Eric C. Ip: The Morality of Administrative Law
Contemporary normative theories about administrative law in the Commonwealth tradition concentrate on the appropriateness of judicial review of administrative action (see generally, C Harlow & R Rawlings). The key reference point tends to be comparative institutional competence, that is, whether the courts are in the right position to impose controls on public administration relative to the political executive and the legislature. The theoretical debates over efficiency versus accountability as the goal of administrative law; or deference versus intervention as the modus operandi of reviewing courts; or parliamentary intent versus the common law as the justificatory basis for judicial review, undoubtedly reflect extremely important considerations.
But these are not the only ones. Administrative law, even in the common law world, is transcendent to judicial review. It draws its sources not only from case law, but also constitutional documents, statutes, and conventions. Any understanding of administrative law that excludes non-judicial controls such as legislative inquests and administrative tribunals is bound to be incomplete. Public administration implicates not only the lawful implementation of primary legislation, but also the pursuit of the public interest. Concretely put, administrative officials are not ethically neutral because their discretion goes way beyond carrying out the intentions of parliamentary representatives (see DF Thompson). Given the vagueness and incompleteness of modern regulatory statutes, and the mushrooming of the administrative state, administrative officials often are at the forefront of devising public policy. They routinely make rules and adjudicate disputes. In other words, administrators are inevitably involved in making moral judgments.
This should come as no surprise. After all, public administrators are public servants. They are supposed to serve the public interest or the common good. Consequently, administrative law, the law that regulates the administrators, can be understood as a set of legal rules and standards that regulates how public servants are to serve that good – broadly conceived as the myriad material, moral and social conditions that make it possible for members of the community to pursue happiness singly and together (see J Budziszewski). Clearly, the nature and purpose of administrative law are susceptible to philosophical and moral analysis.
And yet, neither legal theorists nor administrative law scholars have paid much heed to what might be termed “the philosophy of administrative law” in general and “the morality of administrative law” in particular. This neglect is perplexing in light of the fact that the doctrines of Commonwealth administrative law are laden with moral overtones. Consider such concepts as “administrative justice”, “bad faith”, “fair hearing”, “improper purpose”, “legitimate expectations”, “natural justice”, and “reasonableness”. Morality tells right from wrong and administrative law defines certain administrative behaviours to be wrong whilst implicitly holding opposite ones to be right. In spite of this, there is little or no interaction between administrative law and administrative ethics. Morality and legality are not synonymous, but public administrators have an ethical obligation to implement and abide by the law, and in certain situations, improve on the law by way of legislative recommendations and delegated legislation, for example. Thus, ethics and morality have special importance to public administrators.
The more administrative law can be justified morally, the more it will be legitimate. A moral perspective has the potential of explaining why the various doctrines in administrative law have the content they do, and why violations of them should give rise to responsibility. Few would disagree that administrative officials should further the common good and avoid administrative evil (see G Adams and D Balfour); possess virtues like honesty and impartiality; avoid vices such as arbitrariness and perversity; and adhere to principles including legality, fairness, and accountability (see J Syara). These are moral goods in themselves, independent of instrumental concerns, and few, including judges, would disagree that administrative law should reflect these concerns.
Consider Lord Diplock’s statement on administrative irrationality in the classic GCHQ case: acts which are “so outrageous in its defiance of logic or accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at it” are legally null and void. Whenever judges hold that an administrative act is not Wednesbury unreasonable, they also implicitly affirm that it is not outrageously immoral. Administrative honesty is promoted by the rule against bad faith and by the doctrines of legitimate expectation, which enjoin compliance with official promises. Impartiality and incorruptibility are vindicated by the common law rules of natural justice against bias and on fair hearing, such that officials are legally obligated to act without prejudice or conflict of their private interests with the public interest. Legality, that ethical value which requires administrators to obey the law, is also a cornerstone of administrative law. Accountability is facilitated by the doctrines of relevancy and irrelevancy, under which administrators, given the obligations of their office and the welfare of multitudes that are at stake, are expected to make extra efforts to account for an extra wide range of considerations having been weighed up (see again DF Thompson).
The moral perspective is meant to be non-exclusive but complementary to existing normative approaches. There are domains in administrative law, such as the exact degree of judicial deference owed to a particular decision, in which ethics alone cannot provide clear-cut answers. Much can still be gained by bridging the rift between administrative ethics and law, nonetheless. Administrative law can and should be justified, evaluated, and improved by recourse to its being the embodiment in law of what administrators morally owe the community. Clarifying the moral foundations of administrative law can help body forth rules guiding the enforcement of administrative law within and without the courts. Administrative tribunals, for instance, can benefit greatly from this exercise when they review the “merits” and not just the “lawfulness” of official acts. Ambiguous concepts such as “improper purpose” can be made precise by examining their compatibility with irreducible administrative principles. Competing doctrines such as “unreasonableness” and “proportionality” can be compared and contrasted in terms of their capacity to promote these same virtues and principles.
For public servants to follow the precepts of the ethics proper to them, as reflected in part in administrative law, is not only an instrumental good, helpful to other goods like liberty and the rule of law, but also essential for a government committed to morally good actions and the common good.
Eric C. Ip is an Associate Professor of Law at The University of Hong Kong. His work on comparative public law has been published in The American Journal of Comparative Law, Oxford Journal of Legal Studies, International & Comparative Law Quarterly, and Supreme Court Economic Review