Administrative justice has something of an image problem, perennially cornered as dull and dusty, somehow remote from the real action, whether constitutional, political or social. For some, this is not a problem: at times, administrative justice is deliberately positioned as an antidote to politics, a safe and orderly space where ‘justice as fairness’ can float free above the mayhem. Yet administrative justice, like politics, is ordinary and, like politics, its natural habitat is that of the street. Despite technological advances, everyday relationships between citizens and frontline workers and street-level bureaucrats remain critical, public authorities themselves nothing less than the linchpins of the democratic state. Both sides of that relationship demand careful nurture, especially when in danger of crumbling in the face of citizen complaint.
Even in an election year, talk of ‘proportionate dispute resolution’, ‘own initiative investigation’ and ‘digital by default’ is unlikely to set public-policy pulses racing. Debate may continue about the constitutional struggle between the executive and the judges; judicial review and public inquiries may get a nod of recognition; but the mechanics of response to citizen grievance will pass largely unnoticed, despite the high-profile scandals of Hillsborough, Windrush, Grenfell and The Post Office. This is odd because administrative justice is inherently political: it is when things go wrong that people brush up against the state and catch a whiff of its political scent. When the state meets the street there is nowhere to hide.
For decades, administrative justice has been ambushed by a form of liberal legalism that saps its political edge. The prioritisation of individual dispute resolution over purposive future-oriented intervention, of form and process over substance, and of negative civil rights over positive social rights, has squeezed the life out of any enduring aspiration towards responsive legality. This is also odd, and increasingly so, because liberal legalism has been under the cosh for years and in an avowedly postliberal era finds itself ever more firmly on the ropes (an example is the development of disability rights in a postliberal mood since the turn of the century).
Postliberalism comes in many political shades, from the avowedly conservative and authoritarian polis-nostalgia of ‘common good constitutionalism’ to the determined progressivism of participatory and deliberative democracy. Yet all such forms recognise, albeit to varying degrees, strands in the liberal promise that have failed: the positive value of the ethical state working in partnership with civil society as an instrument of the shared public good (philosophical idealism); the value of intermediate association and dispersed, polycentric governance (political pluralism); the primacy of character, dignity and solidaristic citizenship as a framework for humane practice (civic humanism); and the necessary validity of experiential and problem-solving approaches to democratic governance (pragmatism). These postliberal emphases have the potential to cross the party-political divide and open new doors for ‘administrative justice reimagined’.
It is in the orchestration of the relationship between citizen and state that administrative justice institutions such as tribunals, ombuds and civic mediators have a decisive role to play. If played skilfully, it is a role with an accountability dividend that adds democratic value. Yet liberal legalism is a formidable obstacle, an entire ‘social imaginary’ rather than a mere set of techniques. It seduces with the abstractions of rights-based adversarialism, the common law mind and modern constitutionalism. The abiding image of the judge presides ponderously over its manoeuvres.
The public administration literature of the interwar years, notably in the work of William Robson, recalls debates about the response to citizen grievance which were wary of liberal legalism and held out the prospect of a tribunal system that was very different from the courts. Postwar ambitions for public administration based on the primacy of ‘relationship’, for example in the work of W.H. Morris, extended to an innovative, informal, and democratic means of intervention, modelled on the Scandinavian institution of the ‘Ombudsman’. In both instances, those extra-judicial ambitions foundered on the rock of liberal legalism: tribunals became subject to a gradual process of judicialisation and the public ombud to containment as a constitutional and legal office.
A postliberal antidote to liberal legalism encourages three alternative emphases: the citizen-agency of street-level bureaucrats, rooted in the democratic culture of public authorities; the active participation of aggrieved citizens in finding solutions to the problems revealed by their grievances; and the bridging capacity of administrative justice institutions. From such emphases emerges a postliberal accountability strategy that celebrates public authorities as the vehicles of democratic agency, civic association as a source of social advocacy, the individual person as a participative citizen, and administrative justice as an interwoven yet dispersed network of problem-solving and bridging institutions.
In a postliberal era, the justice inherent in public administration is the everyday justice of the public good. It is something more than ‘administrative justice’, and rich in possibility. In its postliberal ordinariness, it is a form also of post-legalism. Therein lies its unavoidably political salience – and in an election year, that matters.
Nick O’Brien is the author, with Margaret Doyle, of Human rights in small places: administrative justice reimagined (Palgrave Macmillan, 2019). His latest book is Politics and administrative justice: postliberalism, street-level bureaucracy and the reawakening of democratic citizenship (Bristol University Press, 2024).
Essex CAJI 
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