Judicial Controls Over the Bureaucracy
- Calliope SpanouCalliope SpanouDepartment of Political Science and Public Administration, National and Kapodistrian University of Athens
Judicial control over the bureaucracy is a means to defend the rule of law and important principles of democratic governance. It refers to the power of the courts to consider whether the actions of public authorities respect the limits prescribed by law. Regimes of judicial control vary in legal and administrative systems. Two major traditions can be mainly distinguished. The first characterizes continental Europe. It assigns judicial review to specialized administrative courts and involves a special branch of law, that is, administrative law. The second relies on ordinary courts and characterizes the Anglo-American system of common law. The two traditions also differ regarding the role of the courts and particularly their possibility to shape rules (common law tradition) or to apply rules (continental tradition).
The expansion of state activities, including economic and social regulation and welfare service provision, has blurred the old politics–administration distinction since more and more decisions are delegated by parliaments to the administration, endowing it with wide discretionary powers. These developments have added a new meaning to the implementation of the rule of law. When the content of decisions is bound by a legal rule, legal compliance is more straightforward than when there is a margin of appreciation and choice. Circumscribing administrative discretion passes first and foremost from regulating the process of decision-making. Procedural standards have indeed been an area of primary concern for courts. Increasingly, nevertheless, substantive aspects of the administrative decision-making process and even service provision come under judicial scrutiny. Its extent inevitably differs from one legal system to another.
The intensity of judicial review and its impact on (a) administrative operation and (b) policy decisions raise critical questions: how is it possible to achieve a balance between managerial flexibility, efficiency, and responsibility on the one hand and legal accountability on the other? To what extent may the courts substitute their own judgment for that of policymakers and the administrative or expert opinion underlying the decision under examination? How far do they go in scrutinizing policymaking and implementation?
Judicial control involves constraining as well as constructive effects on the administration. It may contribute to an institution-building process (e.g., strengthening of Weberian-type features, increasing formalization, etc.) and to the agenda-building process, and it may influence policymaking. In certain contexts, courts even tend to become political actors. The reverse side is that they may step into matters of management and policymaking for which they are not prepared or institutionally responsible. This points to potential tensions between the administration (the executive) and the judiciary but also underlines the limitations of judicial control. Delicate issues regarding the separation of powers may emerge. Furthermore, cost, delays, the degree of administrative compliance with judicial decisions, and the ability of courts to integrate into their reasoning issues of efficiency and effectiveness constitute growing challenges to judicial control.
Judicial control over the bureaucracy is a means to defend the rule of law and important principles of democratic governance. It primarily refers to the power of the courts to consider whether the actions of public authorities respect the limits prescribed by law. However, this mission involves a series of theoretical and practical issues that will be discussed here. The article starts from section “Political and Institutional Foundations of Judicial Control,” then considers Judicial Control and Administrative Operation in the context of the expanding bureaucratic scope and discretion. It continues by examining the section “Constraining and Constructive Effects of Judicial Control,” since it may also constructively mobilize reform. Last, it concludes with the Tensions and Limitations that emerge in terms of responsibility, expertise, and effectiveness.
Political and Institutional Foundations of Judicial Control
Modern states derive their legitimacy from two complementary principles: the democratic principle and the principle of the rule of law (État de Droit, Rechtsstaat) and its corollary, the principle of legality. The first rests on the premise that power belongs to the people. In representative democracies, the people designate their government through the electoral process, thereby consenting to and legitimizing its power. The second subjects government to the law, which is itself seen as an expression of the popular will through the legislative process. “Legal” accountability of officials “is the carrying out of a democratic political project” (Mashaw, 2005, p. 156). As a means to defend the rule of law, judicial control over the bureaucracy is situated at the crossroads of important values and principles of democratic governance: legitimacy, accountability, and the separation of powers.
Mistrust towards the state is a perennial issue in politics. Liberal thinkers such as John Locke (2014) in his Second Treatise of Government (1690) searched for a compromise between the protective function of the state and the risks its power involved for individual rights and freedoms. In the face of this ambivalence towards the state, a reasoned acceptance of subjecting oneself to state power gave rise to the theories of the social contract. To preclude the arbitrary exercise of power, conditions were set that regulated, fixed boundaries, and legitimized it. The law provided the social technology initially for limited government and gradually for a reasoned and reasonable foundation of legitimate authority.1
Starting from a definition of the modern state by its exclusive feature, that is, disposing of the monopoly of the legitimate use of physical force, Max Weber associated bureaucracy with the legal-rational type of authority. The development of bureaucracy stirred the suspicion towards an impersonal apparatus disposing of the means of coercion. Their use should be subjected to a body of rules that demarcate and restrict their use. From this major concern stem important aspects of modern administrative organization, such as scope of jurisdiction, responsibility, hierarchy, competence, and expertise. Considering bureaucracy as a “necessary evil,” the legitimacy of its action ultimately depends on the respect of the limits set by law. Complying with this obligation simultaneously provides predictability and prevents arbitrariness. This is why law and legal requirements lie at the heart of public administration. Of course, legality does not exhaust the notion of legitimacy. The latter also derives from various other sources such as moral or political principles to which the law itself may (or may not) conform, as well as the consent of the people, as expressed by the minimum of electoral participation or by enhanced forms of mobilization and participation (Beetham, 1991, pp. 41–43).2 Additionally, legitimacy may result from criteria linked to the substance of administrative action, such as technical expertise but also economic efficiency and administrative effectiveness in achieving its goals, criteria that have been particularly put forward by New Public Management (NPM) ideas. These diverse sources of legitimacy point to the potential tensions between legitimacy and legality that may sometimes permeate the scope of the judicial control of bureaucratic action, as will become clear later.
Ensuring that bureaucracy respects the limits fixed by law and acts according to its requirements implies specialized control procedures and mechanisms, in addition to political and parliamentary oversight. These mechanisms may be integrated into the bureaucracy (mainly hierarchical controls and inspection bodies) or be external to it (ombudsman and the judiciary), benefiting from a higher degree of independence and ensuring impartiality.
Integrating Legality, Accountability, and Judicial Control in the Institutional Architecture
Judicial control (or judicial review)3 of administrative decisions is the institutional mechanism par excellence intended to ensure the respect of the law and the limits it sets to government action.4 It refers to the power of the courts to consider whether the actions of public authorities fall within the existing legal framework, including the appropriate exercise of discretion, as the law provides. The purpose is to protect rights and freedoms of private parties against encroachment by the bureaucracy. It targets illegal, unfair, or even abusive administrative action. For citizens, judicial control provides an opportunity to challenge administrative decisions and seek redress, confirming the founding idea of modern democracy that no power is beyond control.
Independence is the most important institutional feature and guarantee of the judiciary. This is a condition sine qua non for the impartial and effective upholding of the rule of law. Independence is not only a functional prerequisite but also the basis for the legitimacy of judicial decisions. However, independence is a challenging institutional issue.5 The judiciary reviews executive decisions on the basis of the legislation voted by the parliament, which also defines the extent of the judiciary’s power and jurisdiction. The mistrust towards the executive in particular additionally requires that it refrains from any interference in the judicial scrutiny of government decisions.6
This is where the principle of separation of powers comes into play. Its political rationale is to prevent the accumulation of all powers in the same hands. The functional distinction between the three branches of government—the legislative, executive, and judiciary—translates into an organizing principle: each function is entrusted to different institutions. Separation of powers as an organizing principle of modern states comes in different—more or less rigid—forms, but it essentially sets limits to the possibility of one branch substituting for the other. It is often complemented by the idea of checks and balances so that no branch of government imposes itself on the others.
However, the principle of separation of powers cannot escape the question of the relationship between them, which in real conditions may become a source of tension. Mashaw (2005, p. 154) describes the paradox of judicial review of administrative action: “It supports democratic governance by making officials accountable to unelected judges. It protects individual rights while simultaneously ensuring state control. It legitimizes expert administrative judgment by subjecting that judgment to review by bodies who often have limited knowledge of either the technical data upon which administrative action is premised or the concrete situations within which administration must function.” These paradoxes constitute corresponding dilemmas that need to be addressed in various contexts.
Judicial Control and Legal Traditions
Though the institutional role of the judiciary is similar in all countries, there are variations of regimes of judicial control depending on their legal and administrative systems. Two major traditions can be distinguished in this regard. The first assigns judicial review of administrative decisions to specialized administrative courts and was developed in continental Europe. The origin of this system is to be found in the prerogatives recognized to the state and its administration, which cannot be controlled by “ordinary” courts. Sometimes an argument was drawn from the very principle of separation of powers, interpreted as not allowing the judiciary to look into matters of the executive.
Although this approach was meant to protect the administration, the gradual development of a system of administrative appeals resulted in a robust system of review by officials equipped with a good knowledge of the administrative operation. Gradually securing independence in interpreting constitutional principles, it evolved into the modern system of administrative courts. In parallel, though originating from case law, a specialized branch of law was shaped, that is, “administrative law,” consisting of a more or less systematized and coherent body of general principles and rules. This is characteristic of the French administrative court system, which is mindful of the increased risk for administrative violation of the rights of the “administré.” It is headed by a supreme administrative court, the Conseil d’Etat, initially meant to advise the monarch. Administrative courts subsequently spread throughout Europe (see Ziller, 2003), while administrative law was strengthened, due to the development of European Union (EU) law and the European Convention on Human Rights in particular.
Judicial review of administrative decisions in the second system relies on common law and the creative role of jurisprudence. There is no strict distinction between public and private law, but courts reason on the basis of principles for the exercise of (public or private) power (Craig, 2003). Most influenced by the liberal mistrust towards the state, this tradition considers that the administration should be controlled by ordinary courts. These elements characterize the Anglo-American tradition that relies on a judge-made case law, although differences between the British and American versions have to do with the existence of a written constitution or not and the type of relations among the branches of government.
The two traditions assign a different role to the courts depending on the recognition of their possibility to shape rules (common law tradition) or to simply apply rules (continental tradition) with their decisions being limited to the case under review.7 In other words, the second tradition subordinates the judiciary to the decisions of the legislative branch. However, interpreting the constitution, the law, and “indefinite legal terms” is a creative task, which provides courts with the normative power to adapt the law to new conditions.
The respective merits of the continental system of administrative courts and the Anglo-American case law system have been a frequent focus of debate. The comprehensiveness and coherence of the continental system was opposed to the “hesitant—if not haphazard—judicial disposition of administrative cases” in the United States (Marx, 1942, 1946, p. 524; Price, 1946, pp. 538–539; Vieg, 1946, p. 59). It was even often assumed that the lack of specialized administrative courts signifies the absence of administrative law. However, this is not an accurate assumption, especially in modern times with the expansion of administrative activities (Craig, 2003). More generally, while the two traditions still survive on the European continent, differences tend to decrease in importance, losing their past significance.
Though ultimately the most important and drastic in terms of results, judicial control over the bureaucracy does not stand alone in modern times. While it remains the means of last resort to defend legality and individual rights when other forms of internal or external control have failed, delays that limit its effectiveness brought to the fore “soft” forms of external control and dispute resolution meant to relieve courts of a number of cases that can be considered and settled alternatively. Such are the ombudsman institution or more generally mediation mechanisms, providing citizens with easily accessible alternatives in order to challenge administrative decisions and seek remedy. An important difference, however, is that while bureaucracy is bound to comply with court decisions, the ombudsman can only convince and exercise a kind of “moral authority,” while mediation is subject to acceptance by the parties involved. Furthermore, judicial control remains a means of ensuring the legal conformity of the activity of any non-judicial accountability and control mechanism.
Judicial Control and Administrative Operation
The Expansion of State Activities
In modern times, state activities have expanded, including economic and social regulation and welfare state services.8 The politics–administration distinction has become elusive, since more and more decisions are delegated by parliaments to the administration, endowing it with wide discretionary powers. The administration determines and specifies “framework” legislative decisions and policies that are not fully or well defined, chooses and mobilizes the means to implement them, and adjudicates them. In other words, the scope, volume, and complexity of issues that need to be decided significantly enhance administrative influence on people’s lives. The importance of controls, and particularly judicial controls, over the bureaucracy increases as well.
In parallel, the strengthening of the rule of law and democratic principles provided citizens with new rights, guarantees, and institutional means to contest government action. The interaction between courts and the bureaucracy was therefore intensified. As underlined by Rosenbloom (1987), more guarantees for citizens, public law litigation, and expansion of public administrators’ legal liability (damage suits) allow the judiciary to intervene more directly and extensively in public administration.
While the resulting increased interaction between the judiciary and public administration has been described as a “new (involuntary) partnership” (Bazelon, 1976, p. 105; also Rosebloom, 1987, p. 75), it also came to be seen as rendering administrative decisions more fragile, while creating some tension between the administration and the judiciary.
The expansion of administrative activities met with resistance from both the legislative and the judiciary. Judicial control appeared in that context sometimes as an argument and a means to oppose and restrict the administration. This is particularly visible in U.S. political controversies surrounding the delegation of powers to independent regulatory agencies. Judicial control was presented as the proper institutional alternative, if it was not used as a procedural obstacle, to expanding executive regulation. Instead of delegating to regulatory agencies the ex ante regulation, monitoring, and control of various economic interests, ex post judicial control and corresponding safeguards could provide a more acceptable means of redress. Alternatively, the ex ante possibility of anyone affected to challenge regulations in court could contain rule-making by regulatory agencies (Price, 1946).9 The adjudicating powers of regulatory agencies were equally contested. These “quasi-judicial agencies” were seen as “usurping the function of the courts” (Vieg, 1946, p. 63; also Price, 1946, pp. 527 ff.),10 and motivated the “judicial opposition to the administrative state” (Rosenbloom, O’Leary, & Chanin, 2010, p. 36).
Administrative Discretion and the Scope of Judicial Review
The expansion of administrative activities added a new meaning to the implementation of the rule of law. The distinction between decisions whose content is bound by a legal rule and those where there is a margin of appreciation and choice, that is, discretionary decisions, became therefore important. Legal compliance is more straightforward in the first than in the second case. When the law grants discretion to an agency, administrative power and the need to prevent arbitrariness increase.
Extensive delegation and administrative discretion are perennial controversial issues in politics and in public law. Attempts at restricting discretion through detailed legislation generally fail because modern government needs delegation and flexibility. The law cannot anticipate all potential contingencies; the administration needs to exercise appreciation and choose the appropriate course of action. The question is therefore not whether discretion can be abolished, but the extent to which its exercise can be regulated and what kind of safeguards are necessary to prevent its abuse. Judicial review needs to accept this reality and elaborate ways to scrutinize its use.
Circumscribing administrative discretion passes first and foremost by regulating the process of decision-making. The procedures followed in reaching administrative decisions have indeed been an area of primary concern for courts. They need to comply with certain standards so that they respect rights of private parties and provide benchmarks for ex post control by the judiciary (mainly but not only). Such standards are prior hearings, consultations, access of citizens to information, transparency, but also the explanation of the facts and the legal reasoning on which a decision is grounded. They find their origin in rights and procedures defined by the constitution, general principles of law, and specialized legislation. These have been often interpreted, refined, and complemented by case law and are therefore “judicially tested” in terms of due process and fairness (Waldo, 1946, p. 390). When such procedural requirements are formalized in codified legislation (e.g., the code of administrative procedures in various countries), they provide an ex ante guide for administrative action and serve as a point of reference for external scrutiny.
Beyond procedural requirements, there are substantive aspects of the administrative decision-making process that have to do with the interpretation of the law and the appreciation of the particular data of the case under consideration. The very term appreciation implies a margin of discretion as to their weight and importance. “Indefinite legal concepts” also need to be attributed a specific content, something that is particularly important when considering risk conditions (e.g., environmental risks). Furthermore, administrative discretion may be found indirectly in the provision of a series of public services, ranging from schools and hospitals to prisons and mental institutions.11 These present the double dimension of service provision and conditions for the realization of rights. The conditions of access, the rules of operation, and even the adequacy of the infrastructure, for example, potentially impinge on rights that may be related or unrelated to the specificities of the institution in question. For instance, conditions of incarceration in terms of space and facilities, meeting the needs of handicapped people, ethnic and racial composition of schools, gender equality, and so forth depend on the resources committed to corresponding services and their rules of operation. These dimensions, however, are part and parcel of policy-making, that is, the heart of executive activity.
It is therefore clear that discretion cannot be defined simply in legal terms. It rather embraces a variety of administrative activities, responsibilities, provision of services, and public policies as much as their effectiveness. The extent to which these come under judicial scrutiny differs between the aforementioned legal traditions as well as from one country and legal system to another.
More specifically, the main question the judicial control faces is whether a public authority acted legally or not. This, however, may take different expressions in different systems: from formal legality and fair procedure to the substantive content of the administrative decision.
Judicial control deals first with the question of administrative jurisdiction, that is, whether the public authority acted within the limits of its powers, and continues to scrutinize whether it complied with procedural requirements and safeguards. Procedures constitute the “fundamentals of fair play” (Price, 1946, p. 531) and their importance for the legitimacy of decisions lies at the heart of judicial review. Procedure is not totally separate from substance. Courts apply their procedural powers “with an eye to their substantive impact and particularly in their administrative review procedural rulings often are thinly veiled judgements as to the correctness of substantive decisions” (Baum, 1980, p. 569).
In general, courts examine whether the right legal framework was applied and correctly interpreted, and whether the consequences of an administrative decision abide by the principle of proportionality and human rights. They control whether discretion was actually used: when a public authority was granted discretion, its non-use is a fault, equally when it exceeded the reasonable limits of its discretion. Depending on the degree of acceptance of administrative discretionary power, they may enlarge their scope of scrutiny (Ziller, 2003), for example, whether the appropriate solution was chosen or whether facts were correctly appraised. Accordingly, the result of judicial review may not only be to nullify an administrative decision and ask the administration to rectify, but possibly to impose the content of a decision on the administration, adjudicate on damages to be paid to private parties for a wrongful decision, and instigate policy change.
How far does judicial control go in scrutinizing policymaking and implementation? This is the essence of critical questions regarding the role of judicial control over the bureaucracy. Does the court examine matters of substance, does it re-evaluate facts and evidence, could and should it substitute its own judgment for that of policymakers, and how should it treat the technical judgment of the administrators or experts underlying the decision under examination? The answers are sometimes delicate, because they relate to the principle of separation of powers. They define the relations between the judiciary and the executive, raise issues of competence, and entail sensitive consequences for policymaking and administrative operation (Marx, 1946a, p. 525; Price, 1946, p. 534).
Constraining and Constructive Effects of Judicial Control
There is no doubt that the intervention of judicial review represents an important constraint on administrative action. Though this is essentially the very purpose of its existence in order to uphold the rule of law and individual rights, it is not devoid of problematic aspects. Constraining and constructive effects seem to be interwoven.
Fashioning Administrative Operation
Starting from decisions on individual cases, judicial control may set precedent and develop far-reaching general principles. These may or may not later become formalized by the legislature. As previously mentioned, the common law legal tradition relies much more on case law and courts have a strong rule-shaping role. In the continental tradition, judicial control may perform a similar standard-shaping activity, which is important on its own merits, as part of a more general process of institution-building. From this perspective, it is difficult to ignore the role of (continental) courts in fashioning administrative operation. Either in matters relative to administrative organization and staffing or in the way administration carries out its tasks, the courts play a significant role.
In examining how judicial review seeks to influence administrative activity, Feldman (2003, p. 289) introduces a threefold distinction: the court may direct decision-making by giving effect to legislative provisions; it may limit its activities within the legally prescribed powers; and it may structure administrative decision-making by providing principles to guide it. Such examples are the procedural requirements for fair and reasonable decisions (information, hearings, consultations, etc.) as “fundamentals of fair play,” that represent the most noticeable long-term effect of judicial review on the administrative operation. A similar effect pertains to civil service internal rules (recruitment, promotions, disciplinary procedures, etc.). The administration in anticipation may take into account proactively principles elaborated by the courts, while these principles sooner or later may find their way to the legislation (e.g., codes of administrative procedure) or the constitution on the occasion of a revision (e.g., prior hearing).
From a political science perspective one may see in this role of the judiciary a contribution to the institution-building process. Procedural requirements increase predictability in the administrative operation and decision-making, allowing for better judicial review in the future but also for citizens’ possibility to challenge administrative decisions. Judicial review may further contribute, for instance, to the strengthening of Weberian-type features in public administration regarding impartiality or merit and containing undue political influence. Equally important is the potential for enhancing legitimacy and institutional trust.
This constructive influence is highlighted in contrast to the restrictive force of judicial power. Courts make a decisive contribution by helping to build “a positive code of administrative conduct” instead of “becoming absorbed in efforts to block the growth of the service state on principle” (Marx, 1946b, p. 108).
Then again, a high degree of formalization—or “judicialization”—of administrative procedures may be harmful to the administration’s concern for achieving results and its flexibility to meet the challenges of the 21st century. This is a matter of “balancing public interests”: “In each field of activity a balance must be struck between the need for a formalized procedure somewhat resembling that of the judicial system in order to protect people from arbitrary action, and the need for administrative initiative, discretion, and dispatch, in order to further the interests of the people concerned and to protect them from frustrating formalities” (Price, 1946, p. 526). “Rigid judicial procedure would be intolerable in the wide fields of activity in which administrative agencies are today the copilots with private management” (Price, 1946, p. 543). The judicialization of administrative discretion may incur costs not only on the internal management but also on the capacity of an agency to deal with its social environment, for example, to negotiate with interest groups (Wilson, 1989, p. 283).
How far can judicial control go into matters of internal administrative operation? This question points to the perennial tension between legal and managerial perspectives on public administration, in other words between law and efficiency as sources of legitimacy. Procedural requirements are opposed to results orientation: while procedural safeguards have become part and parcel of administrative operation, the tension between the two fundamentally different sets of values was highlighted by the NPM view of procedures as more of a burden and source of inefficiencies than as a welcome guarantee against arbitrariness.
The potential of judicial influence on bureaucracy may vary, depending on certain organizational characteristics of the corresponding administrative organizations. Feldman (2003, p. 289) notes that the size and degree of centralization of administrative institutions reviewed may facilitate or inhibit the degree of judicial influence on their future behavior in similar cases. While courts impose a solution in particular disputes, its general adoption by an agency as a mainstream solution is not so straightforward. It needs to reach the leadership and meet its concern to avoid future judicial contests: it may be encouraged by the importance of the principle of uniform treatment and by the strength of top-down communication channels. Some of these features tend to be found in centralized bureaucracies such as the tax administration, usually attentive to court decisions.
Instigating Institutional and Policy Reform
The quest for balance between judicial control and the capacity of the administration to act becomes ever more difficult when it comes to issues of policy efficiency. Courts guarantee and shape the content of individual and social rights. Does this refer to the possibility to issue “commands” to the administration on how to decide a case? Does it include evaluating the adequacy of organizational and institutional forms and means, the efficiency and effectiveness of public action? Can courts further prescribe changes in organizational and policy choices, intruding into the political and managerial remit when monitoring administrative compliance? Isn’t this a violation of the organizational principle of the separation of powers? Doesn’t it go beyond the traditional judicial role to step into the realm of policymaking, which involves matters of (political and) administrative discretion? According to Wilson (1989, pp. 280 ff.), in certain cases the “sharp line” between defense of rights and policy seems to be fading.
Although these are issues that emerge in all administrative and legal contexts, national answers vary. They seem to have been most vividly debated within the U.S. legal and political framework around the concept of “institutional reform litigation” or “remedial law.” Cases such as (among others) school (de-)segregation, prison reform, and de-institutionalization of mental facilities have been addressed within this context (Chanin, 2014, pp. 278–279).
Legislative and bureaucratic action or inaction is at the root of this development (Horowitz, 1983, pp. 1281–1282). Judicial intervention that aims at filling such gaps between social change and government policy may be considered as a form of participation in the agenda-setting and, more generally, in the policy process. It makes certain issues salient so that they cannot be ignored by government, which is then obliged to take notice of—and act on—problems that tend to remain under the rug.12 “In the face of unresponsive and frequently incapable public agencies, courts engaged in the implementation and management of certain types of organizational change needed to meet requisite constitutional standards” (Chanin, 2014, p. 279). By pronouncing “organizational change or institutional reform decrees,” courts require “that governmental bodies reorganize themselves so that their behavior will comport with certain legal standards” (Horowitz, 1983, p. 1281).
These developments are generally linked to the emergence of post-materialist values and the new (social) rights in the postwar period. Particularly since the 1960s and 1970s, new rights were recognized and symmetrical state obligations were introduced by legislation. Sometimes, however, the law did not provide precise minimum standards (e.g., for institutionalized persons). Public advocacy through (collective or representative) “class action” by non-profit organizations challenged in court “the policy as a whole and the assumptions on which it is based” (Horowitz, 1977, p. 150). The intervention of courts to define standards in this regard witness the “expanding judicial role in articulating the public interest” (Horowitz, 1977, p. 149; also Wilson, 1989, pp. 286 ff.).
While administrative reform and policy change were traditionally considered to be the realm of the executive, they tend to attract “judicial activism”13 in the name of the public interest. Court decisions thus feed into the agenda-building process, shape reform proposals (examples may include matters as diverse as civil service organization or environmental issues, non-discrimination, school desegregation, etc.), introduce new policy benchmarks, and so on. They do not simply evaluate the respect of government obligations in the face of the law and individual rights but tend to adopt a political and policymaking role, that is, promote specific policy choices and objectives and assess policy effectiveness. In administrative disputes, courts often come to weigh individual against public interest (e.g., environmental protection) or evaluate government action not against positive law but against other public interest requirements. Certainly, the role of courts as “public decision makers” (Horowitz, 1977, p. 151) may be more or less explicitly claimed or implicitly tolerated depending on the legal and political system and more generally the corresponding institutional architecture. The question of “judicial impact” referring to “the ability of courts to meaningfully alter policy or politics” (Keck & Strother, 2016) is, however, debated in various legal and administrative traditions.14
The remedial role of judicial control extends to the supervision of public institutions and tends to involve them in—increasingly political—judgments as to required reform. This development affects public administration on several levels (Chanin, 2014, pp. 279–280). It comes to impinge on the management of public bureaucracies by intervening “in the ongoing business of public administration,” to instigate externally driven institutional and policy reform, and affects government programs, including their direct and indirect budgetary implications (Horowitz, 1983, p. 1267; Wise & O’Leary, 2003). It corresponds to “the new managerial role of the courts at the expense of their traditional moral function” (Horowitz, 1983, pp. 1281–1282).
This type of court intervention necessitates continuing judicial involvement in the implementation, since it calls “for alteration of an ongoing course of conduct, for a new regime of organizational behavior.” Hence, when monitoring bureaucratic compliance with their decisions, courts “become a participant in the affairs of the defendant-organization, its clients, and its whole environment, often more than a court might wish” (Horowitz, 1983, p. 1268). Moreover, the termination of such judicial involvement is a long and difficult process. Expectations are raised, and networks of groups with complementary or competing goals emerge around judicial intervention that place courts at the heart of the policymaking process: “Weighing these issues and mediating among the competing expectations is clearly a complex task, and one that is subject to strident arguments from many sides. … It is tied up in political processes among a network of many actors. That is why the termination process of judicial supervision of public services is so difficult” (Wise & O’Leary, 2003, p. 189).
Along these processes, courts tend to even become political actors. Such a perspective strongly appears in Martin Shapiro’s (1964) view of “political jurisprudence,” referring to the policymaking role of the U.S. Supreme Court, which goes as far as contesting the distinct institutional character of courts. In promoting specific policy objectives, courts become part of policy networks and are influenced by the exchange of support with social, economic, or professional pressure groups operating within them.
Judicial control is constraining by definition for the administration. But stepping into matters of management and policymaking, which lie at the heart of executive institutions and for which they are not necessarily prepared, raises new questions. In the words of Wilson (1989, pp. 290–294), “judges and bureaucrats see the world differently.”
Tensions and Limitations
Partners or Antagonists?
The relationship between judicial control and administrative operation is a double-sided coin. Accountability ensured by the courts (as well as by other institutions) needs to respect institutional autonomy. These contradictory requirements lie at the heart of the institutional separation of powers and are expressed in the variety of forms it may take. The balance between the two requirements is therefore delicate: the (involuntary) partnership may evolve into antagonism. As already highlighted, lacking managerial experience, the judges may impose procedural guarantees that overburden the administrative operation. Moving into the substance of decisions, the heart of the matter is the “fitness” of courts in deciding on issues involving a high degree of administrative discretion. It feeds an inevitable debate on the limitations of judicial review. As Mashaw (2005, p. 154) highlights, “the puzzle of judicial review of administrative action, therefore, is just this: how can such a necessary feature of modern democratic governance be accommodated to the demands of both effective administration and democracy itself?”
Limitations of judicial control have to do with the institutional characteristics of the judiciary (as compared with the executive branch) that define the scope of possible action but also the notion of responsibility in democratic government.
Among the “hazards of judicial guardianship,” Horowitz (1977, pp. 151 ff.) mentions:
Ad hoc decisions: courts are “rarely informed about the agency’s comprehensive work and they cannot aspire to anything approaching the status of coherent policy.”
Narrow focus: they prescribe solutions on the basis of very special cases. “The framing of issues is geared to the litigant and his complaint.”
Judicial process is tied to reason but there are other ways of solving conflicting interests: negotiation and compromise.
Unintended effects of decisions on individual cases: they lead to concessions to individual litigants with resources, but no change in policy.
Unanticipated consequences of policies that the courts have no machinery to detect and correct.
For Bazelon, the challenges facing courts in reviewing administrative decisions include mainly their (lack of) expertise, the fiscal implications of their decisions, their lack of a comprehensive view of policies, and so forth. Indeed, court decisions especially regarding institutional reform or remedial action may have significant budgetary implications. But what is their fiscal responsibility? “Courts cannot appropriate money. Courts can order desegregation, but they cannot always make it happen. Courts can order a juvenile detention facility closed, but they cannot build a new one,” underlines Bazelon (1976, p. 104). In terms of effectiveness, courts do not have power over all those actors that need to concur to implement institutional reform or policy change—though policy implementation theory shows that this is not an exclusive feature of the judiciary but is typical of any mandating institution (Baum, 1980, p. 562; Wise & Christensen, 2005).
Further, policymaking requires a wider view as regards affected publics, interdependent choices, and interaction between policy areas. Are courts in a position to take these into account, and what is ultimately their political responsibility in terms of democratic decision-making? Similar arguments are voiced in the strong reservations regarding the institutional reform and the policymaking role of courts (Wilson, 1989, pp. 288 ff.). Beyond judicial training and expertise, it is argued that it may be the nature of the legal process as such that is not suitable for formulating policy or that the issue is the motivation of judges to do it (Klarman, 2011).
All these arguments contribute to “the problematic character of … the use of litigation to effect change in large, complex, ongoing, public institutions” (Horowitz, 1983, pp. 1288 ff.). The judicial review of administrative agencies vested with large amounts of discretionary decision-making authority is “inherently problematic” (Bertelli & Lynn, 2001, p. 343). Among others, judges do not have a sufficient understanding of complex organizational and policy issues from outside and interfere with managerial responsibility: “court directives often contradict the duties and responsibilities of public managers” (Bertelli & Lynn, 2001, p. 317).
As scientific and technological changes enlarged administrative discretion and the risk of arbitrariness, they opened new fields of judicial control. Do courts dispose of the necessary knowledge and expertise to rule on complex cases with technical or scientific dimensions (health, environmental, and technological risks, etc.), beyond procedural aspects?15 According to Bazelon (1976), “decisions involving scientific or technical expertise present peculiar challenges for reviewing courts. The problem is not so much that judges will impose their own views on the merits. The question is whether they will even know what is happening” (p. 107). The matter is even more complex when there may be contradictory or diverging scientific evaluations.
These aspects become even more important in contemporary risk societies. They point to the limitations of judicial control and the need for wider social debates. Judicial, scientific, administrative, and democratic decision-making processes need to find a common frame of reference. “Once society has a pretty good idea what the risks are, it must still decide whether those risks are worth taking in light of the anticipated benefits … even society’s most technical decisions must be ventilated in a public forum with public input and participation” (Bazelon, 1976, p. 108). In this sense the participatory dimension of legitimacy emerges against electoral, technocratic, and rules-based legitimacy. Appropriate mechanisms in this respect include the involvement of the public (information, consultation, participation, etc.). Particularly in these areas, where the courts are clearly not competent to evaluate the merits, the administrative process must provide for a system of peer review and public oversight to guide and correct governmental decisions. Based on these, “what judges can do is to monitor the decision making process. They can ensure that the decisional process is thorough, complete, and rational, and that it takes into account all relevant information and testimony” (Bazelon, 1976, p. 107).
This is why it is strongly argued that “courts may not substitute their own views for those of the administrators” (Bazelon, 1976, p. 103); they should not reverse a decision just because the court has a different opinion, while there is “a fair and reasonable ground for difference of opinion” (Price, 1946, p. 534). Given that the court may lack the necessary specialized administrative knowledge, “reexamination of administrative evidence by the court carries with it considerable risk of ill-informed decision” and “the result would generally be inferior judgment on the one hand, and disintegrated responsibility on the other (Marx, 1946a, pp. 524–525).
Despite controversies regarding various aspects of judicial control, it is hard to ignore its importance for, and impact on, the administration. The main challenge is clearly to attain an effective balance between the needs of administrative action, including capacity and responsibility on the one hand and judicial control and protection on the other (Bertelli & Lynn, 2001; Mashaw, 2005).
The efficiency and effectiveness of judicial control of the administration are therefore equally important concerns. The contemporary volume and scope of bureaucratic activities and the availability of means to challenge administrative decisions increased the caseload of courts. However, the ability of courts “to meet the new burdens they face” was not enhanced correspondingly (Horowitz, 1977, p. 153). While people seem more informed about their rights and are more suspicious of government, the justice system appears to have been built on the premise that it intervenes by exception, that is, in the more complex cases in terms of legal interpretation or evaluation of facts. Since the possibility to challenge administrative decision renders them fragile, judicial control needs to (re-)establish legal certainty in a short time. Delays in adjudication and the ensuing precarious situations may undermine or invalidate rights, or shape de facto situations difficult to overturn.
Adding to delays, there are various obstacles to the access to justice. The cost of legal proceedings is a deterring factor for citizens. The important expenses involved result in inequalities regarding access to justice. In the same vein, not all administrative decisions may be brought for judicial review, notably when the cost greatly surpasses the benefit at stake (e.g., social benefits).16 Among other important obstacles is the lack of the necessary information to challenge administrative decisions.
A further issue is raised by weak administrative compliance with judicial decisions, in other words their implementation by the responsible authorities. There are several aspects to this issue. The first has to do with the strength of the rule of law in certain countries in conjunction with the absence of enforcement mechanisms against the state. Second, the nature of the case is equally important with respect to the “implementation gap” of court decisions. For instance, Horowitz (1977, p. 153) notices “no rush to embrace new judicially enunciated performance standards beyond what is strictly necessary.” Hesitation and delays may arise particularly when decisions incur significant budgetary expense (ordering either damage payments or a change in substance). Similarly, this may occur when a new executive act needs to be issued in order to respect the court decision, but this implies a prior change of a regulation that lies beyond the legal powers of an administrative agency. In case of a first instance (lower) court decision, the administration often chooses to exhaust all legal remedies, thereby prolonging uncertainty and raising costs for citizens. On other occasions, government may not hesitate to reverse particular court decisions by legislation.
Compliance with court decisions is undoubtedly a critical element of the modern idea of “good governance.” However, it needs to include more than that. Public officials need to anticipate the legal consequences of their decisions. They need to take into account rules and principles elaborated by the courts, making sure ex ante that administrative decisions pass judicial scrutiny and preventing unnecessary future judicial involvement on the same grounds.
A last issue is the ability of courts to integrate into their reasoning issues of efficiency and effectiveness. This aspect may be seen as an expression of the tension between the managerial approach of administrative action and the traditional legal emphasis on procedures. The dilemma “result oriented or rule oriented?” inevitably marks the uneasy relation between judicial control and administrative operation. Efficiency and effectiveness may, however, be considered by complementary intra- or extra-administrative mechanisms, which tend to bridge this gap, such as inspections and specialized courts of audit. In this case the difficulty is displaced mainly towards shaping the criteria for evaluating the efficiency and effectiveness of public action. But in terms of legal remedies, a further question arises: to what extent is there an individual right to challenge administrative decisions and actions on grounds of efficiency and effectiveness?
To conclude, judicial control over the bureaucracy essentially serves as a mechanism of legal accountability. It maintains, however, complex and dynamic relations with the various dimensions of legitimacy beyond legality, as well as with the various forms of the institutional separation of powers. In spite of its unavoidable limitations, it represents a critical component in the web of institutions aiming to ensure the accountability of the administration in light of its expanding scope and discretionary power.
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1. To the extent that international bureaucracies exercise functions similar to those of the state administration, they are also subject to the rule of law principle and to judicial review. This is the case of the EU administration and its various bodies (the Commission, agencies, etc.). It may also be the case for other international organizations for specific aspects of their activity. An invariable field is staff issues.
2. David Beetham (1991) critically discusses Max Weber’s analysis of the concept of legitimacy of the modern state. He observes that Weber seems to reduce a multilayered concept to a single dimension: the “belief in legitimacy.”
3. Judicial review is often defined as the power of the courts to control the constitutionality of legislative acts. This aspect is not addressed in this article, which is confined to the judicial control of bureaucracy.
4. Approaching judicial review from a principal–agent point of view, Law (2009) highlights that the people, as collective principal, face the challenge of asserting effective control over a potentially treacherous government. The government acts as the agent of the people and is supposed to exercise power consistent with the terms and conditions imposed by the people in the form of a constitution. Since the interests of principal and agent may diverge, judicial review supports popular sovereignty by mitigating the principal–agent problem that lies at the heart of democratic government. In this sense, the relationship between judicial power and popular rule is not antagonistic, but symbiotic.
5. Feld and Voigt (2003) distinguish between two indicators of judicial independence: “(i) a de jure indicator focusing on the legal foundations of judicial independence and (ii) a de facto indicator focusing on the factually ascertainable degree of judicial independence.” Given the hierarchical organization of courts, most important is the independence of the highest (supreme) court. They found that de facto judicial independence positively influences GDP growth. Shapiro (1977), acknowledging “the functional utility of the myth of judicial independence,” tries to unpack its “ambiguous and misleading” character in reality, particularly with regard to politics.
6. In political systems characterized by the domination of the executive over the parliament, the independence of the judiciary can be undermined through legal arrangements. Furthermore, the appointment of the heads of higher courts may in some cases still remain in the hands of the executive or the parliament.
7. Other differences of European judiciaries compared with their U.S. counterparts include selection of judges in a much less political manner, and a traditionally much more restricted policymaking role of judges. Further, while American legal education and scholarship emphasize legal creativity and policy arguments, European legal education and scholarship emphasize black letter law and logical coherence (Kagan, 1997, pp. 170 ff.).
8. To cite Mashaw (2005, p. 155), “in the modern administrative state the belief that the citizen-elector exercises democratic control over administrative behavior, even mediately through elected officials, is stretched very thin.”
9. This controversy is illustrated by the example of the Walter–Logan Bill in 1939, bringing into focus the clash between supporters and opponents of New Deal policies. President Roosevelt vetoed the bill, calling it the result of “repeated efforts by a combination of lawyers who desire to have all the processes of government conducted through lawsuits and of interests which desire to escape regulation.” The controversy led to a compromise reflected in the Administrative Procedure Act of 1946 (Breyer, Stewart, Sunstein, & Spitzer, 1998, p. 22, cited in Lynn, 2001, p. 152; see also Horowitz, 1977, p. 149; Lynn, 2001, pp. 151–152; Price, 1946, pp. 527 ff.).
10. Such examples include the Interstate Commerce Commission, 1887; Federal Trade Commission, 1914; Tax Court of the United States, 1924; Federal Communications Commission, 1934; Securities and Exchange Commission, 1934; and National Labor Relations Board, 1935.
11. Bazelon (1976, pp. 101–103) notes the wide discretion of the police, prosecution, and prison officials, but also the conditions in prisons or mental institutions affecting the rights and freedoms of individuals.
12. “It is not surprising that demands for change in the area of segregation should have been made upon the federal government. It hardly needs saying that state governments practicing segregation were closed to those demands, and so the claims had to be pressed at the national level” (Horowitz, 1983, p. 1281; see also Klarman, 2011).
13. For Holland (1991, p. 1), “judicial activism comes into existence when courts do not confine themselves to adjudicating legal conflicts but adventure themselves to making social policies affecting thereby many more people and interests than if they had confined themselves to the resolution of narrow disputes. The activism of a court can thus be measured by the degree of power that it exercises over citizens, the legislature and the administration.” Judicial activism often takes on a negative meaning, as “government by judges.” It may refer to judicial rulings that are partially or fully based on the judges’ political or personal considerations, who promote their policy preferences and block administrative decisions.
14. In the French context, for instance, this is implied by the expression “Gouvernement des juges” (government by the judges). It originated form the title of a book by Édouard Lambert (1921), referring to the resistance of the U.S. Supreme Court to institute social legislation through the judicial review of constitutionality of laws. This fear finds its origins in the French Revolution and a certain perception of democracy and the separation of powers. It is still used to describe the potential tension in the relations between politics and justice.
15. Bazelon refers to the “three revolutions” in energy, telecommunications, and biology. “In their wake, society is realizing that many “accidents of fate”—cancer, mental retardation, even crime—are products of forces which may be subject to control” (Bazelon, 1976, p. 105).
16. “In numerous types of cases that are handled by administrative agencies the citizen would get little or no tangible protection from appealing to the courts. Many administrative agencies, in matters of adjudication, deal with questions that have to be answered immediately in order to prevent hardship, or that individually do not justify the cost of legal proceedings. Thus an unsuccessful claimant for a small social security benefit will usually not hire a lawyer to contest a doubtful case, simply because the odds are not worth the cost” (Price, 1946, pp. 532–533).