Administrative Law in the Digital World
Forthcoming in Carol Harlow ed., Research Handbook on Administrative Law (Edward Elgar, Aldershot, 2021)
19 Pages Posted: 11 Mar 2022
Date Written: January 13, 2022
The rapid advancement of digital technologies is now reaching into almost every aspect of human life. Administrative law scholars cannot separate themselves from this profound change, which prompts an intellectual and research challenge akin to that faced by administrative lawyers confronted with the growth of the welfare state, privatisation, and other such paradigm shifts. As such, it may even require us—as transitions of similar scale have done—to call into question some of the foundations of the contemporary field.
The principal challenge is to identify the many interfaces between administrative law and the emerging digital world, seek to understand them, and search for answers to the questions that arise. Our aim in this chapter is to provide a provocation for administrative law scholars regarding the necessity of engaging with developments concerning digital technology. To this end, we explore a range of questions that are arising, by reference to a variety of examples from different common law countries, across three central domains of administrative law: judicial review of administrative action; administrative decision-making; and redress systems. The chapter is therefore broken down into three main parts, reflecting each of those domains.
Through our exploration in this chapter we seek to illuminate both the nature and importance of the questions that are arising at this frontier of administrative law scholarship and encourage administrative lawyers to take a keen interest in them. We also observe a common thread running through these diverse areas: administrative lawyers need most of all to take technology seriously, understanding the ways in which it may alter practices in the administrative justice system, and to converse with those in other disciplines (such as computer science, engineering, and socio-legal studies) who have long pondered similar issues. As public administration increasingly relies on technology to guide and make decisions, administrative lawyers will need to actively engage with the design, control, and maintenance of high-tech systems if they are to have any influence in the coming century. Administrative lawyers must be part of the conversation – but to be a part of the conversation, it will be necessary to learn the language of technologists and learn about how technology is implemented and how it operates at the front lines of public administration.
The rapid pace of developments in the digital world is proving to be an unsettling force in administrative law and will continue to be so in the coming years. It is a change of such a nature and scale that it can truly be considered a generational shift, akin to the growth of the welfare state or the push for privatisation of public services. It is, in our view, imperative that administrative law scholars proactively engage with the research agenda that is emerging in this context and we hope this chapter has not only made the case for the importance of such engagement but also demonstrated the type of questions and challenges that are beginning to form the agenda itself.
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