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, 2nd
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.