[Editor’s Note: In this installment of I•CONnect’s Book Review Series, Joe Tomlinson reviews Peter Cane’s book on Controlling Administrative Power: An Historical Comparison (Cambridge: Cambridge University Press 2016)]
—Joe Tomlinson, Lecturer in Public Law, University of Sheffield School of Law and Associate Fellow, Crick Centre for the Public Understanding of Politics.
The comparative study of law and administration did not keep pace with the recent journey of comparative constitutional studies from ‘a relatively obscure and exotic subject studied by a devoted few’ to ‘one of the more fashionable subjects in contemporary legal scholarship’.[1] This, of course, does not mean that there have not been important studies in the field. There were early landmark works, such as Goodnow’s 1903 study of the administrative law systems of the U.S., England, France, and Germany.[2] Since, administrative law texts that have comparative dimensions would, from time to time, appear. A very well-regarded example is Schwartz and Wade’s 1972 book on Administrative Law in Britain and the United States.[3] Notwithstanding such texts, there has been a lack of a sustained scholarly community devoted to studying the topic. Now that seems to be changing. There is renewed interest in comparative administrative law and the signs of revival are many.[4]
One high-profile indicator is the international Public Law Conference series, first hosted in Cambridge in 2014, and again in 2016. The first conference considered the theme of Process and Substance in Public Law. It was well attended by a diverse crowd of scholars from the common law world. The diversity of the audience and presentations made the affair, somewhat inevitably, drift towards having a comparative tone. Capitalising, the 2016 event—on the Unity of Public Law?—was a more pro-actively comparative affair. The concrete academic output from this series, thus far, has been two multi-jurisdictional works.[5] The less concrete, but even more valuable, gain has been the emergence of a biennial transnational forum for administrative lawyers—a new space where comparativism can breathe naturally. Another important indicator was a successful conference held at Yale University in 2008, organised by Professors Susan Rose-Ackerman and Peter Lindseth. The conference generated an edited volume, Comparative Administrative Law.[6] That volume spawned another conference, in 2016, which led to a second edition of the text.[7] Beyond these two examples, there are many other signs that the field is springing back to life.[8]
It is against this backdrop that Professor Cane’s new book, Controlling Administrative Power: An Historical Comparison, is published.
Professor Cane opens his book by asking the reader a series of questions about how we may explain the differences in certain aspects of the administrative law systems seen in the U.S., Australia, and the U.K. Instead of seeking to answer these questions in the ‘typical lawyer’s’ style of elaborating different normative concerns prioritised by different systems (i.e. by reference to normative political theory), Professor Cane takes a ‘structural’ approach and he adopts a particular terminology to frame this approach. A ‘control regime’ is understood as having three key parts: a set of institutions, a set of norms, and a set of practices. ‘Institutions of control’ include courts and parliaments. A ‘system of government’ is defined as a set of institutions, norms, and practices concerned with ‘the allocation and distribution of public power, including administrative power’. Control systems are thus a sub-system of a system of government. Expressed in these terms, Professor Cane’s core thesis is that ‘similarities and differences between control regimes may be partly explicable by similarities and differences between… systems of government’. In other words, the nature of the control of administrative power (including administrative law) is influenced by the system of government in which it exists.
The book—which presents an extensive and detailed study—seeks to demonstrate the core thesis by discussion of the control regimes in three systems of government: Australia, the U.K, and the U.S. General historical accounts of the systems of government in each of these jurisdictions are set out, before the book goes on to look at various aspects of the control regimes (each of the chapters can be read as a free-standing work). The closing chapter offers some methodological reflections that arose from the author’s experience of the project.
The striking feature of this book is the breadth of its coverage. For comparative administrative law—just as for administrative law in the domestic sphere—there is a choice to be made between, broadly speaking, two conceptions of the project: the narrow and the broad.[9] A broad conception would involve examination of all aspects of the relationship between law and administration. This would extend, for example, to the study of initial decision-making, tribunals, agency rule-making etc. A narrow conception involves focusing on the application of legal rules, commonly through judicial review. Professor Cane’s book takes the broad approach. For his ambition in this respect, he must be given great credit. While a purely narrow conception of the comparative administrative law project could introduce a degree of diversity into conventional doctrinal scholarship, many important and interesting aspects of the interaction between law and administration would be excluded. This book informs readers of many of these wider aspects, and a more judiciocentric study would—at least in the eyes of this reviewer— have been far less interesting, informative, and important. Credit is also due because with this approach (and it benefits) comes a much greater burden on the scholar. The author is well aware of this burden and acknowledges his limited capacity as a sole author to draw together such a broad-based analysis of ‘three highly developed and extremely complex systems of government and law’:
[T]he book should be read as an invitation to agreement or disagreement rather than as ‘definitive’ in any sense. This book presents a point of view, relative to time and place, and the preoccupations of the author. I have no doubt that the breadth of my canvas delivers a multitude of hostages to fortune and creates a great many opportunities for scholars more knowledgeable than I about particular topics, systems and periods, to contest my interpretations. I can only hope that despite its shortcomings, the picture I paint provides some readers with nourishing food for thought.
Despite Cane’s warnings in this respect, the analysis here is insightful and well-constructed—though a lesser or less experienced scholar could have been crushed under the weight of this project.
The significance of this book is not to be found its central thesis. Though a trove of interesting material is assimilated and discussed in the course of the argument, the conclusion that ‘similarities and differences between control regimes may be partly explicable by similarities and differences between… systems of government’ is, with the greatest respect, not too revelatory. Rather, the great value of this text is—within the context of the emerging renaissance of comparative administrative law—its sheer ambition. Professor Cane’s book, as he readily admits, is itself a beginning and not an end. When it is properly located within a field which is in the early stages of maturity, the text can be seen as setting a standard for brave scholarship: when a retreat into comparing judicial doctrines would have been the safe choice, the author chose to leave his ‘comfort zone in various directions’.
Suggested Citation: Joe Tomlinson, Review of Peter Cane’s “Controlling Administrative Power: An Historical Comparison”, Int’l J. Const. L. Blog, July 14, 2017, at: http://www.iconnectblog.com/2017/07/book-review-joe-tomlinson-on-peter-canes-controlling-administrative-power-an-historical-comparison
[1] Ran Hirschl, Comparative Matters (Oxford: Oxford University Press,2014), 2.
[2] Frank J Goodnow, Comparative Administrative Law: An Analysis of the Administrative Systems National and Local, of the United States, England, France, and Germany (New York: Knickerbocker, 1903).
[3] B Schwartz and HWR Wade, Legal Control of Government: Administrative Law in Britain and the United States (Oxford: Clarendon Press, 1972).
[4] For discussion and context, see: Susan Rose-Ackerman and Peter Lindseth, ‘Comparative Administrative Law: Outlining a Field of Study’ (2010) 28 Windsor Yearbook of Access to Justice 435.
[5] John Bell, Mark Elliott, Jason NE Varuhas, and Philip Murray (eds.), Public Law Adjudication in Common Law Systems (Oxford: Hart, 2016); Mark Elliott, Jason NE Varuhas, and Shona Wilson Stark (eds.), The Unity of Public Law? Doctrinal, Theoretical and Comparative Perspectives (Oxford: Bloomsbury Hart, 2018).
[6] Susan Rose-Ackerman and Peter L Lindseth (eds.), Comparative Administrative Law (Cheltenham: Edward Elgar, 2010).
[7] Ibid.
[8] Above, n 4.
[9] This broad distinction is reflected in various distinctions drawn in the law and administration literature, e.g. the distinction between ‘red light’ and’ green light’ approaches to administrative law (Carol Harlow and Richard Rawlings, Law and Administration (Cambridge: Cambridge University Press, 2009), Chapter 1) and the distinction between internal and external administrative law (Bruce Wyman, The Principles of the Administrative Law Governing the Relations of Public Officers (St Paul: Keefe-Davidson Co., 1903)).
Comments