A Jeanne Site
California State University, Dominguez Hills
University of Wisconsin, Parkside
Latest update: November 10, 1999
Curran or Takata.
Administrative Process is the process through which we socially construct the bureaucracies that run our society.
Jerry Mashaw, "Explaining Administrative Process: Normative, Positive, and Critical Stories of Legal Development," p. 77, in Peter Schuck, Foundations of Administrative Law, Oxford University Press, 1994.
Jerry Mashaw provides illustrations of the administrative process from three perspectives that we use regularly in our discussions: normative, positive, and critical:
We have often described theories that purport to show that "this is the best possible way to . . . " as apologetic theories. They build support for the dominant system as that most fitting for fairness and justice. On the opposite end of that continuum are critical theories, which express concern about the extent to which the system is not fair and just, and/or needs improvement.
Mashaw also describes the extent to which those who are concerned about the need to make the system fairer and more just may still base their critique on a normative perception. They simply believe the wrong norm has been chosen. If one's concern is principally that of capture, of a dominant group having adapted the administrative process to suit a given approach or group, then correction or improvement would come through substituting the appropriate norms, which are not beholden to any specific approach or group. Thus, Mashaw emphasizes that arguments over normative consensus may just be over what that consensus really are, over which norms apply.
The normative perception of bureaucratic process assumes a consensual position based on normative social expectations for law and social behavior. That means that we see the process of bureaucracy as evolving naturally out of our growing needs for agency operations, and we see those processes as reflecting our expectations for the ways agencies do and should operate.
When both groups who disagree are assuming a normative perception, i.e, general consensus, and general reflection of our normative expectations, their disagreement is centered on the definition of the norms, and/or which norms in fact have the consensus.
Theoretical understanding provides some social distance from which we can address the real issues without the affect that attaches to actual practice. Sometimes that can help us negotiate between two agencies whose directors subscribe to different theoretical positions, making both our job, and the client service more effective.