Research Handbooks in Comparative Law series
Edited by Susan Rose-Ackerman and Peter L. Lindseth
Chapter 21: Participation and Expertise: Judicial Attitudes in Comparative Perspective
Catherine Donnelly Judicial review of administrative action requires courts to confront the tension between the values of public participation and expertise in administrative decision-making. This chapter examines these tensions from a comparative perspective, using the United States (US), the European Union (EU), and the United Kingdom (UK) as case studies. Of course, administrative decision-making is justified in many different ways (Frug 1984). The Weberian understanding of ‘a hierarchical, professional and politically neutral public administration’ with indirect democratic legitimacy (Weber 1978: 956–1005, Bugaric 2004: 483) probably has the earliest origins. More recently, notions of participation or ‘open public administration’ (Bugaric 2004), as well as expertise, have been advanced as bases for administrative legitimacy. Participation and transparency, it is claimed, advances direct democratic legitimacy and in certain circumstances, deliberative decision-making processes (Hunold 2001); while expertise implies that administrative decision-making is objective and rational, immune from political and special interest influences (Majone 1996, 2000). Each rationale has found favor with different commentators at different times and the question for consideration here is how the courts manage these competing claims to legitimacy. Structurally, this chapter will be straightforward: each jurisdiction – the US, EU, and UK – will be considered in turn. These jurisdictions provide interesting comparative material because the background context in each arguably frames the interaction between participation and expertise in very different ways, a process that in turn influences how courts have managed the tension between the two. Attitudes to participation and expertise have also had an impact on the way the...
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