Risk Regulation and Administrative Constitutionalism
In this short piece Liz Fisher, Professor of Environmental Law, shares some reflections from her work on Risk Regulation and Administrative Constitutionalism (Hart 2007).
I was asked to identify a piece of research that I am particularly proud of, and which has had the most impact. Pride and impact, besides having a complex interrelationship with each other, are tricky things for a legal scholar to think about. Pride tends to be introspective. Scholarship is quality driven work and pride comes from developing methods that show fidelity to the legal material you are working with so as to deepen understanding. And in regard to impact, besides the fact that it is multifaceted, the author is the last person to be able to comment on it!
With all that said, Risk Regulation and Administrative Constitutionalism (Hart 2007) is a work that has had some impact. It won the Society of Legal Scholars Peter Birks Prize for Outstanding Legal Scholarship in 2008 and has found a readership. It is a work that required me to spend many years crafting a scholarly method to illuminate a complex set of legal materials and problems. There were many times in that process I was unsure whether it was doable. I’m introspectively proud that I persisted.
The book is explicitly a book for legal scholars and lawyers. The starting point for the book is that public disputes (legal and otherwise) over technological risk are in essence disputes over the legitimacy of public institutions. That is not novel. My work was inspired by that of Mary Douglas in anthropology and Sheila Jasanoff in the sociology of science. What the book does is study five distinctive types of ‘legal’ debate over risk in five legal cultures: the BSE Inquiry in the UK; the evolution of judicial review doctrine of risk evaluation in the United States; different doctrinal applications of the precautionary principle in Australia; reasoning in dispute settlement in relation to the World Trade Organisation Sanitary and Phyto-Sanitary Agreement; and the evolution of legal thinking concerning the precautionary principle in the European Union.
The book is unabashedly a book about law. Much of the book is about letting the law – the legislation, the doctrine, and the surrounding legal architecture – do the talking. It is a very internal approach to the study of law, albeit one that encompasses the physical and socio-political complexity of the problems that law is applying to. In allowing the law to do the talking, three things become very obvious.
The first was that these legal disputes were less disputes over public institutions writ large, and more disputes over the legitimacy of public administration. Yet in political theory and public law, public administration tends to not get the attention it deserves. For example, public lawyers recognise behind every theory of public law is a theory of the state, but they are less likely to recognise that behind every theory of administrative law is a theory of public administration. This is because there is a common assumption that law does not constitute public administration, but only controls it. I coined the term ‘administrative constitutionalism’ to capture how it does both. In particular, the term captures how a wider constitutional structure may allow public administration to be constituted and limited in different ways and thus there will also be ensuing normative debate about how it should be constituted and limited.
The second important insight from letting the law do the talking is that a common assumption among scholars that the choice in risk decision-making is between a more ‘expert’ and more ‘participatory’ approach is a false dichotomy. Nearly all legislative regimes allow for both – the issue is how each is defined and operates. Distinct ways of defining expertise tend to be coupled with distinct ways of defining public participation. I developed two paradigms of administrative constitutionalism that illustrated this – the rational-instrumental and the deliberative-constitutive.
Third, and perhaps most importantly, the book shows that the substance of law and legal reasoning really matters in these disputes. Law is often understood in instrumental terms in environmental law. But what these case studies showed was that law was framing the physical and socio-political world and providing forums for debating how it should be framed and reframed. Moreover, to understand law in this area a deep engagement with the thickness of legal culture was required.
Writing that description makes it all seem very easy. It wasn’t. Ironically, letting the law doing the talking in legal scholarship can be hard. But the book empowered others by providing a way of thinking through these issues, particularly in an era when risk had become a hot policy and scholarly topic. For example, I was commissioned by the OECD to write a paper for them on risk regulatory concepts. It also opened up new intellectual projects for me. I left the language and paradigms of administrative constitutionalism behind, but the insights from this work became the very core of my intellectual agenda.