Legal, military, and civil administrative forms of accountability
Forms of accountability can readily be identified that correspond to the forms of constitutionalism Dicey typified with his notions of the legal, military, and civil administrative spirits of a constitution.
What is expected of each form becomes clearer through consideration of the following three basic questions—about the kind of superior authority, the process, and the applicable standards in the working of that form of accountability. First, to what superior authority is the official, politician, or other actor to be held to account? Secondly, by what process/procedures (also in interpretive practice) is accountability to be achieved? And, thirdly, according to what standards is the outcome of accountability to be determined?In considering the questions about the authority, the process, and the applicable standards, one would expect legal accountability in its pure form to be to independent judicial authorities by due process and according to established legal rules and principles. In contrast, one would expect strictly military mechanisms of accountability in the disciplining, for example, of service personnel, to be adapted to a context of military threats, exigencies, intelligence concerns, strategic imperatives, such as discipline, unity, and morale, etc. One would anticipate adaptation of the superior authority to which accountability is required,[88] of the process[89] (especially of its speed and transparency), and of the standards to be applied[90] or as they are applied.
Civil administrative accountability can similarly be differentiated from legal and military accountability by considering the questions about the authority, the process, and the applicable standards. One would expect civil administrative accountability to be to higher administrative or governing authority, according to more flexible administrative procedures, and by reference to what might be rules of policy, principles of good administration, or conventions of official conduct. The political accountability of democratic parliamentary executives indirectly to the electorate would then be a form of civil administrative accountability to higher and, ultimately, the highest governing authority (as would the more direct political accountability of the democratic non-parliamentary executive).
As distinguished by Dicey, the legal, the military, and the civil administrative spirits of English, Prussian, and French constitutionalism respectively can be translated into the common language of accountability. As translated, English constitutionalism would be characterized by accountability in a legal form, Prussian constitutionalism by accountability in a military form, and French constitutionalism by accountability in a civil administrative form.
C.