Comparative Positive Political Theory

Abstract

Positive political theory (PPT) explanations of the U.S. administrative state and administrative law emphasize the political incentives created by U.S.-style separation of powers, which separates political power between Congress and an independently elected President. Among other claims, PPT explains judicial review of administrative action in the U.S. as a way for Congress to assert control over a political rival, the President, and agencies that are able to exploit the policy space made available to them by the many veto points that exist in the U.S. Presidential system. This paper begins the task of testing the predictions of PPT by looking at judicial review of administrative action in countries with quite different constitutional designs. PPT, for instance, would predict that judicial review of administrative action would look quite different in a Parliamentary system like the U.K. After examining judicial review of administrative action in the U.K., France, and Germany, this paper argues that PPT’s predictions are not validated. The analysis - which is admittedly preliminary - suggests that alternative explanations, such as judicial culture, may better explain the shape of judicial review of administrative action in the U.S.