Responsive Legality

Abstract

This dissertation identifies responsive legality as a new ideal type of administrative justice that encompasses the normative logics that public officials at times draw on in twenty-first century public administration. In this ideal type, officials believe a decision is a good one if it blends rule of law compliance with a caring concern for substantive justice. In responsive legality, officials work to protect applicant welfare through rule of law conformity. They are driven by an overall sense of responsiveness, an orientation towards substantive fairness, and cognitive processes requiring the application of personal experience to verify factual truths. This discernment of responsive legality builds on over thirty-five years of socio-legal administrative justice literature, which seeks to explore the normative logics underpinning public decision making. Understanding these logics is an important socio-legal, law-in-the-books versus law-in-action gap study. Where the law books tell us much about the range of formal rules drawn upon to justify administrative action, studying organisations themselves and importing related social science literature into the law books can teach us much about a far broader set of rules – normative social rules – that underpin public decisions. Responsive legality is discerned both analytically and empirically. Following Jerry Mashaw’s approach in Bureaucratic Justice, the type explored here is partially drawn from iterations of its features in a broader public administration literature. Most particularly, it draws inspiration from Philippe Nonet and Philip Selznick’s Law and Society in Transition. Their well-known conceptualisation of responsive law provides relatable features that, when imported into the pre-existing influential models of administrative justice, demonstrate this unaccounted-for basis on which administrative decisions are justified. A related socio-legal bureaucratic legal consciousness body of literature also guides the conceptual elaboration of this type, particularly in pointing to the centrality of purposively driven and substantively justice-oriented rule of law compliance. Empirically, responsive legality is explored through the analysis of interview transcripts with government officials in the Refugee Review Tribunal of Australia. In discussing the basis for their decisions, these officials often demonstrated an orientation towards responsiveness, a concern for substantive fairness, and cognitive processes requiring the application of personal experience to ascertaining factual truths; thus, they empirically verify the real-world existence of this type. In presenting responsive legality, this dissertation is conscious of its limitations. It cannot provide an exhaustive overall account of the multiple bases on which a decision might be justified, nor does it aim to. The administrative justice literature has done much of this work already. Rather, it unearths one new type, capturing and celebrating those times when the rule of law meets a responsively oriented ethic of care in administrative governance.