Comparative Administrative Law at its Best

Guest Blogger

For the Balkinization symposium on Susan Rose-Ackerman, Democracy and Executive Power: Policymaking Accountability in the US, the UK, Germany, and France (Yale University Press, 2021).

Matthias Ruffert

What is our aim in writing books on comparative administrative law? “Democracy and Executive Power” is what administrative law, or the major part of it, is all about, so it is the comparative method applied by Susan Rose-Ackerman that makes the difference to most (or almost all) other presentations bearing a similar title. Probably, we can think of three targets of comparative research in administrative law. The first, nearest to what comparatists do in private law, is less pertinent in the book discussed here: The creation of uniform or at least harmonized principles and rules for a newly created jurisdiction. European administrative lawyers often adopt that approach when elaborating on how EU administrative law shall be designed and applied. In a book comparing the US with the UK, France and Germany, this level of analysis must obviously be missing. Second, a comparative study can bring the discussions of one’s own administrative law and the scholarly debates around it to scholars from other jurisdictions. Third, it can make the stakeholders in one’s own jurisdiction think about alternatives, new principles or just creative scholarly approaches.

The aim of Susan Rose-Ackerman’s book is somewhere in between the two. Readers from the three European jurisdictions (or elsewhere) get helpful and deep insights into the state-of-the-art in US administrative law and are enabled to cross-check their views with what is pertinent at the other side of the Atlantic. Such explanation can be de-mystifying in eliminating misperceptions of what the American situation might be. However, as I tend to submit with some reluctance, but nevertheless with certain conviction, such use of comparative law rarely if ever is able to influence the substantive debate elsewhere. This statement points at aim number three: Writing about other jurisdictions to show what could be improved in general, or in your own. This is what makes the book so important for American readers. In this context, it is interesting to see that Rose-Ackerman’s endeavour is mirrored by a German project, similarly by a leading administrative law scholar, roughly (not exactly) of the same generation, Eberhard Schmidt Aßmann (Das Verwaltungsrecht der Vereinigten Staaten von Amerika, 2021).

Comparative administrative law is neither banal nor mono-dimensional. Comparative administrative legal work requires enormous efforts, as can be seen in the long list of co-operators, either individual or institutional, in the beginning of the book. It is useful to work with (ideal) types of accountability (pp. 17-21): performance, rights-based, policymaking, and it is possible to explain what lies behind these terms in a manner that can attain general recognition. But again, it is not as easy as that, and Rose-Ackerman’s book is aware of it. Translations are often impossible; there is, to give an example, no legal term in German that matches “accountable” exactly, and we learn that this is due to a use of the term which is near to the root of the word in “financial rectitude” (p. 17). In other instances, concepts which are crucial for one administrative legal system are nearly unimportant to another one. This applies to cost-benefit-analyses and Germany – there may be administrative law practitioners who have never heard of such procedure (therefore very short: pp. 142-3). We are also correctly referred to the context of the relevant rules and principle. They are basically rooted in the respective requirements of constitutional law. To take up German law again, the idea of the chain of legitimacy is crucial – any office, and in the end any administrative decision must potentially be traced back to the democratic sovereign, represented in Parliament. This is of course a perspective that is neither realistic nor very much open to exportation. And there is other context that must be considered in comparison, much more difficult to detect, frankly speaking. How do human rights and all the Brexit troubles influence English administrative law (p. 36)? What about the social sciences turn in German administrative law summarized under the provocative heading “neue Verwaltungsrechtswissenschaft” (new science of administrative law; p. 54)? Should we not be aware about such trends in law and its scholarship when writing about another jurisdiction? Susan Rose-Ackerman is.

Among the many topical areas that would require more intensive scrutiny, two shall be chosen as being representative for Susan Rose-Ackerman’s comparative approach. First: agency independence. It took some time until the European discussion understood why agencies had to be independent under U.S. constitutional law. All general remarks on comparison in administrative legal matters are applicable here: Agency independence in the U.S. is the product of a distinctive historical development in government, legislation and Supreme Court decisions. These conditions are absent in their concreteness in Europe, but there are general grounds of independence transcending the different jurisdictions: adjudicatory functions that require equidistance to the parties affected, economic impartiality following privatization or the organization of expert advice untainted by political influence (p. 87-8). In this regard, we can identify many independent creatures in administrative organization in all jurisdictions under scrutiny, but independence bears the same constitutional background as in the U.S. Therefore, the challenges for independence on the one hand and the maintenance of democratic legitimacy on the other hand are different jurisdiction by jurisdiction. In the U.S., independence was considered to be challenged even by public subsidies (see the Amtrak case, p. 111-2); in France and Germany, the formal judge-type independence of the members of the Courts of Auditors (Cour de Comptes, Rechnungshof) is noteworthy, but the effect of the reports of these bodies is limited (pp. 114-5). At least, there is a lot more independence on both sides of the Atlantic than just the one of agencies created by Congress.

Second, the role of interest groups either participating in rulemaking or in challenging rules. The importance of public participation in rulemaking is a leitmotif of Susan Rose-Ackerman’s approach to administrative law (see pp. 146 ff. of the book), and it is not difficult to see that the notice-and-comment-procedure is far advanced in this respect. The German experience is limited to public planning (Planfeststellungsverfahren), and the slowness of planning due to inappropriate participation (either excessive and creating nimbyism or insufficient and creating public unrest at a late stage) shows that the American experience could provide lessons. Curiously enough, this becomes apparent in the current debate on speeding up planning processes to build a resilient infrastructure for renewable energies (the so called “eco-eco-conflicts”). The extension of standing, in particular for environmental groups and similar associations (pp. 215 ff.) is an aspect of the topic where jurisdictions on both side of the Atlantic are struggling for the best solutions. The awareness of the divergent interests involved is often overshadowed by political disequilibrium and doctrinal uncertainty in the application of the pertinent rules, not least by the Court of Justice of the EU.

Comparative administrative law is Susan Rose-Ackerman’s core academic interest, visible hitherto in the handbook (Comparative Administrative Law, 2^nd edition) and also in the very helpful blog (Comparative Administrative Law Blog) bringing together the works of scholars from all over the world. “Democracy and Executive Power” unites the main threads of scholarly work on the field. It is unequalled in asking the right questions to the different administrative legal jurisdictions. In this, at the same time it consolidates the long efforts to detect what is important in comparative administrative law, and it is also a brilliant starting point for research to come which will probably integrate jurisdictions outside the core western ones: Asia (with Japan in particular) and the global south largely speaking.

Matthias Ruffert is Professor of Public Law and European Law at Humboldt Universät zu Berlin, Germany. You can reach him by e-mail at matthias.ruffert@rewi.hu-berlin.de.