In Defence of Mashaw’s Administrative Justice Models
In their excellent book Reimagining Administrative Justice: Human Rights in Small Places (Palgrave MacMillan, 2019) (discussed here) Margaret Doyle and Nick O’Brien attack what they perceive as a neoliberal, individualistic turn in thinking about human rights and administrative justice. No quarter is given by the authors to those they consider responsible, one of whom is Professor Jerry Mashaw. I’ve discussed Mashaw’s administrative justice models here. Of Mashaw (and Michael Adler), the authors write:
[E]ach of these models…expresses an essentially jurisprudential mentality, governed by dominant values of individual user, system and closer as the marks of tidy and fair decision-making. The imaginative context is that of the individual case, landing on the desk of a decision-maker and inviting resolution, within carefully prescribed systematic limits, albeit informed by preferences in the margins that may betray the dominance of one or other of the normative models advanced (134).
I think these criticisms are too harsh.
First, Mashaw’s frame of reference is 1970s/1980s social security decision-making. His models are a product of the world in which he was working. Given that Doyle and O’Brien perceive a gradual shift away from the post-war social-democratic vision of human rights towards a more individualistic administrative justice culture the individual-facing focus of Mashaw’s models should not come as a surprise.
Furthermore, there may be a methodological disagreement here. Mashaw can be understood to have been interpreting extant administrative justice models; at the very least, the conceptual framework he constructed was responsive to existing decision-making structures. By contrast, Doyle and O’Brien have a purely normative argument. The core of it is as follows:
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).
If the respective authors’ methodological approaches are different — normative theory in the case of Doyle and O’Brien; interpretation in the case of Mashaw — disagreement is to be expected. Condemnation is not called for (at least without a frontal, and successful, attack on the methodology of the target).
Secondly, it seems to me to be wrong to suggest that there is no room in Mashaw’s models for Doyle and O’Brien’s “demosprudence”, with its emphasis on investigation, interpretation, iteration and institutional focus rather than the rapid resolution of individual grievances. Certainly Mashaw was focused on individuals’ interactions with the state. His work is individualistic to that extent. Nothing in Mashaw’s models, however, prevents decision-makers from taking an iterative or interpretive approach, especially in the professional treatment and moral judgment models.
Indeed, the boundaries of the professional treatment and moral judgment models are not fixed: one of the lessons of recent introductions of automated decision-making might be that individuals sometimes expect professional treatment and moral judgment from administrative decision-makers who are neither trained in a particular profession nor occupying adjudicative functions.
Moreover, Mashaw was concerned with ‘getting it right’ and ‘putting it right’, i.e. interactions between the individual and the state. However, when administrative decision-makers focus on ‘setting it right’ – part of the administrative justice task not addressed by Mashaw’s models — investigation, iteration, interpretation and institutional focus are absolutely possible.
So whilst Mashaw’s models have an individualistic bent, they do not in my view exclude the emphasis on investigation, interpretation, iteration and institutional focus championed by Doyle and O’Brien.
Thirdly, a wholesale rejection of administrative justice frameworks proposed by Mashaw and others creates the risk of a loss of focus. Doyle and O’Brien invoke the flaneur/flaneuse and bricolage as metaphors to capture their vision of demosprudence. But for such work to be meaningful, s/he must have some streets to walk in and some structures to observe lest s/he find herself completely adrift with no navigational markers in sight. Accordingly, some sort of framework which pre-exists and facilitates his or her inquiries seems to me essential. And Mashaw’s models (and the AJTC’s virtuous circle) provide a very useful framework, in my view.
This content has been updated on December 3, 2019 at 14:19.