Administrative law theories - Essay Example

Administrative Law Administrative law is the body of law that arises from the activities of administrative agencies of government. Government agency action may include rulemaking, adjudication, or the enforcement of a exact regulatory agenda. Administrative law is considered a branch of public law. Administrative law deals with the decision-making of administrative units of government that are part of a state regulatory scheme in such areas as international trade, manufacturing, the environment, taxation, broadcasting, immigration and transport. Administrative law extended greatly during the twentieth century, as legislative bodies world-wide created more government agencies to regulate the increasingly complex social, economic and political spheres of human interaction (Administrative law, 2006). Most countries that follow the principles of common law have developed procedures for judicial review that limit the reviewability of decisions made by administrative law bodies. Often these procedures are joined with legislation or other common law doctrines that set up principles for proper rulemaking (Administrative law, 2006). Administrative law may also apply to review of decisions of so-called quasi-public bodies, such as non-profit corporations, disciplinary boards, and other decision-making bodies that influence the legal rights of members of a particular group or entity (Administrative law, 2006). While administrative decision-making bodies are often controlled by larger governmental units, their decisions could be reviewed by a court of general jurisdiction under some principle of judicial review based upon due process (United States) or fundamental justice (Canada) (Administrative law, 2006).The range of judicial review may be limited to certain questions of fairness, or whether the administrative action is ultra vires. In terms of ultra vires actions in the broad sense, a reviewing court may set aside an administrative decision if it is patently unreasonable (under Canadian law), Wednesbury unreasonable (under British law), or arbitrary and capricious under (U.S. Administrative Procedure Act and New York State law) (Administrative law, 2006). The traditional approach The traditional view of administrative law is that it should aim to reinforce the rule of law, and ensure the liability of Executive government to the will of Parliament and, at least indirectly, of the people. However, in practice the courts sometimes thwart the will of Parliament while professing to uphold it. The trend of judicial activism in immigration law cases during the late 1980s and early 1990s exemplifies a open-minded view by the courts of the rights of refugees and other visa applicants which was clearly in conflict with the bipartisan view of Federal Parliament that a more restrictive approach was required. Every time the courts handed down a pro-rights decision, Parliament effectively nullified it by amending the Migration Act (Administrative law theories, 2000). Green Light Theorists versus Red Light Theorists The green light theory and red light theory were analysed in Harlow and Rawlings (1984) Law and Administration, Weidenfeld and Nicholson, London. The Red Light approach advocates a strong role for the courts to review administrative decisions. It considers that the function of law is to control the excesses of state. As Harlow and Rawlings put it: "Behind the formalist tradition, we can often discern a preference for a minimalist state. It is not surprising, therefore, to find many authors believing that the primary function of administrative law should be to control any excess of state power and subject it to legal and more especially judicial, control. It is this conception of administrative law that we have called 'red light theory' (Administrative law theories, 2000)." The Green Light approach considers that the function of administrative law is to make possible the operations of the state. It is based on the underlying principle that bureaucrats will function most efficiently in the absence of intervention. Administration should aim to help in simplifying the procedures and enhance efficiency. Harlow and Rawlings said: "Because they see their own function as the resolution of disputes and because they see the administrative function from the outside, lawyers traditionally emphasise external control through adjudication. To the lawyer, law is the policeman; it operates as an external control, often retrospectively (Administrative law theories, 2000). But a main concern of green light writers is to minimise the influence of the courts. Courts, with their legalistic values, were seen as obstacles to progress, and the control which they exercise as unrepresentative and undemocratic. To emphasise this crucial point in green light theory, decision-making by an elite judiciary imbued with a legalistic, rights-based ideology and eccentric vision of the 'public interest' ... was never a plausible counter to authoritarianism (Administrative law theories, 2000)." Public participation in local agencies decision making Decisions made without public input are usually considered as antidemocratic, which can hinder the acceptance of a technology. Democracy is based on public participation, at least indirect participation through elected representatives-in decisions that affect them. Few decisions today affect people more than those about the kinds of technologies that are developed and how they are used. Citizen input can be influential during the design or research and development (R&D) phase of technology (Increasing citizen participation, 2001). People can also affect how a technology is used once it passes into the public arena. Public participation in discussions about the development and uses of technology is also important for another reason-it can lead to greater technological literacy. The simple act of asking and trying to answer questions about technology can lead to a better understanding not only of technical, but also of the social, economic, and political aspects of the issue at hand. Public involvement also gives policy makers a sense of their constituents' fears and hopes, and thus an indication of the public response to a particular path of technology development, as well as to new or lesser known alternatives (Increasing citizen participation, 2001). The purpose of citizen's participation decision-making is: to develop a richer information base. Local citizens know the local needs and issues best; to educate both citizens and policy makers about the many dimensions of an issue or decision; to allow discussion of many points of view on the issue and give each citizen a voice; to make it easier to implement decision or policy easier; to help build accountability for public officials and citizen (Public participation in local decision making, 2004). However, public participation in critical regulations especially relating to health and risk regulation should be restricted since most of this decision is based on highly technical know-how. The demands for public participation in risk regulation, therefore, stems from a distrust of experts, a corresponding distrust of regulatory decision makers, and a conviction that most important risk regulations issues are not resolvable solely by reference to expertise. However, as the "interest representation" model has continued to evolve in the context of risk regulation, it has become more and more clear that the "public" is not a colossal body because man lives in a pluralistic society where one person's gain is another's loss. It has also become clear that there are several models available for structuring public partaking into the regulatory decision making process (McGarity, n.d.). Allowing individuals and groups to confront an agency's decision making forces the agency to expend resources defending itself that might otherwise be spent pursuing its legislative mission. Similarly, it requires regulatees in the private sector to expend additional resources beyond those required to deal with the agency itself. Public participation is time consuming (McGarity, n.d.). To the extent that effective public participation requires a two-way exchange of information, it can be contradictory with a regulatee's legitimate attention in defending valuable trade secrets and financial information. This conflict of interests becomes particularly acute in the context of health and environmental regulation, where the identity of a chemical and the content of any health and safety data concerning that chemical are serious to effective participation by environmental groups, but can also give way to unwarranted commercial advantages to competitors. For example, the identity of the segment of DNA inserted into that of a plant genetically engineered to secrete an insecticide is of obvious interest to both competitors and to persons concerned with the environmental effects of widespread use of the plant. This clash of interests suggests that not all participants should be treated equally in all aspects of regulatory decision making (McGarity, n.d.). As another example, organisations promoting wolf recovery or wolf protection come and go. At any given time there have been as many as 51 such organizations (International Wolf Center, 1982). Most were founded by laypeople, although a few employ biologists as staff or consultants. Furthermore most of them actively advocate for the wolf through lobbying or urging members to lobby legislators and government administrators, disseminating information (some of which may not be supported by available research), and writing letters to newspapers. Thus the quality and accuracy of the information disseminated by these organisation varies widely. Others admit intentionally disseminating false information (Anonymous,1992), whereas others do so out of innocence, negligence, or failure to check information taken from other groups. The misinformation promulgated by wolf advocacy groups varies from minor technical errors to major deception and fraud (Blanco, 1998). These misrepresentations have even made it into conference proceedings (Mech, n.d.). Reference List Administrative Law. (2006). Wikimedia. Available from: [10 Dec. 2006]. Administrative law theories. (2000). Northern Territory University, Darwin, Australia ('NTU'). Available from: [10 Dec. 2006]. Anonymous. (1992). Vaguely worded ads force Alaska to delay wolf kill. Star Tribune, 20A. Blanco, J. C. (1998). The extinction of the wolf in Spain. Account of a scientific fraud. Biologica 26, 56-59. Harlow and Rawlings (1984) Law and Administration, Weidenfeld and Nicholson, London. Increasing public participation. (2001). The National Academy of Sciences. Available from: [10 Dec. 2006]. International Wolf Center. (1982). Directory of wolf organizations. Ely, MN: International Wolf Center. McGarity, Thomas O. (n.d.). Public Participation in Risk Regulation. Available from: [10 Dec. 2006]. Mech, David L. (n.d.). Wolf Restoration to the Adirondacks:The Advantages and Disadvantages of Public Participation in the Decision. Available from: [10 Dec. 2006]. Public participation in local decision-making. (2004). University of New Hampshire Cooperative Extension. Available from: [10 Dec. 2006]. Read More