Upload
mar-23423
View
12
Download
1
Tags:
Embed Size (px)
DESCRIPTION
Adler - 2003 - A Socio-Legal Approach to Administrative Justice
Citation preview
Adler ADMINISTRATIVE JUSTICE 323
© Blackwell Publishing Ltd. 2003
A Socio-Legal Approach toAdministrative Justice*
MICHAEL ADLER
The first part of this article outlines two complementary approaches to enhancingadministrative justice. Internal mechanisms, which can be put into place by govern-ment departments and public bodies themselves, are contrasted with externalmechanisms, which result in the imposition on government departments and publicbodies of principles enunciated by courts, tribunals, and ombudsmen. Lawyers areall too familiar with the external approach but tend to be much less familiar withthe internal approach. The article seeks to redress this imbalance. It emphasizesthe importance of the internal approach, not as an alternative but, rather, as acomplement to the external approach and develops a framework for analyzingadministrative justice in terms of “trade-offs” between different normative modelsof administrative decision-making. The second part of the article demonstrateshow this approach to the study of administrative justice has informed research onthe impact of computerization on social security in the United Kingdom; on deci-sion making in the Scottish prison system; on the assessment of special educa-tional needs in England and Scotland; and on the computerization of social securityin thirteen countries. The article concludes by attempting to show that this approachto the study of administrative justice satisfies all the defining characteristics of thesocio-legal paradigm.
I. INTRODUCTION
The aims of this article are to develop a theoretical framework for analyzing
administrative justice and to show how it has been applied in empirical
research on administrative decision-making. The term administrative justice
is used in the article to refer to the principles that can be used to evaluate the
* The author would like to record his considerable indebtedness to Roy Sainsbury, BrianLonghurst, Enid Mordaunt, Sheila Riddell, and Paul Henman, who not only collaborated withhim in the research described in this article but also helped to clarify his thinking on administrat-ive justice. He would also like to thank Denis Galligan, Neville Harris, and Simon Halliday fortheir very helpful criticisms of earlier versions of this article, and two anonymous referees whosecomments forced him to sharpen up his arguments.
Address correspondence to Professor Michael Adler, School of Social and Political Studies,University of Edinburgh, Adam Ferguson Building, George Square, Edinburgh EH8 9LL, UnitedKingdom. Telephone: 0044-131-650-3931; e-mail: [email protected].
LAW & POLICY, Vol. 25, No. 4, October 2003 ISSN 0265–8240© Blackwell Publishing Ltd. 2003, 9600 Garsington Road, Oxford OX4 2DQ, UK,and 350 Main Street, Malden, MA 02148, USA.
324 LAW & POLICY October 2003
© Blackwell Publishing Ltd. 2003
justice inherent in administrative decision-making. This comprises procedural
fairness, which is concerned with the process of decision making, that is, with
the ways in which individual citizens are treated, as well as substantive justice,
which refers to the outcomes of decision making, that is, to the benefits or
burdens that are conferred on individual citizens. The use of the term justice
in this context has been questioned but, in light of the fact that the principles
referred to above are normative principles that embody legitimate expecta-
tions, it is contended that this is an entirely appropriate use of the term.
The article is in two parts. The first part of the article outlines two com-
plementary approaches to the enhancement of administrative justice – an
approach that emphasizes external forms of accountability and focuses on the
small number of decisions that are the subject of an appeal or complaint and
an approach that emphasizes internal forms of accountability and focuses on
the much larger number of first-instance decisions. External mechanisms of
accountability are necessary for the achievement of justice in administrative
decision-making but, on their own, they are not sufficient to ensure adminis-
trative justice. An argument is therefore made for the importance of internal
mechanisms, not as an alternative but, rather, as a complement to external
mechanisms. The article develops a theoretical framework for analyzing
administrative justice in terms of the “trade-offs” between different normative
models of administrative decision-making and, in the second part, demon-
strates how it has informed empirical research on the impact of computer-
ization on social security in the United Kingdom; on decision making in
the Scottish prison system, on the assessment of special educational needs
in England and Scotland, and on the computerization of social security in
thirteen countries.
It should be noted that most of the examples cited in the first part of the
article are British and that three of the four studies described in second part
refer to Britain (the fourth study was explicitly comparative). However, the
general approach to administrative justice outlined in the article undoubtedly
has more general application. The article concludes by distinguishing four
key modes of legal scholarship: law in action; doctrinal or “black-letter” law;
legal, political, and social philosophy; and socio-legal studies and attempts to
demonstrate that the approach outlined in the paper exemplifies the socio-
legal paradigm.
II. DEVELOPING A THEORETICAL FRAMEWORK FOR ANALYSING
ADMINISTRATIVE JUSTICE
One orientation to administrative justice equates it with a set of principles
that are imposed on government departments and public bodies by institu-
tions that are external to them, in particular by the courts but also by
tribunals and agencies like ombudsmen, as a result of individual challenges to
Adler ADMINISTRATIVE JUSTICE 325
© Blackwell Publishing Ltd. 2003
administrative decisions. Another orientation sees it as a set of principles that
are put into place internally, that is, by government departments and public
bodies themselves, as a result of some internal monitoring of their adminis-
trative decisions. The distinction is an analytic one, and, in practice, the two
orientations are frequently combined. This makes a great deal of sense because
the aims of the two approaches are, in many respects, complementary –
the former is backward-looking and is primarily concerned with providing
individuals with a mechanisms for redressing any injustice they may have
experienced while the latter is forward looking and aims to promote justice
in administration for the benefit of all – and, although it is undoubtedly
important that mechanisms for redressing injustice should exist, it is equally
important that efforts should be made to prevent injustice from arising in the
first place.1 Each of the two orientations is considered in turn.
A. EXTERNAL ORIENTATIONS
1. Procedural Protection for “Adjudicative” Decisions
As Harlow and Rawlings (1997:495) note, there has been a general tendency
for the courts to model the administrative process in their own adjudicative
image. Fuller (1978:353) has argued that the distinguishing characteristic of
adjudication is to confer “on the affected person a peculiar kind of participa-
tion in the decision, that of presenting proofs and reasoned arguments for a
decision in his favor.” This implies that, for a decision to be adjudicatory,
certain procedural constraints must be placed on the decision maker. The
model of procedure that facilitates the presentation of “proofs and reasoned
arguments” is exemplified by the criminal and civil courts but is also found in
other settings, such as tribunal proceedings, which share some of the same
features. Actual decision making may have all or some or none of the char-
acteristics of adjudication, and Harlow and Rawlings (1997:496) conceive of
a sliding scale – the closer to the ideal type outlined above, the more
judicialized the process and the more the courts will insist on applying the
rules of natural justice; the further away, the less judicialized the process and
the less the courts will insist on applying such principles.2
Seventy years ago, the Donoughmore Committee on Ministers Powers
(Great Britain 1932:74) sought to distinguish three categories of decision
making, namely “judicial,” “quasi-judicial” and “administrative” decision-
making, each of which was based on a different type of dispute; but its
thinking was crude and its arguments circular. The Committee’s approach
had some attractions for “green light theorists,” who assume that the state
is the only effective guarantee for individual freedom, because it serves to
insulate administrative decisions from legal scrutiny, and emphasize the role
of legislation and regulation rather than the use of the courts. However, this
approach has been criticized on the grounds that it is very difficult (if not
326 LAW & POLICY October 2003
© Blackwell Publishing Ltd. 2003
impossible) in practice to separate these three types of functions, and because
one effect of applying it would be to deprive large numbers of decisions
of any procedural protection on the grounds that they are “administrative.”
The Committee’s approach had little attraction for “red light theorists,”
who assume that the state is a threat to the freedom of the individual and
favor a strong role for the courts in scrutinizing the legality of administrative
decisions.3
Exponents of “flexible protection” claim that it provides a way around the
problems of classifying decisions into those that are “adjudicatory” and those
that are “administrative” and a way of applying the rules of natural justice
only to the former while the latter are not given any protection at all. Mullan
(1975:25) recognizes that different types of decision making have different
procedural requirements and argues that the more closely they resemble
“straight law/fact determinations resulting in serious consequences for those
concerned, the more legitimate is the demand for procedural protection;
while the more closely they resemble broad, policy-oriented decisions, the
less they are in need of such protection.” Although this approach avoids the
problems associated with a rigid division of decisions into two types and
claims to recognize that different types of decisions require different forms of
procedural protection, it operates with a model of administrative justice that
provides no protection for decisions that involve the application of policy. A
further problem is that the optimum degree of protection is not instantly
recognizable and that a fair measure of discretion is required.
This position has led Harlow and Rawlings (1997:510) to question how far
it is the court’s job to pursue the optimum form of procedure for different
kinds of decision. They question whether judges have the information or the
expertise needed to determine the particular form of procedural protection
that is appropriate for different types of decisions and, even, whether such an
activity is consistent with the rule of law. Leaving these normative issues
aside, they claim (ibid.:516) that, in recent years, there has been a measure of
increased judicial activism and of greater flexibility of response. However,
such developments still leave broad swathes of “administrative” decisions
unprotected by the courts.
Disputes between the citizen and the state are more likely to be heard by a
tribunal than by a court and, in the 1950s, the Franks Committee (Great
Britain 1957) enunciated three principles that apply to tribunal decision-
making. According to Franks (ibid.: para. 42), these principles are openness,
fairness, and impartiality: openness requires publicity for the proceedings and
knowledge of the essential reasoning underlying the decision; fairness requires
the adoption of clear procedures that enable the parties to understand their
rights, present their case fully, and know the case that they have to meet;
while impartiality requires freedom from the influence, real or apparent, of
departments concerned with the subject matter of their decisions. However,
it should be noted that these principles apply to tribunals that hear appeals
Adler ADMINISTRATIVE JUSTICE 327
© Blackwell Publishing Ltd. 2003
from first-instance, administrative decisions and not to the decisions them-
selves, and that, in any case, they represent “good practice” and are not
enforceable. Although the role of the Council on Tribunals, set up under the
Tribunals and Inquiries Act 1959, is to keep the constitution and working of
tribunals under review, its powers are very limited.
2. Procedural Protection for “Administrative” Decisions
The first Parliamentary Commissioner for Administration (PCA) was
appointed in 1967 to deal with grievances from individuals who felt they had
suffered an injustice arising from maladministration by a central government
department for which there was no available remedy. “Maladministration”
was not defined in the Parliamentary Commissioner Act 1967 that estab-
lished the PCA, although the Leader of the House of Commons, Rt. Hon.
Richard Crossman, MP, described it as including: bias, neglect, inattention,
delay, incompetence, ineptitude, perversity, terpitude, arbitrariness and so
on” (Great Britain 1966: col. 51). Subsequently, a Parliamentary Commis-
sioner, Sir William Reid, elaborated on Crossman’s list by giving more
examples of what the term covers (Great Britain 1993: para. 7).4 “Injustice”
was likewise not defined in the Act but, for a complaint to be upheld, the
PCA must conclude that the individual suffered some kind of loss that would
otherwise not have occurred.
A number of other ombudsmen have subsequently been established to
deal with complaints about services in the public sector that fall outside the
PCA’s remit. They include the Health Services Ombudsmen for England and
Wales and for Scotland; the Commissioners for Local Administration (CLA)
for England and Wales and for Scotland; the Housing Association Ombuds-
men for England and Wales and for Scotland; and the Scottish Parliament-
ary Ombudsman.5 In addition, some public services, for example, the Inland
Revenue; the Customs and Excise Department; the Police Service (in England
and Wales, and in Scotland); the Prison Service (in England and Wales, and
in Scotland); and the Driver and Vehicle Licensing Agency (DVLA) have set
up procedures for investigating complaints of maladministration against them.
There are also ombudsmen covering various private-sector services such as
banking, broadcasting, building societies, estate agents, funerals, insurance,
investments, legal services, and pensions but, with the exception of the Legal
Services Ombudsmen for England and Wales and for Scotland and the
Pensions Ombudsmen, they do not have statutory powers.6
Ombudsmen use inquisitorial methods to investigate allegations that
maladministration has given rise to injustice. Although, in a given case, they
may find evidence of maladministration that has not given rise to any identi-
fiable injustice, their approach to administrative justice is, in effect, an instru-
mental one. Where a complaint that maladministration has given rise to
injustice is upheld, they may impose remedial action on the organization that
328 LAW & POLICY October 2003
© Blackwell Publishing Ltd. 2003
was the subject of the complaint; award compensation to the complainant;
or instruct the organization to issue an apology.7 In addition to providing
remedies for those who complain, ombudsmen may order the organization
complained of to modify its administrative procedures. However, although
an organization may wish to do so to avoid more complaints in the future,
there is, in general, no systematic check on whether or not it has done so.
Ombudsmen are independent of the organization against which the com-
plaint is made; no legal (or other) representation is required, and complain-
ants are not subject to any charges. Independence should, in theory, guarantee
impartially, but this may be compromised in practice by the fact that the
ombudsman’s staff is often drawn from, and sometimes return to, the
organizations against which complaints are made.8 In addition, there are
often barriers that have to be surmounted before a complaint can be made to
an ombudsman, and, except for the CLA in Northern Ireland, ombudsmen’s
remedies are not legally enforceable (Himsworth 1985). In spite of these
shortcomings, and in the absence of any systematic empirical evidence on the
subject, official reports indicate that the opportunity of complaining to an
ombudsman has contributed, if only to a small extent, to enhancing the
justice inherent in administrative decision-making.
While most people have looked to courts, tribunals, and other forms of
accountability, such as ombudsmen, which are external to the locus of adminis-
trative decision-making, as the means of achieving administrative justice,9
the available evidence does not suggest that this approach is particularly
effective on its own. This is, in part, because few of those who experience
injustice actually appeal to courts, tribunals, or ombudsmen; in part because
court, tribunal, and ombudsman decisions have a limited impact on the
corpus of administrative decision-making.10 As a result, as Ison (1999:23)
points out, “the total volume of injustice is likely to be much greater among
those who accept initial decisions than among those who complain or appeal.”
There is, of course, considerable variation in the impact of different forms
of external accountability on administrative decision-making. The more
authoritative the judgments are, the more publicity is given to them, and the
stronger the enforcement procedures are, the greater the impact they are
likely to have and the more effective they are likely to be in achieving admin-
istrative justice.11 In considering the impact of judicial review, Halliday (2001)
identifies three sets of conditions for successful impact: the model of adminis-
trative justice enunciated in the judgment must be coherent and consistent
with the existing body of law; decision makers (administrators) must be
“legally conscientious,” that is, they must be committed to legality; and the
decision-making environment must ensure that the model of administrative
justice enunciated in the judgment is given priority over other models. More
often than not, one or more of these conditions is not met, and it is for this
reason that Mashaw (1974:776) has argued that additional safeguards, such
as internal quality controls or quality assurance systems, are needed to
enhance administrative justice.
Adler ADMINISTRATIVE JUSTICE 329
© Blackwell Publishing Ltd. 2003
B. INTERNAL ORIENTATIONS
1. Mashaw’s Approach
In his pioneering study of the American Disability Insurance (DI) scheme,
Mashaw (1983:21–22) detected three broad strands of criticism leveled against
it: the first indicted it for lacking adequate management controls and produ-
cing inconsistent decisions; the second for not providing a good service and
failing to rehabilitate those who were dependent on it; and the third for not
paying enough attention to “due process” and failing to respect and uphold
the rights of those dependent on it. He claimed that each strand of criticism
reflects a different normative conception of the DI scheme, that is, a different
model of what the scheme could and should be like. The three models are
respectively identified with bureaucratic rationality, professional treatment,
and moral judgment.
Mashaw (ibid.:24) defines “administrative justice” (the justice inherent in
routine day-to-day administration) in terms of “those qualities of a decision
process that provide arguments for the acceptability of its decisions.” Two
points of clarification are called for here: by “acceptability,” it should be
assumed that Mashaw means something like “legitimacy,” and by “decisions
that he is referring to “outcomes.” Although one could infer from this that
he takes an instrumental approach to administrative justice, this is not the
case. On the contrary, his definition of administrative justice acknowledges
that it can contribute to the acceptability of decisions or outcomes even when
these decisions or outcomes are incorrect. The significance of administrative
justice is that it can legitimate such decisions.
It follows from Mashaw’s definition that each of the three models he
described is associated with a different conception of administrative justice.
Thus, there is one conception of administrative justice based on bureaucratic
rationality, another based on professional treatment, and a third based on
moral judgement. According to Mashaw (ibid.:31), each of these models is
associated with a different set of legitimating values, different primary goals,
a different organizational structure, and different cognitive techniques. These
are set out in the Table 1 below.
Although this is very helpful, the association of fairness with one of the
models (the moral judgment model), and the implication that the two other
models are “unfair,” is unfortunate. In addition, Mashaw’s characteriza-
tion of the three models reflects an exclusively internal orientation to admin-
istrative justice in that it makes no reference to external mechanisms for
redressing grievances. With this in mind, Table 1 has been revised. Table 2
renames the three models (it refers to them as a bureaucratic model, a profes-
sional model, and a legal model), alters the ways in which they are charac-
terized,12 and highlights redress mechanisms that include external as well as
internal procedures for achieving administrative justice. This is important
because internal and external procedures should not be seen as alternatives,
330 LAW & POLICY October 2003
© Blackwell Publishing Ltd. 2003
Table 1. Three Normative Models of Administrative Justice – Original Formulation
Model
Bureaucratic
Rationality
Professional
Treatment
Moral Judgment
Source: As set out by Mashaw (1983:31).
Structure or
Organization
Hierarchical
Interpersonal
Independent
Cognitive
Technique
Information
Processing
Clinical
Application
of Knowledge
Contextual
Interpretation
Primary Goal
Program
Implementation
Client
Satisfaction
Conflict
Resolution
Legitimating
Values
Accuracy and
Efficiency
Service
Fairness
and it is important to recognize that, for good reasons, they are frequently
combined.
Mashaw (1983:23) contends that each of the models is coherent, plausible,
and attractive and that the three models are competitive rather than mutually
exclusive. Thus, they can and do coexist with each other. However, other
things being equal, the more there is of one, the less there will be of the other
two. His insight enables us to see both what trade-offs are made between the
three models in particular cases and what different sets of trade-offs might be
more desirable. His approach is a pluralistic one, which recognizes a plurality
of normative positions and acknowledges that situations that are attractive
for some people may be unattractive for others.
Mashaw’s pluralism can be contrasted with the communitarian version of
pluralism adopted by other writers on justice, most notably by Walzer. Walzer
(1983:6) accepts that “the principles of justice are themselves pluralistic in
form [and that] different social goods ought to be distributed for different
reasons, in accordance with different procedures, by different agents.” How-
ever, he also claims (ibid.:8–9) that “the meaning of the goods in question
determines their distribution” and argues that “if we understand what it is,
what it means for those for whom it is a good, we understand how, by
Table 2. Three Normative Models of Administrative Justice – Revised Formulation
Model
Bureaucratic
Professional
Legal
Source: Based on Adler and Longhurst (1994:44).
Characteristic
Remedy
Administrative review
Second opinion or
complaint to a
professional body
Appeal to a court or
tribunal
Mode of
Accountability
Hierarchical
Interpersonal
Independent
Legitimating
Goal
Accuracy
Expertise
Legality
Mode of
Decision Making
Applying rules
Applying
knowledge
Asserting rights
Adler ADMINISTRATIVE JUSTICE 331
© Blackwell Publishing Ltd. 2003
whom, and for what reasons it ought to be distributed.”13 Although Walzer
accepts that social meanings are historical in character and that what is
regarded as just and unjust changes over time, he nevertheless assumes a
degree of normative consensus in a given community, which stands in stark
contrast with Mashaw’s assumption of normative conflict.
The trade-offs that are made, and likewise those that could be made,
reflect the concerns and the bargaining strengths of the institutional actors
who have an interest in promoting each of the models, typically civil servants
and officials in the case of the bureaucratic model; professionals and “street
level bureaucrats” (Lipsky 1980) in the case of the professional model; and
lawyers, court and tribunal personnel, and groups representing clients’ inter-
ests in the case of the legal model.
These trade-offs vary between organizations and, within a given organ-
ization, between the different policies delivered by that organization and
between the different stages of policy implementation. They also vary over
time and between countries. In the case of the (American) DI scheme, Mashaw
concluded that, in the early 1980s when he carried out his study, bureau-
cratic rationality was the dominant model and, notwithstanding variations
within and between countries, it is at least arguable that bureaucracy is, and
always has been, the dominant model as far as the administration of social
security is concerned. However, the professional model may be dominant
in other policy fields, for example, in the delivery of health care. Although
the legal model is clearly of greater importance in countries with a strong
rights culture, it has rarely supplanted the dominant bureaucratic and pro-
fessional models.
Mashaw’s approach is a very attractive one. Although, Bayles (1990:163–
89) and Galligan (1996:25) both recognize that a uniform set of procedural
principles does not apply across the board and that the appropriateness
of any set of procedural principles depends on the characteristics of the
decision-making process in question, their approaches to procedural fairness
are less sophisticated than Mashaw’s in that they assume that the different
forms of decision making are sui generis. The great strength of Mashaw’s
approach is his recognition that different models of decision making coexist
with each other and that each of them is associated with a different conception
of administrative justice. The administrative justice of any given instance of
decision making is not represented by the procedural principles associated with
the single model that best describes that form of decision making but, rather,
by trade-offs between each of the models for which there is some evidence.
Mashaw’s approach has been subjected to a number of criticisms. Although
he contends that the three models described above, and only these three
models, are always present in welfare administration, this claim can be
disputed. The bureaucratic, professional, and legal models have, in many
countries, been challenged by a managerial model associated with the rise
of new public management (see Hood 1991, 1998), a consumerist model that
focuses on the increased participation of consumers in decision making (see
332 LAW & POLICY October 2003
© Blackwell Publishing Ltd. 2003
Clarke & Newman 1997) and a market model that emphasizes consumer
choice (see Johnson 1995).
A second criticism is that, in assessing the relative influence of the three
models, Mashaw ignores their absolute strengths. Consider two situations in
which the strengths of three models are given weights of 30, 20, and 10 units
and 3, 2, and 1 units – although they are identical in a relative sense, they are
quite different in absolute terms and clearly refer to what are, in reality, very
different situations. “Strong” balances are very different from “weak” bal-
ances in ways that Mashaw’s analysis does not bring out very well.
A third criticism is that Mashaw takes the policy context for granted.14
However, just as different orientations to administration, that is, to how
programs should be run, can be understood in terms of a number of normat-
ive models that are in competition with each other, so different orientations
to policy, that is, to what programs aim to achieve, can also be understood in
this way. As shown below, Adler and Longhurst (1994) have demonstrated
that Mashaw’s approach can be applied to competing models of policy as
well as to competing models of administration. Each of several competing
models of policy may, in theory, be combined with each of several competing
models of administration. The resulting “two-dimensional” model is neces-
sarily more complex than a “one-dimensional” model but its characteristics
are similar in that it not only makes it possible to understand the trade-offs
that are made between different combinations of policy and administration
in particular cases, but also makes it possible to see what different sets of
trade-offs might be more desirable.15 Since, applying the terminology used
in this article, the models of policy refer to outcomes while the models of
administration refer to process, the two-dimensional model provides a way
of combining procedural fairness with substantive justice.
2. Developing Mashaw’s Approach
In light of the criticisms above, some modifications of Mashaw’s analytic
framework are clearly called for. First, it is important to recognize that, in
addition to the bureaucratic, professional, and legal models identified by
Mashaw, some additional models of administrative justice need to be con-
sidered. Three such models are a managerial model, a consumerist model,
and a market model, although they are not necessarily all present in every
administrative system. Second, account needs to be taken of the absolute as
well as the relative strengths of these models. Third, the approach can be
applied to competing normative models of outcomes, that is, to substantive
justice, as well as to competing normative models of process, that is, to
procedural fairness, and used to analyze the interactions between them.
An extended analytic framework, involving six normative models of
administrative justice, is set out in Table 3 below. A brief explanation of this
extended analytic framework is called for. During the postwar period, most
public welfare services in the United Kingdom were shaped by the bureaucratic
Adler ADMINISTRATIVE JUSTICE 333
© Blackwell Publishing Ltd. 2003
Table 3. Six Normative Models of Administrative Justice
Model
Bureaucratic
Professional
Legal
Managerial
Consumerist
Market
Characteristic
Remedy
Administrative
review
Second opinion or
complaint to a
professional body
Appeal to a court or
tribunal (public law)
Publicity
“Voice” and/or
compensation
through Consumer
Charters
“Exit” and/or court
action (private law)
Mode of
Decision-Making
Applying rules
Applying
knowledge
Asserting rights
Managerial
autonomy
Consumer
participation
Matching supply
and demand
Legitimating
Goal
Accuracy
Expertise
Legality
Efficiency
gains
Consumer
satisfaction
Profit making
Mode of
Accountability
Hierarchical
Interpersonal
Independent
Performance
indicators
Consumer
Charters
To owners or
shareholders
and professional models outlined above, although the trade-off between them
varied from one policy domain to another. However, by the mid-1980s, the
pattern of administration had come under attack. It was variously criticized
for lacking neutrality and being biased against certain groups; for its failure
to contain the growing demand for cost savings; for having a vested interest
in the maintenance and expansion of existing structures and not promoting
the “public interest”; and, as a “monopoly provider,” for being insulated
from competitive pressures to become more efficient and more responsive
to the demands and preferences of consumers. New and better forms of
management were championed as the most appropriate response to these
criticisms. “Managerialism,” as this approach came to be known, challenged
the powers and prerogatives of bureaucrats and professionals in the name of
managers who demanded the “freedom to manage” the attainment of pre-
scribed standards of service. It gave priority to achieving efficiency gains,
introduced different forms of financial and management audit to assess how
well the prescribed standards of service had been met, rewarded staff who
performed well, and, in theory at least, sanctioned those who did not (see
Clarke & Newman 1997). Perhaps inevitably, the introduction of these new
managers frequently led to struggles for power and control within welfare
organizations. Managerialism can thus be characterized in terms of manager-
ial autonomy, the pursuit of efficiency gains, the use of performance indicators
to assess accountability, and the possibility of drawing attention to the fact
that prescribed standards have not been met as a means of putting pressure
on management to improve their standards.
334 LAW & POLICY October 2003
© Blackwell Publishing Ltd. 2003
Consumerism has, likewise been a central reference point in the drive for
public sector reform from the mid-1980s onwards (ibid.: chap. 6). Like man-
agerialism, it has been taken up as a response to criticisms of the bureaucratic
and professional, and the reshaping of welfare services around consumer
choice has been visible in a number of reforms, in particular in the introduc-
tion in the UK of the “Citizen’s Charter” (Great Britain 1991; Page 1999).
Consumerism embodies a more active view of the service user, who is seen as
an active participant in the process rather than a passive recipient of bureau-
cratic, professional, or managerial decisions. It can thus be characterized in
terms of the active participation of consumers in decision making, consumer
satisfaction, the introduction of consumer “charters,” and the use of “voice”
(Hirschman 1970), together with the possibility of obtaining compensation
where the standards specified in the charter are not met as available remedies.
Markets constitute the final model in the extended analytic framework and
have many of the characteristics of the managerial and consumerist models
(although the reverse is not necessarily the case). Decision making in the
market involves the matching of demand and supply and is made with refer-
ence to the price mechanism. Individuals are viewed as rational economic
actors who choose the producer who best satisfies their wants or preferences.
The legitimating goal of the producer organization is profit-making, while
the prevailing mode of accountability is to the owners or shareholders. In
contrast to consumerism, where the consumer can use “voice” as a remedy,
and can obtain compensation through consumer charters if the specified
standards have not been met, markets provide the possibility of “exit” (ibid.).
In addition, an aggrieved individual may be able to raise a court action for
compensation where he or she suffers some measurable loss from an admin-
istrative decision. Internal or quasi-markets (Le Grand 1991; Le Grand &
Bartlett 1993) have some but not all of the characteristics of the market
model just outlined.
In a recent book, Halliday (2003) argues that the managerial, consumerist,
and market models of administrative justice elaborated above are better
understood as components of a single model, which he associates with the
“new” public management (see Hood 1991, 1998). However, I think this
formulation obscures more than it reveals. This is because each of the three
models has its own internal logic and because these three models are “com-
petitive” in the sense that Mashaw uses this term to describe the relationship
between the bureaucratic, professional, and legal models in his account of
administrative justice. It follows that the managerial, consumerist, and mar-
ket models of administrative justice can be, and frequently are, combined.
When they are combined, the combination does provide a good account of
the “new” public management. However, they need not be combined in this
way, and each of the models is sometimes encountered on its own, that is,
not in combination with the others.
It may seem a little strange to refer to some of these models, in particular,
the market model, as models of justice. After all, markets are often regarded
Adler ADMINISTRATIVE JUSTICE 335
© Blackwell Publishing Ltd. 2003
as threats to justice, which undermine its achievement in practice. This strange-
ness is more apparent than real and results from equating the concept of
“justice” with substantive justice rather than with procedural fairness. In
seeking to demonstrate that procedural fairness is an important component
of overall justice and that the idea that “everyone should receive what is due
to them” (Miller 1976:20) applies just as much to procedures as to outcomes,
this article adopts a very different starting point. However, how people should
be treated is very dependent on context, and, as the discussion above tries to
make clear, different conceptions of procedural fairness are associated with
different types of decision making.
Consider the case of a lottery. Everyone who takes part has a legitimate
expectation that they will be treated in exactly the same way (without any
reference to their personal circumstances or characteristics) and that they
will have exactly the same chance of being selected as everyone else.16 Some
lotteries stipulate that an individual can only be selected once, while others
permit multiple selection, thereby enabling an individual who has already
been selected to be selected again. However, in both cases, the outcome is (or
ought to be) completely random and determined only by chance. If lottery
outcomes are judged in terms of any of the familiar principles of distributive
justice (need, desert, rights, or strict equality), or any combination of these
principles, they will no doubt be considered unjust. However, this is not the
case for lottery procedures, which should incorporate the principles of chance
and equality that form the basis of the legitimate expectations referred to
above. A similar argument applies to markets.
In a market, consumers can legitimately expect to have the opportunity to
express their wants in terms of their preferences and the freedom to choose.17
Likewise, producers can legitimately expect to be able to respond to con-
sumer choice and produce goods and services up to the point where the
value to the consumer of his (her) marginal purchase just exceeds the cost of
supply – beyond that point the consumer will not be interested in purchasing
the service, and it will not pay the producer to go on producing it. The price
mechanism stabilizes as well as controls these transactions (where there are
shortages, higher prices act as an incentive to economize, but, where the
market is flooded, prices will fall, and this will encourage consumers to buy
more), while the profit motive should make supply responsive to demand,
and encourage technological innovation and progress. Competition should
lead to greater efficiency – successful producers will thrive (and make big
profits) while unsuccessful ones will go to the wall. However, since market
theorists tend to treat the initial distribution of resources as an exogenous
variable, assessing the final distribution of resources in terms of any of the
familiar principles of distributive justice, or any combination of principles,
will usually conclude that, like the lottery, they are not just.18 But, although
market outcomes are very rarely just, and it follows that markets do under-
mine attempts to achieve substantive justice, market procedures may incor-
porate the principles underlying the legitimate expectations referred to above
336 LAW & POLICY October 2003
© Blackwell Publishing Ltd. 2003
and may thus be fair.19 It is in this sense, and only in this sense, that it makes
sense to talk about the market as a model of justice.
3. Normative Theorizing
One of the attractions of Mashaw’s approach is that it makes it possible to
understand the trade-offs that are made between different justice models in
particular instances and to see whether another set of trade-offs might be
more desirable, not merely for those institutional actors who have an interest
in promoting each of the models in play but for all concerned, that is, in
some overall sense. However, the attempt to arrive at a “better” balance
between the different models in play and identify a different set of trade-offs
that will enhance “the public interest” raises a number of problems. Since
there is no “magic formula,” this exercise necessarily involves the exercise of
judgment. However, this does not make it an arbitrary exercise. It is one that
can, and should, be informed by empirical data. In this connection, perform-
ance measures of various kinds and audit data are important, and, to the
extent that the primary justification for public services is that they should
serve the public, it can be argued that the results of user surveys and public
opinion data are especially important.
III. APPLYING THIS THEORETICAL FRAMEWORK IN EMPIRICAL
RESEARCH ON ADMINISTRATIVE JUSTICE
The approach to administrative justice outlined above has informed four
pieces of research undertaken by the author over the last fifteen years. These
comprise research on the impact of computerization on social security in the
UK, on decision making in the Scottish prison system, on the assessment of
special educational needs in England and Scotland, and on the computeriza-
tion of social security in thirteen countries. In each case, an attempt was
made to specify a number of different models of administrative justice and to
collect data that would enable the strength of these models to be assessed.
A brief account of each of these pieces of research is set out below.
A. THE IMPACT OF COMPUTERIZATION ON SOCIAL SECURITY IN THE UK
The three main aims of the “Operational Strategy” (Great Britain. Department
of Health and Social Security 1982:1), the massive program to computerize
the entire social security system that the UK government attempted to put
into place in the 1980s, were:
• to improve operational efficiency, reduce administrative costs, and
increase the flexibility of the operational system to respond to changing
requirements;
Adler ADMINISTRATIVE JUSTICE 337
© Blackwell Publishing Ltd. 2003
• to improve the quality of service to the public, for example, by treating
customers in a less compartmentalized benefit-by-benefit manner and
more as “whole persons” with a range of social security business, and to
improve the provision of information to the public;
• to modernize and improve the work of social security staff.
Of these aims, the first reflected the interests of the government, the second
reflected the interests of the claimant, and the third reflected the interests of
the staff.
By 1989, the Operational Strategy had run into deep trouble – the costs
had escalated so steeply that, unless improvements in quality of service were
taken into account, it was clear that the future of the program was in doubt.
Against this background, the Department of Social Security (DSS) commis-
sioned some research on “quality of service” and, in particular, on the “whole
person” concept (Adler & Sainsbury 1990). Using a consultative procedure
known as the Delphi Method (Adler & Sainsbury 1996), four panels of
experts (drawn from DSS staff; welfare rights officers; representatives of
pressure groups, academics, and researchers; and persons with backgrounds
in other organizations or from overseas social security systems) were invited
to comment on the desirability and feasibility of a number of different con-
ceptions of quality of service and of the whole person concept, and on a
number of different models of organization. In addition to these questions,
the research attempted to investigate the effects of computerization on admin-
istrative justice, that is, on the justice inherent in routine day-to-day admin-
istration (Adler & Sainsbury 1991a, 1991b).
The research assumed that the three normative models of administrative
justice set out in Table 2 above were all present in the administration of social
security but claimed that the Operational Strategy would further strengthen
the dominance of the bureaucratic conception of administrative justice at the
expense of the two competing conceptions. Thus, it was likely to lead to an
even more bureaucratized system rather than one that was more sensitive to
the needs and circumstances of claimants or one that made it easier for them
to assert their rights. The main reasons for this were that the DSS adopted a
“top-down” orientation to computerization that gave priority to the interests
of the government rather than a “bottom up” orientation that would have
given priority to the interests of claimants or staff; and that the aim of the
program was to make administrative savings rather than to improve quality
of service (whatever that might mean). The study concluded that the overall
effect of the program was certainly to alter but not necessarily to enhance the
procedural fairness of administrative decision-making in social security.
B. DISCRETIONARY DECISION-MAKING IN THE SCOTTISH PRISON SYSTEM
During the late 1980s, a program of research on day-to-day administrative
decision-making in the Scottish prison system, focusing on adult, male,
338 LAW & POLICY October 2003
© Blackwell Publishing Ltd. 2003
long-term prisoners, who constituted the largest and, arguably, most prob-
lematic of the various groups that made up the prison population, was under-
taken (Adler & Longhurst 1994). Using a mixture of documentary analysis,
observation, and interviews with a wide range of individuals inside and out-
side the Scottish Prison Service (SPS), the research investigated a number of
important areas of decision making, associated with classification, transfers,
regimes, and accountability, in detail.20 In each case, it sought to establish
what decisions were accomplished; why the existing system operated in the
way it did; what problems were created by existing practices; for whom they
were problematic; to what extent they gave rise to pressures for change;
what alternatives to the present system were being canvassed; and what their
implications for day-to-day decision making would be. The same methods
were used to study the policymaking process by carrying out a detailed exam-
ination of a series of policy documents that were published by the SPS
during the period of our research.
The period was one of great turbulence for Scottish prisons – a spate of
violent disturbances had given rise to a vigorous debate about what prisons
were for and how they should be run. Although some people argued that this
was a bad time to study Scottish prisons because so much was changing, and
it was far from clear what the eventual outcome would be, it actually turned
out to be a very good time, because the arguments advanced by powerful inter-
ests were forcefully expressed and easily accessible, and because their struggles
for control were overt and visible. This enabled us to see the processes at
work particularly clearly, and made it easier to construct a theoretical frame-
work than it would have been in more settled and less turbulent circum-
stances. Using an iterative procedure based on “wide reflexive equilibrium”
(Rawls 1971:46–53), a mutual adjustment between this theoretical frame-
work and the empirical reality that was the focus of our research was achieved.
While the research on the Operational Strategy had utilized the three
normative models of administrative justice set out in Tables 1 and 2 above,
the turbulence of the prison system resulted in the calling into question of the
various normative models of substantive justice as well, and this suggested
that they also needed to be considered. Each of the justice models was asso-
ciated with a distinctive discourse and “ends discourses,” which are con-
cerned with what prisons are for, were distinguished from “means discourses,”
which are concerned with how prisons should be run. The discourses in play
are set out in Tables 4 and 5 below.
The ends and the means discourses were combined to produce a discourse
matrix that summarizes the discursive structure of the Scottish prison system
at the time, and the individuals, groups, and institutions whose discourses
were associated with each of the cells in the matrix were identified. This is set
out in Table 6 below.
The research was based on the twin assumptions that groups in particular
settings produce discourses that reflect their interests, and that discursive
struggles lie at the heart of the power struggles that are endemic in every
Adler ADMINISTRATIVE JUSTICE 339
© Blackwell Publishing Ltd. 2003
Table 4. Characteristics of Three Competing “Ends Discourses”
Source of
legitimacy
Focus
Dominant
concerns
Rehabilitation
Discourse
Improving the
individual
“Deviant” individual
Socializing the
prisoner back into
society through the
provision of training
and treatment
Control
Discourse
Control of disruption;
smooth running of
establishments
“Disruptive”
individual
Good order and
discipline; protection
of prison staff
Normalisation
Discourse
Prevention of negative
effects of prison; treating
prisoners like individuals
in the community
“Normal” individual
Minimum security;
contact between the
prisoner and his or her
family; improved living
conditions
setting. However, although they always exist, they are particularly evident in
periods of flux. The importance of external and contextual factors is that
they structure the power relations between internal interest groups and shape
the outcome of the power struggles between them. By applying the theoretical
Table 5. Characteristics of three competing “Means Discourses”
Source of legitimacy
Focus
Dominant concerns
Accountability
for decisions
Legal
Discourse
Rule of law
On individual
prisoners
Respect for
prisoners rights
External
Professional
Discourse
Knowledge based
on experience
On establishments
Leadership,
experience,
judgment,
enhancing the
institutional ethos
Negotiated
Bureaucratic
Discourse
Rules and regulations
On the system
Uniformity, consistency,
fidelity to the rules
Internal
Table 6. Discourse Matrix for the Scottish Prison System
Bureaucracy
Professionalism
Legality
Rehabilitation
Parole Board
Barlinnie Special Unit
“Left realist”
academics, SCCL
Normalization
HQ – Administration
Division
Most governors
Rights-orientated
governors, SACRO
Control
HQ – Operations
Division
SPOA
Judges and
courts
340 LAW & POLICY October 2003
© Blackwell Publishing Ltd. 2003
framework outlined above to various areas of decision making and to the
policy process, the research was able to demonstrate that the struggle for
control between the interest groups represented in the discourse matrix had
profound implications for procedural fairness and substantive justice. In addi-
tion, a new form of managerial discourse was identified (Adler & Longhurst
1994:236–38), which, at the end of research, had assumed a position of domin-
ance in Scottish penal policy.
C. THE ASSESSMENT OF SPECIAL EDUCATIONAL NEEDS IN ENGLAND
AND SCOTLAND
The assessment of special educational needs is a very complex process that
can be divided into a number of discrete and overlapping stages and involves
input from a large number of individuals, including educational psycholo-
gists, education officers, head teachers, class teachers, medical practitioners,
social workers, “named persons,” parents, and children. This process was
structured by a statutory “Code of Guidance” in England (Great Britain.
Department for Education 1994)21 and by a non-statutory “Manual of Good
Practice” in Scotland (Scottish Office Education and Industry Department
1998). The outcomes of the assessment process were extremely significant for
those involved, in particular for children and their parents, since they had a
direct interest in the type of education the child received and the resources
that were made available for this purpose. However, as with many decentral-
ized decision-making processes, there are wide variations in outcomes be-
tween and among (local) educational authorities in England and Scotland.22
Although the Code of Guidance and, to a lesser extent, the Manual of Good
Practice have undoubtedly led to a degree of standardization, there are still
wide variations between authorities in the procedures used to assess special
educational needs in the two countries.
The research on the assessment of special educational needs involved an
empirical study of the fairness of the different procedures used in England
and Scotland (Riddell, Adler, Mordaunt & Farmakopoulou 2000; Riddell,
Wilson, Adler & Mordaunt 2002). It aimed to describe the range of practices
that constitute statutory assessment in England and in Scotland and to ana-
lyze the nature of the justice inherent in them. Documentary analysis was
supplemented by interviews with key informants, including politicians, civil
servants, and representatives of professional organizations, volunteer organ-
izations, and pressure groups. A postal survey was administered to (local)
education authorities in England and Scotland to elucidate variations in the
ways in which children are assessed, “statemented” (in England) or “recorded”
(in Scotland), and outcomes were investigated through the secondary
analysis of official statistics. However, the main thrust of the research
consisted of a more detailed exploration of assessment at a local level. We
examined the roles of the key players, the extent to which parental prefer-
ences were congruent with professional identifications of need and official
Adler ADMINISTRATIVE JUSTICE 341
© Blackwell Publishing Ltd. 2003
determinations of policy, and the ways in which outcomes were negotiated.
The postal survey of (local) education authorities in England and Scotland
enabled us to identify variations in process north and south of the border
and provided a basis for selecting four contrasting (local) education author-
ities (two in England and two in Scotland) for in-depth fieldwork. In each
of these authorities, sixteen case study pupils with a range of special needs
were selected. The sample of sixty-four children included contested as well as
noncontested cases.23 Case papers for these children were analyzed, meetings
were observed, and interviews were conducted with most of the key actors
(i.e., educational psychologists, education officers, head teachers, SENCOs,24
class teachers, medical practitioners, social workers, “named persons,” parents,
and, where appropriate, children).
The research adopted an analytic framework that can be represented as
a “half way house” between those set out in Tables 2 and 3 above in that
it comprised four models of administrative justice – it incorporated the
consumerist but not the managerialist or market models of administrative
justice.25 The interviews with expert informants and the postal survey revealed
a wide variety of practices between and within the two countries. In Scotland,
it was clear that professionalism, strongly supported by bureaucracy, was the
dominant configuration. The legal model was very weak in that the assess-
ment and recording process was not seriously constrained by legal norms,
while the consumerist model, as manifested by parental participation, was
only marginally stronger.26 In England, the dominance of the professional
model was more effectively challenged by the bureaucratic, legal, and con-
sumerist models, all of which were stronger than in Scotland. The Code of
Guidance not only embodies bureaucratic norms but is legally binding; its
provisions confer strong procedural as well as substantive rights on parents.
The legal model was strengthened by the establishment of the Special Educa-
tional Needs Tribunal (SENT), which can hear appeals against a wide range
of local education authority decisions,27 while the consumerist model was
given a boost by the establishment of Parent Partnership Officers whose
existence enhances parental participation. There were no equivalents of the
SENT or Parent Partnership Officers in Scotland.
The in-depth fieldwork in the four contrasting education authorities yielded
some very rich accounts of the ways in which different trade-offs between the
competing normative models of decision making structured the relationships
between parents, professionals, and officials in different ways (some examples
can be found in Riddell, et al. 2002). To the extent that administrative justice
results from a trade-off between the features of competing normative models
of decision making, the position in England is clearly more complex than in
Scotland because more models are currently in play. In considering the pos-
sibility of alternative trade-offs, it is evident that Scotland might learn from
England by strengthening those models that would shift the balance of power
towards parents and children, who are currently in a rather weak position.
For example, a more robust appeals system might be introduced; Records of
342 LAW & POLICY October 2003
© Blackwell Publishing Ltd. 2003
Needs might specify the resources to be provided; assessment procedures,
including timescales, might be tightened; the provision of advocacy and mech-
anisms for enhancing parental participation might be strengthened; and
public access to information improved.28 Conversely, England might learn
from Scotland by seeking to find fairer ways of allocating resources and
better ways of balancing individual preferences and collective policy goals.
D. THE COMPUTERIZATION OF SOCIAL SECURITY IN THIRTEEN COUNTRIES
The most recent of the four pieces of research described in this article is a
comparative study of the use of computer technology in social security in
thirteen OECD countries, comprising ten Western European countries, Aus-
tralia, Canada, and the United States. Data were generated by two expert
informants in each country by means of electronic mail.29 They were asked to
complete a structured questionnaire, and, if their responses were unclear or
incomplete, they were asked to provide supplementary information. Preliminary
findings were distributed electronically, and informants were invited to correct
and comment on them. In this way, we were able to obtain valuable feedback
and to check the accuracy of our findings and the validity of our conclusions.
One of the aims of the study was to assess the impact of computerization
on administrative justice in a systematic manner. Two indicators have were
selected for each of the six models included in Table 3, and respondents
were asked to rate them on a 1–5 scale (where 1 = generally very important;
2 = generally important; 3 = important in some areas; 4 = not very important;
5 = unimportant). They were then asked whether computerization had made
each of them more or less important. A 1–5 scale was used here, too (where
1 = greatly increased importance; 2 = increased importance; 3 = much
the same; 4 = decreased importance; 5 = greatly decreased importance). The
scores for the two expert informants from each country were averaged. The
twelve indicators are listed in Table 7 below.
The use of two expert informants for each country was intended to pro-
vide a check on the accuracy of the data generated by the study. Neverthe-
less, doubts concerning its validity and reliability will still be raised. However,
early results (Adler & Henman 2001), based on an analysis of data from ten
countries, indicated that, with one exception, bureaucracy was the dominant
model of administrative justice in social security in the countries included in
our study, and that computerization had reinforced its dominance. Com-
puterization appears to have had a very significant effect in promoting the
managerial model of administrative justice, which in many countries is now
the second most important model. In contrast to this, there is little evidence
of the professional model, and there appears to have been a tendency for
computerization to reduce its importance. There is likewise little evidence of
the market model and computerization has had a minimal effect so far on
the ability of users to choose their preferred service provider – the two excep-
tions here are Belgium and Finland where employers and employees can
Adler ADMINISTRATIVE JUSTICE 343
© Blackwell Publishing Ltd. 2003
Table 7. A Framework for Assessing the Impact of Computerization on ProceduralFairness in Social Security
Indicator Model Importance Impact
Rating (on Rating (on
a 1–5 scale) a 1–5 scale)
In making decisions about entitlement to
benefit, social security institutions apply
well-established rules
Dissatisfied customers can complain to a
professional body
The government purchases social security
services from nongovernmental
service providers
Social security institutions are expected
to meet performance targets
Social security institutions are expected
to abide by customer charters
Claimants can check and correct
personal records
Dissatisfied customers have their
cases reviewed internally
Indicators are used to assess staff
performance
In making decisions to benefit entitlement,
staff exercise administrative discretion
Claimants can choose between more than
one social security institutions
Claimants participate actively in decision
making
Dissatisfied customers appeal to an
independent court or tribunal
choose which social security fund should provide statutorily defined social
security benefits.30 While the importance of the legal model of administrative
justice appears to be stronger in some respects than in others, computeriza-
tion appears to have had a minimal effect on it. Finally, the importance of
consumerism differs from country to country, and computerization has had
a mixed response on it.31
Among these broad shifts, computerization appears to have had little effect
on the availability of appeal procedures but has had a greater effect on the
procedures for determining entitlement to benefit. In particular, the assessment
of entitlement has become increasingly automated, involving an increased
reliance on rules and a correspondingly decreased use of discretion. This has
been supported by an increased reliance on the managerial model, in particu-
lar on performance measures, to bring about improvements in the delivery of
Bureaucracy
Professionalism
Markets
Managerialism
Consumerism
Legality
Bureaucracy
Managerialism
Professionalism
Markets
Consumerism
Legality
344 LAW & POLICY October 2003
© Blackwell Publishing Ltd. 2003
social security benefits. However, there is little evidence that this “top-down”
type of accountability is being matched by an increased emphasis on the legal
and consumerist models of administrative justice that embody “bottom up”
orientations.
The validity of these conclusions assumes both that the indicators of each
of the six models of administrative justice are appropriate ones and that the
assessments made by our expert informants are accurate. However, it is already
clear that computerization has had an impact on the trade-offs that are made
between the six different models of administrative justice outlined above in
that it alters the ways in which decisions are made, the ways in which they can
be challenged, and the ways in which individuals are treated by social security
institutions. Although many similarities were observed among the countries
in the study, some differences between these countries were also apparent.
IV. CONCLUSION
By adopting a relativistic orientation to administrative justice, Mashaw’s
approach, and the approach adopted in all four of the studies outlined above,
both challenge the view that there are any invariant principles of administrat-
ive justice that apply in all contexts.32 This may, at first, seem surprising but,
on reflection, should not be since it is generally agreed that this is true of
social or distributive justice. Administrative justice is no less a contested
concept than social justice in that, although it can be defined in a relatively
uncontroversial or uncontentious way (as “a proper balance between com-
peting claims to procedural protection”), the terms in which it is defined (i.e.,
what constitutes “a proper balance” and even what are to count as “claims”)
are the subject of considerable disagreement. Like social justice, it is an
“essentially contested concept” (Gallie 1964). Compared to the external focus
on mechanisms of redress, two of the great merits of an internal orientation are
that it focuses on the myriad of first-instance decisions rather than the much
smaller number of decisions that are the subject of an appeal or complaint
and that it analyzes them directly rather than at one remove and through a
“legal prism.” This is not to deny the important contribution that external
redress mechanisms undoubtedly make to the promotion of administrative
justice. The point is that external modes of redress promote particular concep-
tions of administrative justice and may have a limited impact on the justice
inherent in administrative decision-making. They need to be combined with
the internal orientation that has been outlined and illustrated in this article.
In terms of the framework for analyzing administrative justice, the attempt
to assess the impact of computerization on social security in the UK in terms
of the three normative models identified by Mashaw was undoubtedly the
simplest. By contrast, the study of decision making in the Scottish prison
system was perhaps the most ambitious. With its focus on the discourses of
procedural fairness and substantive justice and on the discursive struggles
Adler ADMINISTRATIVE JUSTICE 345
© Blackwell Publishing Ltd. 2003
between the individuals and groups who were the carriers of these discourses,
it was able to give a dynamic account of the dramatic changes that were
taking place in the Scottish prison system at the time. Although this study
anticipated the rise of managerialism as another normative model of adminis-
trative justice, it was only later that this was fully elaborated. The study of
the assessment of special educational needs in England and Scotland utilized
a framework based on four normative models of administrative justice and
yielded a rich account of the different forms that procedural fairness can
take and the different responses to them of each of the parties concerned. As
noted above, it has been used to indicate how administrative justice could be
enhanced in both countries by some different trade-offs between the competing
models. An extended framework comprising six models was used in the com-
parative study of computerization in the social security systems of thirteen dif-
ferent countries and has enabled us to understand the impact of computers
on the trade-offs between the different normative models of administrative
justice. However, in this case, the advantages of a systematic approach will
inevitably be offset by concerns about the reliability and validity of the data.
Although all of the studies have their limitations, it is contended that,
considered together, they demonstrate the power of a particular approach to
studying administrative justice and the validity of the assumptions that underlie
it. It is also contended that they satisfy each of the three defining character-
istics of the socio-legal paradigm – they all adopt an external perspective to
legal process that seeks to analyze administrative justice in terms of concepts
and categories that are derived from the social sciences; they all focus on
routine, rather than leading, cases; and they are all informed by philosophical
analysis.33 Whether or not they are successful is for others to judge.
michael adler is Professor of Socio-Legal Studies in the School of Social and PoliticalStudies at Edinburgh University. He has recently completed a review of research on theexperiences, perceptions, and expectations of tribunal users for the Lord Chancellor’sDepartment and, with financial support from the Nuffield Foundation, is currently carry-ing out a developmental study of administrative grievances, exploring the problemspeople experience in dealing with government departments and other public bodies, theadvice they seek, whether or not they challenge the decisions in question and the impactof these problems on their lives. He hopes that this will lead to a national survey of theadministrative grievances people experience and the effectiveness of the available mech-anisms for challenging decisions that are experienced as unjust or unfair.
NOTES
1. A similar argument applies in respect to health care — preventative medicineaims to improve levels of health in the community while health-care systems areset up to treat episodes of illness that individual members of the communityexperience. One is not more important than the other, and there is a strong casefor combining the two.
2. The rule against bias asserts that decisions must be made by an impartial judgeand may be set aside where there are grounds for reasonable suspicion of bias;
346 LAW & POLICY October 2003
© Blackwell Publishing Ltd. 2003
the right to a hearing requires that each party should have the opportunity ofknowing the case against him (or her) and stating his (or her) own case.
3. For a full account of “red light” and “green light” theories, see Harlow andRawlings (1997:29–66, 67–90).
4. The further examples were rudeness (though that is a matter of degree); unwill-ingness to treat the claimant as a person with rights; refusal to answer reasonablequestions; neglecting to inform a complainant on request of his or her rights orentitlement; knowingly giving advice that is misleading or inadequate; ignoringvalid advice or overruling considerations that would produce an uncomfortableresult for the over-ruler; offering no redress or manifestly disproportionateredress; showing bias, whether because of color, sex, or any other grounds;omission to notify those who thereby lose a right of appeal; faulty procedures;failure by management to monitor compliance with adequate procedures; cavalierdisregard of guidance that is intended to be followed in the interest of equitabletreatment of those who use a service; partiality; and failure to mitigate the effectsof rigid adherence to the letter of the law where that produces manifestly unequaltreatment.
5. Under the Scottish Public Services Ombudsman Act 2002, a single ScottishPublic Services Ombudsman has now taken over the work formerly carried out byfour separate ombudsmen: the Scottish Parliamentary Ombudsman, the ScottishHealth Services Ombudsman, the Scottish Local Government Ombudsman, andthe Housing Association Ombudsman for Scotland.
6. For a very comprehensive account of public sector ombudsmen in the UK, seeSeneviratne (2002). For a more general account, see Harlow and Rawlings(1997:391–422, 423–55).
7. Remedial action involves correcting the injustice caused by the maladministrationand reversing the decision made because of it; compensation can cover direct andindirect losses resulting from maladministration; and an apology would normallycome from the head of the organization complained of. Note that remedialaction is not always feasible while compensation may be appropriate when remed-ial action is not. However, where the losses caused by maladministration arepsychological rather than material, it may be difficult to put a monetary value onthem. Sometimes an apology may be all that the complainant wants.
8. A recent British study of regulatory bodies in government (Hood et al. 1999:60–65) indicates that, compared to other types of regulator, a relatively small pro-portion of the staff working for the PCA, the Health Service Commissioner, andthe CLA have experience of employment in “regulatee” organizations (ibid.:Table 3.2). Using terminology developed by Black (1975), their “relational dis-tance” (RD) was placed in the lowest of three categories. The RD of HousingAssociation Ombudsmen was placed in the middle category while that of thePrisons Ombudsman was placed in the highest category. However, it shouldbe noted that the measures of RD used in this study are relative to the otherregulators in the study and are not absolute measures.
9. As Halliday (2001) reminds us, in addition to its impact on the individual whopetitions the court, judicial review can have an impact on government policy orlegislation as well as on routine decision making within government. This appliesequally to other external forms of accountability like tribunals and ombudsmen.For a more general discussion of the impact of judicial decisions on publicadministration, which highlights the lack of empirical evidence, see Richardsonand Sunkin (1996). For an up-to-date discussion, based on an empirical study ofthe impact of judicial review on three local government homeless persons units,see Halliday (2003).
10. The few empirical studies that have been carried out indicate that judicial reviewhas a limited impact on administrative decision-making in the United Kingdom.
Adler ADMINISTRATIVE JUSTICE 347
© Blackwell Publishing Ltd. 2003
See, e.g., Mullen, Pick and Prosser (1996:113–34) and Halliday (2000). Likewise,research indicates that tribunals also have a limited effect on first-instance deci-sion makers. In a study of decision making in social security (Baldwin, Wikeleyand Young 1992), just over half (52.6 percent) of adjudication officers claimedthat, in making first-instance decisions, they were not at all influenced by atribunal’s likely response to an appeal. This compares to a quarter (25.0 percent)of officers who claimed that tribunals had a procedural effect in that the pro-spect of an appeal led them to be more thorough and document their decisionsmore fully.
11. There is likewise considerable variation between countries with different legalsystems. Generally speaking, the impact of higher courts is greater than that oflower courts, and the impact of courts is greater than that of tribunals. It is moredifficult to generalize about ombudsmen since there is so much variation betweencountries in their scope and standing.
12. Note that the third model is characterized in terms of legality rather than fair-ness. For a discussion of legality, which is a synonym for “the rule of law,” seeSelznick (1980:11–18).
13. Agreement on the principle of justice that should determine how the goods inquestion are distributed may not be the end of the matter since there may beconsiderable disagreement about how to operationalize the principle in question.For a full discussion, see Elster (1992).
14. See, e.g., the reviews of Mashaw (1983) by Boyer (1984) and Maranville (1984).15. There are, of course, many views about what different sets of trade-offs between
competing models of policy and competing models of administration might bemore desirable. These are associated with different political ideologies and reflectdifferent conceptions of what would be in the public interest. In ascertainingwhich trade-offs might be more desirable, Rothstein (1999) points out that it isimportant to ensure that those who are affected should regard the policy as justand its implementation as fair. However, what is desirable is not necessarilyfeasible. The trade-offs that are made in practice reflect the power and theinterests of different groups of institutional actors who are attached to, sponsor,and promote the different models of administrative justice.
16. Like other methods of distribution, making decisions by lot can be used todistribute burdens as well as benefits. In the first case, we frequently refer tosomeone “drawing the short straw”; in the second case, to someone “having thewinning ticket” or “having the winning number.” For a discussion of the advant-ages and disadvantages of lotteries, see Duxbury (1999).
17. For an illuminating discussion of the ethics of markets, see Sen (1985).18. Unless, however, it is argued that the initial distribution of resources accurately
reflects preexisting property rights or that the final distribution reflects the pro-ducers’ right to enjoy what they produce. The best account of the argumentbased on prior entitlements can be found in Nozick (1974) and of the argumentbased on producers’ rights in Bauer (1981). Both arguments are very effectivelycriticized in Sen (1985).
19. Unlike perfect procedural justice, where there is an independent criterion fordetermining how benefits and burdens should be distributed and a procedure thatis certain to have this result can be specified, and imperfect procedural justice,which has only the first of these features (there is an independent criterion fordetermining what the outcome should be but no way of specifying a procedurethat will always produce this outcome), pure procedural justice has neither ofthese features. However, although there is no independent criterion for deter-mining what the outcome should be, there is a correct or fair procedure andthe consequences of applying it, whatever they may be, should be regarded asjust, provided that the procedure has been properly followed. In this kind of
348 LAW & POLICY October 2003
© Blackwell Publishing Ltd. 2003
procedural justice, the justice of any outcome is founded on the fairness of theinstitutional arrangements from which it arises. For a fuller discussion of “perfect,”“imperfect,” and “pure” forms of procedural justice, see Rawls (1971:85–86).Rawls makes it clear (ibid.:270–74) that markets exemplify pure procedural justice,and it is clear that lotteries do as well.
20. These included the initial allocation of prisoners to establishments, transfersbetween establishments, security categorizations, the allocation of work and educa-tional placements, the distribution of privileges, the handling of requests andgrievances, appeals to the domestic courts, the PCA and the ECHR, and theactivities of the Prisons Inspectorate.
21. In 1999, the government circulated a number of proposals in a consultationdocument that led to a revised code that came into effect in the school year2000–2001.
22. The percentage of pupils who are statemented in England (2.9%) is higher thanthe percentage of pupils who are recorded in Scotland (1.9%), but there are widevariations between authorities in both countries. Among pupils who arestatemented or recorded, a higher proportion of pupils attend mainstream schoolsin England (58%) than in Scotland (37%). In Scotland, some special schoolpupils do not have records of needs, although all special school pupils in Eng-land are statemented. In spite of this, the percentage of the age group who attendspecial schools is higher in England (1.2%) than in Scotland (1.0%). The figuresrelate to the years 1996, 1997, or 1998, and the comparisons are therefore notstrictly correct.
23. We were unable to achieve the 50:50 split between contested and noncontestedcases that we had hoped to. This was because there were very few contested casesin two of the authorities. Most of the “contested” cases were resolved beforethey reached the point of legal challenge.
24. In England, Special Educational Needs Co-ordinators implement the school-based stages of assessment and coordinate reviews for all children with specialeducational needs.
25. Unfortunately, the fieldwork and the development of our analytic frameworkdid not go hand in hand. In the early stages of our research, we thought ofmanagerialism as an advanced form of bureaucracy rather than as a sui generismode of decision making. Moreover, after considerable debate, we concludedthat the market could be best understood as an exogenous variable, i.e. as anaspect of the external environment in which administrative decision-making takesplace, rather than as a form of decision making in its own right. Although wechanged our position on these two issues in the course of the project, this changeoccurred too late for it to have any major effect on our research design, on theconduct of our research or on our research findings. However, we were ratherquicker to appreciate the distinction between consumerism, manifested in termsof user participation in decision making, and legalism, expressed in terms ofchallenges to official decisions and/or the manner in which they are reached.Thus, the analytic framework that informed the study incorporated the con-sumerist but not the managerialist or market models of administrative justice.
26. Despite the fact that parents were actively deterred from adopting the role of aconsumer, there were fears among some local authorities that the process wasbecoming too adversarial, prompting an attempt by the Association of PrincipalEducational Psychologists to persuade the Scottish Executive to abolish the pro-cess of recording.
27. The SENT was set up in 1994 and heard its first cases in 1995. Parents have theright to appeal to the SENT in relation to: an LEA’s decision to make and main-tain a Statement; an LEA’s decision to make a statutory assessment; the schoolnamed on the Statement; the assessment of the child’s SEN; the measures proposed
Adler ADMINISTRATIVE JUSTICE 349
© Blackwell Publishing Ltd. 2003
by the LEA to meet the child’s SEN. For a very thorough evaluation of theSENT, see Harris 1997. There is, as yet, no equivalent of the SENT in Scotland.
28. Many of these proposals would, no doubt, be strongly opposed by the Associ-ation of Principal Educational Psychologists. See note 25 above.
29. At the outset, we assumed that there would be a number of advantages to thisprocedure. We thought that it would constitute an efficient method of datacollection and an effective means of understanding the detailed operation ofpolicies and procedures in different countries, i.e., that it would reduce thedanger of misunderstanding the situation in a particular country, overcome lan-guage barriers, and provide a useful source of informed advice on research designand the interpretation and analysis of the information provided. In practice, itsometime proved to be extremely difficult to identify informants with the necessaryexpertise and persuade them to take part, and we received fewer comments onour preliminary findings than we had expected.
30. The main effect of computerization on the market model appears to have beento increase the extent to which governments purchase the delivery of social secur-ity from nongovernmental organizations.
31. An analysis of the data from all thirteen countries in the study confirms thesefindings (see Adler & Henman forthcoming).
32. Some followers of Mashaw, e.g., Sainsbury (1992), have attempted to develop aless relativistic conception of “administrative justice.” Adopting the perspectiveof the individual citizen, Sainsbury argues that administrative justice, definedas those “qualities an administrative decision ought to exhibit, which providearguments for the acceptability of its decisions,” has two invariant components.These are, first, accuracy and, second, fairness, the latter comprising promptness,impartiality, participation, and accountability. According to Habermas (1992),participation is a means of advancing rational discourse and, as such, plays animportant role in legitimating the rule of law and the role of the state.
33. See MacCormick (1994). A similar characterization can be found in the Economicand Social Research Council’s (ESRC) review of socio-legal studies (ERSC 1994).
REFERENCES
adler, michael, and paul henman (2001) “e-Justice: A Comparative Study ofComputerisation and Procedural Justice in Social Security,” International Reviewof Law, Computers & Technology 15(2):195–212.
adler, michael, and paul henman (forthcoming) The Computerisation of SocialSecurity in Thirteen OECD Countries. London: IBM.
adler, michael, and brian longhurst (1994) Discourse, Power and Justice: Towardsa New Sociology of Imprisonment. London: Routledge.
adler, michael, and roy sainsbury (1990) Putting the Whole Person Concept intoPractice: Final Report (Parts I and II). Edinburgh: Department of Social Policy,Univ. of Edinburgh.
adler, michael, and roy sainsbury (1991a) “Administrative Justice, Quality of Serviceand the Operational Strategy.” In The Social Implications of the Operational Strat-egy, edited by M. Adler & R. Williams. Edinburgh: Dept. of Social Policy andSocial Work, Univ. of Edinburgh.
adler, michael, and roy sainsbury (1991b) “The Social Shaping of InformationTechnology: Computerisation and the Administration of Social Security.” In TheSociology of Social Security, edited by M. Adler, C. Bell, J. Clasen & A. Sinfield.Edinburgh: Edinburgh Univ. Press.
adler, michael, and roy sainsbury (1996) “Alternative Approaches to the Com-puterisation of Social Security: Reflections on a Delphi Exercise.” In Gazing into the
350 LAW & POLICY October 2003
© Blackwell Publishing Ltd. 2003
Oracle: The Delphi Method and its Application to Social Policy and Public Health,edited by M. Adler & E. Ziglio. London: Jessica Kingsley.
baldwin, john, nick wikeley, and richard young (1992) Judging Social Security:The Adjudication of Claims for Benefit in Britain. Oxford: Clarendon Press.
bauer, p. t. (1981) Equality, The Third World, and Economic Delusion. Cambridge,Mass.: Harvard Univ. Press.
bayles, michael (1990) Procedural Justice: Allocating to Individuals. Dordrecht: KluwerAcademic Publications.
black, donald j. (1975) Behavior and the Law. New York: Academic Press.boyer, barry (1984) “From Discretionary to Bureaucratic Justice,” Michigan Law
Review 82:971–80.clarke, john, and janet newman (1997) The Managerial State: Power, Politics and
Ideology in the Remaking of Social Welfare. London: Sage.duxbury, neil (1999) Random Justice: On Lotteries and Legal Decision-Making.
Oxford: Oxford Univ. Press.economic and social research council (ersc) (1994) Review of Socio-Legal Studies:
Final Report. Swindon: ESRC.elster, jon (1992) Local Justice: How Institutions Allocate Scarce Goods and Necessary
Burdens. Cambridge: Cambridge Univ. Press.fuller, lon l. (1978) “The Forms and Limits of Adjudication,” Harvard Law Review
92:353–409.gallie, w. b. (1964) “Essentially Contested Concepts.” In Philosophy and the Historical
Understanding, by W. B. Gallie. London: Chatto & Windus.galligan, d. j. (1996) Due Process and Fair Procedures: A Study of Administrative
Procedures. Oxford: Clarendon Press.great britain (1991) The Citizen’s Charter: Raising the Standard. Cm. 1599.
London: HMSO.great britain. council on tribunals (1993) Annual Report of the Council on Tribunals
for the Period. London: HMSO.great britain. department for education (1994) Code of Practice on the Identifica-
tion and Assessment of Special Educational Needs. London: HMSO.great britain. department of health and social security (1982) Social Security
Operational Strategy: A Framework for the Future. London: DHSS.great britain. parliament (1932) Report of the Donoughmore Committee on Minis-
ters Powers. Cmnd. 4050. London: HMSO.great britain. parliament (1957) Report of the Franks Committee on Tribunals and
Inquiries. Cmnd. 218. London: HMSO.great britain. parliament. house of commons (1966) Parliamentary Debates, 5th
ser., vol. 734. London: HMSO.habermas, jürgen (1992) Between Facts and Norms: Contributions to a Dis-
course Theory of Law and Democracy. Trans. by W. Rehg. Cambridge: PolityPress.
halliday, simon (2000) “The Influence of Judicial Review on Bureaucratic Decision-Making,” Public Law (spring):110–22.
halliday, simon (2001) “Ideal Conditions of Impact: Some Reflections on the Influ-ence of Judicial Review on Administrative Decision Making.” Paper presented tothe Law Program, Research School of the Social Sciences, Australian NationalUniversity, 5 September, Canberra.
halliday, simon (2003) Judicial Review and Compliance with Administrative Law.Oxford: Hart.
harlow, carol, and richard rawlings (1997) Law and Administration. 2d ed.London: Butterworths.
harris, neville (1997) Special Educational Needs and Access to Justice: The Role ofthe Special Educational Needs Tribunal. Bristol: Jordans.
Adler ADMINISTRATIVE JUSTICE 351
© Blackwell Publishing Ltd. 2003
himsworth, chris (ed.) (1985) Judicial Teeth for Local Ombudsmen? Edinburgh:Department of Public Law, University of Edinburgh.
hirschman, albert o. (1970) Exit, Voice, and Loyalty: Responses to Decline in Firms,Organizations and States. Cambridge, Mass.: Harvard Univ. Press.
hood, christopher (1991) “A New Public Management for all Seasons,” PublicAdministration 69:3–19.
hood, christopher (1998) The Art of the State: Culture, Rhetoric and Public Manage-ment. Oxford: Clarendon Press.
hood, christopher, colin scott, oliver james, george jones, and tony travers
(1999) Regulation inside Government: Waste Watchers, Quality Police, and Sleaze-Busters. Oxford: Oxford Univ. Press.
ison, t. g. (1999) “ ‘Administrative Justice’: Is it Such a Good Idea?” In AdministrativeJustice in the 21st Century, edited by M. Harris & M. Partington. Oxford: Hart.
johnson, norman (ed.) (1995) Private Markets in Health and Welfare: An InternationalPerspective. Oxford: Berg.
le grand, julian (1991) “Quasi-Markets and Social Policy,” Economic Journal101:1256–67.
le grand, julian, and will bartlett (eds.) (1993) Quasi-Markets and Social Policy.Basingstoke, UK: Macmillan.
lipsky, michael (1980) Street-Level Bureaucracy: Dilemmas of the Individual in PublicServices. New York: Russell Sage Foundation.
maccormick, neil (1994) “Four Quadrants of Jurisprudence.” In Prescriptive Form-ality and Normative Rationality in Modern Systems: Festschrift for R. S. Summers,edited by W. Krawietz, G. H. von Wright & D. N. MacCormick. Berlin: Duncker& Humboldt.
maranville, deborah (1984) “Review of J. L. Mashaw: Bureaucratic Justice,”Minnesota Law Review 69:325–47.
mashaw, jerry l. (1974) “The Management Side of Due Process: Some Theoreticaland Litigation Notes on the Assurance of Accuracy, Fairness and Timeliness in theAdjudication of Social Welfare Claims,” Cornell Law Review 59:772–824.
mashaw, jerry l. (1983) Bureaucratic Justice: Managing Social Security DisabilityClaims. New Haven, Conn.: Yale Univ. Press.
miller, david (1976) Social Justice. Oxford: Clarendon Press.mullan, d. j. (1975) “Fairness: The New Natural Justice,” University of Toronto Law
Journal 25:281–316.mullen, tom, kathy pick, and tony prosser (1996) Judicial Review in Scotland.
Chichester: J. Wiley.nozick, robert (1974) Anarchy, State, and Utopia. Oxford: Basil Blackwell.page, alan (1999) “The Citizen’s Charter and Administrative Justice.” In Administrat-
ive Justice in the 21st Century, edited by M. Harris & M. Partington. Oxford: Hart.rawls, john (1971) A Theory of Justice. Oxford: Clarendon Press.richardson, genevra, and maurice sunkin (1996) “Judicial Review: Questions of
Impact,” Public Law (spring):79–103.riddell, sheila, michael adler, enid mordaunt, and nadia farmakopoulou (2000)
“Special Educational Needs and Competing Policy Frameworks in England andScotland,” Journal of Education Policy 15(6):621–35.
riddell, sheila, alastair wilson, michael adler, and enid mordaunt (2002)“Parents, Professionals and Special Educational Needs Policy Frameworks in Eng-land and Scotland,” Policy and Politics 30(3):411–25.
rothstein, bo (1999) Just Institutions Matter: The Moral and Political Logic of theUniversal Welfare State. Cambridge: Cambridge Univ. Press.
sainsbury, roy (1992) “Administrative Justice: Discretion and Procedure in SocialSecurity Decision-Making.” In The Uses of Discretion, edited by K. Hawkins.Oxford: Clarendon Press.
352 LAW & POLICY October 2003
© Blackwell Publishing Ltd. 2003
scottish office education and industry department (1998) A Manual of GoodPractice in Special Educational Needs. Edinburgh: HMSO.
selznick, philip (1980) Law, Society, and Industrial Justice. New Brunswick, N.J.:Transaction Books.
sen, amartya (1985) “The Moral Standing of the Market.” In Ethics and Economics,edited by E. F. Paul, J. Paul & F. D. Miller, Jr. Oxford: Basil Blackwell.
seneviratne, mary (2002) Ombudsmen: Public Services and Administrative Justice.London: Butterworths LexisNexis.
walzer, michael (1983) Spheres of Justice: A Defense of Pluralism and Equality.Oxford: Basil Blackwell.