May 10

Janet McLean: Public Office and Public Law

This blogpost was first published on the I-CONnect blog.

In the West we often talk quite glibly about the democratic underpinnings of administrative law. In this project I investigate what English administrative law looked like when property was the basis of political authority and how the administrative apparatus, and the norms which governed it, changed in the transition to democracy as the legitimate source of authority. Even up until the early nineteenth century, property was considered to be a source of independence and the basis for stability and legitimate political interest. Only propertied men were free; sustaining property interests sustained societal and economic order.

Prior to the ascension of democracy as the source of legitimacy and authority, the idea of independent public office had a central part to play in the legitimacy and accountability frameworks of the political and administrative systems. Both political and administrative officials held public office. What was to become a core distinction between office-holders able to exercise legitimate political authority and the administrative office holders of the civil service had its origins in statutes denying certain of the Crown’s placemen from holding seats in Parliament.

Public office was itself considered a variety of property, and many offices were held “for profit”. Particularly in the period between 1780 and 1850 both the courts and the legislature were engaged in defining and placing limits on the nature of that property interest. Such limitations were intended to preserve the property interest from corruption by appealing to the values which the property interest, properly understood, was intended to support–namely, stability and independence, personal accountability and public trust. The legislature undertook extensive inquiries, as well as piece meal legislative reform. Judges identified officials whose independence required protection, interpolated ideas of public trust into certain contractual frameworks, helped supervise conflicts of interest, expressed concerns about the sustainability of certain public services and controlled certain delegations.

Of course the story has numerous layers because neither the legislature nor the courts were themselves immune from corruption, venality and the degradation of the property interest. What is interesting is to identify where exactly the lines between propriety and corruption were drawn, even given these complications. Particularly interesting is the way in which ideas about improper conflicts of interest changed over the period.

Janet McLean is a Professor of Law at The University of Auckland.