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Office Politics Author(S): Roderick A Office Politics Author(s): Roderick A. MacDonald Source: The University of Toronto Law Journal, Vol. 40, No. 3, Special Issue on Administrative Law (Summer, 1990), pp. 419-476 Published by: University of Toronto Press Stable URL: http://www.jstor.org/stable/825818 . Accessed: 23/12/2013 03:35 Your use of the JSTOR archive indicates your acceptance of the Terms & Conditions of Use, available at . http://www.jstor.org/page/info/about/policies/terms.jsp . JSTOR is a not-for-profit service that helps scholars, researchers, and students discover, use, and build upon a wide range of content in a trusted digital archive. We use information technology and tools to increase productivity and facilitate new forms of scholarship. For more information about JSTOR, please contact [email protected]. University of Toronto Press is collaborating with JSTOR to digitize, preserve and extend access to The University of Toronto Law Journal. http://www.jstor.org This content downloaded from 132.216.86.161 on Mon, 23 Dec 2013 03:35:54 AM All use subject to JSTOR Terms and Conditions PART3 Normativeorder in theadministrative state Roderick A. Macdonald* OFFICE POLITICSt Introduction The followingallegory is designed to canvass the internalnormativity of administrativeagencies, bureaus, and tribunals.While theproblem stated is genuine and the structureof thepaper reflectsin large measure myown experiences as dean of a law faculty,I should like to record the standard literarydisclaimer: the characters portrayed are fictitious;any resemblance theymay bear to mycolleagues at McGillor elsewhereis purelyfortuitous. A successfulallegory needs no gloss (or even formalintroduction and conclusion) by its composer. In fact,an author does a disserviceboth to textand to readers by collapsing a parable's several possible lessons into one ex post facto officialreading. The collection of memos comprising 'OfficePolitics' is intended to makejust thispoint. It is also meantto reveal the peril for complex institutionsof an excessive reliance on formal instrumentsand canonical wisdom,and the value of constitutivepractice for reaffirmingthe subtle and informal normative orders that make associationallife possible. Of course,the uncharitable reader mayconclude thatin choosing the epistolaryform I have sought to hide (even though unwittinglybetraying) my own ideological position. By producing a bureaucratic text in which I speak behind the masks of my fictitious colleagues,I could standaccused of preferringmysticism and dissimulated power over authenticityand candour in social organization. * Facultyof Law, McGill University t In preparing this essay I have benefited from the comments of several McGill professorsin relationto an actual exercise of officeallocation we undertook during the summer of 1984 and in relation to earlier draftsof this manuscript.I should like to acknowledgein particularProfessors Frank Buckley,Jane Glenn, and Ralph Simmonds and Associate Deans Yves-MarieMorissette and DanielJutras.Initial research assistance was provided by Leslie Kelleher, and working translationsof the French language memos were prepared by Gary Bell. Teresa Scassa and David Lametti, my research assistantsduring the summer of 1988, made a substantialcontribution to the paper as it now appears. Both were hired under a grant from the Meredith Research Fund of the Faculty of Law. Finally, I am indebted to my two commentatorsat the Law and Leviathan Conference, Professor Lorraine Weinrib and Dean John Whyte, whose probing of the paper as delivered has helped me to tell a betterstory in thispublished version. (1990), 40 UNIVERSITY OF TORONTO LAW JOURNAL 419 This content downloaded from 132.216.86.161 on Mon, 23 Dec 2013 03:35:54 AM All use subject to JSTOR Terms and Conditions 420 UNIVERSITY OF TORONTO LAW JOURNAL In confrontingthe puzzle of speaking authenticallyin thisintroduction withoutflattening the allegory-how to injectMacdonald the author into the text while preservingthe flaws of Macdonald the dean? - I asked several colleagues whatto do. One said thatI should simplywrite a precis of the storycomprising a matrixfor locating the point where each of my respondents fitsin respect of the themes I seek to illustrate.Another argued thatI should rehearse the feedback I have already received from professors at McGill. This would permit me to illustratesome of the possible readings of the textproferred by those to whom,and of whom,it speaks. The vice-principal(academic), to whom I had forwardedan earlier version of the paper, told me that what he missed most was not an introductionbut a conclusion.Why this allegory? Should I notexplain why I selectedthe university milieu (as opposed to a moreinformal setting such as a club or the family,or a highly structuredorganization such as a genuine agency or governmentbureau), and whyI chose the exercise of allocating offices (as opposed to establishing the teaching timetable, managing the process of professorial appointments,or prosecuting a dismissalcase) to make mypoint about how much law can be found within public agencies? In the end, I rejected all of these options for the same reason: theywould have required me to introducethe textby indicating in some veryexplicit manner what I thinkit mightmean. If conventionalbeginnings and endings are notappropriate, what other options forintroducing the paper are open? Obviously,I could carrythe allegoryone stage furtherwith yet another memo, placed at thebeginning so as to make the storyunfold as a flashback.Several such denouements were suggestedby my colleagues. One proposed thatI commencewith the judgment of a courtsitting in judicial reviewof the Grievance Committee decision. I was initiallyattracted by this idea, forI could then tellnot only the familiarstories about judicial reviewin dramaticfashion, but also the less well known tale of 'Bureaucratic Rationalityin theJudicial Process' and in doing so offeran effectivecounterpoint to the message implied in thispanel's title.But adopting thisstrategy would have moved the paper too far from its ostensible subject-matterand would implicitlyhave confirmedthe erroneous view that administrativedistributions can be transformedwithout cost into claims of commutativejustice determined throughadversarial adjudication. Anothersuggestion was to begin byresponding to the invitationset out in the finalmemo. One of myassociate deans thoughtthat an attemptat self-justificationshould markthe dean's passage fromsin to redemption. In a partingconfession to the vice-principal(academic) he would tender his resignation,embellished with lamentations for the faculty, complaints thathe had been misunderstoodor misrepresented,and a codificationof rules and procedures forattributing offices. However, to presentsuch a This content downloaded from 132.216.86.161 on Mon, 23 Dec 2013 03:35:54 AM All use subject to JSTOR Terms and Conditions NORMATIVE ORDER IN THE ADMINISTRATIVE STATE 421 conclusion as an introductionpresumes both that deans can mature to omniscience and thatoccasions of corporate self-reflectionmust always end in martrydom. A thirdidea forpresenting the allegory I owe to mywife, who thought that the text should commence with extractsfrom the dean's personal diary. By revealinghow thisorganizational conundrum at the university bears on his otherlives as son, husband, and father,this approach would have had theadvantages of resituating the allegory in a contextof personal agency and of suggestinghow public agency is reciprocal to personal agency. It would also have reinforcedthe pointthat it is in the recognition of intimacyand vulnerabilityand in the reconstitutionof ourselves through our relationshipswith others that we understand why merely formalconceptions of authenticityare inadequate to capture fullythe meaning of institutionallife. As myreluctance to pursue thesedidactic strategies in detail shows,each seemed to be an unsatisfactoryprelude to the allegory.Yet as I workedon preparing the essay for publication, I continued to believe thatthe text would be incomplete were it to remain simplya collectionof interoffice memos. What the parable lacked was a record of non-discursiveand non- strategicinteractions among colleagues and betweenprofessors and dean duringthe allocation exercise. For thereis a tacitdimension to thefaculty's normativeorder whichgrounds mostof itsinstitutional knowledge. How ironicto have attemptedto make such a claim explicitin an introduction. In viewof the problemswith the above approaches, I have decided to use the exercise of reflectingupon how to compose thisintroduction as part of theintroduction itself. The questionsof organizationaland legal theory thatthese suggestions from friends and colleagues raise are indeed among the major themes of the allegory. It follows that I have no adequate preface forthose who decline to see in the parable of 'Office Politics'the same processes fornurturing an internalnormative order thatare found in our public institutions. The allegoryrests on the premise that the fundamentalchallenges of administrativelaw over the next decades do not lie in the perfectionof theoriesof regulationand instrumentchoice, of thelegal formsof agency organization,of mechanismsof judicial review,and of remedies against state action. Rather, the challenges are tied to the craftingof decision- makingstructures, procedures, and modes ofjustificationwithin agencies and bureaus. Normativeorder in the administrativestate emerges first fromthe internalmanagement and operations of itsvarious institutions. Only then
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