A Post-Liberal Critique of Administrative Justice

Notwithstanding its title, Politics and Administrative Justice: Post-liberalism, Street-level Bureaucracy and the Reawakening of Democratic Citizenship by Nick O’Brien is a short but challenging book that says very little about administrative justice as such, i.e. about the justice inherent in public administration. However, it does say a great deal about the present and future role of administrative justice institutions, i.e. about the role of tribunals, ombuds and civic mediators (trained individuals who bring the parties in dispute together in an attempt to reach agreement and, if possible, achieve a settlement), that deal with and attempt to resolve citizens’ grievances and complaints.

What makes the book challenging is its rejection of the prevailing liberal approach to the role of these institutions, which is essentially backward-looking and concerned with righting wrongs, and its promotion of a post-liberal, non-judicial approach which is forward-looking, involves the active participation of everyone affected by the decision and focusses on the ways in which administrative decisions should be taken, That said, an even more radical approach, which is not mentioned in this book, would, in my view, have started out with a focus on first-instance decision making and considered what might be involved in getting decisions ‘right first time’. This would have been a ‘bottom-up’ approach as distinct from the conventional (legalistic) ‘top down’ approach which O’Brien rejects or the participatory but still ‘top down’ approach which he favours.

O’Brien’s approach will come as no surprise to those who have read his previous book, Reimagining Administrative Justice, co-authored with Margaret Doyle, because it adopts a very similar approach. However, while that book explored the relationship between administrative justice and human rights, this book argues that there is urgent need for a radical reassessment of the way the law is involved in conflicts between citizens and the state. Drawing on a wide range of sources, O’Brien examines how the everyday regulation of street-level bureaucracy could play an integral part in reimagining post-liberal politics and the role of law.

Politics and Administrative Justice begins with an interesting discussion of street-level bureaucracy and what O’Brien identifies as the ‘ethnographic turn’, which aims to get under the skin of those who implement public policy on behalf of the state. It then proceeds with a sustained critique of the principles of legalisation (which emphasise the role of law in practical problem solving) and judicialisation (in which officials emulate the role of the judge in resolving disputes). His narrative draws on an impressive array of critical thinkers – including W. A. Robson and Richard Titmuss, in the UK, and Judith Shklar, Philippe Nonet, Philip Selznick and Samuel Moyn, in the USA. Their arguments are used to inform his critique of liberal legalism and his embrace of responsive law and forward-looking regulation. They are also invoked in support of his criticism of the judicialisation of tribunals in the UK and his preference for ombuds institutions as more collaborative ways of ‘responding to the grievances citizens may have about the operational practices of the state’ (p. 63). O’Brien argues that ombuds, and to a lesser extent, civic mediators, are best placed to bring the parties in dispute together and to promote a social conversation between them. However, social conversations do not necessarily lead to agreements and, where they do not, some kind of determination may need to be imposed.

As O’Brien puts it on page 113, ‘The challenge [is] one of how everyday intervention by tribunals, ombuds and civic mediators can …  contribute constructively to social conversations …  that further the prospect of deliberative practice.’  Drawing on his own experience of grievances and disputes involving mental health, special educational needs and disability issues, he argues that administrative justice institutions charged with hearing and resolving disputes should function as facilitators in bringing the parties together and exploring with them those patterns of institutional failure that gave rise to the problem in the first place. In this way, he believes that administrative justice institutions ‘can serve as bridging institutions between the individual citizen, the street, and the state’ and can do so with a measure of ‘deliberative creativity’ that is not normally achieved in practice. While this somewhat utopian approach could possibly be adopted in small jurisdictions with limited caseloads, it is doubtful how applicable it is to disputes that arise in much larger jurisdictions like social security and child support law, immigration and asylum law, and employment law, where time and resource constraints are all-pervasive.

These criticisms notwithstanding, as a social-legal researcher with a background in and a commitment to empirical research, what I missed most in this book was the absence of any empirically based accounts of how administrative justice institutions actually operate, and examples of good practice by ombuds and civic mediators of the ways in which they currently operate that could be built on.