Administrative Law for the 21st Century – Administrative Law on an Illiberal and Post-Democratic Context is a 100-page monograph divided into 7 thematic chapters and a conclusion. The central theme is to try to define the original meaning of administrative law, to list the main factors that have contributed to the modification of this original idea, especially in civil law systems, to establish a relationship with the main “threats” of the current socio-legal context and to point out some ways to overcome these challenges or at least to deal with them in a safer way than the current approach adopted by administrative law.
The first chapter focuses on the definition of the “idea of administrative law”, establishing the historical link between this branch of law and the bureaucratic organisation of power, dating back to ancient civilisations. It is acknowledged that this origin of administrative law as an internal law of the structure or architecture of power was modified with the emergence of constitutional law and, above all, with the need to “imbue” this organisational law with respect for fundamental principles and fundamental rights. It should be noted that, at this stage, a distinction was made between civil law systems (which promoted the need for special law and special control over administrative activity, mainly administrative acts) and common law systems (which did not recognise the need for “administrative authority” and reduced the activity of the administration to the general rules of law). This dichotomy was eventually overcome by administrative law, which presented itself as a concept capable of encompassing the very functional relationship between the institutions of power and between them and the administered, declaring that the “issue” was always one of the juridification (in the sense that relationships previously organised by internal instruments have become subjected to legal principles and rules) and juridicisation of institutional relations. The overcoming of this traditional dichotomy of legal families became evident after the Second World War, with the globalisation of law, the influence of Europeanisation, the internationalisation of fundamental rights, the “constitutionalisation” of human rights and the need to promote the study of comparative law. A transformation that, in administrative law, has taken the name of the “new administrative law”, in which the Germanic construction that calls for the “imposition” on the administration of the function of giving effect to all fundamental and human rights stands out. It is the excesses into which the legal protection of administrative power is transformed and in which it becomes entangled that cause some of the current challenges posed by illiberalism, precisely because legal measures transforming society are emerging that are imposed on a social reality that has not yet, at least, accepted or consolidated them fully. Administrative law, which had recently acquired the “status” of a guarantor of rights, is being transformed into a confrontational legal-authoritarian instrument with nobody to gain from this transformation.
The second chapter attempts to (re)define the theoretical foundations of an administrative law adapted to the liberal model of Western society, focusing on a “dialogue” with four recent works: Liberalism and its Discontents by Francis Fukuyama (2022); The Light That Goes Out. How the West Won the Cold War but Lost the Peace, by Ivan Krastev and Stephen Holmes; Power to the People. Constitutionalism in the Age of Populism, by Mark Tushnet and Bojan Bugaric; and The Constitution of the Common Good, by Adrian Vermeule.
The third chapter outlines the possibilities for administrative law to help overcome the contradictions that characterise the present moment and have contributed to the crisis of the liberal model of Western society. Various forms of de-characterisation of values and distortion of regulatory instruments in the second half of the twentieth century are highlighted: economic regulation is transformed into an element for promoting and fostering neo-liberalism; social regulation is transformed into security paternalism; the guarantee of freedoms becomes the basis for new forms of censorship (or cancellation); the recognition of personal self-determination is hijacked to support activism and other forms of ‘imprisonment’ of the communicative public space by minorities. In the book, administrative law, as an instrument for the realisation of fundamental and human rights, is pointed out as a reason to undermine the balance of the democratic rule of law and consequently to contribute to the emergence of populism and other forms of corrosion of the Western political model.
We propose a “return” of administrative law to its “original course” of a typically bureaucratic law of authority, within the framework of the implementation of democratically legitimated policy(ies), under the primacy of the principle of legality. On the other hand, there is a guarantee of effective judicial protection for the administered, both against arbitrary decisions and against manifestly unjust, unreasonable or discriminatory decisions.
From this perspective, the book then analyses administrative activity and highlights some of its paradigmatic aspects.
In the context of the administrative activity of regulating and operationalising legislative acts, we highlight the fact that Europeanisation has led to a “hierarchy” within the legislative power that undermines and weakens parliaments (primacy of emergency “legislation” and executive power), especially as a result of the rules on budgetary matters, which, on the one hand, guarantee “freedom of action” in the financial system, but which, on the other hand, leave unguarded the “freedoms” of internal political choice in terms of public investment, the valorisation of public employment and the guarantee of the proper functioning of all public services (by investing in better salaries, careers and working conditions, as well as the social prestige of civil servants). There is a gap in financial literacy, which is exploited politically by populist oppositions through simple explanations of the state’s lack of financial resources. And even the (re)balances that would tend to be found by increasing public investment in essential economic sectors, through concessions or even private exploitation of essential economic services under independent economic regulation, are ultimately not achieved in practice, either because of the defiant behaviour of private investors or because of the limited understanding of the new regulatory mechanisms by the traditional (mainly judicial) actors of control. The “idea” that regulation is carried out a public administrative authority (and not a technocratic political authority – a concept that can be best understood as suggesting that authority comes not only from administrative power, in the sense of exercising the administrative function, but also from technocracy, i.e. from the technical competence of the specific agent who exercises the regulatory function (or directs this service), which is the result of political choice based on CV and experience… The choice of an agent must be technically substantiated) and that the regulated economic actors are administred and not (co-)agents of administrative power, with extremely significant market power due to the information asymmetry they manage, allows for various tricks in terms of judicial control (confusing regulatory measures with administrative acts, administrative sanctions with criminal measures, and the control of essential and infrastructural markets for the economy with consumer relations), which prevents the full and effective realisation of the public interest. What’s more, it is a form of control in which the first and last word is “European” (starting with the European Commission and finishing with the European Court of Justice), without due regard for the differences between legal cultures, relevant markets and the social fabric of the various Member States.
Legal relations – once simple and limited in their relevance for the purposes of judicial control to the universe of the externalisation of their effects – have become quasi-political relations in which various considerations are required, some of which concern the parties directly involved, others of which concern general and diffuse interests (the environment, town planning, public health, etc.), making it practically impossible to issue judicial decisions focused on the individuality of the cases; and also to cut off the space of assessment proper to the administrative bodies in these “politicised issues”. Examples can be found in issues falling within the scope of political choice that end up being subject to judicial control in fields such as the environment (let us think about the opportunity to develop a new airport near a protected area) or safety (for instance the construction of a dam for civil protection reasons, such as protection against flooding).
In this context of the state administration as an economic and investment partner, the state as a partner, entrepreneur and manager, and the state as a promoter, dynamiser and influencer, the roles, interventions (and aggressions) in the area of personal self-determination and the responsibilities that individuals and companies impose on other members of this omnipresent political community are increasing. Case law shows that there is a strong desire among patients, neighbours of hazardous activities etc. to socialise risks, misfortunes, inconveniences, devaluations and even the smallest expenses. In addition to a state that provides services, citizens are demanding a state that insures all areas and choices of their personal and economic existence and compensate for all ills supervening in case of emergency and national disasters.
The control of administrative activity clearly goes beyond the limits of legality and tends to go beyond the limits of the separation of powers, substituting itself for failures in the functioning of services. It is a schizophrenic power that is trying to break with the past of authority limited to checking the illegality of acts and annulling them, in order to claim a full and authoritarian jurisdiction in the field of control and the realisation of the fundamental rights of the administered. At the same time, this new status quo has led to a massive increase in the number of court cases, hindering the proper functioning of this power and allowing the judiciary to be used strategically by economic and political actors and interest groups to pursue objectives other than the resolution of disputes.
All these phenomena are identified in the book as pathologies of illiberalism, which are rampant and supported by the very discourse of fighting this reality.
The book ends on an open-ended note: with optimism about the contributions that new factors such as digitalisation and AI can make, especially in the field of administrative and judicial decision-making; and with the suggestion that, until we see new “safe ground”, we should opt for a cautious return to the traditional guidelines of the “idea of administrative law” of the Western liberal model.
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Posted by Suzana Tavares da Silva (Professor at the Faculty of Law of the University of Coimbra (since 1999); Judge at the Portuguese Supreme Administrative Court (since 2019)
