Bureuacracy, Democracy and Judicial Review: The Uneasy Coexistence of Legal, Managerial and Political Accountability
Jerry Louis Mashaw
Yale Law School
Oxford University - Handbook of American Bureaucracy, Forthcoming
Yale Law School, Public Law Working Paper No. 194
Judicial review of bureaucratic decision making is simultaneously ubiquitous and contestable. The ubiquity of judicial review of the legality of administrative actions has two foundations. First, democratic governance presumes that officials are the servants of the people, and for that normative proposition to be true, "the people" must be able to hold officials accountable for their actions. But, judicial review is not the only accountability mechanism available. Its ubiquity requires, therefore, a second factual predicate - the incapacity of other accountability mechanisms to ensure that officials serve rather than rule. No functioning democracy worthy of the name has found the primary alternative accountability mechanisms, political or managerial control, adequate to the task of sustaining democratic accountability. For this reason "democracy" and the "rule of law" have become inextricably linked, with judicial review as the keystone of the legal accountability system.
Notwithstanding its prominent place in modern democratic governance, judicial review of administrative action remains continuously contestable. Complaints of the incompetence, impertinence or irrelevance of judicial review are at least as common as praise of judicial review's efficacy. The reasons for judicial review's contestability are the mirror image of the reasons for it's ubiquity. Judicial review of administrative action simultaneously supports other accountability mechanisms that bolster democratic governance and undermines them. The institution of judicial review of administrative action is, indeed, rife with paradox. It supports democratic governance by making officials accountable to unelected judges. It protects individual rights while simultaneously ensuring state control. It legitimizes expert, bureaucratic administrative judgment by subjecting that judgment to review by bodies who often have limited knowledge of either the technical data upon which administrative action is premised or the concrete situations within which particular bureaucracies must function.
The puzzle of judicial review of administrative action, therefore, is just this: how can such a necessary feature of modern democratic governance be accommodated to the demands of both effective administration and democracy itself? My approach to this puzzle is to view judicial review of administrative action as part of a broader question of governmental design in modern democracies, that is, how to make administration simultaneously managerially effective and politically responsive. But, this is a design problem that can only be managed, not solved. For, it entails maintaining an appropriate balance among competing forms of accountability in states committed to democracy, but constrained by the demands of efficacy and by the brute facts of social, political and economic complexity.
Number of Pages in PDF File: 37Accepted Paper Series
Date posted: July 8, 2009
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