An Anglo-American Tradition

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.

Through ‘Thick’ and ‘Thin’

While the lack of comparative administrative law scholarship and intellectual interchange across jurisdictions is often noted, comparative regulatory study is a thriving analytical enterprise. This chapter considers the relationship between these two fields of scholarly endeavour to show the interaction between them is a complex and nuanced one. Three issues are highlighted. First, there is a significant overlap between administrative law and regulatory studies. Second, comparative scholarship about administrative law and regulation is being carried on for many different reasons and in many different ways. Third, a more meaningful distinction to draw than between administrative law and regulatory studies, is between ‘thin’ and ‘thick’ accounts of regulation and administrative law. A thin comparative account tends to prevail in regulatory studies, reflecting the dominance of thin policy discourses. In contrast, comparative administrative law scholarship tends towards providing thicker accounts, reflecting the general thickness of legal discourse. But these are only tendencies. More importantly, thin and thick accounts have their strengths and weaknesses, and are also interdependent on each other.

A Comparative Approach to Administrative Adjudication

This chapter concerns administrative adjudication. The term ‘administrative adjudication’ means the entire system for individualized agency decision-making arising out of disputes between private parties and government agencies. The adjudicatory process begins with an administrative investigation of a claim or a violation and the agency’s preliminary or ‘front line’ determination, continuing through the process of an agency’s initial decision, reconsideration of that decision, and concluding with judicial review. The systems in place for resolving such disputes differ sharply around the world and are difficult to compare. This chapter highlights five models in use by various countries that should facilitate such comparisons.

National Executives and Bureaucracies

This chapter starts from the ‘classical’ divide between the political and non-political and presents how national administrative organization is described and compared in its hierarchical and independent emanations. Both hierarchy and independence are conceived as ideal-types of the relationship between the political executive and bureaucracies and within bureaucracies. The chapter then shows how this ideal developed and is applied in some administrative jurisdictions, and how it carries elements of unitary thinking and centralization into these jurisdictions. It also addresses the legitimacy issues of independence, in particular with respect to democratic legitimacy and accountability. In its conclusions, the chapter tries to identify elements of comparison that may be helpful for the mutual understanding of administrative legal systems but also for building common administrative units such as in the EU.

Parliamentary Regimes

This chapter focuses on parliamentary regimes. Parliamentarism, in its various forms, has the distinction of being the most widespread type of democratic government in the world. The chapter recounts the origins of parliamentary government in England, the cradle whence it was adopted and modified, in many different ways, in the rest of Europe, and was exported in tandem with the British Empire’s expansion. It next contrasts parliamentarism with presidentialism, highlighting the higher levels of executive-legislative comity in the former, and showing that the most consequential function of legislative assemblies under parliamentarism is not to legislate or even to scrutinize, but to make or break governments, which are typified by a countervailing power to convene or dissolve assemblies. The chapter then underscores the reality that parliamentary systems are not monolithic. It exhibits the variation and diversity in the universe of parliamentary regimes in the provisions for the head of state, the head of government and the cabinet, parties and elections, parliamentary control of government, and judicial review of administrative action. Finally, it concludes with a summary of major findings.

Comparative Administrative Law and Economics

This chapter provides a rational choice theory to explain why features of administrative law vary across jurisdictions. It relates these varying features of administrative law to economic performance (as measured by macroeconomic variables or more specific variables such as rule of law, judicial effectiveness, governance indicators, or quality of legal institutions). The chapter also reveals a normative dimension related to the inevitable question of which arrangements or institutions produce better results. To that end, it reviews the current economic models of administrative adjudication. The chapter next takes a look at some more specific topics: specialized agencies, specialized courts, and state liability. Finally, it looks at the role of the interaction between administrative and constitutional law as well as rule-making and other types of executive policy-making.

Comparative Administrative Law and Public Administration

This chapter explores, critically and systematically, contemporary public administration scholarship as it pertains to national administrative law. It aims to understand how contemporary public administration scholarship thinks about administrative law. The ‘bureau-centric’ studies reviewed here focus on the interaction of government agencies with politicians as well as with organized and unorganized constituencies. The chapter’s systematic literature review assesses the current distribution of this bureau-centric literature in leading international public administration outlets, learning four things from the exercise. First, the role of administrative law is to constrain particularistic behaviour of administrative officials as they interact with organized constituencies. Second, these studies tend to view the role of administrative law as shifting towards the promotion of a kind of pluralism as administrative officials interact with unorganized constituencies. Third, while the bureau-centric literature is robust within the confines of particular national administrative law systems, comparative studies are entirely absent from the important outlets surveyed. Fourth, the American case dominates the literature in leading international public administration outlets. The chapter concludes with an agenda for future research.

Ombudsmen and Complaint-Handling

This chapter is devoted to ombudsmen and to complaint-handling by ombudsmen. It contains a brief general overview of complaints and complainants. The overview draws on both legal and non-legal literature and takes into account the perspectives of not only different kinds of complainants, but also of organizational hierarchies in both the private and public sectors, in order to provide the necessary background for comparing ombudsmen. The chapter then addresses the question ‘what is an ombudsman?’ and concludes with a definition. It considers the place of ombudsmen within the broader framework of administrative law. Finally, this chapter examines the relationship between the ombudsman institution and democracy.

Administrative Law Values and National Security Functions

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.

Implementation

This chapter discusses implementation—a key concept in the language of public policy as a field both of practice and of scholarship. The focus here is on the first-level implementation of administrative decisions and actions. The chapter aims to pitch the analysis at a level of generality such that it captures key questions and trends relating to implementation across contemporary public administration within the member states of the Organisation for Economic Co-operation and Development (OECD). But the analysis has the potential to illuminate the core functions involved in implementation and the variety in how those functions are executed in terms of levels of government, actors, and modes across any system of government. The chapter concludes with an assessment of the role both of proactive and reactive modes of accountability and oversight in supporting legitimate and effective street level implementation.