Law and Public Administration – Theme

1. Introduction

This  EGPA study group aims at fostering interdisciplinary study of the practice and theory of law in public administration and policy on national and European scales.The group will be a permanent meeting place for scholars and practitioners from different fields: social scientists, jurists and economists working in academia and public institutions, as well as civil servants working in national and supranational institutions. We want to combine external and internal perspectives on law in a public administration context. Internal perspective son law relate to juridical analysis and efforts to improve legal (sub) systems from the perspectives of rules & legal history, jurisprudence and comments. The external perspectives can be of different kinds, as they confront (administrative) law with motives that often are external to law, like efficiency and timeliness of administration, the accountability of public agencies, transparency of government and citizen’s participation in decision-making.

2. Administrative law as a research topic for scholars in law and social sciences

On a national level, the following themes form the main body of law in the context of public administration2 :

  • The relation between public administration on the one hand and citizens and organizations on the other
    • General principles of law and of proper administration
    • The decision-making process and its transparency
    • The hierarchical relation between general rules and individual-concrete decision-making
    • Law enforcement & sanctioning, and the dividing line between criminal law and administrative law
    • Subsidies
    • Legal protection
      • Administrative councils, tribunals, committees
      • Courts
      • Complaints procedure’s and Ombudsman-institutions
    • Contracts with the government, and the dividing line between public law and civil law.

     

  • The organization of the executive branch of government and the organization of the (administrative) courts
    • Internal organization and distribution of competences
    • Features of the internal acts
    • Centralization and decentralization (territorial and functional)
    • Rules of democratic and hierarchical accountability
    • Rules on transparency of government and protection of privacy.
The legal principles, procedures and institutions designed and used for the implementation of the principles, policies and legislation of the European Union (EU) and European Communities (EC). Within this context we of are also interested in the Europeanization of national administrative law.

3. Juridical analysis, comparative law and empirical legal studies in a public administration context, including the EU

The questions we would like to answer not only concern the legal rules that govern the interaction within the administration and between the administration and citizens, in order to determine their competences, rules of conduct, obligations and responsibilities. This is the perspective of juridical analysis. We want to focus on general themes of law in relation to public administration, in order to contribute to a better understanding of administrative law in other countries, as well as in the European Union. This also implies an interest in policies concerning the implementation of EU-law in national contexts. It is our experience that external perspectives, e.g. ?juridical quality control in the decision making process’ can trigger interesting vistas. We would like to know how actors in the context of public administration apply the law and we would like to understand why this is so. This will enable researchers to explore the actual operation of the law in public administration contexts.

3.1 EU-Law

The body of principles and rules of European administrative law is to be found in a number of different sources: in the EU/EC treaties and in the Nice Charter of Fundamental Rights of the European Union, in the jurisprudence of the European Court of Justice in Luxembourg and in a growing number of EC directives, regulations and other instruments used for the development and implementation of EC/EU policies in different sectors, and also in the national law applicable to the activities of public administration involved in the implementation of EC/EU policies, as well as in the jurisprudence of the European Court of Human Rights in Strasbourg.
There is a significant attempt at codifying some of these general rules and principles, with the European Code of Good Administrative Behaviour which has been drafted by the European Ombudsman. Furthermore there are a series of institutions, rules of principles which differ slightly from sector to sector and from institution to institution. One of the aims of the working group will be to find out to what extent the Code of Good Administrative Behaviour and the other bodies of principles, rules and institutions reflect evolving models of public administration and impact upon policy implementation. Far from being restricted to the administrative activities of the European Commission, comitology committees and EU agencies, European administrative law has a growing impact on the public administrations of EU member states and other European countries who have a specific relationship with the EU, such as the EFTA countries in the European Economic Area, and all the associated countries be they candidates or not to accession to the EU. Comparative studies of the application of European administrative law by different European, national and sub-national administrations, and of its impact on these bodies, as well as studies focusing on the use of instruments of European administrative law in sectoral policy fields will be a second focus of the working group.

3.2 Methodology

Juridical analysis focuses on improving parts of the legal system. It is essentially a specific kind of text analysis, for which heuristic methods of interpretation are used.3 By method of interpretation, scholars in law try to contribute to the development of the law. They aim at making past experiences applicable in the present. The central connotation in juridical reasoning are the norms of the rule of law/ rechtsstaat as laid down in constitutions. Juridical discussions often focus on specific details, e.g. the rule that arguments used in pre-trial objections procedures against a decision under public law limit the kind of arguments that may underlay appeals before an administrative court. Such a rule typically will be tested against the norms of equality of arms and access to justice, and result in proposals for adjustment.

Traditional comparative law starts from a methodology developed for civil law-relations. Hence David or Zweigert and Kötz developed a classical distinction between French, German, Scandinavian and Common Law legal systems.4 We think that comparative administrative law needs to develop its own methodological perspective, because it is our experience that the classical classification of legal systems does not help explain differences found. They relate to legal history and specific choices made for reasons that make sense in a specific national context. For a foreigner an important way to learn to know and understand these choices – apart from reading and text analysis- in order to be able to adequately interpret rules of a national administrative law is via an intensive exchange with researchers and experts from different national contexts. Thus, the aims of traditional juridical analysis are enriched by foreign perspectives.5
Traditional legal studies try to improve the structure and interconnectedness of legal rules. The traditional means to do that is via interpretation of texts in similar and different contexts. However, from a sociological perspective many questions lawyers ask in order to elaborate their interpretation of the law are questions of fact. This is so in application of the law in concrete cases, but questions of fact also apply where questions of fact are posed in order to evaluate and improve current legal frameworks, be it on an institutional or on a relational level. Context and meaning do interact, but this often means that empirical – concrete questions must be answered, before an evaluation of the law on an aggregate level can be given. For that reason we think also legal researchers should explain the way they designed their research and implemented it, in order to make clear how they developed their normative reasoning in a specific context. This will often lead to methods of qualitative research, but does not exclude quantitative legal research. Hence, next to traditional legal research, and comparative legal research, we ask attention for an empirical approach to law., where the contribution of other social scientists is fundamental.

We are open for any subject relating to administrative law, but we will explicitly ask for legal studies and also empirical studies by socials scientists other than lawyers on the following four subjects:

Relations between Citizens, Customers and the administration
It is a trend stemming from the New Public management and Good Governance, where public organizations use management tools suggesting that they are similar to private companies. This also fits the trend to organize administrative tasks in agencies or privatize public tasks altogether. But in some countries public companies have a special legal position, with public law contracts between the company and its customers/citizens. In this perspective citizens turn into customers. An important question is in how far customers of public services have rights and obligations similar to citizens, and if and how these rights and obligations are enforceable.

The Justice-chain in a public administration context
A subject that deserves continuous attention is the organization of law enforcement, on the national level, on the EU-level and on the level of the interaction of the EU and national enforcement agencies. Usually this subject is understood as a government activity. But from a classical legal protection stand, it also refers to maintaining the law vis à vis the government. The subject focuses generally on legal norms and organizations that operate the legal norms, and on civil rights. Law enforcement is a broad subject because it involves an active approach by different public sector organizations that together build the justice chain. The concept of a ?justice chain’ is well known from a criminal law perspective, but also in administrative and civil law enforcement thinking in terms of a justice chain has not been elaborated systematically, whereas it may be considered essential from a perspective of timeliness of justice.

Legal evaluation of new legislation
a. New policies usually are elaborated in new legislation. Often this legislation is of an instrumental nature, but it is also used to install new institutions, or in order to live up to demands following from EU policies. In modern public administration government often is obliged to conduct evaluation studies on the effects of the new legislation and the performance of the new institutions also from juridical perspectives. Of course this is most interesting in legislation that changes relations between government and citizens from a general perspective, and thus generally affects citizens’ rights and obligations. But it may also be interesting to see in how far these effects occur in sectoral legislation. More specifically, administrative law as a discipline has not been able to come up with terms and definitions for contexts where citizens in their quality of subjects have been transformed into customers and where institutions under public law were transformed into service providers in a competitive context. Yet this is the case in some countries in education, in health care and in adjudication.

b. Within the context of this theme we also ask for papers on the effect of regulatory tools and legal instruments in the implementation of EU policies.
Practitioners and scholars who are not specialised experts in EC law are often confused by the number and diversity of policy documents issued by the EU institutions: directives, regulations, decisions, recommendations, resolutions, green and white books, non papers etc. Is it possible to draw clear lines between binding ?hard law’ and non binding but committing ?soft law’? What are the mechanisms ? legal and extra-legal ? by which mere declarations of intent or gentlemen’s agreement are transformed into common policies? The use of the label ?new modes of governance? since the Commission White Paper on Governance (2001) has not really been helpful in clarifying the issue. Furthermore, the impact of European regulatory tools, especially of directives, often differs from country to country due to unforeseen and perverse effects which appear at the stage of national and sub-national application of European texts. Analyses of the different policy instruments used in specific policy sectors and empirical studies could help in developing a clearer understanding of these issues.
European administrative law in practiceThe emergence of an integrated European administration poses problems in the current practice of European institutions and Member States administrations that have not been addressed as a main concern in the doctrinal works produced so far. Many question still need to be answered, e.g.: What is the daily practice of the principles, institutions and procedures of European administrative law? To what extent is there a common set of rules and practices applicable to different European Agencies and the European Commission services? Do sector regulations lead to the building practices and cultures which are common to a policy sector beyond the boarders of member and associate states, or is the set of national practices and cultures still predominating upon the application of European administrative law principles and rules? What are the problems encountered by different public administrations as well as citizens, enterprises and non governmental organisations in the application of European administrative law? What are the factors which explain successes and failures in these processes? Is it possible to analyse it in terms of efficiency and cost-benefit analysis, as well as in terms of democratic accountability? One of the answers to these concerns includes analysing litigation which ends up in court proceedings at national or European level, or claims brought to the European Ombudsman or its national counterparts. Empirical studies would also be helpful in trying to answer these questions.

1: This study group continues the work of the former study groups on European Administrative Law, Public Administration and Public Policy, and Management and Delivery of Justice.
2: We avoid using the term ?administrative law’ for drawing boundaries to our subject, because the dividing line between administrative law and civil law, and between administrative law and criminal law is drawn differently in different countries. Hence for that purpose we use here: ?Law in a public administration context’.
3: B.N. Cardozo, The growth of the law, Yale, New Haven and London, 1924; G.J. Wiarda, Drie typen van rechtsvinding, Kluwer, Deventer.1999.
4: Vgl. R. David, and J. E.C. Brierley, Major legal systems in the world today : an introduction to the comparative study of law / René David, London : Stevens, 1985K. Zweigert and H. Kötz, Introduction to comparative law, Clarendon Press, Oxford 1998. For a genuine approach to Comparative administrative law, see M.Fromont, Droit administratif des Etats européens, Paris, PUF, 2006.
5: W. Pintens, Inleiding tot de rechtsvergelijking, Leuven University, 1998, is more pragmatic, but sticks to the traditional taxonomy. For an approach that favours a sensible outcome, see: A.E. Oderkerk, The importance of context: selecting legal systems in comparative legal research, Netherlands International Law Review 2001, p. 293-318; Ralph Michaels, The Functional Method of Comparative Law, Duke Law School research paper No. 87, November 2005.

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