providers sought deregulation changes regarding how they structure data rates and billing to customers and manage such services.

The rule changes they wanted would allow such practices as charging customers a fee for internet access and more for faster speeds, as well as favoring transmission of the content of companies they own to the disadvantage of other content. This effort raised debate and concerns about the preservation of net neutrality. The procedures and actions the FCC can take regarding the proposed changes are also structured by those underlying administrative laws.

Legislative days within which Congress must act to reverse a federal regulation made under administrative law. The FCC allowed public comment on the proposal before the commission voted on Dec. That decision could have been undone by Congress, which has powers under the Congressional Review Act that allow it to reverse federal regulations. Such an action requires the passage of a joint resolution within 60 legislative days. The Senate voted to do just that on May 15, , but the House of Representatives did not follow suit, and the new rules went into effect on June 10, In the wake of this decidedly controversial decision , more than 29 states have moved to enforce net neutrality, but their legal jurisdiction on the matter remains in question.

Your Privacy Rights. To change or withdraw your consent choices for Investopedia.