Administrative Justice in a Digital World

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.

Administrative Justice in Street-Level Decision-Making

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.

Historical Approaches to Administrative Justice

Examining historical approaches to ‘administrative justice’ is undoubtedly ambitious but enables researchers to become conscious of how a term of relatively recent currency, such as ‘administrative justice’, is problematic historically as a construct. Through emphasizing temporality and contingency, historical methods can illuminate dynamism and disruption across time in ‘administrative justice’ processes, techniques, and behaviours. In addition, as this chapter aims to show, a variety of methods can reveal how ‘administrative justice’, however conceived, can be situated contestably in broader contexts and life-cycles of human behaviour engaging diverse forums and processes (agencies, inquiries, litigation), norms, and cultures. Purely illustrative jurisdictions are selected but these chosen jurisdictions exemplify the nature of the historical task such that comparable challenges, themes, and advisory guidance would apply elsewhere.

Administrative Justice and Cultures of Rule Application

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 in the Private Sector

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.

Implementing Digitalisation in an Administrative Justice Context

Administrative agencies have long been sites of technological innovation. Today, government officials worldwide are intensifying digitalization efforts to cut costs and to make bureaucratic operations more efficient. This article examines how digitalization initiatives are implemented in administrative settings, using examples from the United Kingdom (Universal Credit), Canada (Ontario’s Social Assistance Management System), and Australia (Online Compliance Initiative, a.k.a. ‘Robodebt’). It draws on qualitative research, government reports, and administrative justice literature to illustrate the dilemmas common to digital government projects. For example, digitalization both hardens and virtualizes the interface between officials and the public, while obscuring the vast amounts of human labour needed to maintain digital government initiatives. To function well, digital systems require deep integration between government databases and software. Yet, the process of digitalization is often piecemeal, continuous, and reproduces dilemmas that arise whenever new technologies are used to solve institutional problems. Consequently, the promised benefits of ‘digital by default’ initiatives are rarely realized. Digitalization accelerates a shift in relations between people and the state that administrative justice scholars must take seriously. First, scholars must reconsider the internal perspective from which administrative justice theories assess an outcome’s acceptability. Digitalization compels the development of new justice models centred on the values of system users within and outside of administrative institutions. Second, scholars must reassess administrative justice theory’s procedural focus. In digitalized settings, ‘administratively just’ decision-making processes may generate substantively unjust outcomes. These challenges must be addressed if administrative justice theories are to remain relevant in an age of algorithmically-driven decision-making.

Legal Consciousness and Administrative Justice

This chapter draws attention to the ways in which the study of legal consciousness can provide added depth to studies of administrative justice. Perhaps surprisingly, given the prevalence of the former, it has yet to have much impact on the field of administrative justice. Drawing attention to the state of the art in legal consciousness studies, as well as those studies which do explore the interaction between legal consciousness and administrative justice, the chapter considers the possibilities raised and issues which have been addressed. The chapter develops its argument about the significance of the interaction by analysing the Ken Loach film I, Daniel Blake, arguing that cultural artefacts themselves can hold clues as to legal consciousness. Through that analysis, the chapter explores themes of systemic injustice, resistance and justice seeking in the interactions between the film’s protagonist and the administrative machinery of the welfare state.

Administrative Justice in Authoritarian States

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.

Public Inquiries and Administrative Justice

The public inquiry represents a final accountability backstop in many jurisdictions—an institution born of the failures of other mechanisms to respond to scandals, crises, and disasters. While each inquiry responds to differing political and administrative dynamics, there are many shared features and challenges in delivering their mandate of truth and reform. This article analyses the shared design challenges inquiries face in developing historical narratives, holding actors to account, producing recommendations for change, and delivering a restorative process for victims. The discussion begins with a reflection on the theoretical and constitutional underpinning of the public inquiry, something often overlooked given the pragmatic nature of such mechanisms. The article then moves to the practice of inquiries, reflecting on how design of their remit and their procedures rests upon a clear and effective terms of reference. The article offers an analytical framework for understanding the normative and operational choices that determine whether an inquiry can be successful. For all the limitations that can be highlighted in relation to the operation of public inquiries, the article concludes that the institution has an important role to play in administrative justice. Yet for an inquiry to be an effective administrative justice change-maker, effective design and a clear remit need to be combined with broader public and political acceptance of the inquiry.

Social justice and administrative justice

Social justice is a popular concept, used by academic theorists, international bodies such as the United Nations, politicians on both the left and the right and by community activists. This chapter considers how the term ‘social justice’ may or may not be useful in the context of ‘administrative justice’ by looking at the relationship between administrative justice and structural inequalities. Administrative justice scholars usually focus on procedures. By contrast, social justice scholars are more concerned with substantive outcomes. They draw attention to the major rifts in society which lead to huge inequalities of outcome in terms of material wealth, health, education and life expectancy. Administrative justice, with its emphasis on rule following and fair procedures, can often seem divorced from these inequalities. This is where the concept of social justice can help administrative justice scholars. Administrative justice scholars, often dismiss outcomes as being beyond the reach of law, as being about politics. The emphasis on the ‘social’ in social justice compels us to look at this broader context and to show us how the great schisms in society create and enforce inequality.