Critical Theory in Administrative Law

Abstract

it must be assessed according to the regulatory objectives found in the legal doctrines of that area. The main information mechanisms by which law comprehends its environment are of course in law's genesis through Parliamentary debates and expert committees, and in the courts, where the application of the law requires expert judgements to be made on the needs of social systems. A decision like Pepper v Hart6o illustrates how information previously excluded to courts can be brought within the sphere of the legal. For Teubner, institutionalization (ie the transfer from environment to law) will occur when the courts can discover a 'transferable meaning which can be worked into and preserved in the conceptual structure of the law'.6' This is the key idea which I believe explains the dynamics of legaladministrative evolution. The mechanisms by which natural justice institutionalizes administrative complexity are not peculiar to natural justice but are expressed in the procedures available to a judge in any civil court, in his or her task of gathering the fullest picture of the context he or she seeks to regulate; for example, the rules relating to discovery or the admissibility of interrogatories. Thus in the context of natural justice, these information mechanisms will be rigid or flexible according to the extent to which the court is able to assess the character of the decision-making under review and to gauge the impact of any decision to impose natural justice on other centres of administrative decisionmaking. The crucial point in developing a theory of administrative-legal evolution is to see that the extent of the law's ability to respond to challenges to its principles will depend on the efficiency of its information mechanisms. These provide, to modify Berger and Luckmann's term, the 'legal construction of social reality' which is embodied in legal principles. Arguably, it is the rigid and inflexible character of these mechanisms in modem courts that hinder their capacity to respond intelligently and flexibly to the pressures exerted by the administrative environment. An example will make this clearer. We have indicated that the perceived complexity of administrative decision-making rendered the governing legal principle of natural justice, that procedural protection would be restricted to decision-making of a 'judicial' character, vulnerable. The courts therefore extended the coverage of natural justice to both 'judicial' and 'administrative' decision-making. The problem with this extension of natural justice into areas of complex administrative decision-making, such as statutory inquiries, is that it requires the court to assess the consequences of its decisions upon administrative systems, if it is to avoid making decisions which appear to judges to produce unforeseen and damaging consequences for these systems. The information mechanisms refer to the means by which the court can expertly assess the complexity of the administrative environment by, inter alia, comprehending the consequences of a decision to impose natural justice. An obvious example of an efficient information mechanism is the Brandeis Brief of the US, which allows (6 [1993] 1 All ER 42. 61 See Teubner, 'Substantive and Reflexive Elements in Modem Law', op cit n 7 at 264. This content downloaded from 157.55.39.163 on Wed, 21 Sep 2016 04:43:30 UTC All use subject to http://about.jstor.org/terms 202 Oxford Journal of Legal Studies VOL. 14 judges to hear evidence of social and economic facts in reaching their decisions. Applied to English natural justice the contention is that existing information mechanisms do not endow judges with the expertise necessary effectively to respond to the complexity of administrative systems.62 The result of this is that the courts cannot respond fully to challenges to legal principles. Citing Luhmann, for Teubner what is missing in the structure of modem law is: . . . a conceptual system oriented towards social policy which would permit one to compare the consequences of different solutions to problems, to accumulate critical experience, to compare different experiences from different fields, in short: to learn.63