The Boundaries of Administrative Law

This paper seeks to distinguish constitutional and administrative law by exploring them both as expressions of what evolutionary anthropologists call human ‘ultra-sociality‘. The focus is on three interrelated dimensions of the phenomenon: first, the emergence of a collective capacity to mobilize surplus human and fiscal resources (‘blood‘ and ‘treasure‘) - second, the emergence of a social-psychological sense of legitimate political obligation - and, third, the emergence of scalable forms of political and legal management as between a 'constitutional' principal—the person/institution to which political obligation and legitimacy is ultimately owed—and 'administrative' agents who are understood to carry out tasks on behalf of the principal(s). By stressing the importance of the first two developments as a predicate to the third, this paper stresses that we cannot understand how a polity is 'administered' without first understanding how it is 'constituted'.

The relationship between constitutional and administrative law is usually seen as a non-problem, as the conventional wisdom is that there is no distinction between them, or that nothing of significance hangs on their relationship. The sense that there is nothing significant about the constitutional-administrative law relationship is reinforced by the blurring of the boundary between them in many jurisdictions that are prominent ‘exporters‘ of public law. This paper develops and defends an opposing view: the relationship between administrative law and constitutional law is significant. It offers a foundational insight into the nature of both areas of law. The paper develops the idea that administrative law regulates delegates and constitutional law regulates delegators. This idea helps us make sense of the nature and content of administrative law, as well as how it relates to constitutional law.

Who should administrative bodies and officials be accountable to? While some claim that legislatures, who are delegating power, should keep their agents in check, others argue that it is not possible for legislatures to oversee all the complexities of the mammoth state apparatus that governs our societies today. Recognizing the limitations of the principal-agent model, however, does not provide an easy alternative. While the political dimensions of executive action may require one form of accountability, the legal and technical dimensions of executive action may require something entirely different. Over-reliance on expertise may lead to claims that there is a democratic deficit in the public administration, while expansive forms of democratic accountability may be perceived as crowding out expertise. In mapping these tensions, this paper will point to how these debates are largely informed by assumptions of what administrative accountability should not be.

The field of comparative administrative law was, until a decade ago, nascent in its‘ development relative to comparative constitutional law. However, it is now a firmly established field of comparative study, with an expanding jurisdictional and regional coverage on a wider range of issues, institutions and themes in the literature. This paper looks at these comparative endeavors with a view to proposing how the field can progress further. It will highlight certain pathological boundaries that still persist in comparison. In particular, the, sometimes, stark binary distinction drawn – implicitly or explicitly - between ‘civil‘ and ‘common law‘ systems. This paper will demonstrate how we need to approach these jurisdictional families from the perspective of variance and nuance rather than similarity. The paper concludes by sketching out possible alternative fault lines to use as the basis for constructing and grouping systems.

From a comparative administrative perspective, the principle of impartiality is a new migrating and expanding principle. In continental European administrative systems, impartiality has long been a key requirement for fair trial (cfr. art. 6 ECHR). Under the American influence where administrative justice and active administration (see Mashaw 1983) are traditionally differently delineated than in Europe, impartiality becomes now required increasingly from the active administration, outside any (quasi-) judicial functions, in European countries. Impartiality supersedes previous principles such as independence or neutrality. This presentation will argue that this expansion of impartiality beyond traditional administrative justice goes hand in hand with the redrawing of boundaries between public and private, administrative and criminal, law and ethics, politics and sciences, as it will be illustrated with examples drawn from France, the European Union and the Council of Europe.

In Human all too Human, Nietzsche envisaged a world where a generalized “distrust of all government will impel men to do away with the concept of the state [and] the abolition of the distinction between private and public“ while “private companies will step by step absorb the business of the state“. The proliferation of a varied and multifaceted fauna of private regulators in every realm of public policy makes Nietzsche‘s premonitions seem nowadays prophetic. After mapping how private regulation has been theorized across the private/public divide, this paper advances a new conception of the phenomenon that pertains the ‘boundaries of administrative law‘: the ‘idea of a private administrative law‘. Instead of demise of the state or the public/private divide, passim Nietzsche, this renewed conception reveals the enduring relevance of the divide in shaping a contemporary governance landscape through continuous rules (and struggles) for recognition that are marked by a spirit of trust.