Administrative law : indefinable, but necessary and very much alive

• Author: Mirko Pečarič
• DOI: 10.10520/EJC-c6bf4228f
• Published date: 01 January 2016
• Date: 01 January 2016
• Record Number: sapr1_v31_n1_a6
• Pages: 91-113

91

ARTICLE

ADMINISTRATIVE LAW: INDEFINABLE, BUT

NECESSARY AND VERY MUCH ALIVE

Mirko Pečarič*

ABSTRACT

This article deals with the endurance of administrative law acting as a culturally conditioned

and inclusive community element. The article seeks to highlight the interplay between

various factors but also the elusiveness of administrative law which shifts from rigid towards

more converging norms. Administrative law is based on subjective means and objective

tools that depend upon the contextual, social, cultural and political situations. It represents a

social catalyst between individual preferences on one hand and the needs of communities

on the other – a catalyst that in an increasingly complex society is even more needed to hold

communities together. An attempt is made to show administrative law in the light of meta-

legal and cultural theory because we are not yet fully aware of all psychological, emotional

and other implications of this discipline of law, especially in our age of complexity.

Administrative law is not for sissies – so you should lean back, clutch

the sides of your chairs, and steel yourselves for a pretty dull lecture.

– The late Antonin Scalia, Associate Justice of the Supreme Court of the United States1

1. INTRODUCTION

The nal decades of the last century saw a rise in the interest in administrative law

(AL), the largest among all disciplines of law. From the 1980s onwards, due to the

inuence of New Public Management (NPM),2 AL has experienced a different approach

to regulation based on liberalisation, that is deregulation, but this practice paradoxically

1 Antonin Scalia, ‘Judicial deference to administrative interpretations of law’ (1989/3) Duke LJ 511 at

511.

2 Christopher Pollitt and Geert Bouckaert, Public Management Reform: A Comparative Analysis - New

Public Management, Governance, and the Neo-Weberian State (Oxford University Press 2011); Jan-

Erik Lane, New Public Management: An Introduction (Routledge 2002).

* University of Ljubljana, Faculty of Public Administration, Republic of Slovenia

https://doi.org/10.25159/2219-6412/2643

ISSN 2219-6412 (Print)

© Unisa Press 2017

Southern African Public Law

https://upjournals.co.za/index.php/SAPL/index

Volume 31 | Number 1 | 2016 | pp. 91–113

92

Pečarič Administrative Law: Indenable, but Necessary and Very Much Alive

has led to an increased inuence on the part of the regulatory state. 3 The growth of rules

(due to Vogel’s Freer Markets, More Rules4) in times of economic crisis is even more

rapid, but the struggle of states for a different organisation to address the economic

crisis by the public administration and the common dissatisfaction with the states’

results show more complexity and intensity than the regulatory goals and their means

realise. However, the processes of deregulation have had the opposite effect: efforts to

introduce competition have led to increased re-regulation and state interventionism and

to an even larger role for AL. Although the liberal legal orders of the twentieth century

were based on the protection and sanctity of property rights and the inviolability of

the private sphere, these elds nonetheless required public interest rules by the state

focused on community for their effectiveness and efciency. It seems that wherever the

liberal ideas of the market appear, the relatively centralised state rules are also present.

The ideas of liberalism are based on human rationality and intelligence, whereas the

ideas of state interference are based on the notion of the good of the community as a

whole, that is, on the public interest that is or could be demolished by individual selsh

or egocentric decisions. Let us call these non-intended consequences and dualism of AL

as the paradox of change.

Europeanisation as the process through which the European Union’s political and

economic dynamics are becoming part of the organisational logic of national politics,

and the emergence of the regulatory state as its consequence, have greatly increased the

share of AL at the national and at the supra- as well as trans-national levels. This fact has

blurred the boundaries between the effects of different actors in the state’s performance

even more than before. Although cooperation between the public administrations of

the EU member states is of an informal nature due to the EU Treaties, the impact of

community law and administrative cooperation is increasing. A messianic search in some

European states for solutions from other member states, which were then non-critically

taken from their ‘natural’ political and economic environment, did not produce the so-

wanted results. It seems that the different organisations of public administrations can

be equally administered from one centre only: in the case of the EU, the development

of AL was and still is largely based on the more or less lenient5 case law of the Court of

3 Seidman and Gilmour have coined the concept of the ‘regulatory state’ in their study of the American

government through the transition from the positive state to the regulatory one. The positive state

provides goods and services directly, while the regulatory one attempts to achieve similar goals in

an indirect way, via regulation (through the guidance and control systems), the private sector and

markets. See Harold Seidman and Robert Scott Gilmour, Politics, Position, and Power: From the

Positive to the Regulatory State (Oxford University Press 1996).

4 Kent Vogel, Freer Markets, More Rules: Regulatory Reform in Advanced Industrial Countries

(Cornell University Press 1996).

5 Usually the legal questions are left to the court of law, whereas the actual ones to the administration;

there is an intermediate stage between the judiciary and the administration where the court is more

(factual state) or less lenient (the legal questions) regarding the decisions of the administration;

although it appears that the administration has more discretion when the factual questions are

concerned, it is sometimes quite the contrary. It is precisely at this point that the administration should

make every effort to show a logic that derives from the fact-nding. American authors warn that the

decisions of the courts may seem somewhat surprising to foreigners: ‘[h]ow odd. The American courts