Accountability and the Concept of (Global) Administrative Law

• Jurisdiction: South Africa
• Author: David Dyzenhaus
• Published date: 15 August 2019
• Pages: 3-31
• Date: 15 August 2019
• Citation: 2009 Acta Juridica 3

Accountability and the Concept of (Global)

Administrative Law

DAVID DYZENHAUS*

University of Toronto

The alternative diagnosis of the present state of administrative law would view

its disjointed and fragmented condition as a passing, interim phase. Such a

view may be justif‌ied because history suggests that the conceptual vacuum

created by the disintegration of the traditional model will not remain long

unf‌illed. Wemay be unable to see beyond the shards of the immediate present

and are thus forced to talk of ‘pragmatic compromise’ in order to conceal our

embarrassment; but the law cannot be reduced entirely to a process of

interstitial adjustment or social engineering.

1

I INTRODUCTION

Is there such a thing as global administrative law (GAL)? In exploring this

question, my inquiry is into what it would take for the decisions of global

administrative bodies to qualify as law. This inquiry is complicated by the

fact that in seeking to understand GAL, we have to contend with

diff‌iculties that attend any attempt to understand domestic administrative

law. Those of us who teach administrative law in common law countries

2

have to struggle with the fact that our students will have done courses

such as torts, contracts, property in which, whatever the inherent diff‌i-

culty of the subject matter, at least there is a body of law that one can point

to as to what has to be mastered or deconstructed, whatever one’s

approach. In contrast, it is not so clear what the ‘law’ in administrative law

is, because the law elements of a domestic administrative law regime are

quite complex.

First, there is the law that constitutes the authority of administrative

bodies, since they must be able to trace a warrant for their actions on

* Professor of Law and Philosophy, Toronto. I thank all who participated in the discussion

of a draft of this article at the Global Administrative Law conference in Cape Townand Mike

Taggart for written comments. In the Fall of 2008, I also had the privilege of having the paper

discussed in the Hauser Globalization Colloquium at New York University’s Faculty of Law

and I thank Benedict Kingsbury for an illuminating presentation of its arguments and f‌laws, and

all those who participated in the discussion afterwards, especially Eyal Benvenisti, Lorenzo

Casini, Nikhil Dutta, Devika Hovell , Sharon Margalioth, and Richard Stewart, as well as Eran

Shamir-Borer for an illuminating exchange of e-mails. I owe a general intellectual debt in my

ruminations on international law and global administrative law to the work of Jutta Brunnée

and Stephen Toope on the potential contribution of Lon L Fuller’s theory of legality to

international law.

1

R B Stewart ‘The reformation of American administrative law’ (1975) 88 Harvard Law

Review 1669 at 1811.

2

I hope this is not just my problem!

3

2009 Acta Juridica 3

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behalf of the state to a delegation to them so to act by a body which itself

has authority so to delegate. I will call this ‘constitutive administrative

law’. Second, there is the law the bodies themselves make when, acting

within their authority, they make decisions in order to implement their

mandate. These decisions can be more general, or more legislative, that is,

at the level of establishing general policy in order to carry out the body’s

statutory mandate, or more particular or adjudicative, that is, in deciding

what in discrete situations is required by that mandate. I will call this

‘substantive administrative law’, that is, the law established by the body.

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Third, there is the law developed to govern the way that administrative

bodies make their decisions. In common law legal orders, this body of law

can have multiple sources. It comes from principles developed by judges

in reviewing the decisions of administrative bodies, from the constitutive

statutes of the bodies, from legislated, general administrative codes, from

constitutional law (both written and unwritten), and often is developed

by the bodies themselves. I will call this ‘procedural administrative law’. It

is important to keep in mind the idea of governance or control, since the

point is not simply that there are procedures but also that the procedures

are designed to assure accountability both to the delegating authority and

to those affected by the decisions, with the assurance guaranteed ulti-

mately by the institution of judicial review.

In the late twentieth century, scholars of administrative law confronted

again a perennial problem that arises because of the unavoidable fact that

much of the substantive law made by administrative agencies is authorised

by constitutive statutes which more or less hand the task to the agencies of

developing their own legal regimes, and which moreover do so in ways

that seem not obviously amenable to judicial review. The article from

which the epigraph to my contribution is taken, Richard B. Stewart’s

‘The Reformation of American Administrative Law’, is the single most

important contribution to this round of the debate.

The central questions of this debate are highly relevant to the current

debate about GAL, since GAL shares the problematic features of domestic

administrative law that brought the problem of the legality of administra-

tive law in the late twentieth century once more into focus. In addition,

the problem is compounded in GAL by the fact that however unaccount-

able to law the modern administrative state might be, in democracies the

delegations of authority to agencies have democratic legitimacy and there

are available in principle democratic and political, if not legal, mecha-

nisms for ensuring control.

3

Though it must be borne in mind that even in common law legal orders, decisions at the

particular level may have no binding force beyond the case they decide; that is, there is generally

no presumption that they will serve as precedents.

4GLOBAL ADMINISTRATIVE LAW

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