Collaboration at the Intersection of Administrative Law and Political Science

For a forthcoming contribution to an edited collection on interdisciplinary work in law and political science, I was asked to prepare a comment on a (very good) chapter by Dennis Baker and David Said. Here is Part I, on the divide between administrative lawyers and political scientists.

In their contribution to this collection, Baker and Said convincingly demonstrate the gulf between academic administrative lawyers and political scientists.

Political scientists do not teach administrative law — or at least not on the scale one would expect given the size of today’s administrative state and the extent to which it is permeated by principles and values generated by judges. Nor do political scientists cite administrative lawyers.

As an academic administrative lawyer I can say that the ignorance is mutual: I do not teach political science concepts to my administrative law students, you will not find me thumbing regularly through the political science periodicals and my publications are largely bereft of citations to the polisci literature (although when on the Faculty at the University of Cambridge I did teach a graduate course on Legislation that was chock full of political science content).

In this comment, I will first explore some of the reasons for the distance between academic administrative lawyers and political scientists but then, in the spirit of Baker and Said’s contribution, map out some areas where political scientists and administrative lawyers might usefully collaborate. In brief, I do not think it is realistic to expect either administrative lawyers or political scientists to set up camp permanently in the other’s domain. However, I do think that there is space for effective collaboration, with lawyers identifying issues on which political scientists can bring their expertise to bear.

Why the Distance?

One reason that there is a large distance between contemporary academic lawyers and political scientists is the emphasis on sophisticated methodological approaches in the latter discipline and the emphasis on doctrinal analysis in the former. Where political scientists follow normative, quantitative and qualitative approaches to generate new insights, their legal colleagues are more likely to study legal rules as set out in judicial decisions, statutes and regulations: increasingly legal scholars employ more sophisticated methodological approaches, but they continue to focus on the study of legal rules (commonly known as ‘doctrinal legal research’[1]).

Political scientists are adept at working with large data sets to draw conclusions about general trends, isolating variables that have statistically significant effects. In a large data set, a statute, regulation or judicial decision is one data point amongst many, gleaned along with the others to generate an insight — e pluribus unum. Lawyers are not trained to think like that. For a lawyer, often n=1. Each case is unique, turns to a large extent on its facts, and its effects on future cases may be the subject of debate. Hence the lawyerly fascination with case notes – brief comments on recent decisions where n=1 – a phenomenon that must cause political scientists to scratch their heads. Even when a large number of cases bears on a legal issue — say, the circumstances in which a disciplinary proceeding can be halted for unreasonable delay — the quantity is small enough that the cases can be dealt with in a few dozen pages of a journal article or memorandum of argument.[2] This is not to say that lawyers never engage in large-scale quantitative research projects, of which there is a growing body of examples, but simply to note that the perspectives of participants in the law and political science communities can be quite different. Even where lawyers engage in something other than doctrinal legal research.

Another aspect to the n=1 issue is lawyers’ traditional aversion to overt discussion of methodology. As Joe Tomlinson and I observed in the introductory chapter to a recent collection (the first, to our knowledge) on methodology in public law:

Lawyers are notorious amongst scholars of the humanities and social sciences for failing to engage in detailed analysis of methodology. This perception is justified. As lawyers often – and in some cases exclusively – write to be read by aspiring and practicing lawyers (including judges), there is no need to discuss methodological matters. The legal community of English-speaking common lawyers has its own understandings of what makes for sound legal argumentation and, as these understandings have been inculcated in members of the community in their law studies, little would be gained by spending precious time and space elaborating upon them in scholarly work.[3]

Hence why academic lawyers are generally unlikely to engage in interdisciplinary scholarship. Journals in cognate disciplines (and their peer reviewers) expect an attention to methodological detail that academic lawyers are singularly unlikely to exhibit.

One last general point relates to notions of impact in the two communities. Academic lawyers are often cited in judicial decisions. For some types of academic lawyer — not all, I hasten to add — this is a sign of scholarly virility. Some academic lawyers see themselves as part of the legal community, embedded participants in an ongoing dialogue. For them, that n=1 or some other small number is a feature of legal scholarship, not a bug. Many political scientists, by contrast, scoff at any notion that their writing might have an impact on government policy. Certainly, the orientation of political science scholarship is not (unlike much legal scholarship) toward real-world impact. Journal issues in political science are more likely to be full of articles provoked by other academic articles rather than by naturally occurring phenomena like judicial decisions. Again, this is a generalization: I know there are political scientists who care about politics and legal scholars who do not care that much about influencing contemporary judicial decisions. But they seem to be the exception rather than the norm.

So much for academic lawyers and political scientists generally. What about administrative lawyers specifically? There is, first, the generational trauma of Brendan O’Leary’s review of Paul Craig’s Public Law and Democracy in the United Kingdom and the United States.[4] O’Leary excoriated his administrative law interlocutor for trespassing in the domain of political theory.[5] Craig defended himself in characteristically robust fashion[6] (and I will say that his book is an excellent general guide to political theory potentially relevant to administrative law, of which the opening chapters still repay careful re-reading) but I doubt I am alone in thinking based on this exchange that the interdisciplinary game would hardly be worth the candle. Why bother reaching across the disciplinary divide if your hand is going to be slapped away? Personally, when I read that exchange as a doctoral student I thought that my interest in self-preservation would be best served by sticking to what I know best, that is, the details of legal rules.

Beyond this, the extent to which law influences public administration has always been a bone of contention. Many administrative law textbooks (I am the co-author of one such and am (slowly) writing another) devote significant attention to the institutions of the administrative state. But this attention is directed almost exclusively to legal form. To take chapter 3 of Hogan, Morgan and Daly’s Administrative Law in Ireland as an example, the machinery of the Irish civil service is examined but the focus is on legal form: the statutory, regulatory, soft law and common law framework for managing civil servants.[7] There is little or no critical analysis and no attention at all to the evaluative question of whether the framework is good, bad or indifferent. Administrative lawyers who analyze the administrative state have a tendency, of which Hogan, Morgan and Daly is an exemplar, to render unto Caeser that which is Caeser: it is for other disciplines — economics, management, public administration, political science — to say whether the legal frameworks are optimal or even effective.

This is of a piece with the studied agnosticism of administrative lawyers to the functioning of the administrative state. Questions of legal form and function — how the state does what it does — are technical ones distinct from questions of whether the state should be doing what it is doing. Many have decried this agnosticism: a critical theorist would obviously scoff at the proposition that questions of fact and value can be kept separate;[8] and the more philosophically inclined amongst administrative lawyers are critical of the normative aridity of administrative law scholarship.[9]

These tensions are unlikely to dissipate overnight. Administrative lawyers and political scientists are likely to remain, for the most part, members of separate camps, with different interests and methodological commitments. We need not, however, abandon all hope of fruitful collaboration. True, divergence in interest and methodological commitment will inevitably limit the space for collaboration. Nonetheless, as I shall map out in the next section, there are areas where – holding interests and commitments constant – administrative lawyers and political scientists can usefully work together, both remaining true to their own interests and commitments and producing work that speaks both to the legal and polisci communities. Effective collaboration would mean a proper melding of polisci and legal approaches. A lawyer can explain why a question is salient to lawyers; a political scientist can use sophisticated methods to provide answers.

Stay tuned for Part II….

[1] See Jason Varuhas, “Mapping Doctrinal Methods” in in Paul Daly and Joe Tomlinson eds., Researching Public Law in Common Law Systems (Edward Elgar, Cheltenham, 2023).

[2] See e.g. Paul Daly, « Les délais injustifiés dans l’administration publique : la décision de la Cour suprême du Canada dans l’arrêt Law Society of Saskatchewan c Abrametz » (2023) Revue de droit d’Ottawa 161.

[3] “Introduction: The Importance of Methodology in Public Law Research” in Paul Daly and Joe Tomlinson eds., Researching Public Law in Common Law Systems (Edward Elgar, Cheltenham, 2023), 1.

[4] (Oxford University Press, Oxford, 1990).

[5] “What Should Public Lawyers Do?” (1992) 12 Oxford Journal of Legal Studies 404.

[6] “What Should Public Lawyers Do? A Reply” (1992) 12 Oxford Journal of Legal Studies 564.

[7] 5^th ed. (Roundhall, Dublin, 2019).

[8] Allan Hutchinson, “The Rise and Ruse of Administrative Law Scholarship” (1985) 48 Modern Law Review 293.

[9] Jacob Weinrib, “Maitland’s Challenge for Administrative Law Theory” (2021) 84 Modern Law Review 207.

This content has been updated on September 12, 2024 at 13:53.