Research
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Books: Research
The interwar years were in Britain a period during which the public administration literature advanced debates about the response to citizen grievance that were wary of liberal legalism and held out the prospect of a tribunal system that was to be very different from the civil court system. Similarly, in postwar Britain, there were aspirations for an innovative, informal and democratic means of shaping relationships between citizen and state that were based on the Scandinavian, especially Danish, institution of the ‘Ombudsman’. In the case of both tribunals and ombuds, liberal legalism posed an insurmountable obstacle to the achievement of an alternative founded on an incipiently responsive form of legality. Instead, tribunals became increasingly judicialized, and public ombuds settled into a court substitute function that characterized them as essentially a constitutional and legal office.
The concluding chapter provides an overview of the main themes of the book. It offers a postliberal interpretation of the democratic character of public authorities and street-level bureaucracy; it rehearses the main characteristics of a postliberalism that is distinguished by responsive legality in its orchestration of the response to citizen grievance; and it contends that for postliberalism the justice inherent in public administration is the micropolitical and everyday justice of the common good. Administrative justice is to that extent something more than ‘administrative justice’ as normally conceived. Recognition of that prospect of intellectual emancipation is pregnant with inherently political possibility. In a postliberal world, administrative justice is a form of justice that is unavoidably post-legalist.
Popular cinema and theatre, for example in the work of director Ken Loach and playwright Francesca Martinez, succeed in depicting the everyday tensions at street-level between citizen and state. Political theory and practice have been more reticent in making the connection between these everyday relationships and democratic citizenship. When such relationships break down and lead to the expression of citizen grievance, the institutions of administrative justice, such as ombuds, tribunals and civic mediators, seek to intervene. Their efforts are frequently hampered by a residual liberal legalism that emphasizes process and form at the expense of outcome and substance. Building on the emancipatory gains of liberalism, postliberalism promotes a philosophy of the common good that redresses the balance. Later chapters will explore in more detail the concepts of bureaucracy, liberal legalism, responsive legality and postliberalism; describe the development of tribunals and ombud institutions; consider the relevance of disability rights, especially in the context of the mental health and special educational needs and disability systems; and distil a broader vision of postliberal administrative justice based on the citizen-agency of street-level bureaucrats, the democratic culture of public authorities, the active participation of aggrieved citizens and the bridging capacity of administrative justice institutions.
In recent years, failures in health and social care, mental health services, public housing, welfare and policing have dominated headlines and been the subject of much public debate. The means for addressing such concerns have become increasingly legalistic and subject to a particular brand of liberal legalism that stifles the possibility of transformational intervention.
For this reason, this book argues there is urgent need for a radical reassessment of the way the law mediates between citizens and the state. Drawing on public inquiries into high-profile cases, such as Hillsborough and Grenfell, fictional/cinematic treatments such as I, Daniel Blake, and the disability rights movement, this book examines how the regulation of street-level bureaucracy can play an integral part in reimagining postliberal politics and the role of the law.
The emergence of disability human rights since the 1990s offers a new impetus to the revival of previously incipient aspirations for a postliberal response to citizen grievance. The development of disability rights in Britain, the strategic practice of the Disability Rights Commission between 2000 and 2007 and the ratification of the UN Convention on the Rights of Persons with Disabilities are critical moments in the construction of a postliberal and responsive legality that emphasizes the positive function of the ethical state, the importance of partnership and co-production between citizen and state, the dignity of the human person and the pragmatic aspiration of purposive problem-solving at the moment of crisis when the citizen–state relationship is in danger of breaking down.
There are three key focal points for the construction of postliberal administrative justice: the citizen-agency of street-level bureaucrats, alongside the positive democratic culture and mandate of public authorities; the active participation of socially embedded citizens in finding solutions to the problems disclosed by their grievances; and the bridging capacity of administrative justice institutions in developing social advocacy, participatory readiness and purposive intervention. A framework for postliberal administrative justice emphasizes the practical function of public authorities as vehicles of democratic agency, of civic association as a source of social advocacy and social conversation, of the individual as democratic and participative citizen and of administrative justice institutions as integrated but dispersed, problem-solving and bridging agencies and exercises of organizational phronesis. The familiar everyday problem of school exclusions offers illustration of the way in which responsive postliberal options might serve as an alternative to more conventional and legalistic approaches.
Postliberalism offers a means of escape from the constraints of liberal legalism. The common good, not individual rights, is its primary value, albeit a form of the common good that is consistent with democratic pluralism and resistant to the nostalgic seductions of common good constitutionalism. As an antidote to liberal legalism, postliberalism seeks to reinstate aspects of liberal thought that have become recessive, namely philosophical Idealism, political pluralism, civic humanism and political pragmatism. By doing so, it emphasizes the centrality of the positive and ethical state, of the individual as socially embedded in civil society, of virtuous disposition, dignity and character, and of problem-solving as the overarching purpose of response to citizen grievance. Ambrogio Lorenzetti’s Allegory of Good and Bad Government is presented as a cultural expression of responsive legality residing in the common good.
The responses to grievances about the mental health system and the special educational and disability system respectively provide illustration of how the priorities expressed by disability human rights have been realized in practice. Historical developments within both systems disclose key challenges arising from the contested function of the positive ethical state and from the limited opportunity for the fully active participation of both street-level bureaucrats and citizens. Despite recent advances and continuing momentum, increased social advocacy in case-conferencing tribunals, positive social rights interventions by ombuds and forms of civic mediation that are deliberative and problem-solving rather than adjudicatory remain in tension with legalistic constraints that inhibit responsive legality and postliberal administrative justice.
Liberal legalism imposes restrictions on the ability of administrative justice institutions to achieve their full potential. Liberal legalism is more than a set of techniques and is instead an outlook, or mentality, that can best be described as a ‘social imaginary’. The key characteristics of that social imaginary emerge in legalism’s manifestation as a form of autonomous legality, rooted in rights-based adversarialism, the common law mind and modern constitutionalism. The image of the judge represents a recurrent cultural motif, which expresses the ethos of both repressive and autonomous legality respectively. Sculptor Siegfried Charoux’s sculpture of The Judge offers representative illustration, especially when set in the context of Ian McEwan’s reflections on the judicial function in his novel The Children Act.
Bureaucracy is a problem in relationships between citizens and state. The critical interface for the democratic state remains the everyday relationships between street-level bureaucrats and citizens. As a result, public authorities are the linchpins of democratic practice. Both sides of the relationship require careful nurture, especially at moments of crisis, such as the occurrence of citizen grievance. In the orchestration of these relationships, administrative justice institutions, such as ombuds, tribunals and mediators, have a role to play that is both critical and broadly political. In the discharge of that role, they have the opportunity of achieving an accountability dividend that adds democratic value. Three modes of legality – repressive, autonomous and responsive – provide a framework for interpreting distinctive approaches to the discharge of their function.
