by Christopher Forsyth, Mark Elliott, Swati Jhaveri, Michael Ramsden, and Anne Scully-Hill (eds.). Oxford: Oxford University Press, 2010. 496pp. Cloth $175.00/ £75.00. ISBN: 9780199581054.
Reviewed by Timothy J. O’Neill, Department of Political Science, Southwestern University. Email: oneillt [at] southwestern.edu.
It is a daunting task to review a book with five editors and thirty-two authors. It is a challenging task when the subject is a comparative analysis of administrative law systems in nine nations. It is a frustrating task when, despite the editors’ best efforts, the whole is less than the sum of its parts.
The reader doesn’t find a clear statement of the central goals and assumption of the book until page 61: “core values of judicial review” operating in a common law system of administrative law “transcend constitutional and other differences between different legal systems,” making a comparative study worthwhile. The introduction asserts that the book’s central questions are “not just about how judicial review” facilitates "good governance” but also “whether it should be placed centre-stage” and what is good governance itself (p.4). The authors generally accept that the rule of law, procedural fairness, and the protection of human rights are at the heart of effective judicial review in administrative law. They are not always clear how and why judicial review demonstrates what “good governance” actually entails beyond this conventional trinity of court-centric concerns. Successive sections explore what are the foundations of judicial review, its role in administrative law, what is necessary for effective judicial review, the conditions necessary for an independent judiciary, and focused discussions of Hong Kong and Chinese trends in administrative law.
The rise of the modern administrative state poses special challenges to common law systems. Unlike the French administrative law tradition, where independent administrative courts were created with their own specialized procedures and mechanisms of legality, common law systems have had to either adapt common law perspectives to supervise bureaucratic policy-making through traditional due process doctrines or to create hybrid systems of traditional common law courts and new administrative tribunals.
In post-industrial nations there are “millions of contestable administrative decisions” made annually. Absent administrative dispute resolvers such as administrative tribunals, the formal court system would collapse (p.86). At the same time problems of overzealous or abusive bureaucratic practices have been compounded by the trend toward privatization of what were once assumed to be purely governmental activities and the concentration of power in the hands of the executive. The authors attribute the growth in court supervision of administrative actions to the increased scope and complexity of the [*403] administrative state, the passage of new constitutional instruments such as Hong Kong’s Basic Law, and a rights conscious citizenry willing to use the law to challenge or correct perceived abuses of public power (p.xxxiii).
Despite the occasional comment (pp.5, 34), most of the authors assume the reality and necessity of a politically neutral jurisprudence. Several authors stress the key value of an independent judiciary, with special attention to shielding judicial appointments from political pressures (p.11). Yet the insistence that life appointment is essential to the preservation of judicial independence (pp.181, 192) is nowhere actually demonstrated and therefore contributors fail to come to grips with an enduring scholarly dispute within American public law about whether judicial elections in US state systems foster or restrict improper political pressures. Unfortunately, apart from corruption and a handful of other obvious improper influences, there is little attention directed at what may be legitimate and healthy political influences. The authors seem oblivious, apart from one passing reference, to judicial selection processes that are explicitly connected to electoral incentives.
Perhaps their blindness may be attributed to the fact that virtually every author is a commonwealth based practicing attorney or academic law professor. Apart from government and court reports, there is little empirical evidence offered. The chapters generally rely on doctrinal analysis and deal with procedures and remedies to the point that one author candidly admits, “The views advanced in this chapter may be overly technical for some tastes” (p.285).
I would have welcomed a discussion of the underlying assumption that somehow courts are and should be different from other political institutions in liberal democracies. The explosion in bureaucratic and executive policy making in the modern state compels courts to look beyond simple legalism. The reality is that courts are interdependent with executives and legislatures, not apolitical guardians of values that should be above politics. Moreover it has not only been executives that have aggrandized more power to themselves. Courts have done so as well.
Several of the authors in EFFECTIVE JUDICIAL REVIEW concede that partisan and ideological attacks on courts are not peculiar to the US. Contesting political elites have focused on courts as a device to advance policies and values in other nations as well. Why, then, their confident assertion that electoral accountability threatens an independent judiciary?
Careful empirical research such as James Gibson’s 2009 JOURNAL OF POLITICS article supports the position that judicial elections generally contribute to positive public perceptions of the judiciary. Other studies such as Choi, Gulati and Posner (2007) find that elected and appointed judges perform at similar levels in terms of opinion quality and output. This study also suggests that elected judges appear to be as independent as appointed judges.
Bruce Peabody nicely sums up my concerns in his introduction to THE POLITICS OF JUDICIAL INDEPENDENCE (2011): “[O]ur [*404] analysis of judicial independence requires moving beyond the presumptions that courts work best in political isolation, that they necessarily operate from a position of institutional weakness, and that their independence is primarily justified by strictly legal objectives” (p.17).
It should not be controversial to suggest that politics affect courts. The American constitutional framers were well aware of the dangers posed by an independent judiciary substituting its members’ beliefs, agendas, or egos for the will of the people as manifested in more directly accountable institutions such as executives and legislatures. These concerns are manifested in the long list of constitutional devices they thought essential to correct the dangers of an independent national judiciary: joint executive and legislative selection of federal judges, congressional control over judicial budgets, congressional control over the appellate jurisdiction of the Supreme Court and, the statutory jurisdiction of all federal courts, and the capacity of Congress to over-rule courts decisions through laws and constitutional amendments.
A better model for comparative analysis might be Jason Pierce’s essay examining the causes for and consequences of growing institutional and personal critiques on courts in Australia, Great Britain and the US (in Peabody (2011)). He takes seriously that factors in addition to judicial doctrines and administrative structures mold the values and behavior of political and judicial actors. Such an approach would permit the authors of EFFECTIVE JUDICIAL REVIEW to cultivate a more realistic view of how law and politics actually mix in contemporary nations.
The book does have golden nuggets of insight and analysis worthy of the reader’s attention. Perhaps the most unexpected argument is He Baibo’s analysis of what he perceives to be the emergence of due process and procedural norms in Chinese administrative law, suggesting that “there is an undercurrent of judicial activism under the glacier of legal formalism” in China (p.400). Philip Dyke persuasively reveals how the “democratic deficit” in Hong Kong’s partially democratic system has prompted Hong Kong citizens to turn to the courts to resolve issues that would normally be settled through the political process (p.418). Carol Harlow nicely discusses the tension between the instrumental value of swift and efficient dispute resolution and the “dignitary theory of due process rights founded in human rights values” (p.87). Finally, Cora Hoexter and Cheryl Saunders helpfully analyze how South Africa and Australia have transformed their common law heritage into a codified, constitution based system of administrative supervision (pp.43, 61).
There are also a few anomalies in the book. In a volume focused on comparative administrative law in the common law world, why is there an article on China’s incremental adaptation of due process values and procedures while the world’s most populous common law nation and arguably most bureaucratized government, India, receives no attention whatsoever? At least the He Baibo contribution suggests that the common problems and challenges confronting all sophisticated [*405] administrative law systems make questionable the simple distinction between common law and other legal systems.
Choi, Stephen J., Gulati, G. Mitu and Posner, Eric A. (2007). “Professionals or Politicians: The Uncertain Empirical Case for an Elected Rather Than Appointed Judiciary.” University of Chicago Law & Economics, Olin Working Paper No. 357; 2nd Annual Conference on Empirical Legal Studies Paper (August). Available at SSRN: http://ssrn.com/abstract=1008989 .
Gibson, James L. 2009. “‘New-Style’ Judicial Campaigns and the Legitimacy of State High Courts.” THE JOURNAL OF POLITICS 71 (October): 1285-1304.
Peabody, Bruce. 2011. “Introduction,” in Bruce Peabody, ed., THE POLITICS OF JUDICIAL INDEPENDENCE (Baltimore: Johns Hopkins University Press), 1-18.
Pierce, Jason. 2011. “Conflicts with Courts in Common Law Nations,’ in Bruce Peabody, ed., THE POLITICS OF JUDICIAL INDEPENDENCE (Baltimore: Johns Hopkins University Press), 168-191.
© Copyright 2011 by the author, Timothy J. O’Neill.