From Neutrality to Compassion: The Place of Civil Service Values and Legal Norms in the Exercise of Administrative Discretion
University of Toronto Law Journal, Vol. 55, No. 3, pp. 427-448, Summer 2005
22 Pages Posted: 20 Aug 2011
Date Written: 2005
Abstract
I start from a proposition that owes much to Willis's influence, namely, that administrative law has failed to develop an account of administrative decision-making rooted in the lived experience of administrative decision-making. Willis juxtaposed the formalism and abstract reasoning of lawyers with the functionalism and practical reasoning of civil servants. Rather than emphasizing this dichotomy, I suggest that coming to terms with the dynamics of administrative decision-making leads to a consideration both of civil service values and of legal norms. Further, I argue that courts have a key role in shedding light on civil service values and that civil servants have a key role in shedding light on legal norms.
The Supreme Court has recognized that the civil service is an 'organ of government' with a separate constitutional personality from the government of the day. The civil service, however, remains, in the judicial imagination, a means to ends set by legislative or cabinet policy makers. The notion that civil servants individually or the civil service collectively has ends of their or its own seems inimical to principles of democratic legitimacy and the rule of law. This is in large part why the administrative law account of discretion focuses more on its boundaries than on its substance. This is also why the claim that civil service values matter, or that there is a meaningful relationship between such values and legal norms, may have significant ramifications for administrative law. The analysis that follows is intended to explore these claims. It divided into two parts. To begin with (Section II), I examine civil service values as seen through the eyes of the courts. Then (Section III), I examine legal norms from the perspective of civil servants.
Suggested Citation: Suggested Citation
Do you have negative results from your research you’d like to share?
Recommended Papers
-
Jurisdiction-Stripping and the Supreme Court's Power to Supervise Inferior Tribunals
-
Policymaking by the Administrative Judiciary
By Charles Koch
-
Article I Tribunals, Article Iii Courts, and the Judicial Power of the United States
-
Ubi Jus, Ibi Remedium: The Fundamental Right to a Remedy Under Due Process
-
The Birth of a Logical System: Thurman Arnold and the Making of Modern Administrative Law
By Mark Fenster
-
Administrative Law in the U.S. Supreme Court, 2004-2006: Trends, Cases, and Unexploded Bombshells