Joe Tomlinson: A Review of Reimagining Administrative Justice: Human Rights in Small Places by Margaret Doyle and Nick O’Brien
I disagree with a number of the claims advanced in Margaret Doyle and Nick O’Brien’s Reimagining Administrative Justice: Human Rights in Small Places. But, in so doing, I was forced to examine some of my most basic assumptions about administrative justice. The fact that their book provoked such reflection is likely to be seen (and should be seen) just as much as “mission accomplished” for the authors as an any wholehearted agreement.
While its arguments may be challenging to established ways of thinking, this is not a difficult book to read. In fact, it certainly lives up to Naomi Creutzfeldt’s observation that it is a ‘beautifully written book.’ The promise in the foreword that this ‘book comes from the head and the heart’ pours through into its prose. At times, the book has the texture more of a narrative than a thesis. This may jar for those more accustomed to academic texts, but I found it refreshing and in keeping with the nature of the substantive content.
Nor is it not difficult to get on board with the value of the general nature of the underlying intellectual project. For much of the book, Doyle and O’Brien seem to be following a similar path to that charted in the sociology of constitutions literature (see e.g. Christopher Thornhill’s A Sociology of Constitutions: Constitutions and State Legitimacy in Historical-Sociological Perspective). The core of the book is a sociologically oriented thesis concerning the post-World War II development of administrative justice. There are normative visions on offer too, principally related to articulating a “remedy” to the problems that the authors’ suggest have arisen over time. The approach of the authors is captured in the following introductory passage:
"The book makes no claim to be an empirical study or comprehensive analysis of the field, but instead constitutes an invitation to further exploration. It is in the spirit of the urban explorer, or flaneur/flaneuse, that we have engaged with the issues, and it is with the receptiveness of the bricoleur that we have responded to the environment and incorporated unexpected metaphors that we believe assist in the task of creative reimagining. We offer this book quite simply as a prompt to further deliberative discussion—open, inclusive and receptive to many voices.”
This is not the standard register or method of administrative justice scholarship (to the extent that such a thing exists), and it is constructively unsettling as a result. The authors deliberately set out to provide “an intellectual challenge to settled thinking” and a “constructive, perhaps unexpected, vision.” There is space for much more work of this kind in administrative justice and this book is a good demonstration of its value.
So, what is the central thesis of the book? Doyle and O’Brien posit a close connection between human rights and administrative justice. There is a claim in the book that human rights “matter most” in the “small places” of everyday life. While I would resist any attempt to draw a distinction between “large” and “small” places (everything is local to the person it happens to), the point that the role of human rights in more routine state encounters has been neglected has traction. The central claim in the book, however, is a one of sociological and historical fact: that human rights and administrative justice “share common roots as a political response to the post-war social democratic moment.” We can call this the origins thesis.
There follows a second claim that, since that shared moment of birth, human rights and administrative justice has come under the influence of numerous “seductive” forces, including the common law “mentality” and neoliberalism. As a result, the priorities of administrative justice and the institutions constructed to deliver it have been disrupted from their original purpose, with unfortunate consequences. Multiple practical examples are advanced in support of this position, e.g. we now talk about “users” not citizens and have seen damaging judicialisation of informal processes. We can call this the decoupling thesis. The authors go on to offer a “modest manifesto” to address the problems they believe have arisen. They suggest that what is needed is a “relational” and “demosprudential” vision, that puts community at its heart and promotes social justice. We can call this the remedy thesis.
It is clear that the book, which is relatively short, makes some broad, abstract claims. The most important of those claims (the origins thesis and the decoupling thesis) are sociologically oriented but essentially historical in nature. The breadth of the claims made, in the context of the intellectual project being undertaken, should not of itself be a cause for criticism. In other similar literatures, the critique that sociologically oriented scholars present historical claims in an excessively general and abstract manner is common. It is often a case of different approaches talking at cross-purposes (see, for instance, Thornhill’s reply to Michael Dowdle’s criticism of his work).
But what is required is that those that make such broad claims put forward an account of history that is generally compelling and open to rebuttal by detailed, specific evidence. A blog review is no place to wade through the historical record, but I was not convinced that the book offers a more compelling version of the evolution of administrative justice than those we already have. Indeed, my main disagreement with the book is that, while there are some aspects of the narrative put forward that have traction, the origins thesis and decoupling thesis—which are, to my mind, the lynchpin claims of the book—constitute a stretched interpretation with a nostalgic gloss. But to disagree with the authors’ account in this way raises the question of why human rights and administrative justice have so often seemed distant, when they have so much in common.
Doyle and O’Brien build their remedy thesis out of their historical claims. For my own part, I see no need to argue for some kind of realignment that returns to “origins.” This presumes a kind of reasoning that state endeavours should always maintain their original essence, which I think is generally unnecessary and an unhelpful source of argumentative authority. However, I do have considerable sympathy with some of the claims made in this part of the book, including the need to rethink seeing citizens as “users” (see here) and the problems that excessive “judicialisation” of process has caused in certain administrative justice systems (see here).
There are other suggestions made that I found less convincing, such as the idea of increasing “resistance” in processes potentially being positive. I am also of the view that administrative justice is, at least, as much about practical, challenging, and complex trade-offs than is it about normative visions—even if a vision is allowed to be implemented, claims will soon emerge about its shortcomings. Administrative justice’s fate is to be a “perpetually unsatisfactory project.” But there is much here which is intriguing and thought-provoking in terms of institutional design, and this is to be welcomed.
Overall, while I disagree with many of the claims in this book I would encourage everyone interested in the field of administrative justice to read it – you may not agree with it, but you will be much better for the disagreement. Administrative justice scholarship would be richer with more of this kind of work and, through this book, Doyle and O’Brien have made one of the most distinctive contributions to the field in recent years.
Joe Tomlinson is Senior Lecturer in Public Law at the University of York and Research Director of the Public Law Project. All views here are his own.