Peter Lindseth (University of Connecticut School of Law)
Abstract
The administrative sphere is where 'the rubber meets the road' in the modern state. It is the point of contact between state and society where efforts to implement specific legislative goals generate the 'friction' of social and political resistance. Various kinds of resistance to state action have long been the object of scholarly analysis, but some forms have received less attention than others. This chapter focuses on one of the less studied forms: what the French call 'le contentieux administratif,' or litigation initiated by private parties challenging the legality of administrative action. Through the mechanism of administrative litigation, private interests attempt to enlist the aid of judges in the counter-effort to check, or at least to participate in, the exercise of the state's expanding regulatory power. Given the potential impact that this form of legal control can have on the effective content of legislative norms, the question of administrative justice has, unsurprisingly, been a contested one in the political and constitutional history of modern nation-states. This chapter looks at the historical experience of two such states, France and Britain (or more specifically England), from the 17th to the 20th centuries. The French-English comparison presents a useful contrast because the elites responsible for articulating the model of administrative justice in each country attempted to define their approach both in principle and in practice in conscious opposition to the other. However, despite different ideological starting points, ultimately in England just as in France the demands of administrative efficiency ultimately prompted a 'dejudicialisation' of the process of administrative oversight and control. However, in both countries as well, this effort eventually provoked a counter-process of 'rejudicialisation,' which, although different once again in form, was arguably similar in its substantive aims, animated by a shared desire to subject official action to traditional norms of justice, whether enforced by common-law courts (in England) or the increasingly court-like juridictions administratives (in France). This convergence between the French and English systems of administrative justice, despite their formal differences, is not coincidental. Rather it is directly linked, I would suggest, to the central topic of this volume: the political construction of modern capitalism, particularly through the agency of the state. Dejudicialisation and rejudicialisation can be understood as a legal manifestation of the more general 'double movement' described by Karl Polanyi in his classic work on the historical development of the market economy, The Great Transformation (1944). Rather than creating a 'self-regulating' market economy by removing it from overtly political control (Polanyi's thesis), the aim of dejudicialisation was to create, in effect, a 'self-regulating' administrative sphere disembedded from traditional values of justice, guided by its own sense of policy rationality and its own estimation of the public interest in the construction and regulation of the market. Rejudicialisation, on the other hand, tracked the process of 'reembedding' of the economy; that is, like the more general 'counter-movement' of which it was a part, rejudicialisation was a concrete expression of the cultural belief that administrative governance, no less than the market economy itself, must remain 'always embedded' in the values of justice and legitimacy inherited from the past.
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