Fundamental Institutional Concepts of Administrative Justice: Political Political Theory and Bureaucratic Government

On November 8, I presented a paper at the University of Edinburgh’s Constitutional Law Discussion Group. The title of my presentation was ‘Fundamental Institutional Concepts of Administrative Justice: Political Political Theory and Bureaucratic Government.’ The abstract for my paper, which should be published at some point in 2017, was as follows:

Administrative justice is a field that revels in the English tradition of pragmatism. To study initial decision-making, internal administrative review systems, complaints handlers, ombuds, and tribunals is to engage with public law researchers for whom empiricism is the usual method. But maybe the field needs more theory? It is perhaps trite to state that behind every administrative justice system lies political theory. Simply drawing a link between the one field and the other (i.e. political theory and administrative justice) is no great challenge in this respect—public law as a broader discipline has been joining these dots for some time now. Where a challenge does lie is in addressing how theoretical work may be fruitfully drawn upon in the field: can political theory be relevant in debates about the administrative justice system? To provide an answer to this question, this paper draws upon ideas set out in Professor Jeremy Waldron’s inaugural lecture as Chichele Professor of Social and Political Theory at the University of Oxford. The paper begins, in Part A, by sketching out the Waldron’s views on the present state of political theory, and particularly his argument concerning the importance of theorising about political institutions and their governing ideas. Part B considers the existing theoretical landscape in administrative justice research, paying particular attention to the prominent work of Mashaw, Adler, Kagan, Halliday, and Scott. This examination highlights that the existing theory concerning administrative justice, although of great value, is principally orientated to explanation—thus making it useful to highlight where the system is presently at but less helpful in identifying where it might be failing or ought to be heading. In Part C of the paper, it is suggested that bringing an “explicitly normative” theoretical approach to fundamental institutional concepts—as Waldron defends the general value of in his lecture—within the field of administrative justice may clarify and improve debates within the field. To demonstrate this, the use of an institutional concept often used loosely in administrative justice discourse— “timeliness”—is discussed.

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