Critically analyze the essay regarding Administrative law and examine its relevance to Uganda today.
Austin (1970), defines Law as a body of rules fixed and enforced by a sovereign political authority. Law is also defined as the system of rules enforced through public-social institutions to govern and regulate public behavior.
David and Helena (2010) state that Administrative law is the body of constitutional provisions, statutes, executive bodies and other binding directives that generically regulate public administrative practices. It is the regulatory law of public administration with disregard to specific missions of government agencies and or institutions. It extends to generic specific substantive policy objectives, such as paper work reduction, protection of the interests of small businesses and those owned by disadvantaged groups, environmental justice, vibrant federalism and family viability. This definition to applicable Uganda whose administrative laws are cross cutting to all public institutions irrespective of their specific missions; Uganda Constitution 1996.
David and Helena (2010) state that in the United States, administrative law is not well integrated into public administrative theory, research and pedagogy. It is treated as an independent subject and it is not given due diligence. Adding that administrative law is central to public administrative practices but not to academic thought, scholarship or literature. That most public administration scholars are more interested in managerial techniques and tools, organizational theory, design and behavior, budgeting and finance and human resource management than administrative law.
Unlike in the Latin America and European countries where legal education is a prime route to civil service career. This notion has shortcomings in that the administrative practices and values listed above cannot function well without control by law. Administrative law cannot be integrated in public administration practices and values whilst ignoring public administration academia that trains public administrators.
The essay also indicates that in the United States, administrative law is left to be taught at the faculty of law school, where the main focus is on enforcement of law in form of regulating of businesses, freedom of information and litigation without integrating it with public administrative values and practices. This conviction is contrary to the classical theories of public administration and most notable the McGregor’s X and Y theories that contend that theories of administration and people management are based on certain basic assumptions about human nature. That as a result, there would either be a control oriented management process, or a consultative approach to management for efficiency. These theories view management in totality of all factors at play, such as the organization, the systems, processes and human resources, and where the human factor is key. This implies that administrative law should be integrated in public administration practices so as to internally control factors that influence management processes.
The other contentious conviction brought out in the essay is the conflict between contractarianism versus utilitarianism as embedded in administrative law and public administration respectively. David and Helena (2010), state that administrative law reflects the nation’s contractarian and natural rights based origins as stated in the US Declaration of independence yet public administration tends to emphasize utilitarian (benefit-cost) and instrumental (cost-effective) values, where the later walks hand in hand with communitarianism that emphasizes cooperation and conflict reduction contrary to the former that is constitutionally designed for competitive political behavior.
An example of just compensation to a land private owner whose land might be used by government for promoting general welfare through a road, bridge or dam, is a good example of utilitarianism. This statement does not fully explore the processes and practices involved in executing utilitarianism. It is incomplete in other words because protection of the rights of minorities has to be guided and regulated by law for it to be effective. Otherwise, human nature as defined in the scientific theories of public administration can override the common interest.
David and Helena (2010) go ahead to collate different articles, texts and works on the relationship between administrative law and public administration and how the two influence administrative behavior. It is noted that Wyman (1903), conceptualized administrative law as the regulations that define administrative authority and responsibility. This definition includes both the internal (relations among administrators and agencies) and the external (relationship between public administrators and the agencies to citizenry) aspects which are proven to be effective and applicable elsewhere in public administration to-date. The two aspects bring rulemaking and administrative adjudication together in structuring public management, an aspect of effective public administration that Uganda follows in all its public institutions/agencies.
According to the essay, Goodnow’s (1900, 1905), politics-administration dichotomy emphasized the improvement of the will of the state, the separation of bigger portions of administration from politics via institutions like city management and administrative authorities, among other reforms. A case in point for public administrators in Uganda to consider to apply as clearly emphasized by Max Weber’s Bureaucratic theory. That is, having distinctive official jurisdictional areas of practice in public administration so as to foster good governance, productivity and economic gain in the long term.
In his later works, Goodnow defined administrative law as regulating administrative arrangements for executing law and a way through which redress of individual rights violated by administrative action would be made. This clearly brought public administration even much closer to administrative law since they are complimentary in practice. This is relevant to Uganda in a way that it fosters equity and non-partisan tendencies in management of public affairs.
Hart (1940) viewed administrative law as controlling administrative authority and action. This is important for Ugandan public administration since administration law is seen as a control of processes, decisions and actions of public administrators, thereby making them more accountable.
Davis (1960, 1975) was able to put administrative law and public administration together. He sought to situate the study of administrative law solidly within the framework of public administration.
David and Helena (2010) noted that, Davison and Grundstein view administrative law as a multiplicity of institutional arrangements aimed at subordinating public administration to political authority. In the US, this means making bureaucracy safe for representative democracy. That even the non-democratic regimes rely on administrative law to control public administration. operations. This statement has shortcomings in a way that administrative law, in totality, does not spare one and adjudicates the other, it is meant guide fairly all the branches of government, including the executive, judiciary and parliament. Administrative law is neither a product of one of the branches, but rather, it is established in consultation of all the three arms of government. Shafritz and Russell (1997), define it as the legislative act that deals with the citizenry as a whole. A statue that applies to all. It does not check, as David and Helena (2010) put it, but rather it controls systems, processes for transparency, impartiality, good governance, equity and above all accountability.
In addition to that, David and Helena (2010) stated that public administration is a political endeavor because of its legislative function of rulemaking and adjudication. Public Administration is composed of distinct branches that is the executive, the legislative and the judiciary. Though three branches thrive from within a given politic climate, they have well-defined jurisdictional areas, as clearly explained by the Max-Weber bureaucracy theory. Though public administration involves both legislation and adjudication, these two are complimentary, but with distinct boundaries in terms of responsibility and authority. This therefore, does not render public administration a political endeavor, but rather, one may say that the two arms are liable to political forces of a given state at that time. Public administration fosters good governance in terms of rulemaking and adjudication which both serve as controls to the citizens and administrators. In Uganda legislators are clearly distinct from the judiciary in both responsibility and authority. They are a foundation for democratic principles of government and promote universal suffrage, despite the irregularities involved. In this it also regulates administrative practices in a way that provides for the redress of individual rights violated by administrative action. Public code of conduct.
David and Helena also (2010) argue that the much practiced transparency in the US through FIOA and the OPEN Government Act is not substantive given the political influence in decision making through pre-decisional discussions over policy and enforcement matters. However in well-developed and developing democracies, this remains an unfounded assumption by especially ruling government critiques. In a new public management era, there is desire for a written records to explain theories and ideas, which this notion will not pass. Uganda’s public management system, just like the US, faces the same unfounded criticism, where political leaders are claimed to have had a hand in all major decisions made in the country. Important to note is that, transparency and accountability in Uganda has seen of establishment of institutions to foster accountability such as, the Parliamentary Accounts Committee, Inspector General of Government and the Attorney General’s office foster good governance in management of public affairs.
David and Helena (2010) have on the other hand applauded public administration for having established an Administrative Procedure Act that is regarded a “Bill of Rights” which has provided public administrative clients, customers, employees and contractors, employees and contractors with a wide array of rights. This makes public administrative legislation relevant to states and the public given the fact that it fosters protection of the rights of the public especially the minorities of society. In Uganda, the Children Acts, Peoples with Disabilities Act, widows Act and Patent rights Act, Article 56 of Employment Act (2006), all are intended to protect the rights of the disadvantaged of society.
In conclusion it is agreeable that costly nature of bureaucracy is what determines its effectiveness. Public administration combines management, politics and law (David and Helena, 2010). In Uganda, just like the US, administrative law has major impacts on public administrative operations, practices, procedures, decision making and public behavior. And as such, it is very important to integrate administrative law in the academic field of public administration. David and Helena (2010) emphasize that failure of academic public administration to fully engage, is self-imposed impediment to gaining a complete understanding of behavior and achieving successful administrative reforms.
References
- John, A.,(1832).Province of Jurisprudence Determined-Excerpts (5th). London: JohnMurray, Albemarle Street.
- Grueing, G. (2001). Origin and theoretical basis of New Public Management. Arbeitsberiech Public Management, Hochschule fuer Wirtschaft und Politik, Humburg, Germany, 1-25.
- Weisbrod, B., etal. (1978). Public Interest Law: An economic and Institutional Analysis. University of California Press, CA.
- David, H., (2010). Foundations of Public Administration. Administrative law. City University of Hongkong & American University.
