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Published: Fri, 02 Feb 2018
Administrative Law In Common Law Countries
Administration law is the actions made by a government, which adversely affects an individual. Therefore, administrative law encompasses the legality of the actions made by governments. Administrative laws are segmented in to two broad categories: analysis of a particular law and the legality of certain acts which are authorized by a particular law. The administrative law in common law countries has been highlighted in the paper (Pierce et al, 1999). Common law countries include; Australia, Canada, India, United States of America among others. The discussion in the paper has basically focused on these countries. This paper has described particular issues concerning administrative law. Issues such as judicial review and the court process and their effects on the administrative law have been examined in the paper. The paper seeks to review and explain the conflicts between judicial review and the administrative law. This paper seeks to come up with guidance on administrative law also known as public law. The paper will also focus on the administrative law discretion.
The importance of this research is to be able to unearth the developments of administrative law and other issues concerning the common law countries. There have been concerns on the discretion of the administrative law and these issues will be focused in the paper in order to seek solutions to these crisis. Countries which are perceived to follow the common law procedure have come up with legal procedures and judicial review processes which have limitations on the reviewability of decisions or conclusions made by bodies involved in administration law (Rosenbloom, 2006). These are some of the issues which have driven the research of this paper in order to find solutions and proper recommendations. The other reason which ahs accelerated the research of this topic is the issues of precedence. Common law follows precedence and this normally leads to bad decision making. There is also the difficulty of continuing with a judicial process if precedence is absent.
An administration law is the set of laws, procedures and institutions which affect governments’ agencies legally, as the implementation and administration of legislations on public programs. Hence, the diversity of administrative law is broad. In countries which use the common law system, bureaucratic agencies form the largest percentage of the sector of government and they generate the highest decisions, which affect the citizens’ lives directly. Administration law is used to govern institutions and public bodies in decision making for example in the issuance of licenses, law enforcement, hiring of employees and awarding government contracts. They also guide in the making of other rues and regulations. Administrative law is not only involved in addressing a variety of government actions, but it normally sources its pedigree from other legal areas. As a body of law, administrative law is part and parcel of the constitutional law, internal policy, statutory law and also a part of the common regarding some government systems. The format and the organization of agencies dealing with administrative law can be arranged or shaped by policies and statutes (Goodnow & Hilliard, 2003). Procedures and formalities used in these agencies are based on the constitution of the land for example the United States Administrative Procedure Act; this act protects certain procedures and the due process. The procedures can also be dictated by the statutes which address certain policies in government such as taxation, energy and social welfare. This means that procedures used by various administrative agencies are different and can vary from one agency to the other. They also vary within the same agency in some distinct policy matters.
In general, many countries that follow the common law principals, have from time to time developed procedures for review I the judiciary that constraint the reviewability of policies and decisions which have been made by administrative bodies. Most times these rules and procedures are coupled with regulations or other doctrines which are in line with the common law, which then establish the qualities of appropriate rulemaking. Although administrative bodies involved in the decision making are normally controlled by higher units, courts can review their decision of a jurisdiction which is general under the principle of review by the judiciary which must follow the due process. Judicial review concerning an administrative decision is very different from an appeal. When reviewing the decision in a judicial court the court is only interested in the way the decision was arrived at; where as in the appeal the positivity or the correctness of the decision is normally the point of discussion. This difference between an appeal and a review of an administrative decision is very important in appreciating the administrative law which is used in countries which have the principles of the common law. These are fundamental differences which should not be confused at any one time.
The powers to review decisions which concern the administrative law are normally established and guarded by statute, but were initially established by the English law. In common law authority for example India and Pakistan the power to pass writs such as writ of certiorari and writ of mandamus are guaranteed powers in the constitution (Sales & Steyn, 2004). The extent of evaluation may be restricted to cert6ain questions of equity and fairness, or whether the action of the administrator is ultra vires. In such matters of ultra vires a court may set aside a decision which is administrative if the decision is patently unreasonable.
In countries using the common law, administrative law offers guidance on how the authorities in government ought to be run legally and how they exercise their powers. This is done through direction or giving the way forward on how and when power in government is to be employed or evoked. The necessity law in the administration law confronts questions regarding political theory, more significantly in decision making and reconciliation, through unelected administrators. Administrative law as used in common law countries, is characterized in the promotion of democracy, efficiency, fairness and better governance in such countries. Centrally administrative law seeks to impose positivity in government officials and government bodies in order to offer good services to the people. Moreover, it emphasizes on the positive efforts to teach and explain the behaviors of government institutions and officials.
Administrative Law and Democracy
Agencies which follow administrative laws make certain decisions and policies which affect the lives of citizens and the economy of a particular country thus affecting the whole economy of that particular country. It is only that such agencies are managed by people who are politically neutral; therefore they are not directly answerable or accountable to the citizens or public. The challenge in the study of administrative governance is the analysis of the fundamental administrative decision making from a view of democracy. This challenge is normally encountered in countries which use the common law for governance such as the United States of America. In these circumstances we see that control of a particular political is dived or segmented between the executive and the legislative branch. These two institutions of government tend to influence the outcomes of administration (Gellhorn & Levin, 1997). Much work which is being done in the administrative wing seeks to justify the procedures and protocol in democratic terms or otherwise to evaluate empirically how those processes influence democratic values.
In order to come up with proper decisions, it is important to consider administrators as sheer executors of decisions which have been made thorough a rigorous and democratic process since they are non partisans. This form of model is normally called the transmission belt model of administrative law. In this model administrators are seen as links or instruments in the implementation of democratically formed legislature. According to the model legislation acts as the belt to the organization or government agency, thereby transfeing democratic legitimacy to the action of the administrators. It further barricades these actions so that they can achieve goals of legislature.
In transitional belt model the amount of discretion which is held by the administrative officials underestimated which is a positive matter. In every country interpretation of the law is required and in such circumstances, administrators are required to have some amount of discretion. Mostly the legislation of laws is silent on matters concerning the confrontation of administrators (Sueur, 2004). Definitely, sometimes legislators lack inducements in making clear laws which are precise on the issues of social problems, thus passing the button to the administrators who are not elected. In some circumstances such as in the enforcement of the law and monitoring the legislatures give leeway and discretion to the administrators over how to divide and allocate resource to government agencies in order to do other legislative chores.
The matter on how much discretion should be allowed to administrative agencies has been on contention with the scholars. Administrative minimalists give emphasis to accountability in the electoral legislature, and they conclude that delegation of powers to administrative boards or organs should be constructed narrowly. Expansionist view that most administrators should have indirect accountability to those executives who are elected, they also contend that these legislators are not that perfect representative for example in the internal committees they serve and other legislative chores. While there is conflict on the amount of discretion that the administrative agencies should be allowed to confer, in practical terms these agencies will persistently continue to have certain amounts of discretion, even if they are put under limited delegation. In his study Hall (2002) notes that:
When Parliament confers a discretionary power exercisable from time to time over a period, such a power must be exercised on each occasion in the light of the circumstances at that time. In consequence, the person on whom the power is conferred cannot fetter the future exercise of his discretion by committing himself now as to the way he will exercise the power in the future […] By the same token, the person on whom the power has been conferred cannot fetter the way he will use that power by ruling out of consideration on the future exercise (pg 27).
In this study it is perceived that some amount of discretion ids possessed by the administrative agencies. The aim of the study is to ensure that the administrators use their discretion in a noble way as possible. They should also use it in a responsible and reasonable manner in order to create a good legal environment. There has been a campaign in countries which use the common law system to design the administrative procedures so that they can promote pluralism in interest groups. Transparency and opportunities in public procedures always give interest groups a chance to represent themselves plus their constituents in the process of administration. Procedures that should be open include; opportunities to comment on public matters and be listened to, access to information regarding governments and the right and ability to sue and petition government. Open procedures do not only mean that there is procedural fairness, but they compel administrators to tackle different interest before coming up with the final judgment or decision, thus widening the administrative policy in the political point of view. When these procedures are made transparent they enable the protection of regulatory capture. Regulatory capture is a situation which takes place when an industry or a business controls an agency or a board in order to have some private benefits over the other companies and industries.
There has been another approach regarding control of agencies which is known as the “positive political economy”. This approach seeks to explain the procedures of administration as efforts by officials who are elected try to control the agencies. According to this approach the administrative law addresses the issue of principle- agent dilemma tackling officials where elected when agencies are created or when power is delegated to administrators (Stevens, 2004). The impediment in this scenario is that administrators in order to implement status normally face incentives in such ways which are not intended by enactors of the legislation. The only problem which arises is that it becomes very difficult for legislatures to monitor these agencies since they may not continually remain in power. An argument by some administrative analysts state that, administrative procedures which are created by elected officials are intended to entrench the goals intended by the original coalition. These procedures can be enforced by the legislature or the executive arm of the government and they may include legislative review procedures and veto, transparency requirements and access of information by interest groups, and the analysis of the economic situation by the agencies before final decisions are taken.
Courts and Administrative Law
As much as there is a predominant connection between administrative law and democracy, there is much connection too in administrative law and the courts. Countries such as United States of America which use the common ;law normally create administrative procedures in the legislature but these procedure are implemented and enforced by the judiciary which is the courts. Furthermore, in such countries, courts have come up also with their own procedures regarding agencies which are based on the constitution of a particular country or the principles of the common law. The role of the in development of democracy in countries which use the common law system has its positive and prescriptive aspects.
The most prescriptive stance in these issues is where courts do not agree on the decisions which have been made by the administrative wing or the agencies. In the doctrinal aspect of the administrative law, admits that administrative agencies ability to make judgment regarding technical and policy matters usually supersede that which courts enjoy (Breyer et al, 2002). Even in systems where there are specialized administrative courts, staff from administrative agencies normally posses greater expertise in policy compared to judges. In addition, compared to judges, agency staffs have greater accountability in democracy. These issues and considerations have made the differentiating work easier in regard to administrative agencies and judicial deference. Generally, credible oversight by the judicial system may improve the performance of administrative agencies. The challenge on the prescriptive side is to identify the apposite strategies that courts should acquire in overseeing the decision making process of the administrative bodies.
This challenge requires the judicial system to intervene in choosing a goal which has caused jitters since it is a pluralist process of decision making. If administrative agencies do mot follow transparent [procedures in implementing certain issues the courts will differ with these agencies thus creating a conflict of policy. Otherwise, a court can look at the agency’s decisions carefully in order to verify that the decision was based on an analysis which is thoroughly done and researched over the relevance of a particular issue. This latter scenario gives the judges an opportunity to probe carefully into the reasoning of the agency thereby being called “hard look”.
Legal principles normally guide and influence the judgment of the judicial system. In deciding how deferential issues are to be judges are also treated to residual discretion as administrators. Empirical research has shown that in administrative law as is in other laws of the land, judicial decision making is also affected by political ideology.
To boot to that, the observed research on decision making in the judiciary, the administrative law has been centrally concerned with the judicial review impact on decision making in the agency. Normative arguments on the judicial process and review are dependent to the assumptions of the observed research about the consequences of judicial courts have on the activities of administrative agencies (Koch, 1996). Many scholars assume that, if the judicial process is initiated appropriately then governance shall be improved. The changes that courts bring to the administrative agencies include, increased in evaluation and response of decision making, agencies increased observance and promoting responsiveness in the agency raging to various issues. If an administrator knows that he/she will be subjected to review by the judiciary, he/she is expected to change tact and start trending and handling issues with great care, making better decisions ad responding to issues appropriately.
In spite of the courts effects which are of benefit on the process of administration, legal scholars have put emphasis on the increased potential deriberations on the consequences of agencies by the courts. Many countries such as the United States of America, are living with the fact that administrators are subjected to litigation in every action they deem to perform. International research indicates that courts are more prominent in the US government administration compared to other countries mostly which are using the common law. In some instances it have been noted that agencies retracted their steps and come together in order to evaluate and establish new regulations. One of the agencies in the US which is in this process of “ossification” is the National Highway Traffic Safety Administration (NHTSA). A major study in the US shows that NHTSA has stopped developing new automotive safety rules and standards and has shifted to other issues in order to avoid reversal by the judicially. However, other research indicates that the issue of the courts overstepping their mandate of oversight has been overrated. Litigation by the courts which challenges actions from the administrators does not occur frequently in the United States of America as it has been reported. Furthermore, it has been noted that in the US, administrative agencies surmount some decisions made by the judicially in order to achieve agencies’ objectives and policies.
Many countries still have this issue about administrative process adversarialism. This has made many countries across the world to consider consensus and collaborative processes when administrative policies are being created or implemented (Aman & Mayton, 2001). For example in the US some agencies are considering the use of negotiated rulemaking process, this is used to avert possible litigation. The process of negotiated rulemaking brings together non-governmental organizations businesses and the government, in order to come up with an agreement or consensus regarding particular administrative policies. Practically this process of negotiated rulemaking has not subverted the actions of litigation; in part since there have had less litigation actions than would have been thought generally. In addition, even countries which have more corporatist structures have experienced litigation over issues regarding administration. These actions of litigation are believed in helping some outside groups penetrate policy networks which are closely knit. In pluralist nations for example the US, litigation is seen as normal practice in policy making, and insiders tend to go to court as much as the outsiders do.
Administrative law is based on several intersections, bridging the boundaries of the theory of politics and political science, public administration and public law. Since the law governing nations is the body, therefore, expanding knowledge about how legal institutions and the law can progress is where the administrative law rests. Principles of democracy will continue to dominate research topics as will also the interest in the actions and legal role of the judiciary in advancing administrative governance. Nevertheless, the administrative law should expand in order to counter challenges that the countries will be facing in the near future (Culp, 1975). In many countries there is a division between the private and public sector which has been triggered by the efforts of privatization and deregulation, thus there is need to have proper administrative laws to regulate these factors. Social science research must and will continue no matter where certain challenges may lie in the near future. The social science research will continue to support the development of legal institutions, increase of social welfare, promote the fairness in treatment of individuals and improve and expand the potential for decision making in a more democratic manner.
Due to pertinent growth in regulations regarding the administrative law and regulations over the past years, nearly every area of law practice involves the application of administrative law. Every legal practitioner must get themselves acquainted to these administrative legal practices. It is further advised that lawyers should also get some legal knowledge on administrative agencies and how they work since these laws are growing exponentially. They should also familiarize themselves with the laws concerning the relationship between regulated public and agencies.
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