Explaining Comparative Administrative Law: The Standing of Positive Political Theory

Abstract

The principal-agent model of administrative law sees bureaucrats as imperfectly supervised agents of their political principals and courts as a tool used by the latter to monitor and check the former. This paper compares how the class of plaintiffs authorized to bring suit against governmental bodies has been defined in three countries where one should expect to find significant barriers to administrative litigation—Japan, Singapore, and the People’s Republic of China. Although these three Asian countries have traditionally been one-party dominated states, we do observe substantial differences in how legislatures and courts have addressed the issue of standing over time. It is possible to explain these variations by examining three factors. First, the local governments are, in some countries, sub-entities or agents of the national government. Thus, administrative law might be used to regulate the acts of local governments in addition to agencies, leading to broader notions of standing. Second, the level of political competition could influence the doctrine of standing by incentivizing political incumbents to secure alternative avenues for challenging the policies of their successors. Third, the legal process is not the only mechanism available for monitoring the behavior of agents. For example, the Administrative Management Agency, xinfang system, and “Meet the People Sessions” offer channels for non-judicial resolution of administrative disputes in Japan, China, and Singapore respectively. Yet courts and other monitoring mechanisms are not perfect substitutes; the different quality and quantity of the information collected, the creation of legal rules binding future decisions, and transaction costs of overriding judicial outcomes distinguish between them. This last factor is, in general, not easily resolved in one direction or another. The larger conclusion drawn is that Positive Political Theory, while insightful, may not always give an elegant structure to comparative studies in administrative law.