Administrative Law: Indefinable, But Necessary and Very Much Alive

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Administrative Law: Indeﬁnable, but Necessary and Very Much Alive
Article · August 2017

DOI: 10.25159/2219-6412/2643
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ARTICLE
ADMINISTRATIVE LAW: INDEFINABLE, BUT

NECESSARY AND VERY MUCH ALIVE
Mirko Pečarič*
ABSTRACT
This article deals with the endurance of administrative law acting as a culturally conditioned
and inclusive community element. The article seeks to highlight the interplay between
various factors but also the elusiveness of administrative law which shifts from rigid towards
more converging norms. Administrative law is based on subjective means and objective
tools that depend upon the contextual, social, cultural and political situations. It represents a
social catalyst between individual preferences on one hand and the needs of communities
on the other – a catalyst that in an increasingly complex society is even more needed to hold
communities together. An attempt is made to show administrative law in the light of meta-
legal and cultural theory because we are not yet fully aware of all psychological, emotional
and other implications of this discipline of law, especially in our age of complexity.
Administrative law is not for sissies – so you should lean back, clutch
the sides of your chairs, and steel yourselves for a pretty dull lecture.
– The late Antonin Scalia, Associate Justice of the Supreme Court of the United States1
1. INTRODUCTION
The final decades of the last century saw a rise in the interest in administrative law
(AL), the largest among all disciplines of law. From the 1980s onwards, due to the
influence of New Public Management (NPM),2 AL has experienced a different approach
to regulation based on liberalisation, that is deregulation, but this practice paradoxically
* University of Ljubljana, Faculty of Public Administration, Republic of Slovenia
1 Antonin Scalia, ‘Judicial deference to administrative interpretations of law’ (1989/3) Duke LJ 511 at
511.
2 Christopher Pollitt and Geert Bouckaert, Public Management Reform: A Comparative Analysis - New
Public Management, Governance, and the Neo-Weberian State (Oxford University Press 2011); Jan-
Erik Lane, New Public Management: An Introduction (Routledge 2002).
Southern African Public Law https://doi.org/10.25159/2219-6412/2643

https://upjournals.co.za/index.php/SAPL/index ISSN 2219-6412 (Print)
Volume 31 | Number 1 | 2016 | pp. 91–113 © Unisa Press 2017
91
Pečarič Administrative Law: Indefinable, but Necessary and Very Much Alive
has led to an increased influence on the part of the regulatory state. 3 The growth of rules
(due to Vogel’s Freer Markets, More Rules4) in times of economic crisis is even more
rapid, but the struggle of states for a different organisation to address the economic
crisis by the public administration and the common dissatisfaction with the states’
results show more complexity and intensity than the regulatory goals and their means
realise. However, the processes of deregulation have had the opposite effect: efforts to
introduce competition have led to increased re-regulation and state interventionism and
to an even larger role for AL. Although the liberal legal orders of the twentieth century
were based on the protection and sanctity of property rights and the inviolability of
the private sphere, these fields nonetheless required public interest rules by the state
focused on community for their effectiveness and efficiency. It seems that wherever the
liberal ideas of the market appear, the relatively centralised state rules are also present.
The ideas of liberalism are based on human rationality and intelligence, whereas the
ideas of state interference are based on the notion of the good of the community as a
whole, that is, on the public interest that is or could be demolished by individual selfish
or egocentric decisions. Let us call these non-intended consequences and dualism of AL
as the paradox of change.
Europeanisation as the process through which the European Union’s political and
economic dynamics are becoming part of the organisational logic of national politics,
and the emergence of the regulatory state as its consequence, have greatly increased the
share of AL at the national and at the supra- as well as trans-national levels. This fact has
blurred the boundaries between the effects of different actors in the state’s performance
even more than before. Although cooperation between the public administrations of
the EU member states is of an informal nature due to the EU Treaties, the impact of
community law and administrative cooperation is increasing. A messianic search in some
European states for solutions from other member states, which were then non-critically
taken from their ‘natural’ political and economic environment, did not produce the so-
wanted results. It seems that the different organisations of public administrations can
be equally administered from one centre only: in the case of the EU, the development
of AL was and still is largely based on the more or less lenient5 case law of the Court of
3 Seidman and Gilmour have coined the concept of the ‘regulatory state’ in their study of the American
government through the transition from the positive state to the regulatory one. The positive state
provides goods and services directly, while the regulatory one attempts to achieve similar goals in
an indirect way, via regulation (through the guidance and control systems), the private sector and
markets. See Harold Seidman and Robert Scott Gilmour, Politics, Position, and Power: From the
Positive to the Regulatory State (Oxford University Press 1996).
4 Kent Vogel, Freer Markets, More Rules: Regulatory Reform in Advanced Industrial Countries
(Cornell University Press 1996).
5 Usually the legal questions are left to the court of law, whereas the actual ones to the administration;
there is an intermediate stage between the judiciary and the administration where the court is more
(factual state) or less lenient (the legal questions) regarding the decisions of the administration;
although it appears that the administration has more discretion when the factual questions are
concerned, it is sometimes quite the contrary. It is precisely at this point that the administration should
make every effort to show a logic that derives from the fact-finding. American authors warn that the
decisions of the courts may seem somewhat surprising to foreigners: ‘[h]ow odd. The American courts
92
Justice of the EU. AL, despite its differences in states, nevertheless involves more equal
and converging content due to the Court of Justice of the European Union, the Court
of Human Rights, the International Court of Justice, the Appellate body of the WTO in
Geneva and other decision-making forums. Let us call this interaction the paradox of
undefined boundaries.
It seems that the mentioned paradoxes contradict one another: dualism between the
rights of an individual and the public interest normally cause complex balancing and
the non-intended consequences, whereas the undefined boundaries point towards the
similar and converging contents despite states’ differences. The article will try to solve
this apparent contradiction with the help of the concept of endurance of AL that acts as a
culturally conditioned and inclusive community element and the elusiveness of AL that
is shown in the light of meta-legal and cultural theory. While the common deterministic
elements within the specialisation of different areas can be the first sign of maturity, I
argue in this article that AL should be placed in the space of unlimited freedom vis-à-vis
the public interest that protects freedom but also raises dependence. This article seeks
to highlight the interplay between various factors and the elusiveness of AL; it tries to
point out its ‘mystery’,6 its ambivalent changes and the above-mentioned paradoxes
in which the two tendencies towards the preservation of the status quo (of rights) and
towards the increase of obligations (to protect or enhance rights) coexist. This article
will try to defend the argument that AL is placed between freedom and coercion, while
its characteristics are basically that of a human: alive, flexible but also rigid, cohesive
and exclusive, unidentifiable in definition but clearly present. This argument consists of
the elements of indefinability, meta-incidence, transformations, complexity and cultural
conceptions of AL.
2. THE INABILITY TO PROVIDE AN UNAMBIGUOUS

DEFINITION OF ADMINISTRATIVE LAW
There are almost as many definitions of AL as there are writers who have attempted
to define it, its indefinability stems from its flexibility and differences which emerge
from intervention in various fields. AL is not only law and governs more than the
administration. It attempts (in the national, trans-, inter-, and supranational domains) to
regulate people within a particular environment, and therefore varies in time and space.
Different situations preclude formulating a single definition: AL may be considered a
science of the beginning or the essence and objectives of the state, when the state affects
relationships between itself and individuals. Just as there are non-physical values and
defer to agencies on question of law, where courts are expert, but they conduct “in-depth” reviews of
policy, where agencies are expert. They seem to have it backwards’. Stephen G. Breyer, Richard B.
Stewart, Cass R. Sunstein and Adrian Vermule, Administrative Law and Regulatory Policy (Aspen
Publishers 2006) 403.
6 The mystery of AL is understood as something that remains unexplained, as something that we
understand (‘tentatively’) as the flexible classic relation between superior power and subordinate will.
93
ideas behind the specific policy and facts, so the general part of AL relates to something
that is behind the actual facts, something that should be used (proportionally) equally,
something that may even be a foundation of justice. This feature includes not only
the principle of equality but also all the general principles that are present in most
legal systems, known under different names but with a similar content (nowadays also
referred to as the duty of care and/or the principle of good governance), if, in essence,
they all are about the idea of good and bad life and good and bad behaviour towards
other people. The right content is the one that reciprocally bounces between the state
and people, between other organisations, groups and individuals. We usually attach this
‘thing that is behind the material facts’ to the process by which we establish them, but
there is more. There should be a conception by which we also note the procedural rules.
These two responses to the challenge of equal concern – that the distribution of resources is not
the business of government, and that government’s goal should be to maximize some aggregate
good – have at least this virtue: they recommend policies that respect people’s individual
responsibility for their own lives. But neither offers a reasonable conception of what it is to treat
people with equal concern.7
In an attempt to arrive at a definition I will start with an accepted conception of AL.

Authors from Otto Mayer onwards have tried to define the complexity of AL mainly in
one way and negatively (the administration as such an activity of the state that is neither
legislation nor justice), although Mayer added to his definition that not all administration
is either legislation or justice.8 In the transition from the negative definition9 to the
7 Ronald Dworkin, Justice for Hedgehogs (Belknap Press 2011) 354–355 [author’s emphasis].
8 In this part of Mayer’s text, the constitutional-legal ancillary activities, such as dissolution of
Parliament, setting the plebiscite, call for the general elections, are present. The functioning of
the state where it exists outside of its legal system would also rank in it – in this part, he ranks
international activities, management of war, cases of urgency (especially taking command in a state
of emergency, etc). Mayer in conclusion defines administration as the functioning of the state for
achieving its aims within the legal system outside the judiciary. Ivo Krbek, Administrative Law FNRJ
(Book 1 JAZU 1955) 13. Waline has negatively described the administration in relation to the officials
who accept acts: ‘administrative function is one that is carried out by the civil servants who are neither
Parliament nor the judiciary’. For the last two it is characteristic that they can contain only one of
the three activities, while for the administrative activities it is typical that they include all three of
them: the administration passes the general legal acts, and later executes and also supervises their
implementation. Ivo Krbek, Osnovi upravnog prava FNRJ (JAZU 1950) 75–76.
9 Such a gradual transition can be felt also in the work of the doyen of the former Yugoslav administrative
law, the academic Krbek states: ‘The administrative law is a set of legal norms that regulate the legal
relations which arise in the process of the state-administrative activity, as well as all those legal
acts that are carried out by the state administration bodies — in exclusion of legal provisions that
fall within other legal branches. That administrative law cannot be described in a positive way, is a
necessary consequence of the phenomenon, according to which also the very notion of administration
can be accurately determined only negatively’ (n 7) 123. The negative definition is also used today:
‘The administrative law are the rules relating to the organization and functioning of the executive
branch minus the rules concerning the organization and functioning of the legislation and justice
and minus the rules that belong to other branches of public law, as it is the tax law and the social
security law’. Sabiene Lust, ‘Administrative law in Belgium’ in René Seerden and Frits Stroink (eds),
Administrative Law of the European Union, its Member States and the United States (Intersentia
Uitgevers 2002) 6.
94
present ones, AL has been defined according to different starting points: in relation to
the control of the state power which ensures that the competences of the state remain
under the jurisdiction of the state, that is within the statutory limits in protecting citizens
from abuse10 (the function of control), in relation to the competences of the state bodies
(the main purpose is the protection of individual rights11 of the public members:12 the
protective-controlling function), in compliance with the rules that have to be effectively
implemented to achieve objectives (with a simultaneous determination of the complaint
mechanisms against the state’s decisions:13 the effective function), in ensuring the
accountability of the state through promotion of participation by stakeholders and
citizens (the legitimacy function), in relation to the competences of the court (in relation
to cases which courts take into consideration:14 the natural function), the concretisation
of the Constitution15 (a characteristic of the German administrative law), in relation
to the type of democratic society and political theory in which nations live16 (the
democratic-political function), in relations between the public and the private in which
the public part constitutes and defines AL17 (the public law function), in relation to the
scope of its public-autonomous object, distinct from private law18 (the autonomous-
authoritative function), et cetera. In view of the complexity of public areas, primarily
the organisational and procedural aspects can be applied: AL consists of a set of rules
that relate to the overall organisation in the Constitution, to the implementation of the
state bodies19 and to cases where in administrative matters public authorities decide
about rights, obligations and/or the legal interest of persons or groups. This definition,
too, is inadequate. After all, what is an administrative matter? At which point is the
10 William Wade and Christopher Forsyth, Administrative Law (9th ed Oxford University Press 2004)
4–5.
11 Seerden and Stroink (n 9) ‘Administrative law in the Netherlands’ 145.
12 Philip Harter, ‘Administrative law in the United States’ in Seerden and Stroink (n 9) 307.
13 Brian Jones and Katharine Thompson, ‘Administrative law in the United Kingdom’ in Seerden and
Stroink (n 9) 199–200.
14 Jean-Bernard Auby, ‘Administrative law in France’ in Seerden and Stroink (n 9) 60. ‘The essence
of the administrative law is based on the legal doctrines that on the basis of an unwritten law set the
general legal standards for the conduct of public authorities’ Wade and Forsyth (n 10) 6. Similarly, see
Peter Craig, Administrative Law (Sweet & Maxwell 2003) 3: ‘Natural justice and judicial review are
the legal bases that establish administrative law’
15 The administrative law concretises the constitutional law (‘Verwaltungsrecht als konkretisiertes
Verfassungsrechtʼ, according to Fritz Werner in ‘Deutsches Verwaltungsblattʼ (1959) 527.
‘Administrative law is part of constitutional law which reveals what tangible and enforceable limits
can be placed on administrative action’ in Stanley A. De Smith and Rodney Brazier, Constitutional
and Administrative Law (Penguin Books 1994) 577.
16 Craig (n 14) 3.
17 René Chapus, Droit Administratif General (Montchrestien 1996) 1.
18 Guy Braibant, Administrativno pravo Francuske (JP Službeni list SRJ Beograd 2002) 17.
19 From the administrative law, the so-called acts of government are excluded already at the constitutional
level because the ‘administrative acts are not those decisions which are made by holders of the
legislative and judicial branches of power in executing their constitutional powers, and those acts
which are made by the bearers of the executive branch, based on their political discretion granted
under the constitutional and statutory powers’ (art 3 of the Administrative Disputes Act, Official
Journal of the RS n 105/06).
95
legal, legitimate, sufficient interest recognised? The definition does not enhance the
protective, controlling, natural and legitimation functions – so, we are once again at the
start of our discussion.
2.1. In the direction of the functional definition of AL to the duty of

care
It seems that the definition of AL (which depends on the desirability of the individual and
collective values) cannot be put in any kind of frame: it is based on the contextual, social,
historical and political situations and represents a social catalyst between individual
preferences and individual rights on the one hand and the needs of communities, and
public interests on the other hand. AL is the means by which a regulator maintains
direction through active observation of the surrounding area(s) and making the
necessary adjustments. Any attempt to define AL apparently always omits one or more
of its aspects.
To do justice to this statement I will once again make an attempt at defining AL. For
example, for Jennings ‘the administrative law is the law relating to the administrative
authorities’.20 This definition is too broad, it is like trying to capture the miscellany of
experience of a sea-crossing by saying that mariners are sailing across the sea. Kenneth
Culp Davis defines it as ‘concerning the powers and procedures of administrative
agencies, including especially the law governing judicial review of administrative
action’.21 Although this definition omits all informal and potential options of behaviour,
it could be on the right track if we upgrade it. Griffith and Street consider that the main
object of AL is the operation and control of the administrative authorities, so it must
deal with the following three aspects: ‘What are the limits of those powers? What sort of
power does the administration exercise? What are the ways in which the administrative is
kept within those limits’?22 This definition can be improved by adding the following two
aspects: What are the procedures that must be followed by administrative authorities?
What are the remedies available to a person affected by the administration? But, can
the limits of power, a power per se, or its exercise on the affected person be properly
defined? In my opinion the most satisfactory definition, in view of all states’ material
and procedural differences, can only be descriptive functional and potential. The
above-mentioned definitions demonstrate that as the state and its political, economic
and cultural web evolves it does persistently create new opportunities for new goods
and services that fit functionally into the existing web. This updated web starts its own
future in ways that we cannot predict. Once that happens, yet other new, unforeseeable,
functional elements may fit into the still new niches that the existing good, used for a new
purpose, affords. Thus, it is clear that even for existing goods and services we cannot
20 Sir Ivor Jennings, The Law and the Constitution (University of London Press 1967) 194.
21 Kenneth C. Davis and Richard J. Pierce, Administrative Law Treatise (Little, Brown 2002) 1–2.
22 John Aneurin, Grey Griffith and Harry Street, Principles of Administrative Law (Pitman 1973) 4.
96
predict all the uses to which they might be put or which new chances and problems they
might create.
If we continue on this path on which we pay attention to every detail, we see that
not only legal procedures and remedies are available, but also other ways by which the
work of public authorities can be affected or can affect others. Some of the evidence can
be seen in Switzerland and Singapore with the best quality of public institutions within
different legal systems.23 Harlow and Rawlings indicate all theories where AL is seen
as an instrument for the control of power and protection of individual liberty (with the
emphasis on the courts rather than on government) as the ‘red light’ theory: ‘[w]hile red
light theory looks to the model of the balanced constitution and favours strong judicial
control of executive power, green light theory sees in administrative law a vehicle for
political progress and welcomes the “administrative state” … green light theory prefers
democratic or political forms of accountability’.24 The green light theory is close to life
itself because it points also to other factors that affect efficiency, governance and human
understanding of wide and intertwined effects which cause changes in AL.
Even this wider view (and our definition of AL with it) combined with the green
light theory shows nothing else but a human factor, about which Hamilton in 1788
stated that the ‘executive branch needs energy for a good governance’.25 This ‘energetic
commitment’, two centuries after the cited statement, is still located within the executive
branch, in the public administration, in the duty of care. Public officials are so far the
ones who largely implement AL.26 Aristotle’s homo politicus is today Simon’s homo
administrativus, adaptivus, and even more and more expertus.27 Not only in the public
administration’s context, but also wherever a person is, she or he can contribute with
23 In 2010, Switzerland and Singapore were among the most competitive countries in the world. They
have a different constitutional arrangement, but nevertheless they have the best public institutions in
the world. The result shows that what matters is not just the law but also the commitment, values,
energy and personal contribution, no matter in what environment or circumstances states operate. See
World Economic Forum The Global Competitiveness Report 2010–2011 (Word Economic Forum
2010) at 14.
24 Carol Harlow and Richard Rawlings, Law and Administration (Cambridge University Press 2009) 31
and 39.
25 Energy in the executive is a leading character in the definition of good government. It is essential to the
protection of the community against foreign attacks; it is not less essential to the steady administration
of the laws. A feeble executive implies a feeble execution of the government. A feeble execution is
but another phrase for a bad execution; and a government ill executed, whatever it may be in theory,
must be, in practice, a bad government. Alexander Hamilton, The Federalist No. 70, The Executive
Department Further Considered (18 March 1788) <http://avalon.law.yale.edu/18th_century/fed70.
aspY> accessed 19 June 2011.
26 The civil servants are those who represent the public administration and whose main deterministic
element is the public authority. The origins of administrative law were related to the public employees
law at least in the Anglo-Saxon area: the administrative agency is directly related to employees (as
agents): ‘As the word “agency” suggests, the “authorities” that are the subject matter of administrative
law are the agents – officers, boards, commissions and the like – established by some principal to
carry out that person’s or body’s purposes’ see Jerry L. Mashaw, Richard A. Merrill and Peter M.
Shane, Administrative Law (Thomson West 2003) 12.
27 Crowther-Heyck Hunter and Herbert Simon, The Bounds of Reason in Modern America (JHU Press
2005).
97
her or his knowledge and will to the greater good since ‘legitimate democracy and
effective governance in the twenty-first century require collaboration. This is the core
idea of Wiki Government … connecting the power of many to the work of the few in
government’28 and can be spotted already in the democratic experimentalism of Dorf
and Sabel,29 where they name the system of collaboration as ‘learning by monitoring’,30
which is also contained in articles 37 and 72 of the French Constitution.
Recent developments in the field of AL show an ‘increasingly blurred boundary
between state and society [and] between justice and administration’.31 It seems that AL
could be more ‘constitutional’ than the Constitutions themselves: it rather adapts to the
youngest forms of democracy than to the older constitutional frames and ‘it touches far
more behaviour’.32 Because AL is the non-living means by which states achieve their
public goals, it is obvious that the only living ‘component’ in it is the person. If in dealing
with the definition of AL we encounter the human factor, we connect with it all the
people who work within and outside the public administration. An expert is the one who
under control or even without it [sic] chooses between small decisions and transforms
them into bigger ones, whatever his or her position may be. The Crichel Down’s affair33
is often described as the beginning of modern English administrative law because it
revealed the inadequacies of ministerial responsibility, where the fundamental defect
was (and still mainly is) in the officials’ mental processes:
But the peculiar virtue of the civil service has been its objectivity and the feeling it has created
that its decisions are based on accurate information, intelligent interpretation and a responsible
attitude of mind. The criticism has hitherto been that administration has been too formalised and
28 Beth Simone Noveck, Wiki Government: How Technology Can Make Government Better, Democracy
Stronger, and Citizens More Powerful (Brookings Institution Press 2009) xiv and 14.
29 Michael Dorf and Charles Sabel, ‘A constitution of democratic experimentalism’ (1998) Columbia
LR 267–473.
30 The model requires linked systems of local and inter-local or federal pooling of information, each
applying in its sphere the principles of benchmarking, simultaneous engineering, and error correction,
so that actors scrutinise their initial understandings of problems and feasible solutions. These
principles enable the actors to learn from one another’s successes and failures while reducing the
vulnerability created by the decentralised search for solutions. The system in which citizens in each
locale participate directly in determining and assessing the utility of the services local governments
provide, given the possibility of comparing the performance of their jurisdictions to the performance
of similar settings, we call directly deliberative polyarchy (id 287–288).
31 Susan Rose-Ackerman and Peter L. Lindseth (eds), Comparative Administrative Law (Edward Elgar
2010) 1.
32 The average citizen is not a dissident who is concerned with the state limiting her political speech; nor
is the average citizen a criminal concerned with criminal procedure provisions in constitutions. Rather
the average citizen encounters the state in myriad petty interactions, involving drivers’ licenses, small
business permits, social security payments, and taxes. It is here that the rubber meets the road for
constitutionalism, where predictability and curbs on arbitrariness are least likely to be noticed but most
likely to affect a large number of citizens. So it seems clear that administrative law is constitutionalist
in orientation and arguably more important to more people than the grand issues of constitutional law.
Tom Ginsburg, ‘Written constitutions and the administrative state: on the constitutional character of
administrative law’ in Rose-Ackerman and Lindseth (n 30–31) 118.
33 JAG Griffith, ‘The Crichel Down Affair’ (1955) 18 The Modern LR 557–570.
98
that the careful exclusion of personal considerations in the making of decisions has resulted in
over-caution, ‘red tape’ and a certain inhumanity.34
Griffith concludes that the civil service must ‘find its own solution’ and/or be left to put
its own house in order, ‘to ensure that objectivity and intellectual integrity become not
only common but, so far as is humanly possible, universal habits of mind’.35 It seems
that habit and/or the nature of mind are the main defining elements that change content
and hence the definition of AL according to the context in which it is used. In today’s
incapacity of public administrations to deal with all the world’s problems, AL cannot
be left only to them. A personal, ‘positive attitude’ stance exceeds all definitions and
understands them only as fragments of an unfinished mosaic. AL is what most humans
think it is; if we could know enough about the forming of decisions in our mind, we
could also formulate a more objective definition of AL. But, is this necessary? Does
AL not work despite the absence of an all-encompassing definition? Is it not true that
we cannot completely define a human, but we still, despite this inability, live our lives?
The search for the definition on the other hand has contributed to the finding that AL not
only depends on the public administration, but also on the spheres of social life in which
many different stakeholders affect its content. Its efficiency lies not only in the public
administration, in the same way as righteousness/justice lies not only in the courts. Our
search for the definition has led us to the descriptive, functional and potential definition
that uses duty of care as its sine qua non.
3. ADMINISTRATIVE LAW AND ITS META-INCIDENCE

Despite our inability to provide a perfect definition of AL, it is clear at least that it forms
a part of our lives at almost every turn, and that it does not depend solely on the (in)
actions of the core public administration. If we all care, we can do a lot of good things.
And this also holds true for AL. I will now turn to this care for the common good in
AL, which at the same time is also present outside of it. If this were not so, we could
never change it for the good of the people. But we are changing it every day with our
practices. I will address the superiority of the ‘meta-AL (a prefix from Greek meaning
‘beyond’) or ‘modified’ AL that shows its superiority above the formal AL. The public
interest, a good society, is located outside the formal law36 because it is reformatted in
it again and again; the specifics of AL are in its movement between the public and the
private, between the constitutional and non-constitutional principles, open and closed
concepts, more or less specific standards, determined and undetermined terms, between
34 id 570.
35 ibid.
36 Compare with Laski’s statement in ‘Introduction’ in Leon Duguit’s, Law in the Modern State (George
Allen & Unwin Ltd. 1921) 20: ‘The rule of law is, clearly, independent of the state, and, indeed,
anterior to it; for it is the principle on which the life of society – far vaster in extent than the state –
depends’.
99
the bounded performance and discretion, between a more or less restrained judicial
review, between lex certa and non certa, between efficiency and legality, even between
legality and morality.37 Works from antiquity already point out the interplay between
the private and the public life, both are united in the question about what is good for
the society and an individual in it and what is not. The Magna Carta Libertatum, the
Habeas Corpus Act and similar Acts have tried to strike a balance between the good
for the society and the limitation of power, between utilitarianism and deontological
ethics. Dworkin considers this balance as the unification of ethics and morality that
is as in Kant’s principle: ‘[a] person can achieve the dignity and self-respect that are
indispensable to a successful life only if he shows respect for humanity itself in all its
forms’.38 Law cannot be regarded as an object which stands for itself; it is made or at
least is found as such by people and in a large part depends on them. Only if regarded
as a subjective means that offers appropriate paths to objective results as the duty of
care,39 can the law be established as the common representative of deontological ethics
and their utilitarian aspect? As such AL can also gain its credibility and legitimacy for
interference in people’s lives.
3.1. A subjective-meta side of AL in ‘dare to act’

Kant emphasises that no disposition to obey the law forms a part of its definition: ‘the
will is the capacity for desire considered not so much in relation to action [as the capacity
for choice is] but rather in relation to the ground determining choice to action’.40 This
incentive to act, which per se is duty, is a virtue: ‘[l]aw represents an action that is to
be done as objectively necessary, that is, which makes the action a duty; and second, an
incentive, which connects a ground for determining choice to this action subjectively
with the representation of the law. Hence, the second element is this: that the law makes
duty the incentive’.41 A meta-incidence of AL is about all the things that are good for
the society and all the acts that not only are the formal objective duties, but also the
subjective informal virtues that give their factual content to the duties. The ‘meta-AL’
can mean simply: ‘care for and treat other people with respect’.
For the state apparatus we therefore can say plainly that it should operate
‘independently, impartially and equally’. But if this concept in theory is easy to follow,
37 The Universal Declaration of Human Rights: ‘In the exercise of his rights and freedoms, everyone
shall be subject only to such limitations as are determined by law solely for the purpose of securing
due recognition and respect for the rights and freedoms of others and of meeting the just requirements
of morality, public order and the general welfare in a democratic society’ (at 29 para 2).
38 Dworkin (n 7) 19.
39 Goodnow explains simply that ‘it is the duty of the government to further direct the welfare, both
physical and intellectual, of its citizens’. Frank J. Goodnow, Comparative Administrative Law (G.
P. Putnam’s Sons 1893) 3. But before we could have the intellectual welfare of citizens it should be
present in persons who further direct this welfare towards citizens.
40 Mary Gregor (trs), ‘Introduction, translation and notes’ in Immanuel Kant, The Metaphysics of Morals
(CUP 1991) 42.
41 id 46.
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in practice it represents more serious obstacles because independency, impartiality and

equality can gain a different context in life. In the legal field, at least for the apparently
clear, predictable and reliable abstract rules, the indeterminate legal concepts (due to the
impossibility of complete determination and required flexibility) and discretion, which
are inseparable elements of AL, also come into play. ‘As in adopting of rules and as
in other activities are discretion and order in the constant stress; in it could someone
find an engine that drives the processes of public law’.42 This delicate spirit (esprit de
finesse) or vital force (élan vital) that delineates social life and the rules in obligatory
‘factition’43 of law, resists tangible rules and principles, and it could be somewhere
between feeling and reasoning:
Those who are accustomed to judge by feeling do not understand the process of reasoning, for
they would understand at first sight, and are not used to seek for principles. And others, on the
contrary, who are accustomed to reason from principles, do not at all understand matters of
feeling, seeking principles, and being unable to see at a glance.44
AL is firstly between the meanings of value and desire, and secondly between the
factual means and causal effects; the greater the inability of knowing about the effects
according to the reasoned or desired end the more skill comes in place of learned
behaviour: ‘a real heuristic principle of the causal interpretation of activity and values
are with the setting of a purpose outside the law’.45 Because we cannot fully know
all the causes and effects of the cognitive functioning of individuals (it is a reminder
of Popper’s theory of demarcation according to which ‘it is logically impossible to
conclusively verify a universal proposition by reference to experience’46), the entire
legal hermeneutics is reduced to the understanding of the common sense thinking and
to an ability of subjugation of empirical facts under normative rules in a way that they
result in a reasonable interpretation. In fact, more of the human capacity to analyse and
synthesise than of the legal science could be present; it could be more about training
(acting) than learning. In AL, it is (as in other branches of law) about the common sense
and desire which are applied47 to the society as a whole. Matching the content of the
public interest to those who design it within the state apparatus and to the people forms
the core of legitimacy. We should not give up if results are not always perfect and are
42 Peter Strauss, ‘The rulemaking continuum’ (1992) 41 Duke LJ 1463 at 1463.

43 ‘Factition’ is a strange and vague concept of which it is clear only that it derives from the word fact.
It means that law has discovered facts in their identity and has submitted to them and their design
and stopped to imagine that it can tamper with or change them. Nature and society are expressing
themselves in here directly, while the law reserved for itself an unobtrusive editing right. See P Grossi,
Pravna Evropa (sn 2007) 26.
44 Blaise Pascal, Misli (Mohorjeva družba 1982) 35.
45 Niklas Luhman, Teorija sistema, svrhovitost i racionalnost (Globus 1981) 82.
46 Stephen Thornton, ‘Karl Popper’ in Edward Zalta (ed), Stanford Encyclopedia of Philosophy <http://
plato.stanford.edu/archives/sum2009/entries/popper> accessed 14 September 2011.
47 Remember just one of the golden rule’s versions: ‘Do not do unto others what you do not want others
do unto you’.
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different from those of our ‘neighbour’. If Dostoevsky’s unhappy family is unhappy in

its own way, the same stands for AL: effective and efficient means (in theory) are all
alike (the general legal principles, discretion, administrative procedure, impartiality,
accountability, transparency et cetera), but the ineffective and inefficient ones are (in
practice) different in their own way.
It is the mental skills, which most people have, that forbid us to be hidden behind the
complex formulas and forms of action – it is fundamentally about the simple ideas which
are based on combining forces for the collective overcoming of otherwise individually
insurmountable problems. Instead of Kantian sapere aude, in AL we should put audeant
facere (‘dare to act’) after the ‘duty of care’, although we sometimes cannot foresee all
causes and effects. This is prima facie discomforting, but there are enough comforting
elements that this can be done. Axelrod’s evolutionary path to solutions is similar to
this statement (‘it is possible to know of the singular causal relation without knowing
the law or the relevant descriptions [of that relation]’ 48); we do not need to know of all
the circumstances that have caused the final results and we do not give up hope only
for this reason. In this way the simple heuristics within the bounded rationality is also
confirmed, where people score better results from those who have more knowledge
within the recognition heuristics (a recognised object has a higher value than a not
recognised) and take the best heuristics (an object with the positive cue value has a higher
value based on this criterion).49 Today’s life offers not only a monochromatic image of
cognitive idealism, but an increasing complexity of relationships and influences: ‘[t]hese
processes [globalisation and the European process of legal integration] have brought
about an ever-increasing interconnected world with migration of people and ideas
across various kinds of borders … people have transformed into ‘skilful negotiators’ in
the pluralistic webs of overlapping legal systems without clear hierarchies or coherence
between them’.50 Only a responsible and careful review of all the circumstances and
facts can give us an approximate insight into a specific area, although it may be better
(but not fully) known only to those who are within its frame. With more awareness of
the absence of a single location of power, the future can be built on the idea according
to which a large part of AL is not based only on legality, but also on the behaviour of the
official in the public administration and that of the individual in society.
The theory of public administration is focused also on human character (on the
scope of the disclosure of irregularities [‘whistleblowing’ according to Miethe, Hunt,
Hesch51]), on administrative behaviour (‘Simon’ referred to above) on the bureaucracy
48 David Davidson, ‘Mental events’ in William Lycan andJesse J. Printz (eds), Mind and Cognition
(Wiley-Blackwell 2008) 64.
49 Peter Gigerenzer and ABC Research Group, Simple Heuristics That Make Us Smart (OUP 1999).
50 Jaakko Husa, ‘The method is dead, long live the methods! European polynomia and pluralist
methodology’ (2011) 5 Legisprudence 249 at 258.
51 Terry Miethe, Whistleblowing at Work: Tough Choices in Exposing Fraud, Waste, and Abuse
on the Job (Westview Press 1991); Geoffrey Hunt, Whistleblowing in the Social Services: Public
Accountability & Professional Practice (Hodder Arnold 1998); Joel D. Hesch, Whistleblowing: A
Guide to Government Reward Programs (Goshen Press 2009).
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at its actual operations (‘Street level bureaucracy’ according to Lipsky52), on public

choice and budget maximisation (Stigler, Peltzman, Niskanen53), on the servant-leader
(‘servant leadership’ according to Greenleaf54), whereas AL still is centred mainly
on the institutions of public authority, on the protection of individual rights and the
interpretation of judgments, although these means and goals have their predispositions
in the public servants’ minds. The theory of public administration also points out the
moral or egotistic side of public officials, whereas AL theory provides only a formal,
more or less traditional view on rights and obligations. Before and after the explanation
of a decision there must be a responsible, ethical public administration and an ethical
individual. Before an ethical state there must be ethical officials, who should go
through training and education that should provide them with the required knowledge
enabling them to decide what she or he knows what she or he wants, can or should do.
Notwithstanding the fact that there may be no formal rules, we must not overlook the
actual influence of informal rules, practices and informal groups. Functioning by an
internal, informal system that ensures the efficient flow of energy and its expansion
in desired directions is the basic trick of politicians and public servants that can be
seen in soft law and everyday practice. These people are the ones who are behind the
transfer of powers and who influence the citizen’s behaviour. According to this view the
statement that ‘values and their changes are in proportion to the growth of power of the
value setter’55 has become very relevant. The setter places legal concepts as exceptions,
even if they would not be counted as law (iuris apices non sunt iura), while she or he
must tolerate the factition of (administrative) law, otherwise she or he lands in legolatry
(worshipping just the words of law [letter of the law]), regardless of the factitional state
that should be placed in law.
With the increasing interconnectedness of relations, it is all the more difficult to
answer the question of who or in whose name a person is explaining, while it is more
clear what she or he is explaining: the benefits of AL should be in the public interest,
to the benefit of the people as a whole according to a specific time and space, that
is context [author’s emphasis]. The content of the public interest is on the shoulders
of various stakeholders and we still do not know them sufficiently (their reasoning,
conclusions, interpretations, reflection, and/or judicious power). The people’s
psychological limitations when they draft a law, when they deliberate or make decisions
were never in fact (to a sufficient level) studied or included in AL. In the future officials
52 Michael Lipsky, Street-Level Bureaucracy: Dilemmas of the Individual in Public Service (Russell
Sage 2010).
53 George A. Stigler, ‘The theory of economic regulation’ (1971) 2 Bell Journal of Economics at 3; Sam
Peltzman, ‘Toward a more general theory of regulation’ (1976) 19 Journal of Law and Economics
at 211; William A. Niskanen, Bureaucracy and Representative Government (Transaction Publishers
1971).
54 Robert K. Greenleaf, The Servant as Leader (Greenleaf Center 2015).
55 Friedrich Neitzsche, Volja do moči (Slovenska Matica 1991) 16. After him, this conclusion has
also been confirmed by other authors, for example Noam Chomsky, Understanding Power: The
Indispensible Chomsky (New Press 2002); Paolo Grossi, Pravna Evropa (The New Press 2007).
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in public administrations ought to have more expertise in problem-solving, decision-

making, communication, human behaviour, and social relationships. Public officials
should be more aware of these limitations, and should have the help of people trained in
psychology. The science of human mental functioning, behaviour and nomotechnics56
should focus more on the different form of rules (experimental rules, diagram rules, a
Henry VIII clause, a sunset clause, et cetera) on a relevant psychological basis.
3.2. An objective-meta side to AL

In the above subparagraph the real subjective predispositions for AL that promote a
‘duty of care’ and a ‘dare to act’ were discussed. These predispositions have to be put
in an objective context if we are to grasp their practice in full. In the absence of the
formally established AL, societies do not aid themselves by (market) competition, but
by informal rules and forms and their modifications that enable competition. This is the
same trick that is used when we have no rules for some present problems. In peace time
the unwritten law in the form of general legal principles that serve for the interpretation
of law and for filling the gaps in the law,57 and informal clubs (G7, G8, G20, the Basel
Committee on Banking Supervision et cetera) are used instead of (absent) AL, whereas
in a state of war and/or emergency there is the institution of emergency situations in
which the rights of individuals come after the context of social necessity. There is thus
obviously some form of law that precedes the formal one.
If law as the concept of what is right is located wherever societies emerge, it seems
that it is outside the formal law: it could even be somehow paradoxically said that
an informal, internal system of operation is closer to it than formal law. If something
outside formal law were not present, we would not be able to regulate, to think about
regulation at all. AL therefore may have an objective side beside the subjective one:
the prefix of ‘meta’ can denote areas which exceed the present and/or normal use of
AL; we cannot deny its existence in a situation of crisis, when it is actually needed the
most58 or when we want to regulate some field de novo. In the framework of ‘meta’, that
is of not being trapped within the legal rules because it is above them, there is a wide
range of different factors at play: the complexity of surroundings, comprehensively
56 From Greek nomos (law) and techne (craft), ie the technic of preparing legal regulations that covers
the methodical, structural and linguistic aspects of general legal acts.
57 The Algera case is the starting point for the EU judicial practice in the area of general administrative
law: ‘unless the Court is to deny justice, it is therefore obliged to solve the problem by reference to
the rules acknowledged by the legislation, the learned writing and the case-law of the member states’.
See Joined Cases 7/56 and 3-5/57, Algera v Common Assembly (1957).
58 In times of crisis, relations of public authorities should be the most unified, relationship of over- and
sub-ordination should be clearly defined and respected; the execution of commands should take place
at the highest level. The same goes for control, reporting, and information. It must not be overlooked
that public administration has evolved from the military forms of action (hierarchy, line and staff
management, controls and uniformity of control, logistics, communications, reforms, strategies).
See eg Jay M. Shafritz, E.W. Russell and Christopher P. Borick, Introducing Public Administration
(Pearson 2011) 215.
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connected and intertwined influences, the interest of society as a whole, cause and value
choice, cognition, common sense thinking, the subjugation of the empirical facts to
the normative ones, movement between the public and the private, between principles,
open, closed and indeterminate concepts of action, bounded actions and discretion,
efficiency and legality, general legal principles et cetera.
Regardless of different situations there is always some form of order, there is always
someone who coordinates, operates, proposes and orders, even if only informally or
incidentally. Even if all the formal rules are set aside the states still work.59 If a universal
(omnipresent) norm is the basic concept of order, the same cannot be claimed about
the formal law. The enforcement of the norm by any government, changes in the norm,
the fact that it can take a different content, disrespect for the norm, and finally even its
diametrically opposite effect from the initially envisaged, all of this shows that a norm
lives outside of the positive-legal norm. A legal system therefore must rely on all of
the observable consequences and effects; this is the basic idea of all regulatory impact
analyses, the cost-benefit analysis, good regulation and the like. The legal system
should also not lose sight of the fundamental non-entrapment, non-identifiability of
order in strictly formal forms, although we should try to do this on a non-stop basis.
Methodologies can help us to objectively encapsulate the state of things in the ever-
changing surroundings, because of this we must consider the possibility of monitoring,
of variations, and of complementing the factual state of affairs on a real-time basis. We
must take into account the openness, the non-identifiability of all consequences at the
time of the acceptance of a rule, its indirect effects, risks, innovations and adaptations.
In other words, our work never stops.
The formal AL is enshrined in the ‘meta-AL’ that goes beyond the former and does
not (judicially) refuse to make a decision about a certain right (especially where there
are no formal legal remedies at all – as in the case of Marbury v Madison60) or any other
legal question. This can be seen in cases with legal gaps. The ‘meta-AL’ is more in the
hands of the judiciary than in those of the legislator (natural justice and/or the denial
of justice);61 it is some kind of gateway to AL, to which it is similar regardless of the
59 This can be observed at various coups d’état, switching of power and the emergence of new states
and/or autonomies.
60 Marbury v Madison, 5 US 137 (1803) was a landmark case in which the US Supreme Court declared
its ability to limit Congressional power by declaring legislation unconstitutional; the Court answered
to the question about the applicant’s availability of remedy (if he has a right, and that right has been
violated) that ‘very essence of civil liberty certainly consists in the right of every individual to claim
the protection of the laws, whenever he receives an injury. One of the first duties of government is to
afford that protection’.
61 The European Community itself is primarily made up of rules of administrative law drawn in particular
from the area of law governing the management of the economy. ‘The European Community described
by the European Court of Justice as a community based on law could be more precisely termed a
community based on administrative law’. Jurgen Scwharze, European Administrative Law (Sweet
and Maxwell 1992) 4. Otto Mayer expressed in his famous dictum in 1924 already that ‘constitutional
law passes while administrative law remains’ Otto Mayer, Deutsches Verwaltungsrecht (The Preface,
Duncker und Humblot 1924). The constitutional/administrative law also exists in states that do
not have a formal constitution, and it is well reflected in the jurisprudence of the ECJ, which in its
105
particular constitutional organisation.62 It could be said that it ‘flirts’ with natural law.
There is the extraordinary (the actual state of affairs) above the ordinary, just as there
is a principle (the normative content) above a rule – they are both connected with each
other (as the player and the explainer) in a new way.63 This relation can be expressed
in terms of subsidiarity, when a higher level (a paternal instance) leaves free operation
to a lower one until the latter is no longer able to cope with the problems. A non-law
protects or disposes of the formal law;64 the absent exceptional conditions protect the
regular,65 just as the just order is protected in the shadow of a potential revolution. The
meta-regulatory law is a living law, which regulates the life which people actually live.
It could also be defined as Jellinek’s ‘normative power of the factual’66 that has found a
place in Ehrlich’s ‘norm for decision’ and in Pound’s separation between the actual law
and the laws enshrined in books (‘law in action’ and ‘law in books’).67 Its practicality is
reflected especially in the main, open principles of AL (for example good governance,
due care, and prudence), which also facilitated the emergence and development of the
acquis, contributed to its maintenance and gave direction to a partially foreseeable
future for the EU. The interpretation of the fundamental principles is based on a series
of circumstances which are situated in and outside the law: a state of emergency, the
days of mourning, holidays, pardon or mercy, a solemn oath, honour and conscience are
beyond (classically considered) law, and yet all contribute to its content. The decision-
making process always includes the subjective ([un]conscious processes, an automatism
of common sense, moral principles, emotions) and objective (everyday circumstances,
political and economic context, informal groups, normative power of the factual) meta-
sides of AL. Although they are connected with us in the (still) unknown and/or different
decisions does not distinguish between constitutional and administrative law, from the Algera case
(Joined Cases 7/56 and 3-7/57 Algera v Common Assembly [1957] ECR 39) onwards, when it had to
find a solution which the founding treaties had not predicted.
62 The more one moves from constitutional law to administrative law and its rules and principles
towards its methods, the less important are the basic differences between the political frameworks of
the various legal systems. There is no substantial difference in the effects of the need for economic
efficiency upon a system of administrative law between a parliamentary monarchy and a presidential
democracy. Matthias Ruffert (ed), The Transformation of Administrative Law in Europe (Sellier 2007)
8.
63 We could talk about the universal meta-incidence that occurs when we cannot get to the (effective)
output with an existing set of rules. Also a normal state contains the normal meta-incidence in the form
of general principles of law that are recognised by civilised nations. At the EU level, Craig places the
rule of law, institutional balance, effectiveness and cooperation, and administrative efficiency among
the meta-principles. See Paul Craig, EU Administrative Law (OUP 2006) 270–279.
64 If the formal law is not consistent with most of the values in society, revolutions and other social
upheavals provide for the enforcement of the ‘new’ law.
65 There are only the circumstances of concrete time and space, which always de novo dictate the public
interest’s content, the contents of ‘normality’ at any given moment (Quod licet Iovi, non licet bovi)
according to the range of information and common sense processing, hidden behind these concepts.
66 Georg Jellinek, Allgemeine Staatslehre (Verlag von O. Häring 1914) 338.
67 For more on this notion, see Marc Hertogh, Living Law, Reconsidering Eugen Ehrlich (Hart Publishing
2009).
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ways, we should be open-minded to these processes: dare to know, to care, to test, and
to experience.
4. TRANSFORMATIONS OF ADMINISTRATIVE LAW

AND ITS COMPLEX COGNITIVE INCIDENCE
Legal science is not yet fully aware of the psychological implications that are also one
of its elements. The indefinability, the subjective and objective meta-sides of AL, all of
these point to the complexity of AL, at the same time reminding us that we should not
settle for what we know if there is more to be seen. On the contrary distress teaches us to
think: ‘You cannot do more good to a thing than if you persecute it with all the dogs’.68
The administrative law continues to be a realm of legal contestation and redefinition. It is not
just about fair and transparent procedures; honest, hard-working officials; and the protection of
individual rights, although these are important. It also concerns the democratic legitimacy of
government policymaking69
Although the last two mentioned above are important, they all rest on human thought
which tells us whether or not something is democratic, legitimate and legal. As
there were legal obstacles in the implementation of AL with the decline of absolute
monarchies, especially within the discretion and prohibition of the further delegation of
authority (expressed in the Latin dictum delegata potestas non potest delegari) on the
grounds of the separation of powers,70 the states today are similarly reluctant to apply
or very careful in applying the norms that consist of experimental and other special
types of clauses (for example a sunset clause, a Henry VIII clause, or an ouster clause),
regardless of the fact that some of them are centuries old.
The real emergence of AL, which goes back to the New Deal period,71 together with
the newly established agencies represent a fundamental abandonment of the concept of
the strict separation of powers and the prohibition of mixing of functions, something
that prior to that era would be regarded as tyranny. Ackerman argues that we need to say
goodbye to Montesquieu’s holy trinity:
[I]nstead, we must modify the mantra to take account of an institutional world in which
independent institutions play increasingly important functions – even though they cannot be
68 Nietzsche (n 55) 191.

69 Rose-Ackerman and Lindseth (n 31) 18.
70 In the US, this principle was mentioned for the first time at the Supreme Court of Pennsylvania in
1794 in the M’Intire v Cunningham, 1 Yeates 363 para 1794 decision. In the EU, there is a reluctance
about the transfer of powers in deciding through decentralised bodies (especially the part which
relates to the broader concept of discretion) based on the restrictive jurisprudence of the ECJ. See the
basic case in this field, Meroni & Co., Industrie Metallurgiche, SpA v High Authority of the European
Coal and Steel Community [1958] ECR 133.
71 The US Supreme Court has not invalidated a congressional statute on non-delegation grounds since
1935. See Schechter Poultry v United States 295 US 495 (1935) and Panama Refining Co. v Ryan 293
US 388 (1935).
107
classified as legislative or judicial or executive. The holy trinity […] encourages us to ignore
the difference dynamics governing administrative operations in parliamentary and presidential
regimes.72
Although the debate about the separation of powers (which continues to be taught in
schools and universities) is still present, in most states with a parliamentary democracy
the scale has shifted to the executive branch of government, and with privatisation and
liberalisation also to independent regulatory and supervisory public agencies. With the
global crises and the inefficiency of states in overcoming them, states and thus AL as
well have focused on citizens with the sufficiency of interest (public interest groups), on
demands for a wider public consultation participation in open government initiatives and
the right to public participation as a fundamental right. Transformations are taking place
within the increasingly blurred boundaries between the state and society: the division
of powers receives more aggressive oversight of the executive and public corporations
by the public interest groups, the ombudsman and by the stakeholders who use in their
doings not only legal, but also the non-legal, political, formal and informal means.
4.1. The Complexity of AL Power for Foucault

is not an institution, and not a structure; neither is it a certain strength we are endowed with; it is
the name that one attributes to a complex strategical situation in a particular society.73
AL with its complexity that has emerged due to its transformations also fits into this
frame. Transformations emerge even when we do not want them, and when this happens
it is possible to talk about complexity. The complexity of AL as the attribute of power
that is present in AL itself, and is reflected in a set of splicing and relating effects (these
are evaluated by the normative and factual situation in which the rules should have their
effect) should be pointed out. The proportion of these effects is always different, and
the same record causes different effects elsewhere or at another time. Effects depend on
the rules and reality, on the way the rules and reality intertwine and the way they are
perceived and, in particular, on the value judgments by the evaluator and the explainer.
The intertwining of a rule with reality starts with the development of its content,
but the rule achieves its true content only through usage and all subsequent exponential
repetitions, including all the reverse reactions. This process depends also on the socio-
political context in which states exist. In society there are not only forces and the
relations of production, but also the multidimensionality of a specific country and time.
And this multidimensionality is uncertain in advance, while as such it displaces the
principle of legality into the ex post facto assessment. With the prevalence of public
agencies, the principles of AL are similarly pervasive in public law. The judicial review,
72 Bruce Ackerman, ‘Good-bye, Montesquieu’ in Rose-Ackerman and Lindseth (n 31) 131.

73 Michel Foucault, The History of Sexuality, Vol 1: An introduction (Vintage Books 1978) 23.
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reasoned decisions, and regularised processes have become the hallmarks of acceptable
legal action, however all of them still contain some ‘meta’ elusiveness that can be seen
also in criminal law, where it would not commonly be expected:
In a legal culture that is firmly committed to judicial review, wedded to reasoned decision making,
and devoted to a fair and regular process, there is little space for the exercise of unreviewable
legal power that is dispensed without reason and without the need to be consistent. Yet those
are the hallmarks of three central means by which mercy is exercised in criminal matters: jury
nullification, executive clemency, and prosecutorial discretion not to charge.74
Facts, which we compare with rules, are outside the law, and the same applies to
unspecified legal concepts, discretion and legal principles. If the principles, undefined
legal concepts, discretion, standards, best practices, and similar intangible examples have
so far represented a device for the adaptation of general rules and their interpretations at
a national level, they are now increasingly moving to the transnational and international
levels. Restrictive measures, the Euro area, credit ratings, the protection of human rights,
economic measures, financial discipline et cetera are gaining broader meaning. The rule
of law/Rechtstaat/Etat de droit remains indifferent if it is not compared through human
assessment with the consequences of the practical application of the above-mentioned
concepts. At a time when all is subjected to measurement, evaluation, quality, excellence,
and similar concepts, which were based on Taylor’s scientific management evident
already from the beginning of the last century (above, these elements were referred to as
the means in the objective meta-side of AL), it is again necessary to draw attention to the
human and his or her value assessment without which there is nothing to be measured
(one is reminded of Waldo’s ‘efficiency for what?’75). Without goals and criteria that we
set for ourselves in the neutral world we cannot tailor our future.
One abstraction that resists empirical measurement is the notion of human rights,
although it has been increasingly subordinated to the pragmatic aspect (in terms of
reducing the standards of protection after the September 11 events in the USA).
In matters pertaining to the law, modern culture operates within a peculiar tension, almost a
contradiction. Even as it is increasingly determined by an empirical and, moreover, pragmatic
style of thought, it nevertheless recognizes moral principles such as human rights, which are
distinguished by their being categorically binding and which precisely because of this do not
bend in the face of empirical and pragmatic thinking. Human rights have the rank of categorical
principles of law, and insofar form a counterpoint within modern legal culture.76
Only through a common denominator which is located between the law and morality,
between the law and facts (subjective and objective) can the above-mentioned tension
74 Rachel E. Barkow, ‘The ascent of the administrative state and the demise of mercy’ (2008) 121
Harvard LR 1332 at 1338.
75 Dwight Waldo and Hugh T. Miller, The Administrative State: A Study of the Political Theory of
American Public Administration (Transaction Publishers 2006).
76 Otfried Höffe, Categorical Principles of Law: A Counterpoint to Modernity (Mark Migotti trs, Penn
State Press 2002) 1.
109
either be left alone or resolved. Human rights themselves are a warning that reminds
us not to bet all cards on formal rules, although they are indispensable for the full
implementation of rights. Solely by requiring a bounded and/or legal functioning of the
administration cannot solve the vagueness of legal concepts; thereby we would miss
the essence of human rights protection – the rights must be balanced with each other
and the public interest in specific cases and their circumstances. Both institutes can be a
means of facilitating as well as violating each other, whereas the main means is human
thought. It must be open-minded to be able to deal with the complexity, flexibility,
and vagueness of today’s concepts. Development moves faster than we are willing to
admit. In times of globalisation, when states are increasingly under its influence, when
‘Brussels’, international organisations and capital markets dictate the pace of national
states, we remain within the frame of apparent sovereignty, centralisation of power and
the holy trinity of power-sharing, despite the fact that on-going global connections are
operating within a network, a polycentric structure with numerous and a plurality of
actors.
The era of globalisation, rapid change, complexity of the surroundings and volatility
increases brings with it the importance of a (powerful) administration, to which the
legislature is forced to render more competences and delegate more legislation. From
these positions resulting from the individual’s consciousness and directed at the
community, it is easier to understand the idea of change [author’s emphasis] from legal
centralism into legal pluralism, as a situation in which multiple (in)formal systems with
all their effects are simultaneously present. We can all imagine the notion of good,
while we and/or every state reach for it in our/its own way. Before the concept of AL, in
which there is a formally established legislator’s intent present, the notion of the good
for the community (that is formally expressed in the concept of the public interest) was
located in the communities themselves. ‘Meta AL’ with its properties is very similar to
chaos theory which studies the behaviour of dynamic systems that are highly sensitive
to initial conditions, rendering a long-term prediction in general impossible. This also
happens in AL even though it is deterministic, meaning that its future behaviour is fully
determined by its initial (legal) conditions, with no random elements involved. The
deterministic nature of systems does not make them predictable, although they always
have or hide order in themselves.77
4.1.1. Cultural conceptions of administrative law

Cultural theory can help to describe the complexity of AL (the subjective and objective
sides of it at the same time) because it has the same denominator: inherited ideas, beliefs,
and values which bind society together. These are also present in AL that binds us to
one another through the public interest and solidarity. To cultural theory, the boundary
between the legal and the non-legal is not self-evident because it is socially [author’s
77 See generally Ilya Prigonine, Order Out of Chaos (Bantam New Age Books 1984).
110
C O N S E RV I N G A N T H R O P O L G I C A L M O D E R N I S M
language of the grid and group diagram, this is part of the problem of conceiving the move
towards zero. The extreme types of organization that the method is supposed to depict are
not difficult to grasp, and by the early 1980s they had found the positions on the ‘social
map’ they were to maintain from hereon (see Diagram 6).
(C) high grid
Pečarič total institution – externally
and group depicts a hierarchical Administrative bounded and
Law: Indefinable, but Necessary and Very Much Alive
minutely regulated and differentiated internally; (D) high group with low grid depicts an
organization committed to boundedness but without strong rules for internal differentiation
emphasis] constructed. This construction reflects different predispositions from which

– for instance, egalitarian communes. (C) and (D) have survived from Natural Symbols. (A)
low grid and group now refers to a competitive environment in which individuals eschew
people
group are constructing
membership and compete subjectthatonly toboundary, so its
rules of competition position
– as, for instance,is
in always in dispute arising from the
socialsports;
individual context.
(B) highAlthough classifications
grid and low group depicts the ‘atomized are always
subordination’ culturally constructed, they provide
of those
a methodology
who with which
do not belong to well-articulated to and
groupings work. The most
are constantly subject tofamous
coercive typology for the distribution of
regulation that limits their autonomy. (A) and (B) had been conflated in Natural Symbols. As
values within a population is Mary Douglas’s grid and group analysis78 which shows the
‘ideal types’ these four extremes can be thought through to locate their abstract consequences.
connection
This between
strategy, which was the types
present in Douglas’s writingoffromsocial
the outset,organisation
is the one favoured inand the values that uphold them.
Her
her latermodel
development ofofthe distribution
cultural theory. However,ofthisvalues givesmuch
move simplifies a fourfold
that was typology of solidarities or four
ideal types of cultural bias: individualism, hierarchy, fatalism and egalitarianism:
methodologically interesting in the grid/group formulation.
Figure 1: Some synonyms for the four quadrants of grid and group79
Diagram 6 Some synonyms for the four quadrants of grid and group
Source: 1978a, 1982b,c, 1990d, 1993c, 1994h, 1996b
It is noticeable that Douglas’s

224 model fits in with Kaufman’s patch procedure:80 ‘It can
be a very good idea, if a problem is complex and full of conflicting constraints, to break
it into patches, and let each patch try to optimise, such that all patches coevolve with
one another’.81 The optimum patch-size distribution is the edge of chaos: small patches
lead to chaos; large patches freeze into poor compromises. He found that a square
78 Mary Douglas, Natural Symbols: Explorations in Cosmology (Routledge 2003). The group dimension
taps into the extent to which ‘the individual’s life is absorbed in and sustained by group membership’,
while the grid dimension is characterised by ‘an explicit set of institutionalised classifications that
keeps individuals apart and regulates their interactions’ in Mary Douglas (ed), Essays in the Sociology
of Perception (Routledge Kegan & Paul 1982) 202–203.
79 Richard Fardon, Mary Douglas: An Intellectual Biography (Routledge 2001) 224.
80 The basic idea of the patch procedure is simple: take a hard, conflict-laden task in which many parts
interact, and divide it into a quilt of non-overlapping patches. Try to optimise within each patch.
As this occurs, the couplings between parts in two patches across patch boundaries will mean that
finding a ‘good’ solution in one patch will change the problem to be solved by the parts in the adjacent
patches. Since changes in each patch will alter the problems confronted by the neighbouring patches,
and the adaptive moves by those patches in turn will alter the problem faced by yet other patches, the
system is just like our model co-evolving ecosystems. Stuart Kaufman, At Home in the Universe: The
Search for Laws of Self-organization and Complexity (Oxford University Press 1996) 138.
81 id 144.
111
lattice, with the same couplings among the parts, which is broken into four patches is the
optimum patch procedure. The diagram below presents some of the AL tools that can be
used for these ideal types:
Figure 2: Regulatory tools in grid and group cultural model
The regulatory tools in the square are placed according to the main characteristics of
the grid and group model. An analysis of people’s preferences (whether they tend to be
individualists or loners and/or whether they prefer a relationship of subordination and
superiority instead of equality in the group or vice versa) would provide an opportunity
to choose the most appropriate policies and their corresponding tools. For instance, an
online voting platform for people to voice their opinions and choices on political views
or similar issues important to them using questionnaires or surveys could help make a
better choice of the most appropriate regulatory tools. Regulatory tools keep changing
as the result of the ever changing social contexts and people’s preferences; thus these
tools can never form a final set which would be valid for all times and situations.
5. CONCLUSION
All branches of government are required to meet the rules in their concreteness, while
none of them stands alone: the rules are based not only on the abstractly-imagined
rational individual (common sense, logic), but also on his concrete specifics (values,
ideas, wishes, emotions, needs). In this way the holy trinity becomes a mix of internal
and external factors. What significance has this mix of abstract/concrete, subjective/
objective, and rational/irrational connections with the hierarchical but also more and
more network-based forms for AL? It, too, is generated within the complex, intertwined
112
socio-political situations, within case law, legislation and universality of order. This
complex whole resides in each individual. The homo mensura (Protagoras) approach
is all we have – because we are imperfect, because our senses are unreliable, because
information is incomplete – such are our approximations to our ideals. Just as we
recognise the universality of human rights, they should always be accompanied by a
universal public law (it may also be called the public interest, meta-administrative law).
Despite the different legal systems, methods of application and interpretation
in AL, it contains universal elements: the public interest, competences, rule of law,
rationality, prohibition of excessive interferences, will and intention of the legislature,
good faith, diligence, safety, care, transparency, accountability. At a higher level, in
the form of transnational linkages, globalisation, polycentricism, global connectivity,
interdependence and scarcity of resources, we can provide a new basis for a broader
view of the world. Freedom is inextricably linked to its limitation due to its maintenance
and expansion. Although AL is still meant as the combination of public authorities and
the correct application of public rules, it is also becoming more open to the different
organisational forms and methods of the management of society. If AL has always been
understood only as a one-way process composed of the actions of authorities, in the
future it will also be a two-and-more-ways process directed and re-directed to actions
of all its recipients.
Preparedness [author’s emphasis] for new forms of legality, transparency,
accountability and justifiability of decisions, regardless of the location of decision-
making and implementation, is the main issue of our time, to which we must find new
answers. The transformation of society is the basic evidence of the meta-presence of
AL. We can all make a difference for a better tomorrow. For AL, this means that we
must find what relations between the state and society and between the state and public
institutions are de facto present in its daily implementation. There is much to be done and
lawyers are not the only part of AL. We do not know enough about the psychological,
economic, and other factors that have their (potential) role in AL. Despite the fact that
we cannot know everything about AL, we must use it for the good of the people. In this
way we will know more than we know today. Therefore, we should dare, hope, and care
for the people, test AL, and use it again and again. Having said that, Scalia’s quote from
the beginning of this article is only partially right: AL is far from being dull (it can be
very interesting even for those who are not lawyers: it is implemented in life mainly
through people who are non-lawyers and who can be seen as the inspiration behind legal
corrections), though it really needs a great deal of persistence.
113
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Administrative Law: Indeﬁnable, but Necessary and Very Much Alive

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ADMINISTRATIVE LAW: INDEFINABLE, BUT

* University of Ljubljana, Faculty of Public Administration, Republic of Slovenia

Southern African Public Law https://doi.org/10.25159/2219-6412/2643

2. THE INABILITY TO PROVIDE AN UNAMBIGUOUS

In an attempt to arrive at a definition I will start with an accepted conception of AL.

2.1. In the direction of the functional definition of AL to the duty of

3. ADMINISTRATIVE LAW AND ITS META-INCIDENCE

3.1. A subjective-meta side of AL in ‘dare to act’

in practice it represents more serious obstacles because independency, impartiality and

42 Peter Strauss, ‘The rulemaking continuum’ (1992) 41 Duke LJ 1463 at 1463.

different from those of our ‘neighbour’. If Dostoevsky’s unhappy family is unhappy in

at its actual operations (‘Street level bureaucracy’ according to Lipsky52), on public

in public administrations ought to have more expertise in problem-solving, decision-

3.2. An objective-meta side to AL

4. TRANSFORMATIONS OF ADMINISTRATIVE LAW

68 Nietzsche (n 55) 191.

4.1. The Complexity of AL Power for Foucault

72 Bruce Ackerman, ‘Good-bye, Montesquieu’ in Rose-Ackerman and Lindseth (n 31) 131.

4.1.1. Cultural conceptions of administrative law

emphasis] constructed. This construction reflects different predispositions from which

It is noticeable that Douglas’s

Figure 2: Regulatory tools in grid and group cultural model

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