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Donnelly, Catherine --- "Participation and Expertise: Judicial Attitudes in Comparative Perspective" [2010] ELECD 823; in Rose-Ackerman, Susan; Lindseth, L. Peter (eds), "Comparative Administrative Law" (Edward Elgar Publishing, 2010)

Book Title: Comparative Administrative Law

Editor(s): Rose-Ackerman, Susan; Lindseth, L. Peter

Publisher: Edward Elgar Publishing

ISBN (hard cover): 9781848446359

Section: Chapter 21

Section Title: Participation and Expertise: Judicial Attitudes in Comparative Perspective

Author(s): Donnelly, Catherine

Number of pages: 16

Extract:

21 Participation and expertise: judicial attitudes in
comparative perspective
Catherine Donnelly


Judicial review of administrative action requires courts to confront the tension between
the values of public participation and expertise in administrative decision-making. This
chapter examines these tensions from a comparative perspective, using the United States
(US), the European Union (EU), and the United Kingdom (UK) as case studies. Of
course, administrative decision-making is justified in many different ways (Frug 1984).
The Weberian understanding of `a hierarchical, professional and politically neutral
public administration' with indirect democratic legitimacy (Weber 1978: 956­1005,
Bugaric 2004: 483) probably has the earliest origins. More recently, notions of partici-
pation or `open public administration' (Bugaric 2004), as well as expertise, have been
advanced as bases for administrative legitimacy. Participation and transparency, it is
claimed, advances direct democratic legitimacy and in certain circumstances, delibera-
tive decision-making processes (Hunold 2001); while expertise implies that administra-
tive decision-making is objective and rational, immune from political and special interest
influences (Majone 1996, 2000). Each rationale has found favor with different commen-
tators at different times and the question for consideration here is how the courts manage
these competing claims to legitimacy.
Structurally, this chapter will be straightforward: each jurisdiction ­ the US, EU,
and UK ­ will be considered in turn. These jurisdictions provide interesting compara-
tive material because the background context in each arguably frames the interaction
between participation and expertise in very different ways, a process that in turn influ-
ences how courts have managed ...