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Discovering the Logic of Administrative Law–A Reply to Guy Seidman and Dolores Utrilla

[Editor’s Note: In this installment of I•CONnect’s Article Review Series, Guilio Napolitano responds to two separate reviews by Guy Seidman and Dolores Utrilla of his 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. Guy Seidman’s review of the article is available here, and Dolores Utrilla’s review is available here.]

Response by Giulio Napolitano: Discovering the Logic of Administrative Law–A Reply to Guy Seidman and Dolores Utrilla

Giulio Napolitano, Professor of Administrative Law, The University of “Roma Tre”, Italy

I am extremely grateful to Guy Seidman and to Dolores Utrilla for their generous and thoughtful reviews of my article on Conflicts and Strategies in Administrative Law.

I share Guy Seidman’s starting point. Even though it is perhaps “less glamorous” than constitutional law, administrative law deserves full academic attention, both for its practical importance and for its analytic complexity.

Unfortunately, the province of administrative law remains largely unexplored, especially outside national borders. In the last ten years, however, there have been some encouraging signals of an enhanced relevance of administrative law in the worldwide legal debate. One of those signals is the emergence of “global administrative law” as an important field of research and discussion. The international symposium on “multipolar administrative law,” which was held in September 2012 at New York University School of Law, promoted by Sabino Cassese and Joseph Weiler, was another important occasion of research and debate. My article on Conflicts and Strategies in Administrative Law is the revised version of the paper discussed at that conference.

Let me add one point to Professor Seidman’s argument in favor of an increased attention toward administrative law. The rise of administrative law is certainly connected with the worldwide diffusion of big government that along all the twentieth century was at the origins of an ever growing number of state agencies and employees, entrusted with ever more tasks and empowered with ever greater public prerogatives.

But the role of administrative law remains highly relevant also in the context of rolling back the State.

That was true during the 1980s and 1990s, when privatization and deregulation was expected to cause a sudden fall of administrative law that ultimately did not happen (as it was recognized even by Richard Posner). Administrative law will play an important role also in the new landscape emerging after the financial and the sovereign debt crisis. The former is at the origins of a new regulatory era, both in the U.S and in Europe. The latter requires a ‘selective’ administrative law in order to prevent the waste of public moneys and to implement the spending review process.

What is still needed, in my view, is a much greater development of comparative administrative law. This remains the more relevant loophole in the current study of the discipline, even though some important initiatives have been taken in recent years (I refer to the Comparative Administrative Law network promoted by Susan Rose-Ackerman at Yale University and to the book of collected essays which was edited by Susan and Peter Lindseth in 2012; let me add that in 2007 I edited an Italian textbook on the subject entitled Diritto amministrativo comparato).

From this point view, economic and political insights, as far as public choice and game theory approaches, can offer a great contribution to the diffusion of common analytical tools and to a deeper understanding of the outcome of collective action in the shaping of administrative law at different latitudes and in the selection of models and transplants especially in supranational legal areas, as the European Union’s one. I tried to develop a similar approach in a recent book entitled La logica del diritto amministrativo.

The European perspective is exactly the one adopted by Dolores Utrilla in her review in order to test the “dynamic” and “flexible view of the formation of administrative law” that I offered in my article. All the three points she raises are really relevant. I will try to engage with each of the questions Dolores raises.

The first one, apparently, is a matter of definition (but it’s not only that). I label the potential conflict between the European Union and a Member State in the administrative implementation of European policies and rules as “institutional” rather than “political”. Dolores argues the opposite. Broadly speaking she might be right, as far as European institutions can have political visions different from that of national governments. My fundamental point however is that those conflicts are not driven, at least in an explicit way, by political arguments as it happens on the contrary in the United States, when a Democratic president and a Republican Congress fight each other. When the European Commission proposes the enactment of a regulation or a directive, and when it opens an infringement procedure it acts as an active watchdog of the Treaties, not as a political body. And it would be extremely dangerous and disruptive if a Member State reacts by blaming the Commission for acting on political grounds, instead of arguing on the basis of purely legal arguments.

The second point concerns the power to rule. I fully agree with Dolores in saying that the rules on administrative organization and procedures are crucial in order to ensure efficiency, uniformity and primacy of the substantive rules of the Union. And it is also true that in recent years there has been a shift of the regulatory power from the Member States to the Union. Let me add that sometimes this shift has been an advantage for national governments too. As a matter of fact, this way they have gained a preferential way to reform critical features of the administrative system, bypassing the complex legislative procedures existing at national level and the related political conflicts. All that of course may have several effects in the relationship between political and economic actors, both at the European level and the national one. From this point of view, one of the key issues of the future will be the destiny of the different proposals aiming to a European codification of the rules on the administrative procedure.

The third point regards the role of the judiciary in the institutional struggle that leads to the creation of administrative law. This role is highly relevant at the national level, as I suggest in my article, but also at the European level, as Dolores rightly points out in the article review. The European Court of Justice has played a very important role in expanding the scope of the European provisions, included those affecting administrative law issues. I share the opinion that this can lead to a convergence of national administrative law towards the standard imposed by the EU law. Dolores is also right in stressing the role played by some national constitutional courts in resisting the advance of the integration process, acting as last protectors of national sovereignty. We all bear in mind the impact of the recent judgments made by the German Federal Constitutional Court. Of course, the effects of the interplay between European and national courts and the wider legal community are unpredictable, as Miguel Poiares Maduro rightly points out.

I would like to add that national administrative courts and tribunals, on the contrary, seem to act much more as loyal agents of the European Court of Justice, deferring many cases to its preliminary ruling and favoring in this way the integration process. This could be explained once again as a matter of coalition capacity. As a matter of fact, some constitutional courts seem to be closely linked to the national political system, somehow helping it in its transaction with the European Union. Administrative judges, on the contrary, are more distant from politics and feel themselves as a part of an integrated judicial system.

To conclude, let me thank the I-CONnect blog for this opportunity. It is important to resist the view of administrative law as the babel of national legal traditions and as an unstable set of fragmented legal provisions. There is a logic in administrative law too, and the study of conflicts and strategies in its formation and implementation can provide an aid in discovering it.

Suggested Citation: Guilio Napolitano, Discovering the Logic of Administrative Law–A Reply to Guy Seidman and Dolores Utrilla, Int’l J. Const. L. Blog, Sept. 3, 2014, available at: http://www.iconnectblog.com/2014/09/3307.

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Published on September 3, 2014
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