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Appeals, Immigration and asylum, Reports & Publications, Research, Tribunals

Book review: Responsive Legality: The New Administrative Justice

Naomi Creutzfeldt

By Naomi Creutzfeldt

In this blog post, Naomi Creutzfeldt reviews a new book by Zach Richards, Responsive Legality: The New Administrative Justice (Routledge 2019).

In his recent book, Zach Richards presents a theory of administrative justice for the 21st century: responsive legality. He argues that ‘responsive legality is the new justifying logic of twenty-first-century administrative action […]’(p1). Richards manages to convince the reader, both on a theoretical and empirical level, that a more humane view of bureaucratic decision-makers is more evident than we often see. Responsive legality is a model that is very useful to explore and better understand the mundane use of law by pubic officials.

He presents us with seven chapters: discussing the new administrative justice (chapter 1); literature on knowledge management studies (chapter 2 & 5); the empirical fieldwork site as legitimating value of responsiveness (chapter 3); taking a closer look at responsiveness through equality orientation – substantive fairness and procedural consistency (chapter 4); cognitive techniques applied in responsive legality (chapter 5); exploring responsive legality and the rule of law (chapter 6); and closing thoughts on responsive legality in good governance (chapter 7).

Setting up his argument, Richards guides us through traditional socio-legal models of administrative justice – Jerry Mashaw’s bureaucratic justice; Michael Adler’s models of administrative justice; and Robert Kagan’s regulatory justice – and outlines how they interact and correspond with each other. He uses these models to show a movement in 20th and 21st century governance from bureaucratic rationality (as the archetypical model) to responsive legality (p.15).

Drawing on Weber’s ideal-type framework, Richards sets up the model of responsive legality to illustrate that ‘it is not perfect, pure or logically infallible, but neither is it a futile product of the imagination’ (p.18). At the end of Chapter One we find the answer to how responsive legality furthers understandings of administrative decision-making: it goes beyond existing models of governance and administrative justice and offers visions of a humane welfare-oriented system of public administration. This human element is proclaimed to be what 21st century justice looks like.

To add to the rich theoretical discussion of different models of administrative justice and governance, Richards draws on interviews that he held with former members of the Refugee Review Tribunal in Australia – RRT. These are used to illuminate responsive legality.

The responsive in responsive legality focuses on the interaction, the ‘responsive adaptive engagement’, between officials and an applicant to the tribunal. To empirically unpack this relationship, in a wider context of public organisation decision-making, Richards’ data reveals the purposive reason behind rules rather than rules themselves. In other words, he teases out how the officials understand and further the purpose of the rules, even finds in some cases that the officials adapt their application of the rules in the light of their engagement with the applicants on a case-to-case basis. This socio-legal analysis provides an interesting lens onto the motivation of decision-making of individual actors. Richards contends that RRT officials ‘reflect a combination of traditional and contemporary decision-making traits […]’ (p.43).

To me this accentuates the discussed developments on two levels. First, the described behaviour seems to mirror the depicted shift from the 20th to the 21st century justifying logic of administrative decision makers. Second, and more complex, it highlights the humane element of being a decision-maker ‘embodying a kind of complexity that extends beyond traditional structures of modernist bureaucracy to tell us more about the potential complexity of the normative logics of the more value driven contemporary official’ (p.43). Here, Richards contributes to theory building by identifying a distinct change.

The empirical chapter finds ‘decision makers operate within this mode [of flexibility and adaptability on a case-to-case- basis] are chameleon-like and respond with enthusiasm to changed circumstances in the purposive pursuit of good outcomes’ (p.61). The focus on responsiveness as a normative logic motivating public officials justifying their decisions is shown in the data through the lens of bureaucratic legal consciousness. Exploring RRT officials’ attitudes to the law and justice, Richards concludes that these officials will adapt to circumstances of each case by generalising the law’s purpose to suit the need of the applicant. Richards translates this to mean that ‘rigid conformity to the law is not enough to produce justice to ensure fair outcomes for applicants’ (p. 76). The missing ingredient of law, the individual human experience and factual truthfulness, needs to be added through responsiveness of the decision-maker. Might these findings point towards a more customer-focussed approach to decision-making? This needs to be explored further, might it be a feature specific to tribunal decision-making or is it more generally applicable across administrative decision-making?

21st century administrators aim to blend substantive and procedural concerns in their responsive legality. Richards concludes by stating that the narratives he found in the data of responsive legality are not rigid and artificial ideal-types. In reality, organisations and individuals shift between normative logics at different times. This means that responsive legality necessarily comes into action in different ways and is limited by real life constraints such as material resources, workload, organisational incentives and penalties, conscious and unconscious biases.

Richards’ responsive legality is a valuable contribution to thinking about how decision-makers behave, what motivates them and how they justify these behaviours. Responsive legality, as an ideal-type, as an ethical consideration, as the humane element in decision-making on a case-by-case basis, seems like a parallel force to the role the law plays in everyday decision-making of public officials. The humane aspect and law never really overlap in existing theories; they are in effect two realities – one focussing on the people making the decisions and the other on the system of rules that the people (officials) have to apply. I think the described humane approach to individual decision-making is fascinating and worthwhile exploring in more depth in other settings empirically to test and refine the theory. Might there be different nuances to responsive legality?

About the author:

Naomi Creutzfeldt is Lecturer in Law at the University of Westminster. Her research interest is in administrative justice and civil justice systems more generally with a specific focus on access to justice, ADR, and the users of these systems. One of her current projects is with Chris Gill: https://esrcjustenergy.wordpress.com.  

Screenshot 2018-07-25 12.00.33

 

 

 

 

Zach Richards, Responsive Legality: The New Administrative Justice (Routledge 2019).

 

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