Perils of Comparative Administrative Law

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Textualism represents a dangerous temptation for comparative analysis of administrative procedure.

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Comparative administrative law is having an important intellectual moment. The field’s largest implications involve countries other than the United States because so many Americans perceive their law as conceptually insular and historically exceptional. In many other contexts, however, efforts to compare and contrast administrative systems have immense significance, and the research project Common Core of European Administrative Law (CoCEAL) initiated by Giacinto della Cananea is a superb example.

CoCEAL’s affiliated scholars have sought to identify “connecting elements” among diverse European systems. Although such authors disclaim any “normative purpose,” it is predictable that describing a common core of similarities among European legal systems will strengthen and supplement those similarities. CoCEAL is particularly focused on issues concerning administrative procedure, and one element of that research has been to map statutes concerning administrative procedure in various European countries.

The result is something of a tour de force, as scholars have traced European administrative procedure acts (APAs) for nearly a century across dozens of countries. The first example came from Austria in 1925 and the last was from France in 2015.

CoCEAL scholars characterize their findings as revealing a pattern of shared development, providing evidence that a “common core of administrative procedure” exists throughout most of Europe. Careful readers will notice caveats about the continued diversity of national legal systems, yet the bulk of CoCEAL’s research identifies shared functions of European APAs while connecting such statutes to widely accepted principles. The high status of APA legislation serves to reinforce common ideas about European legal rights, duties, and structures.

The scope and methodology of CoCEAL’s research might be as important as its substantive results. The project of analyzing Europe’s core legal commitments requires a huge canvas and a lot of paint. CoCEAL authors have collected a large group of examples, thereby shifting the burden of proof for other scholars to proffer counterarguments, while also opening a methodological door that will be hard to close. Non-CoCEAL scholars might dispute particular descriptions of trans-European administrative law, but such disputes will require even more pieces of multi-nationally comparative evidence, thus further entrenching the need for scholars to consult and collect similar kinds of evidence.

As a methodological parallel about scholarship and legal reform, we are told that the long-ago progenitor for Austria’s APA was Friedrich Tezner, who collected and analyzed judicial decisions from the Austrian Administrative Court. Tezner used systematic doctrinal research to support innovative ideas about administrative procedure as a category, and his conception of administrative procedure was later used to support Austria’s legislative enactment of an APA.

In a similar vein, CoCEAL scholars have collected legal information from European countries in ways that implicitly support further harmonization and statutory reform. The fundamental idea of European administrative law simultaneously confirms and is confirmed by CoCEAL’s evidence about European administrative law, and both elements—the ideas and the evidence—create a further tendency to extend that cycle.

For CoCEAL scholars to describe so many legal systems across large swaths of time, practical compromises must be made. For example, several CoCEAL scholars are editing a book that is particularly focused on Austrian administrative procedure. In that book, historical details about how and why Austria’s legislation emerged in 1925 are particularly useful to understand the Austrian statute’s meaning and context. By contrast, CoCEAL scholars’ comparative work casts aside historical specifics to analyze the Austrian APA’s text alongside other APAs. CoCEAL scholars’ multinational scope leads them to quietly weave interwar Austrian APAs together with post-Soviet European APAs and also twenty-first-century France. General principles and abstract functions—detached from particularized details—are the threads that bind such historical diversities together.

To be clear, problems of intellectual scope are absolutely inevitable, affecting enormous books, small essays such as this one, and everything in between. Broader analysis is always linked to thinner methodologies, while methodological depth requires narrower substantive topics. A sweeping comparative project such as CoCEAL will almost necessarily tend toward broad substance and thin methods.

Current transformations in United States administrative law have created a potential danger with that kind of approach. As Gillian Metzger and others have shown, the modern U.S. Supreme Court has taken a dramatic anti-administrative shift. The Court’s anti-administrativism has sometimes used explicitly constitutional rhetoric, but more often the conservative supermajority uses strange or counterintuitive applications of statutory textualism. Textualism is especially useful for anti-administrativism because it can displace the authority of judicial precedents and administrative practices, regardless of their age or pedigree.

CoCEAL scholars certainly do not intend to endorse or reject new forms of anti-administrative textualism inside the United States legal system. Yet their tight focus on European countries’ statutory text, with relatively mild attention to context and national implementation, has indirectly comparable risks. It is not hard to imagine that ostensibly common language in different European systems might be applied in significantly different ways, especially if operative statutory words were relatively general—as APAs often are—and if they were enacted years or decades apart. Under that entirely hypothetical circumstance, one country’s APA might be cited as part of a common core only after having wrenched statutory language away from its operative context, thus identifying abstract similarities that are illusory at best.

Solutions to these concerns are obvious. When CoCEAL researchers and other comparative law scholars use statutory text as an analytical starting point, they could also mention that textual analysis does not provide the final word. Even though statutory text is relatively easy to locate and analyze with internet-based research tools, other perspectives are also essential to understand how legislation works and what it represents.

In the future, as CoCEAL’s research projects continue to develop and expand, it will not be enough for authors to reflexively proffer history and culture as unanalyzed reasons for legal diversity or as barriers to shared institutions. A deeper exploration of common core values would connect current research about statutory texts with analysis of national and transnational contexts. Such comparisons will require even more laborious research, but the resulting accounts of shared European administrative law would be even more accurate and persuasive.

Modern efforts at comparative administrative law have already produced transformative insights, and the future looks even more promising. For comparativists, like everyone else, decisions about scope determine what kinds of research are realistically achievable, and in making those choices, every scholar must remain attentive to broader methodological implications as well. Even if some American lawyers remain parochially resistant to the broader project of comparative law, one can nonetheless hope that comparative legal researchers will avoid stumbling into the unsatisfactory kinds of textualism that are currently affecting U.S. courts.

Craig Green is a Professor of Law at Temple University’s Beasley School of Law.

This essay is part of a six-part series entitled, Administrative Law in Comparative Perspective.