Researching Public Law and the Administrative State (Daly & Tomlinson)
Joe Tomlinson and I have posted “Researching Public Law and the Administrative State” to SSRN:
The modern administrative state is vast and complex. Public lawyers who seek to make sense of it face a difficult challenge and, over time, different ways of confronting the administrative state have emerged. Broadly speaking, academic studies relating to the administrative state by public lawyers have adopted one of two broad perspectives: the external and the internal.
External public law studies of the administrative state analyse the external controls on the decisions and actions of administrative officials. In practice, these studies tend to focus on three subjects. First, judicial review of administrative action, conducted in the common law tradition by the ordinary courts. Second, political oversight of administrative decision-making by the executive or legislative branch. Third, other accountability and redress mechanisms, ranging from market forces to ombudsmen. The different forms of the external perspective are typically associated with different methodological approaches. Whereas judicial review of administrative action has principally been studied doctrinally, interpretively, or theoretically, the other forms of accountability and redress have been more closely associated with approaches typically deployed in other academic disciplines, such as political science and sociology.
Internal studies of the administrative state focus on the internal structures of government and how policy is implemented, locating the role of law within this architecture. As with the external perspective, the internal perspective has certain preoccupations in terms of subject matter. First, how decisions are taken on the frontlines of public administration, for instance in welfare services or immigration administration. Second, how frontline decisions are subject to internal review and appeal via mechanisms, which may be located within the same decision-making structure or elsewhere. Third, how authority is distributed within administrative decision-making processes, as between hierarchical superiors and their nominal subordinates. Again, different methodological approaches have been prominent in work from the internal perspective, depending on the form it takes. Socio-legal scholarship has been especially prominent, as have theoretical approaches drawing on literature in public policy and governance, but legal-doctrinal work is often necessary to provide structure for empirical or theoretical inquiry.
In this chapter, we explore public law research on the administrative state from internal and external perspectives. First, we show how this distinction has deep historical roots across jurisdictions. We then set out the general landscape in relation to work from the internal and external perspectives. Finally, we show how the methodological attachments associated with these approaches are increasingly falling away, paving the way for a more methodologically diverse phase of public law scholarship concerned with the administrative state.
This content has been updated on June 24, 2022 at 15:02.