Democratization And...Administrative Law

Abstract

The democratization revolution that recently swept Eastern Europe and much of the Third World is the most excititng and hopeful trend of the late twentieth century. With the collapse of an analytical Marxism and a paucity of overarching theories of a social democracy, a neoconservative law and economics has dominated thinking about this revolution. Hoping for a new withering away of the state, ethnocentric American economists have neglected the roles administrative law can and should play in this revolution. But leaders in nascent democracies know that their citizens expect them to do something, right now, to improve citizen welfare through a rather activist state and administrative law. The article thus surveys ways to strengthen the adminstrative state, in democratic ways. Based on the ideas of Kenneth Davis and Jerry Mashaw, "internal" administrative law reforms should reduce bureaucratic discretion--usually expressed as the power to do nothing, unless a bribe overcomes the bureaucrat's lethargy--and force meaningful and neutral evaluations of the performance of specifically-enumerated bureaucratic tasks. An "external" and more democratic accountability of bureaucrats then evolves, as the relevant institutions--parliaments, courts, ombudsmen, nongovernmental organizations, etc.--are strengthened in democratic ways. The roles of lawyers in this process are discussed and specific topics are sketched, to flesh out the analyses: property rights, dealing with citizens' and bureaucrats' uncertainties, industrial policies, the privatization of state-owned enterprises, deregulation and some planned re-regulation, and social welfare policies.