Democracy and Executive Power: Imagining Choice in Administrative Law

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). 

Liz Fisher

In 2008 the UK Government published a Code of Practice on Consultation (now superseded) for central government departments. On its cover was a picture of one bumble bee hovering above, and three bumble bees on, a flower. The picture has always made me wonder about what the flower and the bees are meant to represent. Is the flower a government department? Or are the bees? The answer depends on what you think the purpose of public participation is. If it is about information collection, then the government is probably the bees. But if you understand that consultation is about nurturing democracy and accountability then it is probably the public which are the bees. 

Underpinning Susan Rose-Ackerman’s important new book, Democracy and Executive Power: Policy Making Accountability in the US, the UK, Germany and France (Yale UP, 2021) is definitely an assumption that government departments are flowers (or at least in terms of the above analysis). She is explicit from the outset about the value of consultation and reason giving in contributing to the ‘democratic legitimacy of discretionary regulatory actions’ (p 4). Saying that might suggest that the book is an argument for a particular vision of administrative government and administrative law. It is not. Rather through a calm, measured, and thoughtful account of administrative law in the four jurisdictions listed in the title she develops ‘some basic principles of public law for democracies everywhere’ (p 12). This serves as the basis for a ‘reform agenda’ that ensures the ‘difficulties of balancing competence, public participation, and government accountability’ (p 266) are put front and centre.

Mathias Ruffert in his post as part of this symposium provides an excellent overview of her analysis as well explaining the significance of her approach. I do not want to repeat what he said. Rather I want to draw attention to a particular strength of Rose-Ackerman’s book. In achieving its aim, the book is an exercise in what I have described elsewhere as ‘thin’ comparative description. The distinction between thin and thick description is well known in the social sciences, but less so in law. Both thin and thick description are needed. Neither is superior to the other. Both serve different purposes. 

Thick accounts delve deeper into inference, implication, and complex conceptual structures that are ‘superimposed or knotted into one another’ (to paraphrase Clifford Geertz). Given the way public administration and administrative law lie at the intersection of so many disciplines and controversies, administrative law analysis is often thick. But thick description does not easily travel beyond the context it is operating in, and in thick analysis it can be often hard to see the bigger picture or even have an interest in it. If you are arguing about the Chevron doctrine in the US or about statutory instrument oversight in the UK it can be easy to not see the more general patterns of administrative government at play. Nor see the relevance of reflecting on other jurisdictions. What is done in Germany seems not very helpful when what is done in the UK is so deeply embedded in UK legal and socio-political culture. 

Thin description, in contrast can provide templates that aid in understanding and evaluation in different contexts. Thin description focuses on that which is observable, understandable, and collatable. Thin does not mean superficial or inadequate. There is nothing incomplete in Rose Ackerman’s thin description but there is much which aids in understanding and evaluation. Take public participation. Rose-Ackerman through a study of the different jurisdictions develops a scheme of the different ‘loci’ where public involvement does, and thus could, occur. Building on that analysis, she identifies different types of public participation including participation as finding facts (the public as a flower), participation as customer satisfaction, civic forums, stakeholder groups, and open ended notice and comment (the last three being closer to the public as bees). That analysis not only shows the importance of public participation, but also that there are choices to be made about it. It is not just about deciding whether the public are bees or flowers but a set of choices across the ecology of government practices. 

Democracy and Executive Power is a reminder of the importance of comparative analysis in thinking about administrative law and its possibilities. I say reminder, because in the late nineteenth century and early twentieth century there was a rich and varied transatlantic discourse. For example, as Blake Emerson has shown in The Public's Law: Origins and Architecture of Progressive Democracy (OUP 2019) US thinkers crafting the administrative state drew on, and adapted, German thought. Likewise, one of the first US administrative law treatises was Frank Goodnow’s Comparative Administrative Law: An Analysis of the Administrative Systems, National and Local, of the United States, England, France and Germany (GP Putnam Sons 1893). Throughout the New Deal, English legal thought was also a wellspring for administrative lawyers. But as administrative law in each jurisdiction evolved, comparative analysis waned. It is only in recent years that it has been revivified. The work of Rose-Ackerman has been significant in this development. 

The comparative analysis in Democracy and Executive Power is not just of academic interest. It provides a foundation for constructive thinking. Part of the thickness of administrative law, as the Independent Review of Administrative Law in the UK recently stated, is that ‘disagreement’ is ‘hardwired’ into administrative law culture. For example, as Sid Shapiro and I have noted in our recent book, Administrative Competence: Reimagining Administrative Law (Cambridge UP 2021), US administrative law thinking is dominated by assumptions that can make the subject seem a set of dismal binary choices: between law and administration; discretion and control; or between ideologies. Rose-Ackerman does not get caught in these binaries. Rather, she identifies a set of choices to help navigate them. She is not arguing for a particular way of doing things but for a clear-headed approach to the challenges involved. In doing so, she is not hiding from hard questions about the tensions between democracy and bureaucracy. 

More importantly, she is reminding us of the importance of this tension. In 2015 the then UK Prime Minister David Cameron referred to consultations as one of the ‘buggeration factors’ that clutter up government. Rose-Ackerman does not think that public participation is perfect but she does underscore its importance. There are choices in administrative law but there are also fundamentals. To put the matter another way, we can debate whether the bees are the public, and the flower the government (or vice versa). But there is no doubt we need both.

Liz Fisher is Professor of Environmental Law, Faculty of Law and Corpus Christi College, University of Oxford. You can reach her by e-mail at liz.fisher@law.ox.ac.uk.