Administrative Law and the Judicial Control of Agents in Authoritarian Regimes

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Administrative Law and the Judicial Control of Agents in Authoritarian Regimes
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  1 Administrative Law and the Judicial Control of Agents inAuthoritarian Regimes Tom Ginsburg, University of Chicago Law SchoolChapter Two in R  ULE B Y  L AW : T HE  P OLITICS OF  C OURTS IN  A UTHORITARIAN R  EGIMES  (edited by Tom Ginsburg and Tamir Moustafa,Cambridge UniversityPress, 2008).Authoritarian regimes, like all governments, face the need to control lower levelofficials who work for the regime. But authoritarian and democratic governmentsdiffer in the sets of tools and constraints they bring to the problem, and even withinthe category of authoritarian governments there are substantial differences in regimecapabilities in this regard. This chapter examines the causes and consequences of adecision by an authoritarian government to turn to administrative law as a tool for monitoring government officials.Administrative law is a notoriously fluid area of law, in which nationalregimes vary, and there is substantial divergence even over the conceptual scope of the field, much more so than, say, in corporate law or tort law. Part of the confusioncomes from the fact that administrative law regimes address three different butfundamental political problems. The first is the problem of coordination among thelarge number of governmental actors that compose and serve the regime. This problem is addressed by the formal conception of administrative law as  2encompassing the organization of government; that is, the organic acts establishingand empowering government agencies. This was the definition of administrative lawin the former Soviet Union, for example. Administrative law in this conception wasnot at all about constraint of government but about empowerment of governmentwithin a framework of legality, and ensuring that the agency has been properlygranted powers from the lawmaker. By defining the scope of authority, the lawresolves potential coordination problems among governmental actors.A separate function of administrative law in some regimes is social control. Inthe socialist legal systems, administrative law included in its scope law enforced byadministrative authorities rather than by judicial authorities. In China today, for example, there are a wide range of violations subject to administrative punishmentsfrom police or executive authorities without judicial supervision (Biddulph 2004;Peerenboom 2004a). Administrative law statutes contain the substantive rules as wellas the procedures for punishment, which can include significant periods of detentionof the type normally considered criminal in Western conceptual architecture. In practice, “administrative” punishments are implemented by the police. This type of scheme really reflects the inability or unwillingness of the regime to delegate crimecontrol functions to the judicial system, which may lack capacity to achieve thecrucial core task of social control.In this chapter, I focus on the third political function of administrative lawregimes, namely the resolution of principal-agent problems (McCubbins, Noll andWeingast 1987; McNollgast 1998, 1999). In the Western legal tradition,  3administrative law concerns the rules for controlling government action, for the benefit of both the government and the citizens. From the government point of view,the problem can be understood as one in which a principal (the core of the regime,however it is composed) seeks to control agents. All rulers have limited physical andorganizational capacity to govern by themselves. Government thus requires thedelegation of certain tasks to administrative agents, who have the expertise and skillto accomplish desired ends. The agents’ specialized knowledge gives them aninformational advantage over their principals, which the agents can exploit to pursuedifferent ends and strategies than desired by the principal. This is the principal-agent problem, and it is one that is ubiquitous in modern administration. To resolve the problem and prevent agency slack, all rulers need mechanisms to monitor agents’ performance and to discipline agents who do not obey instructions.Administrative litigation can help resolve these problems. As is described inmore detail later, a lawsuit by an aggrieved citizen challenging administrative actionserves the important function of bringing instances of potential agency slack to theattention of therulers. The courts thus function to a certain degree as a second agentto watch the first. Being a court, of course, requires a commitment to certaininstitutional structures and practices, which sometimes may create new types of challenges for rulers; indeed, sometimes rulers will lose on particular policy mattersto achieve the broader goal of controlling their agents. We should thus not expect thatevery ruler will adopt an administrative law regime of this type, designed to controlgovernment action on behalf of the rulers and the citizenry.  4The scope of the agency problem and the tools available to rulers may varyacross time, space, and type of organization of the regime itself. This sets up a problem of institutional choice for rulers, of how to choose the most effectivemechanism or combination of mechanisms to resolve the particular agency problemsthey face. The first part of this chapter considers some of the factors that may affectthis choice. A-Head  T HREE D EVICES TO  S OLVE  A GENCY P ROBLEMS I conceptualize three categories of mechanisms that rulers can choose from to reduceagency costs (Ginsburg 2002): ideology, hierarchy, and third-party monitoring. Aswith any typology, there are shades of gray in between the categories. Nevertheless Ifind it a useful framework for categorizing regimes as well as for providing someinsight into the changing pressures for judicialization of administrative law. B-Head  Internalization and Ideology Perhaps the most desirable method of reducing agency costs from the perspective of the principal is to convince the agent to internalize the preferences of the principal.Perfect internalization of the preferences of the principal eliminates the need for monitoring and enforcement. Internalization can occur through professionalindoctrination and training or through promulgation of a substantive politicalideology that commands the loyalty of the agent. Leninist systems, for example,relied on a mix of internalized ideology and externally imposed terror to keep their   5agents in line, although the Chinese variant of that ideology has not seemed to prevent extensive corruption and severe agency problems (Root 1996). The ChineseCommunist Party’s conceptual contortions around the ideal of a “socialist marketeconomy” illustrate the lengths that regimes will go to maintain ideological cohesion,which at least in part is designed to minimize agency costs.It would be a mistake, however, to think that ideologies are the exclusive prerogative of socialist or authoritarian regimes. Internalization can also involve procedural rather than substantive values, so that the agent internalizes a way of acting that will serve the interests of the principal. For example, by requiring that allsenior civil servants be trained in law (formerly a legal requirement in Germany andstill largely true in Japan), rulers might discourage their agents from departing fromthe text of statutes. Legal education that emphasizes fidelity to text serves the interestof the coalitions that enact statutes. Indeed scholars have often noted thecompatibility of legal positivism with authoritarian rule (Dyzenhaus 1991). 1 Thenotion that law should serve as the faithful agent of the “political” sphere is a form of ideology that can serve to uphold whatever government is in power.All modern political systems utilize indoctrination through legal education.Educational requirements also help the principal select among potential agents whoare competing for employment. By requiring potential agents to undergo costlytraining  before  selection, the principal allows the agents to signal that they haveinternalized the values of the principal. Those potential agents who do not share thevalues of the principal may pursue other careers rather than undertake the training.
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