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Article Review: Guy Seidman on Giulio Napolitano’s “Conflicts and Strategies in Administrative Law”

[Editor’s Note: In this special installment of I•CONnect’s Article Review Series, Guy Seidman and Dolores Utrilla offer separate reviews of Giulio Napolitano‘s article on Conflicts and Strategies in Administrative Law, which appears in the current issue of I•CON. The full article is available for free here.]

Review by Guy Seidman: Putting the Study of Administrative Law Where it Belongs–Front and Center

Guy I. Seidman, Professor of Law, The Interdisciplinary Center, Herzliya, Israel

It is with great delight that I am reviewing Prof. Napolitano’s paper entitled “Conflicts and Strategies in Administrative Law”, a thought provoking theoretical analysis of administrative law. It deals with some of the most profound issues concerning administrative law regimes in a way that is multi-disciplinary and relevant in virtually every nation wishing to establish an effective regime of the kind. To explain my interest and enthusiasm for this paper let me set it in its context, then discuss the actual paper.

Public law is the body of law dealing with government: it answers fundamental questions such as how is government formed, what powers if has, and what legal limitations are placed on its operation. We commonly translate this general statement into the specific legal fields (and courses) that are covered under the term ‘public law’ which are constitutional law, administrative law, and many more fields where government agencies are the prime actors (such as criminal law but also tax law and environmental law).

The first two fields somewhat overlap, but they are, at least to me, quite clearly distinct: I see constitutional law as dealing with the foundations – the framework creating and empowering government and securing basic human rights and civil liberties – and administrative law as the branch of law governing the organization and actual operation of public agencies.

I would categorize most cases of judicial oversight of public agencies in the latter not the former field (which is why I do not use the term judicial review, typically associated with constitutional review).

I think it is fair to say that for many decades it is constitutional law that has enjoyed the lion’s share of academic and public attention: dealing with the ‘big picture’ and the ‘big questions’, it was here that the great debates of modern democracy took place and it is here they were decided. This is not only the case in the United States, where constitutional law has long been considered a highly prestigious field of law, but in many other nations where constitutionalism has proliferated in recent decades: while comparative law was traditionally limited to private law, since the end of World War II and with each wave of democratization, the study of the constitution, nationally and comparatively, greatly expanded.

Administrative law, the field of public law that deals with the more practical aspects of government work–how agencies are created, how they operate and how they are reviewed–was long considered less glamorous, and enjoyed significantly less academic attention. People such as me – an unashamed administrativist – consider this to have been  a gross oversight. In our era most (and probably all) nations have seen some form of ‘government sprawl’: an ever growing number of state employees, working in ever more (publicly funded) agencies that are entrusted with ever more tasks and employ ever greater public powers. To me, the real challenge is to make sense of all this: identify the official agencies, understand their function, clearly define their powers and provide oversight and review mechanisms to protect citizens against abuse of discretion and waste of public moneys.

These issues raise questions of huge practical importance but also of great analytic complexity, and clearly there is room for much research in these fields. To my delight administrative law is enjoying a renaissance in recent years with great national, international, comparative and interdisciplinary interest among legal scholars. It is here that Prof. Napolitano paper fits in, and where it provides its original contribution.

Prof. Napolitano beings at the classic starting point: Max Weber’s account of bureaucracy – the entity that is operated by administrative law – as “a rational machine, with linear decision making process”. Weber’s vision now seems overly kind and simple. For this reason, Napolitano continues with a series of insights, drawing from what a wide range of disciplines – law, economics, political science – have learned since the early 20th century. He explains that behind the calm façade of administrative law lies intense competition among “political, institutional, and economic actors, who struggle, interact, and bargain” over the content and application of administrative law and through it over the workings of the vast government bureaucracy, the allocation of public funds, and the protection to human and civil rights.

This short paper offers realism and insight. Through this paper we look beyond the questions what administrative law is and how it effects the operation of government and the rights of its citizenry to looking at the heated political competition over its actual design and implementation, where each political, intuitional and economic actor “acts as a rational agent, trying to maximize its welfare through its manipulation of administrative law.” The ideas that Prof. Napolitano speaks of are relevant and explain the competition behind the design of virtually any administrative agency – national, international or supranational, where “[p]ublic administration is no longer a ‘machine’; [but] part of a wider collective arena, in which public and private parties complete, interact, and bargain.” That said, Prof. Napolitano strikes a fine balance between theoretical multi-disciplinary ideas – law, public choice, game and political theories to name but a few – and tangible, concrete examples from various jurisdictions such as US federal administrative law and EU law.

In summary: Prof. Napolitano has treated us to an introductory paper of great interest. I advise readers to look at closely, and I, for one, am looking forward to reading much more from him.

Suggested Citation: Guy Seidman, Putting the Study of Administrative Law Where it Belongs–Front and Center, Int’l J. Const. L. Blog, Aug. 23, 2014, available at: http://www.iconnectblog.com/2014/08/article-review-guy-seidman-on-giulio-napolitanos-conflicts-and-strategies-in-administrative-law

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Published on August 23, 2014
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