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Keeping the Law Up to Date: The Idiom of Legalism and the Reform of Administrative Law in England and Wales

Published online by Cambridge University Press:  27 December 2018

Susan Sterett
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Abstract

The political effectiveness of legal expertise in the United States has rested on the ability of a peak association to present itself as representing the opinion of the profession as a whole. It has also relied on a broad epistemology in which lawyers claim to know the right thing to do. However, the effectiveness and placement of such expertise is a comparative issue. This article argues that organizations other than peak associations can muster the support required for legitimacy in the modem state. The legal profession's epistemology could lead it to narrow rather than broaden its claims in order to effectively claim expertise in something. The ability of the central state to shape a profession's mandate and to reject its advice will also influence the deployment of legal expertise. The article explores these issues in the context of the reform of administrative law in England and Wales. In England and Wales, an expertise-based commission mimicked the processes expected of a peak association. In anticipation of rejection by the central administration, it constrained rather than broadened its policy recommendations.

Type
Article
Information
Law & Social Inquiry , Volume 15 , Issue 4 , Fall 1990 , pp. 731 - 764
Copyright
Copyright © American Bar Foundation, 1990 

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References

1 See essays in Richard L. Abel & Philip S. C. Lewis, eds., Lawyers in Society, vol. 3: Comparative Theories (Berkeley: University of California Press, 1989) (“Abel & Lewis, Comparative Theories”); Terence Halliday, Beyond Monopoly (Chicago: University of Chicago Press, 1987) (“Halliday, Beyond Monopoly”); Michael Powell, From Patrician to Professional Elite (New York: Russell Sage Foundation, 1988) (“Powell, Patrician”).Google Scholar

2 Herbert Jacob, The Silent Revolution (Chicago: University of Chicago Press, 1989) (“Jacob, Silent Revolution”); Jane Mansbridge, Why We Lost the ERA (Chicago: University of Chicago Press, 1986); Susan Sterett, “Constitutionalism and Social Spending: Pennsylvania's Old Age Pensions in the 1920s,” 4 Studies in American Political Development 231 (1990); Suzanne Weaver, Decision to Prosecute (Cambridge, Mass.: MIT Press, 1981).Google Scholar

3 Magali Sarfatti Larson, “The Production of Expertise and the Constitution of Expert Power,” in Thomas L. Haskell, ed., The Authority of Experts 28–84 (Bloomington: Indiana University Press, 1984) (“Larson, ‘Production of Expertise’”); Halliday, Beyond Monopoly 365–68.Google Scholar

4 Halliday, Beyond Monopoly, and Powell, Patrician, both represent path-breaking work on the role of bar associations in United States policymaking.Google Scholar

5 For this approach to understanding policymaking, see Edward O. Laumann and David Knoke, The Organizational State 6–9 (Madison: University of Wisconsin Press, 1987); Paul DiMaggio & Walter W. Powell, “The Iron Cage Revisited: Institutional Isomorphism and Collective Rationality in Organizational Fields,” 48 Am. Soc. Rev. 147, 148 (1983).CrossRefGoogle Scholar

6 David Vogel, National Styles of Regulation (Ithaca, N.Y.: Cornell University Press, 1986) (“Vogel, National Styles of Regulation”).Google Scholar

7 Halliday, Beyond Monopoly326–34.Google Scholar

8 Id at ch. 2.Google Scholar

9 Id. at chs. 6–10Google Scholar

10 Richard L Abel & Philip S. C. Lewis, “Bringing Law Back into the Sociology of Lawyers,” in Abel & Lewis, Comparative Theories (cited in note 1) (“Abel & Lewis, ‘Bringing Law Back’”).Google Scholar

11 See, e.g., Cosmo Graham & Tony Prosser, eds., Waiving the Rules (Milton Keynes, Eng.: Open University Press, 1988); Jeffrey Jowell & Dawn Oliver, The Changing Constitution (2d ed. Oxford: Oxford University Press, 1990).Google Scholar

12 For a discussion of this issue in the context of corporatism, see Claus Offe, Disorganized Capitalism 254 (Cambridge, Mass.: MIT Press) (“Offe, Disorganized Capitalism”).Google Scholar

13 Terry Moe, “Interests, Institutions and Positive Theory: The Case of the NLRB,” 2 Studies in American Political Development 236 (1987); Jacob, Silent Revolution (cited in note 2).CrossRefGoogle Scholar

14 The multiple meanings of representation are discussed in Hanna Pitkin, The Concept of Representation (Berkeley: University of California Press, 1967).Google Scholar

15 Martin Bulmer, The Uses of Social Research 99 (London: Allen & Unwin, 1982).CrossRefGoogle Scholar

16 On the meanings of representing a profession, see Eliot Freidson, Professional Powers ch. 9 (Chicago: University of Chicago Press, 1986) (“Freidson, Professional Powers”).Google Scholar

17 Jacob, Silent Revolution; Lenore Weitzman, The Divorce Revolution (New York: Free Press, 1985). In Britain divorce law was also changed through the Law Commission; treating it as a technical issue was fairly effective. Note, “A Comparative Approach: The Divergent Paths of English and American Divorce Reform—To Take the Step from Fault to Breakdown?” 22 U. Fla. L. Rev. 101 (1969).Google Scholar

18 Martha L Fineman, “Neither Silent, nor Revolutionary,” 23 Law & Soc'y Rev. 945 (1989).CrossRefGoogle Scholar

19 DiMaggio & Powell, 48 Am. Soc. Rev. at 152, 155 (cited in note 5). See also John W. Meyer & Brian Rowan, “Institutionalized Organizations: Formal Structure as Myth and Ceremony” (“Meyer & Rowan, ‘Institutionalized Organizations’”), in John W. Meyer & W. Richard Scott, eds., Organizational Environments 31 (Beverly Hills, Cal.: Sage Publications, 1983) (“Meyer & Scott, Organizational Environments”).Google Scholar

20 DiMaggio & Powell, 48 Am. Soc. Rev. at 152, 156.Google Scholar

21 Conflict between the public and the experts and internal disagreement vitiate the importance of expertise in a variety of contexts. Steven Brine, “Rethinking the Policy Influence of Experts: From General Characterizations to Analysis of Variation” 5 Soc F. 20–21 (forthcoming, 1990).Google Scholar

22 Terence C. Halliday, “Legal Professions and Politics: Neocorporatist Variations on the Pluralist Theme of Liberal Democracies,” in Abel & Lewis, Comparative Theories 396–99 (cited in note 1).Google Scholar

23 On the difficulties of understanding what is and is not the state, and on the importance of not treating the state as monolithic, see Bert A. Rockman, “Minding the State—Or a State of Mind? Issues in the Comparative Conceptualization of the State,” in James A. Caporaso, ed., The Elusive State (Beverly Hilb, Cal.: Sage Publications, 1989) (“Rockman, ‘Minding the State’”).Google Scholar

24 For the distinction between sectoral and economy management issues, see Alan Cawson, Corporatism and Political Theory chs. 5, 6 (Oxford: Basil Blackwell, 1986).Google Scholar

25 For mention in a variety of contexts, see Richard L. Abel & Philip S. C. Lewis, Lawyers in Society, Vol. 1: The Common Law World (Berkeley: University of California Press, 1988); on administrative reform, see James G. March & Johan P. Olsen, Rediscovering Institutions chs. 4–5 (New York: Macmillan, 1989) (“March & Olsen, Rediscovering Institutions”).Google Scholar

26 March & Olsen, Rediscovering Institutions ch. 6. Crichel Down, an issue in the 1950s, provides one stunning example in Britain. I. F. Nicolson, The Mystery of Crichel Down (New York: Oxford University Press, 1988) (“Nicolson, Crichel Down”).Google Scholar

27 This was regarding a land use complaint called Crichel Down. See Nicholson, Crichel Down. Google Scholar

28 Frank Stacey, The British Ombudsman (Oxford: Clarendon Press, 1971).Google Scholar

29 For the argument that organizational creation and rationalization are usefully seen as part of culture, see John W. Meyer, John Boli, & George M. Thomas, “Ontology and Rationalization in the Western Cultural Account,” in George M. Thomas et al., Institutional Structure: Constituting State, Society, and the Individual (Beverly Hills: Sage Publications, 1987) (“Meyer et al, ‘Ontology’”). On administrative reform and cultural anxiety, see March & Olsen, Rediscovering Institutions ch. 5.Google Scholar

30 H. W. R. Wade, Administrative Law 15–17 (Oxford: Oxford University Press, 1961) (“Wade, Administrative Law”).Google Scholar

31 For a useful overview in the U.S. context, but one that is quite relevant to Britain, see Richard Stewart, “The Reformation of American Administrative Law,” 88 Harv. L Rev. 1669, 1671–74 (1975).Google Scholar

32 Halliday, Beyond Monopoly 254–60 (cited in note 1).Google Scholar

33 Martin Tolchin, “U.S. Drafts Rules Limiting Appeals on Social Security,”N.Y. Times, 16 Nov. 1988, at 1.Google Scholar

34 For ambiguities in Weber's concepts of rationality, see Donald Levine, The Flight from Ambiguity ch. 7 (Chicago: University of Chicago Press, 1985).Google Scholar

35 A market control model takes such reform efforts as attempts by the profession to expand markets. The most recent exponent of this perspective is Richard L. Abel; for a synthesis, see his “A Comparative Sociology of Legal Professions” in Abel & Lewis, Comparative Theories (cited in note 1). For my purposes it is enough to say that even finding such motives by the profession is not the end of the story about what changes would mean for public policy or how the particular choices about change are made. For a discussion of the market control perspective on reform, see Halliday, Beyond Monopoly 347–51.Google Scholar

36 In Disorganized Capitalism ch. 10, 301–2 (cited in note 12).Google Scholar

37 Studies of organizations show how much universal rules are not followed and how procedures are followed even though they are not related to goals. See the essays in Meyer & Scott, Organisational Environments (cited in note 19).Google Scholar

38 Max Weber, Economy and Society, ed. Claus Wittich & Guenther Roth (Berkeley: University of California Press, 1969); Jerry Mashaw, Bureaucratic Justice (New Haven, Conn.: Yale University Press, 1986).Google Scholar

39 Offe, Disorganized Capitalism 301–8 (cited in note 12).Google Scholar

40 John W. Meyer et al., “Ontology,” at 24–25 (cited in note 29).Google Scholar

41 J. A. G. Griffith & Harry Street, Principles of Administrative Law (London, 1952) (“Griffith & Street, Principles”); deSmith, Judicial Review of Administrative Action (1959).Google Scholar

42 H. W. R. Wade, “The Machinery of Law Reform,” 24 Mod. L Rev. 1 (1961).CrossRefGoogle Scholar

43 London: Victor Gollancz Ltd., 1963 (“Gardiner & Martin, Law Reform NOW”).Google Scholar

44 J. A. G. Griffith, “Constitutional and Administrative Law,” in Gardiner & Martin, Law Reform NOW 24–57.Google Scholar

45 Gardiner & Martin, Law Reform NOW 9.Google Scholar

46 This perspective recurred in participants' discussions of the Law Commission. See Sir Leslie Scarman, “Inside the English Law Commission,” 57 ABA J. 867–70 (1971).Google Scholar

47 Brint, Soc. F. 35–36 (cited in note 21); Halliday, Beyond Monopoly 365–68 (cited in note 1).Google Scholar

48 House of Commons, col. 48–50, Hansard (1965).Google Scholar

49 Law Commission, First Annual Report, Paper No. 4 (1966).Google Scholar

50 Aubrey L. Diamond, “Law Reform and the Legal Profession,” 51 Austral. L.J. 397 (1977).Google Scholar

51 Douglas Ashford, Policy and Politics in Britain (Philadelphia: Temple University Press, 1987); J. A. G. Griffith, The Politics of the Judiciary (3d id. London: Fontana Press, 1987).Google Scholar

52 Richard L. Abel, The Legal Profession in England and Wales 70–72, 80, 172–73 (Oxford: Basil Blackwell, 1988).Google Scholar

53 Rockman, “Minding the State” at 193–95 (cited in note 23).Google Scholar

54 For these criteria, see Philippe C. Schmitter, “Reflections on Where the Theory of Neo-Corporatism Has Gone and Where the Praxis of Neo-Corporatism May be Going,” in Gerhard Lehmbruch & Philippe C. Schmitter, Patterns of Corporatist Policy-Making (Beverly Hills, Cal.: Sage Publications, 1982).Google Scholar

55 Paragraph 5 of Note prefacing First Programme, Law Commission (1966).Google Scholar

56 Law Commission No. 14, at 27 (1966).Google Scholar

57 March & Olsen, Rediscovering Institutions 62 (cited in note 25).Google Scholar

58 For a good summary of ideas about reform in the 1950s, see Report of the Committee on Tribunals and Inquiries, Cmnd. 218 (1957).Google Scholar

59 Griffith & Street, Principles (cited in note 41); H. W. R. Wade, Administrative Law (cited in note 30); Carol Harlow & Richard Rawlings, Law and Administration (London: Weidenfeld & Nicolson, 1983) (“Harlow & Rawlings, Law and Administration”).Google Scholar

60 Rosamund Thomas, The British Philosophy of Administration (Chapel Hill: University of North Carolina Press, 1980).Google Scholar

61 See, e.g., Alan Paterson, The Law Lords (London: Macmillan, 1983).CrossRefGoogle Scholar

62 Law Commission, Second Annual Report No. 12, at 4–5 (1967). Politicians hardly cared, however. Richard Crossman, then a leading Labour minister, said of the seminar (which he missed): “Fortunately, everyone said it was nonsense.” Richard Crossman, 2 The Diaries of a Cabinet Minister 46 (London: Hamish Hamilton & Jonathan Cape, 1976).Google Scholar

63 Law Commission, Exploratory Working Paper on Administrative Law, Working Paper No. 13 (24 July 1967).Google Scholar

64 Id. at para. 6.Google Scholar

65 Id. at para. 7.Google Scholar

66 Id. at para. 8.Google Scholar

67 See, e.g., Griffith & Street, Principles (cited in note 41); Wade, Administrative Law (cited in note 30); Kenneth Culp Davis, 61 Colum. L Rev. 201 (1961).Google Scholar

68 Law Commission, Working Paper No. 13, para. 9 (cited in note 63).Google Scholar

69 Id. at para. 10.Google Scholar

70 Law Commission, Administrative Law, No. 20, App. B, at 9, Cmnd. 4059 (May 1969).Google Scholar

71 L.C.B. Gower, “Reflections on Law Reform,” 23 U. Toronto LJ. 257, 260 (1973).Google Scholar

72 Law Commission, No. 20, at 13 (cited in note 70).Google Scholar

73 Id. at 3–4; App. C, at 10–11.Google Scholar

74 Id., App. C, at 10.Google Scholar

75 Vogel, National Styles of Regulation (cited in note 6); Keith Hawkins, Environment and Enforcement (London: Oxford University Press, 1986).Google Scholar

76 Law Commission, No. 20, at 10–11 (cited in note 70).Google Scholar

77 Id. at 1.Google Scholar

78 Halliday, Beyond Monopoly 37 (cited in note 1); for a critique, see Abel & Lewis, “Bringing Law Back,” at 502–4 (cited in note 10).Google Scholar

79 Scarman, 57 ABA J. at 867–70, 868 (cited in note 46).Google Scholar

80 Gower, 23 U. Toronto L.J. at 265–66 (cited in note 71).Google Scholar

81 House of Lords, vol. 306, cols. 189–190, Hansard (4 Dec. 1969).Google Scholar

82 On the importance of agenda setting and power, see DiMaggio & Powell, 48 Am. Soc. Rev. at 157 (cited in note 5).Google Scholar

83 On the importance of attending to divisions within the central state, see Ezra Suleiman, Private Power and Centralization in France (Princeton, N.J.: Princeton University Press, 1987).Google Scholar

84 Id.; Michael M. Atkinson & William D. Coleman, “Strong States and Weak States: Sectoral Policy Networks in Advanced Capitalist Economies,” 19 Brit. J. Pol Sci. 47 (1989).CrossRefGoogle Scholar

85 Law Commission, Report on Remedies in Administrative Law, Law Commission No. 73, App. B (March 1976).Google Scholar

86 This discussion is adopted from id. at 5–16.Google Scholar

87 Law Commission, Remedies in Administrative Law, Working Paper No. 40, at 54–55 (11 Oct. 1971). Much of the following account is also based on interviews I conducted in 1984, 1985, and 1990 with solicitors in the central administration and other lawyers (barristers and solicitors) involved with the Law Commission, practicing in administrative law, or in academia. The interviews were given on the basis of confidentiality.Google Scholar

88 Law Commission, Working Paper No. 40.Google Scholar

89 Law Commission, No. 73, App. C (cited in note 85).Google Scholar

90 Id. at 27.Google Scholar

91 Law Commission, Working Paper No. 40, at 57; in the final report, Law Commission, No. 73, the Commission also drew on a statute in Ontario (at 20).Google Scholar

92 Law Commission, No. 73, at 19–23.Google Scholar

93 Working Paper No. 40, at 1.Google Scholar

94 R.S.C. Order 53, Supp. No. 29 (January 1978).CrossRefGoogle Scholar

95 Supreme Court Act, ch. 54, sec. 31 (1981).Google Scholar

96 Dietrich Rueschemeyer, Power and the Division of Labor in Society 123–24 (Palo Alto, Cal.: Stanford University Press, 1986).Google Scholar

97 C. Neal Tate, “Paths to the Bench in Britain: A Quasi-experimental Study of the Recruitment of a Judicial Elite,” 28 W. Pol Q. 108 (1975).CrossRefGoogle Scholar

98 Terence Halliday in a suggestive essay on Australia argues for the importance of these divisions for the ability of the profession to advise states. Halliday, “The Fractured Profession: Structural Impediments to Collective Action by the Australian Legal Profession” (ABF Working Paper #8712).Google Scholar

99 Maurice Sunkin, “What Is Happening to Applications for Judicial Review,” 50 Mod. L. Rev. 432 (1987). This paper addresses applications from 1981. Civil Judicial Statistics, p. 20, Cmnd. 7977 (1979); Cmnd. 8436 (1980).Google Scholar

100 Halliday, Beyond Monopoly 258 (cited in note 1).Google Scholar

101 Id. at 258.Google Scholar

102 Law Commission, Working Paper No. 13, at 7 (cited in note 63).Google Scholar

103 Report of the Committee on Tribunals and Inquiries, Cmnd. 218 (1957).Google Scholar

104 Blom-Cooper, 252.Google Scholar

105 Blom-Cooper, 252.Google Scholar

106 Jim Bulpitt, “Continuity, Autonomy and Peripheralisation: The Anatomy of the Centre's Race Statecraft in England” in Zig Layton-Henry & Paul B. Rich, Race, Government and Politics in Britain (London: Macmillan, 1986).CrossRefGoogle Scholar

107 Blom-Cooper, 253.Google Scholar

108 Law Commission, Working Paper No. 40, at 103 (cited in note 87). Although the Commission favored an administrative court, it did not have the authority to recommend establishing one. Its second-best solution was to have the Queen's Bench hear all administrative appeals. See also H. W. R. Wade, “Crossroads in Administrative Law,” 1968 Current Legal Problems, 75, 90.Google Scholar

109 Blom-Cooper, 257.Google Scholar

110 See in particular testimony before the Committee of Inquiry on Tribunals and Inquiries, Minutes of Evidence (1957).Google Scholar

111 1 W.L.R. 1296 (1981).Google Scholar

112 Law Commission, No. 73, at 16 (cited in note 85).Google Scholar

113 [1983] 2 A.C. 237.Google Scholar

114 From the mid-1970s prisoners' rights cases had been another type of case that did not fit the welfare state/compulsory purchase order model of what the law was for. Indeed, the prison rules are taken to confer no rights on prisoners. R. v. Hull Prison Visitors ex parte St. Germain, 1979 Q.B. 425.Google Scholar

115 Id. at 284.Google Scholar

116 Offe, Disorganized Capitalism 301–2 (cited in note 12).Google Scholar

117 This distinction is only a rough guide. See Wandsworth L.B.C. v. Winder, 1984 W.L.R. 1254. Other important cases include Cocks v. Thanet District Council, 1983 A.C. 286; Gillick v. West Norfolk and Wisbech Area Health Authority, 1986 A.C. 112.Google Scholar

118 For a discussion of this debate, see Harlow & Rawlings, Law and Administration ch. 3 (cited in note 59).Google Scholar

119 Andrew Gamble, The Free Economy and the Strong State (1987).CrossRefGoogle Scholar

120 See, e.g., J. Beatson, “‘Public’ and ‘Private’ in English Administrative Law,” 103 Law Q. Rev. 34 (1987).Google Scholar

121 See, e.g., Stephen Sedley, “Where Next?” in Jeremy Cooper & Rajeev Dhavan, eds., Public Interest Law (New York: Basil Blackwell, 1986).Google Scholar

122 R. v. Secretary of State, ex parte Butt and Swati, 1986 All E.R. 717; Puhlhofer v. London Borough of Hillingdon, 1986 All E.R. 467. See Maurice Sunkin, “Trends in the Use of Judicial Review Before and After Swati and Puhlhofer,” 137 New L.J. 9 (1987).Google Scholar

123 Meyer & Rowan, “Institutionalized Organizations” at 30, 31 (cited in note 19).Google Scholar

124 JUSTICE/All Souls Group, Administrative Law (Oxford: Oxford University Press, 1988). For a discussion of the role of academics in a professional division of labor, see Freidson, Professional Powers ch. 10 (cited in note 16).Google Scholar

125 Patrick McAuslan, “Administrative Justice—A Necessary Report?” 1989 Public Law 402.Google Scholar

126 Robin Stryker, “Limits on the Technocratization of the Law: The Elimination of the National Labor Relations Board's Division of Economic Research,” 54 Am. Soc. Rev. 341 (1989).CrossRefGoogle Scholar

127 On professions as setting terms of debate, see Larson, “Production of Expertise” (cited in note 3).Google Scholar

128 Halliday, Beyond Monopoly 99–100, 351 (cited in note 1).Google Scholar

129 For the concept of public jurisdiction, see Andrew Abbott, The System of Professions 68, 163–65 (Chicago: University of Chicago Press, 1988).Google Scholar

130 Michael Burrage, “Revolution as a Starting Point for the Comparative Analysis of the French, American, and English Legal Professions,” in Abel & Lewis, Comparative Theories (cited in note 1).Google Scholar

131 Note, 22 U. Fla. L Rev. 101–28 (cited in note 17); “The Law Commission: Reform of Grounds of Divorce,” 111 Solicitors' J. 614–15 (1967).Google Scholar

132 Magali Sarfatti Larson, The Rise of Professionalism (Berkeley: University of California Press, 1977).Google Scholar

133 Halliday, Beyond Monopoly 350.Google Scholar

134 Michael Powell, “Developments in the Regulation of Lawyers: Competing Segments and Market, Client, and Government Controls,” 64 Social Forces 281 (1985).Google Scholar

135 See Abel & Lewis, “Bringing Law Back” at 502–4 (cited in note 10; Stryker, 54 Am. Soc. Rev. 341 (cited in note 126).Google Scholar

136 Halliday, Beyond Monopoly 254, 256.Google Scholar

137 See also id. at 257.Google Scholar

138 M. D. Cohen, James G. March, & Johan P. Olsen, “A Garbage Can Model of Organizational Choice,” 17 Admin. Sci. Q. 1 (1972). Similarly, lawyers noticed the divorce law problem in the United States and worked to put it on the legislatures' agenda. Jacob, Silent Revolution (cited in 2).Google Scholar

139 Halliday, Beyond Monopoly, 23, 52.Google Scholar