Table of Contents

Comparative Administrative Law

Comparative Administrative Law

Research Handbooks in Comparative Law series

Edited by Susan Rose-Ackerman and Peter L. Lindseth

This research handbook is a comprehensive overview of the field of comparative administrative law. The specially commissioned chapters in this landmark volume represent a broad, multi-method approach combining perspectives from history and social science with more strictly legal analyses. Comparisons of the United States, continental Europe, and the British Commonwealth are complemented by contributions that focus on Latin America, Africa, and Asia. The work aims to stimulate comparative research on public law, reaching across countries and scholarly disciplines.

Chapter 21: Participation and Expertise: Judicial Attitudes in Comparative Perspective

Catherine Donnelly

Subjects: law - academic, comparative law, constitutional and administrative law


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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