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Durham University

Durham Law School

Staff profile

Publication details for Dr Zhiyu Li

Chen, Benjamin Minhao & Li, Zhiyu (2016). Explaining Comparative Administrative Law: The Standing of Positive Political Theory. Washington International Law Journal 25(1): 87-131.

Author(s) from Durham

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.