Jens M Scherpe and Andy Hayward (eds), The Future of Registered Partnerships: Family Recognition Beyond Marriage?, Cambridge, Antwerp, Portland: Intersentia, 2017, 591 pp, pb €98.00.
| Author | Chris Barton |
| Published date | 01 November 2018 |
| DOI | http://doi.org/10.1111/1468-2230.12380 |
| Date | 01 November 2018 |
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REVIEWS
Peter Cane,Controlling Administrative Power: A Historical Comparison,
Cambridge: Cambridge University Press, 2016, 608 pp, hb £59.99.
Pete r Can e’s, Controlling Administrative Power: A Historical Comparison is an
important contribution to the comparative study of administrative law and its
methodology. Cane locates both shared and different administrative law norms
and practices in their historical and institutional contexts. In doing so he
explicitly rejects ideas such as American (and by implication Australian) excep-
tionalism and normative accounts of administrative law, which abstract values
from the institutional contexts and often contingent practices out of which they
have developed over time. It is an ambitious project spanning over 500 pages
and many centuries which references primary legal materials, and extensive
political science as well as constitutional and administrative law literature. His
focus is three jurisdictions: the United States, England, and Australia.
The central hypothesis is that methods of control of administrative power
are a response to how power has been constitutionally configured over time.
He posits two models of control: an accountability model which is retrospec-
tive and hierarchical; and a checks and balances approach which is essentially
prospective, multipolar and horizontal and is oriented to the regulation of
the interactions between various institutions. Accountability models are more
likely to be used where power is ‘concentrated’, by which he means a system in
which each institution can exercise its powers unilaterally without the consent
or cooperation of others. A ‘concentrated’ system may at the same time be
fragmented in the sense that there is a division of labour between different
institutions. A diffuse system involves power sharing between institutions. It
may be a consequence of such diffusion that the bureaucracy has to serve sev-
eral masters and hence to achieve a degree of autonomy. Every jurisdiction
will have elements of both diffusion and concentration. Strikingly (and help-
fully) his analysis rejects the orthodox separation of powers framework and
conventional comparisons between parliamentary and presidential systems.
After 200 pages analysing the historical developments of the institutional
frameworks in his three jurisdictions, Cane tests his hypothesis against a series
of different administrative law topics including: interpretation, fact-finding and
policy-making, rule-making, adjudication, private law controls, controlling
information and the implementation of the New Public Management.
Particularly successful is Cane’s explanation of why the United States’ courts
defer to agencies’ interpretations of their own legislation but not to agency fact-
finding and policy, whereas the English courts consider themselves as having
the last word on questions of law but tend to be deferential in relation to
findings of fact and (lawful) policy (chapters 6 and 7). Cane acts as a self-styled
‘translator’ (as in language translator, 512) for those of us who know (or think
we know) some of the US terms - such as ‘hard look’ - but do not fully
C2018 The Author. The Modern Law Review C2018 The Modern Law Review Limited. (2018) 81(6) MLR 1083–1100
Published by JohnWiley & Sons Ltd, 9600 Garsington Road, Oxford OX4 2DQ, UK and 101 Station Landing, Medford, MA 02155, USA
Reviews
understand such terms in their cultural setting and wider world view (eg, Wol f
vMinister of Immigration [2004] NZAR 414). The path dependent explanations
for the United States system of administrative rule-making (chapter 8) are
also extremely illuminating for those not fully immersed in United States
administrative law and Cane’s hypothesis that prospective controls techniques
are likely to be favoured in diffuse systems seems to be borne out in that instance.
Cane readily admits where his analytical framework is not so revealing and
other more important factors are likely to be in play (eg, 436). This is the
case in relation to controlling information (chapter 11). The increasing diffu-
sion of power that may have occurred in the implementation of New Public
Management techniques did not have the impact on public control regimes
that might have been predicted by his theory (chapter 12, 463). Cane laudably
does not overclaim for his theory and neither does he cherry pick his topics.
Nevertheless, the reader who has been encouraged to ‘dip in’ to one of the
self-contained topics for which the hypothesis is not borne out may be left
wanting, as might the reader who has diligently read 200 pages of historical
and institutional background before reaching the topic she was particularly
interested in, only to find that the analytical framework does not assist. There
is still something to be gained, however. This is because, despite the fact that
Cane eschews the lens of a constitutional translation, one of the interesting
insights (more implied than express) of his work is in relation to constitutional
borrowing. Freedom of Information regimes have their origins in the US sys-
tem. Transplants cannot always be ‘retrofitted’ into the existing administrative
state without alteration and adaption.
Fortunately one does not have to fully accept its hypothesis wholly or par-
tially, in order to gain a great deal from this book and it is often when Cane
ranges more widely that it is at its most interesting and insightful. So for ex-
ample, consider the ways in which the courts in the different jurisdictions
think of themselves and their relationship to the ‘common law’ and to ‘the
people’. United States courts, according to Cane, consider themselves (via the
Constitution) to be delegates of the people, as well as part of the machinery of
government. For other reasons to do with the written constitution, the com-
mon law is considered to be a source of private law or otherwise to provide
glosses on or fill gaps in the written constitution. But in contrast to the United
Kingdom and Australia, the US common law is not regarded as the source
of core public law including procedural norms. At the same time, the United
States, according to Cane, conceives of a stronger division between public and
private tort and contract law. These observations are striking, both in them-
selves, and for how they may in turn help us to reflect on United Kingdom un-
derstandings and the more hybridised Australian position. The primary fidelity
of the United Kingdom judicial system, Cane tells us, is not to ‘the people’, but
rather to the abstract idea of the law – the rule of law. With the abolition of the
conciliar courts in 1641, the English judges were marginalised from central ad-
ministration, and later with the Glorious Revolution, they were subordinated
to parliament. The occasional attempts by the United Kingdom judges to char-
acterise themselves as self-styled defenders of democracy look rather arriviste
given this historical background. If judges in the United Kingdom derive their
1084 C2018 The Author. The Modern Law Review C2018 The Modern Law Review Limited.
(2018) 81(6) MLR 1083–1100
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