Some Thoughts on Doyle & O’Brien, Reimagining Administrative Justice: Human Rights in Small Places
In Reimagining Administrative Justice: Human Rights in Small Places (Palgrave MacMillan, 2019) Margaret Doyle and Nick O’Brien have made a wonderful contribution to the public law literature. By turns playful, polemical and provocative, the authors set out to challenge much of the received contemporary wisdom about administrative justice.
Their motive is to fight back against what they see as the dominant tide of neoliberal thinking in public administration. As they describe it:
The priority of the individual user has become sacrosanct in current debate about the design of administrative justice…The desirability of making administrative justice more ‘systematic’, in the sense of more clearly structured and bounded, with practices and processes more uniformly prescribed and co-ordinated, the ‘user journey’ more transparently ‘mapped’ for ease of passage and certainty of destination, has become a cherished ideal. (6)
In current thinking there is a “strong emphasis” on the individual user, accompanied by a “predilection for ‘proportionate dispute resolution’ as the preferred route to effective closure for the individual” (39); there is an “assembly line of complaints and appeals” (116) underpinned by the “chief values of efficiency, effectiveness and economy”, which are “also those of the New Public Management” (76). Even the Ombuds, potentially a crusading force for good in public administration, has succumbed: “The emphasis on ‘early resolution’ by Ombuds betrays the impoverished nature of the ombud endeavour when measured against New Public Management efficiency targets of ‘cost per case’ and backlog reduction” (116).
Doyle and O’Brien suggest that administrative justice has shifted away from the original post-war vision of a liberal democratic society, one in which the “fundamental assertion” was that “the state and individual share in the project of good citizenship and the creation of the good society” (26): “in the case of both human rights and administrative justice, design features shaped by essentially legalistic values of ‘individual user’, ‘system’ and ‘closure’ have obscured their shared roots in democratic value and impaired their democratic potential” (7). There is a “two-tier system which recognises civil and political rights as superior, with legal enforceability the essential criterion of credibility” (31). What is required is a return to the original vision, “engagement more with the ‘culture’ or ‘mentality’ of human rights as an instrument for promoting social citizenship and equality than with human rights law as a vehicle primarily for protecting individual liberty, and with the implications of that culture for the specific issue of administrative justice design” (21).
For Doyle and O’Brien, administrative justice is “a set of principles for shaping humane relationships between citizen and state” (3), not to be confused with legalistic notions of procedural fairness and human rights. They identify “the alternative values of ‘community’ (rather than individual user), ‘network’ (as opposed to system) and ‘openness’ (instead of closure)” (8) as a means of creating “demosprudence”, “a term intended to denote practices that build on the ability of social movements or mobilized communities to make, interpret and change the law. It is a means of making more democratic the process of responding to citizen grievance and of ensuring that legal change is embedded in broader cultural transformation” (90). Indeed, theirs is a theory of law “that seeks to democratise the process of responding to grievance by fashioning values and processes that can enable civic participation and create bridges between different interests” (90). Ultimately, the aims of administrative justice should extend to “the promotion of virtuous behaviour among street-level bureaucrats, to the cultivation of virtuous disposition and so to the support of an environment in which such dispositions might flourish” (105).
They draw on design theory, which now reflects “a shift from a twentieth-century focus primarily on industrial and technological production and towards, instead, the need to recognise ‘design’ as a collective and collaborative activity, the need to involve a wider network of ‘design participants’, and the need to be open-ended rather than closed” (53). Critically, design theory is “not only about solving problems” but is concerned also with “sense-making, which inevitably involves questions of culture, of language and meaning, and of relationships” (66). In building their alternative framework of “community, network and openness”, design theory provides significant support:
First, there is the centrality of community as a counterweight to individual choice. The immediate post-war idealisation of the state and desire to serve the common good came under increasing pressure from the interests of the individual user conceived as a ‘consumer’, especially in the context of expanding markets and dispersed affluence…Secondly, there is the importance of networks as an alternative to system. If ‘system’ implies hard borders, severe boundaries, control, order and consistency, the notion of network implies something softer, more *68* fluid and potentially more complex and unpredictable…It is an attempt to remodel relationships of power so that they take account of the complexity of contemporary institutional structures, methods and modes of communication…Thirdly, there is the promise of ‘openness’ as an expression of the need for transparency, lightness and airiness; more than that, ‘closure’ is recognised as an unworthy ambition…Design that over-prescribes, whether in the urban or domestic setting, in the public or private sphere, is design that forestalls the creative interaction between individual and the common good, between citizen and state, and the possibility of sustainable co-existence between ‘strangers’. (67-68)
Moreover, Doyle and O’Brien emphasise that human rights can be found in small places: “Local authorities in particular are the small places where thousands of decisions on everyday matters are made, and where the potential for democratic participation, for the exercise of community voice, and for the realisation of social rights is most promising” (72). This runs counter to the prevailing rhetorical winds: “The inherent drama of adversarialism lends itself to the impression that there is something essentially dramatic and agonistic about human rights discourse, that human rights typically concern themselves with extraordinary situations and unusual (often unusually bad) individuals rather than ordinary situations and (usually decent) communities trying to share a life in common” (33). This is not merely a problem of rhetoric. The expansion of law’s empire – the “idea that law takes place exclusively in the courts” – in fact “has important repercussions for administrative justice”, as “[o]ther potentially relevant institutions, such as tribunals, ombuds, mediation and public inquiries are liable to easy marginalisation or, alternatively, colonisation by the legalist mentality” (37). This legalist mentality has seeped into contemporary thinking on administrative justice, marked by a concern for users, system and proportionality.
The Doyle and O’Brien construction project is based on a return to the original social democratic vision: “in their social democratic origins both human rights and administrative justice aspired to extra-legality as the means of embedding more humane values in the public realm” (78). It has four elements.
The ideal model of an administrative decision-making body is that of the “urban explorer or flaneur/flaneuse, and of the practice of flanerie as a quintessentially modern and democratic practice, transgressive of boundaries” (80), characterised by an “investigative technique of…observation and exploration, questioning, listening and looking” (81). Demosprudential investigation is a “vehicle for engaging not just individual aggrieved citizens and public authorities but broader community perspectives”, which means “legislative filters or prescribed forms of complaint” are inappropriate and there must be “scope for the ombud to receive intelligence from any source and exercise discretion on how to respond” (103).
An ombuds “does not just investigate but also ‘reports’ on what she discovers” qua “repeat-player, a role-literate participants whose experience and expertise enable her to detect patterns and so invest meaning in what might to the individual citizen appear random and isolated circumstances” (82); this is “essentially collaborative and co-operative activity” designed to ensure that a problem is not only solved “but that the solution has social meaning”: “The challenge is more than merely resolving a dispute or solving a problem and instead that of making sense in a way that depends on a viable relationship between the ombud and the parties concerned, and between the parties themselves” (83). This can involve administrative decision-makers “invoking the concept of compassion as the core of an ethic of care” (101):
Instead of decision-making or response to grievance being seen as entailing an exclusive form of rationality and cognitive detachment, a more responsive approach takes account of the parties’ beliefs and values and feelings, and therefore enables a more meaningful and conversational style of engagement in a language that reflects the concrete and affective reality of the situation rather than cognitive abstraction from it…Demosprudential interpretation entails the availability of a language that is both democratic and emancipatory and that captures the fully human dimension of citizen grievance…Such a resource already exists in the language of human rights, especially social rights, not as an easy panacea but as a tool for interpreting grievance in its stark reality and in terms that make sense to those who have taken the trouble to give voice to otherwise latent dissent…Once reinserted in their original social-democratic context, the inseparability of social and civil rights yields values of fairness, respect, equality, dignity and autonomy that can frame other more specific or sectoral guides to virtuous behaviour (102-104).
Ideally, there should be a “rolling process of interpretation” on the part of administrative decision-makers, with scope for “sharing provisional assessments, for pausing to take stock, review and revise, for asking direct questions, sharing points of view, encouraging open and continuing dialogue between the parties, not as a matter of interest-bargaining, as might be the case in a trial, but as a process of public reasoning and deliberation” (83). This process “allows for equal voices to emerge” (84); it is not engineering but bricolage: “trial and error and putting to creative use whatever comes to hand rather than sticking doggedly to some preconceived and strategic direction” (85), with the decision-maker asked to “fulfil the role of facilitator in the construction of a deliberative exchange conducted within the framework of broad human rights principle, keeping open the possibility of dialogue with the careful avoidance of premature closure” (104-105).
The administrative decision-maker’s focus should be on “restorative outcomes that carry with them a measure of public value rather than immediate and short-term individual redress” (85). What matters should be “reform of institutions” rather than “the chastisement of individuals” (85), “not so much financial or other redress…but systemic and institutional change” (105).
This combination of investigation, interpretation, iteration and institutional focus would allow human rights and administrative justice to return to their democratic roots:
In this context, ‘democratic’ carries with it a strong emphasis on the primacy of ‘equality’ as its informing value and a recognition that democracy, even when ‘liberal’, is also inherently ‘social’. It is no accident therefore that the reimagining of administrative justice, in alliance with the human rights of small places, finds its origins and inspirations in
In this context, ‘democratic’ carries with it a strong emphasis on the primacy of ‘equality’ as its informing value and a recognition that democracy, even when ‘liberal’, is also inherently ‘social’. It is no accident therefore that the reimagining of administrative justice, in alliance with the human rights of small places, finds its origins and inspirations in [the] post-war social-democratic moment (136)…a form of politics in which the value of equality is a necessary counter-balance to the celebration of negative liberty. Upon the foundation of equality is built the positive freedom to achieve shared human potential rather than merely the enjoyment of individual freedom from state interference (141).
This, I hope, does justice to Doyle and O’Brien’s fine book. There is much more, of course, including design theory which is rich and interesting but is not covered here. I hope to write two future posts, one offering some sceptical thoughts on Doyle and O’Brien’s argument, another defending Professor Jerry Mashaw’s administrative justice models against Doyle and O’Brien’s allegation that he, too, was focused on users to the detriment of social justice more generally. For now, though, just make sure to read this book.
This content has been updated on December 3, 2019 at 13:18.