The Limits of Law: Can Laws Regulate Public Administration?

Background: Six Plausible Propositions

There is little hard evidence about the relationship between law and public administration. The sociology of law movement has gradually provided information about the roles which law plays in society, and some more specialized studies have examined its impact on administration,1 but current understanding of the subject relies heavily on a combination of largely untested hypotheses from theoretical analyses, fairly small-scale studies of particular administrative bodies or procedures, and anecdotal accounts. A number of studies of all these types have tried to assess the impact of applications for judicial review,2 one type of legal procedure, on administrators, but the principles and procedures of judicial review form only a tiny aspect of the law applying to public administration. Other studies have examined the making and applying of rules, including legal rules, as a way of empowering and controlling administration, and have illuminated the conditions under which rules are more or less likely to achieve their drafters' objectives in practice. Although scholars and practitioners must still attempt to generalize from insufficient information, it is possible to offer some propositions that seem likely to be reasonably reliable, as a background to the account which follows.3

First, norms (a term encompassing standards, principles, policies and rules) have a pervasive effect on administration, shaping the activities undertaken, the way in which they are undertaken and the efforts of individual administrators

and groups of them (whether aimed at achieving the objectives enshrined in the norms or at frustrating them). Norm-based organization is an important aspect of the idea of bureaucratic rationality which the Weberian tradition sees as a hallmark of the modern state.

Secondly, it would be unwise to imagine that the impact of legal norms is distinctively different in practice from that of other norms, such as non-legal guidance and directions issued to or within the organization, and the morality of individual officers. Front-line staff with discretion may experience all norms in a rather similar way: ‘cultural, social, political, psychological, institutional, and doctrinal forces may moderate that discretion’.4 All forms of norm are subject to factors limiting their potential effectiveness. Legal norms are not special when seen from the perspective of administrators, although they may carry with them special risks and opportunities. Of course, law is special in the eyes of lawyers and legislators, but it would probably be wrong to assume that it offers a decisive way of influencing administrative behaviour.

Thirdly, many legal norms are institutionally enforceable by judicial action, although not all. A legal rule may contain a broad and imprecise standard, such as ‘efficiency’, which is not likely to be justiciable.5 A typical legal rule which is not designed to be enforced by law is Section 1 of the UK National Health Service Act 1977, requiring the Secretary of State to promote a ‘comprehensive health service designed to secure improvement (a) in the physical and mental health of the people of [England and Wales], and (b) in the prevention, diagnosis and treatment of illness’. This cannot give rise to [Page 280]judicially enforceable obligations owed by the Secretary of State to individual patients. The norm is politically, rather than legally, enforceable. Analogously, non-legal norms may also be institutionally enforceable, through managerial action (performance appraisal affecting pay and promotion prospects, budgetary penalties, or loss of contracts under contracting-out and compulsory competitive tendering regimes) or social pressure (the ethos of the department concerned).<>

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