ADMINISTRATIVE LAW
2025-2026
WEEK 8
1. Big picture: why judicial review matters in administrative law
• Judicial review is a central mechanism for controlling public administration.
o Modern administrations make rules, enforce policies, distribute bene5its, impose
sanctions, regulate markets, and decide individual cases.
o Because these administrative bodies exercise signi5icant public power, judicial
review helps ensure that they act legally, fairly, rationally, and within the limits of
their authority.
• Judicial review has two major functions.
o It protects individuals against unlawful or abusive administrative action.
o It protects legality and the public interest by ensuring that administration
remains subject to law.
• Administrative governance creates a legitimacy problem.
o Administrative bodies are often not directly elected.
o They exercise discretion and technical expertise.
o Their power has expanded because modern society requires complex regulation in
areas such as welfare, markets, migration, environment, digital risks, and public
services.
o Judicial review helps legitimate this power by connecting administration back to
constitutional and legal structures.
, Administrative Law
2. Judicial review and “mediated legitimacy” — Lindseth
• Lindseth’s core idea is that administrative governance has “mediated legitimacy.”
o Administrative bodies cannot fully legitimate themselves merely by saying they have
expertise or legal authority.
o Their legitimacy must be mediated through traditional constitutional institutions:
legislature, executive, and judiciary.
o Judicial review is one of the key ways administration remains connected to the rule
of law and constitutional government.
• Judicial review works together with political oversight.
o Courts are not the only control mechanism.
o Legislatures and executives also supervise administrative bodies.
o Together, legislative oversight, executive oversight, and judicial review help
reconcile modern administration with democracy and constitutionalism.
• The growth of administrative governance challenges the classical trias politica.
o The traditional model says:
§ legislature makes rules;
§ executive applies them;
§ judiciary reviews legality.
o In modern administrative states, this separation is blurred because administrative
bodies often make rules, enforce them, and decide disputes.
o Judicial review becomes necessary because administrative power has moved beyond
the simple classical separation of powers.
Page 2
, Administrative Law
3. Principal-agent theory and judicial review as a “Uire alarm”
• Principal-agent theory explains administration as a delegation relationship.
o A principal delegates authority to an agent.
o Examples:
§ voters delegate to elected of5icials;
§ legislature delegates to executive;
§ ministers delegate to agencies and administrators.
o The problem is that agents may pursue their own preferences instead of the
principal’s goals.
• Agency costs arise because administrators have discretion and information
advantages.
o Administrative bodies often know more about their actions than elected of5icials do.
o This creates information asymmetry.
o The principal needs mechanisms to monitor the agent.
• Judicial review can function as a “Uire alarm.”
o Instead of constantly monitoring administration directly, legislatures allow affected
individuals or groups to bring claims.
o Litigation alerts courts and political institutions to possible administrative illegality.
o This reduces agency costs because courts help identify when administrative agents
have exceeded legal limits.
• Judicial review is not the same as “police patrol” oversight.
o Police patrol oversight means active, continuous supervision by legislatures or
executives.
o Fire alarm oversight depends on outsiders, usually litigants, triggering review.
4. Limits of principal-agent theory
• Principal-agent theory is useful but incomplete.
o It simpli5ies reality by assuming clear principals and agents.
o In modern governance, power is often fragmented, shared, and diffuse.
o Sometimes it is unclear who the principal actually is.
• Modern administration can create “agents without principals.”
o Regulatory networks, independent agencies, EU bodies, international organizations,
and expert institutions may exercise power without clear hierarchical control.
o This complicates the simple delegation model.
• Historical and cultural context matters.
o Concepts like “the people,” “legislature,” “executive,” “administration,” and “judiciary”
are not 5ixed.
o They develop differently in different constitutional cultures.
o Comparative administrative law must therefore study historical development, not
just abstract institutional design.
Page 3
, Administrative Law
5. Democracy, technocracy, and juristocracy
• Administrative law must balance three forms of authority.
o Democracy: rule by the people through political institutions.
o Technocracy: rule by experts using technical knowledge.
o Juristocracy: rule by judges through legal control.
• Democracy remains central, but administration complicates it.
o Traditional democracy relies on elected legislatures.
o Modern administrative governance disperses power into agencies and specialized
bodies.
o This makes it harder to say that administrative decisions directly re5lect democratic
will.
• Administrative democracy tries to compensate for this.
o It emphasizes:
§ transparency;
§ participation;
§ reason-giving;
§ access to information;
§ procedural fairness.
o These mechanisms allow citizens and stakeholders to in5luence administration
directly.
• Technocracy is necessary but dangerous if unchecked.
o Expert bodies are needed because many administrative decisions are technically
complex.
o But expertise alone does not equal democratic legitimacy.
o Administrative law therefore requires expert decisions to be reasoned, transparent,
and reviewable.
• Juristocracy is also necessary but risky.
o Courts protect legality and rights.
o But if courts intervene too strongly, they may replace political or expert judgment
with judicial judgment.
o This creates tension with democracy and administration.
Page 4
2025-2026
WEEK 8
1. Big picture: why judicial review matters in administrative law
• Judicial review is a central mechanism for controlling public administration.
o Modern administrations make rules, enforce policies, distribute bene5its, impose
sanctions, regulate markets, and decide individual cases.
o Because these administrative bodies exercise signi5icant public power, judicial
review helps ensure that they act legally, fairly, rationally, and within the limits of
their authority.
• Judicial review has two major functions.
o It protects individuals against unlawful or abusive administrative action.
o It protects legality and the public interest by ensuring that administration
remains subject to law.
• Administrative governance creates a legitimacy problem.
o Administrative bodies are often not directly elected.
o They exercise discretion and technical expertise.
o Their power has expanded because modern society requires complex regulation in
areas such as welfare, markets, migration, environment, digital risks, and public
services.
o Judicial review helps legitimate this power by connecting administration back to
constitutional and legal structures.
, Administrative Law
2. Judicial review and “mediated legitimacy” — Lindseth
• Lindseth’s core idea is that administrative governance has “mediated legitimacy.”
o Administrative bodies cannot fully legitimate themselves merely by saying they have
expertise or legal authority.
o Their legitimacy must be mediated through traditional constitutional institutions:
legislature, executive, and judiciary.
o Judicial review is one of the key ways administration remains connected to the rule
of law and constitutional government.
• Judicial review works together with political oversight.
o Courts are not the only control mechanism.
o Legislatures and executives also supervise administrative bodies.
o Together, legislative oversight, executive oversight, and judicial review help
reconcile modern administration with democracy and constitutionalism.
• The growth of administrative governance challenges the classical trias politica.
o The traditional model says:
§ legislature makes rules;
§ executive applies them;
§ judiciary reviews legality.
o In modern administrative states, this separation is blurred because administrative
bodies often make rules, enforce them, and decide disputes.
o Judicial review becomes necessary because administrative power has moved beyond
the simple classical separation of powers.
Page 2
, Administrative Law
3. Principal-agent theory and judicial review as a “Uire alarm”
• Principal-agent theory explains administration as a delegation relationship.
o A principal delegates authority to an agent.
o Examples:
§ voters delegate to elected of5icials;
§ legislature delegates to executive;
§ ministers delegate to agencies and administrators.
o The problem is that agents may pursue their own preferences instead of the
principal’s goals.
• Agency costs arise because administrators have discretion and information
advantages.
o Administrative bodies often know more about their actions than elected of5icials do.
o This creates information asymmetry.
o The principal needs mechanisms to monitor the agent.
• Judicial review can function as a “Uire alarm.”
o Instead of constantly monitoring administration directly, legislatures allow affected
individuals or groups to bring claims.
o Litigation alerts courts and political institutions to possible administrative illegality.
o This reduces agency costs because courts help identify when administrative agents
have exceeded legal limits.
• Judicial review is not the same as “police patrol” oversight.
o Police patrol oversight means active, continuous supervision by legislatures or
executives.
o Fire alarm oversight depends on outsiders, usually litigants, triggering review.
4. Limits of principal-agent theory
• Principal-agent theory is useful but incomplete.
o It simpli5ies reality by assuming clear principals and agents.
o In modern governance, power is often fragmented, shared, and diffuse.
o Sometimes it is unclear who the principal actually is.
• Modern administration can create “agents without principals.”
o Regulatory networks, independent agencies, EU bodies, international organizations,
and expert institutions may exercise power without clear hierarchical control.
o This complicates the simple delegation model.
• Historical and cultural context matters.
o Concepts like “the people,” “legislature,” “executive,” “administration,” and “judiciary”
are not 5ixed.
o They develop differently in different constitutional cultures.
o Comparative administrative law must therefore study historical development, not
just abstract institutional design.
Page 3
, Administrative Law
5. Democracy, technocracy, and juristocracy
• Administrative law must balance three forms of authority.
o Democracy: rule by the people through political institutions.
o Technocracy: rule by experts using technical knowledge.
o Juristocracy: rule by judges through legal control.
• Democracy remains central, but administration complicates it.
o Traditional democracy relies on elected legislatures.
o Modern administrative governance disperses power into agencies and specialized
bodies.
o This makes it harder to say that administrative decisions directly re5lect democratic
will.
• Administrative democracy tries to compensate for this.
o It emphasizes:
§ transparency;
§ participation;
§ reason-giving;
§ access to information;
§ procedural fairness.
o These mechanisms allow citizens and stakeholders to in5luence administration
directly.
• Technocracy is necessary but dangerous if unchecked.
o Expert bodies are needed because many administrative decisions are technically
complex.
o But expertise alone does not equal democratic legitimacy.
o Administrative law therefore requires expert decisions to be reasoned, transparent,
and reviewable.
• Juristocracy is also necessary but risky.
o Courts protect legality and rights.
o But if courts intervene too strongly, they may replace political or expert judgment
with judicial judgment.
o This creates tension with democracy and administration.
Page 4
