Strategic behaviours and the paradox of government
The political economy of rent seeking emphasizes how public bodies use their power to create monopoly prerogatives. This phenomenon can be studied as a phenomenon in itself. It is also a consequence of the juridical and constitutional system which will either be conducive to rent seeking or restrain it.
In this larger perspective, strategic behaviours of the state become a paradox of government (Witt, 1992; Josselin and Marciano, 2000). It is paradoxical in that granting some power to a public entity simultaneously provides the latter with the right and means of infringing it. Therefore, the paradox of government is both an expression of rent seeking and something larger. In other words, it expresses how rent seeking is constructed and takes place in an endogenous constitutional setting.Administrative law is the juridical translation of the paradox of government, the legal consequence of the existence of the state; it guarantees the necessary development of public actions (as defined by the constitution or by any charter) and their necessary containment as well. The way in which the state is judged indicates what its nature is meant or supposed to be. The specificity of administrative law can then be asserted only if the state deserves or demonstrates some specificity in its turn. From this perspective and despite a noticeable trend towards homogenization and cross-fertilization, two main traditions can be broadly distinguished (Josselin and Marciano, 1995). It remains common practice to separate these traditions on the basis of the duality or unity of jurisdiction. The first one is mostly substantive and embraces ‘continental’ systems such as the German Verwaltungsrecht or the French Droit Administratif. In these dualist systems, the state is viewed as a political body with distinctive aims and purposes. Litigation structures thus embody a separate administrative justice.
The second one is mainly procedural and includes the English and Canadian conceptions. Unity ofjurisdiction is the expression of a monist conception of society. A monist system grants no specific characteristics to the state. Monism thus emphasizes that no differences should be made between private and public matters. Consequently, there is no distinct view of public actions, which are to be judged in the same way as private actions. Administrative tribunals are not separate jurisdictions.This distinction between the unity and duality of jurisdictions may prove to be very useful when we consider the agency problem associated with the control of the state. The two systems differ with respect to the means to be used to reach a shared goal, namely to control the state. While monism considers that administrative law is designed with the purpose of limiting the powers of government in order to protect the citizen, dualism assumes that administrative law is directed towards the functioning of the administration. Such a distinction influences the nature of the principal-agent relationship.
We now move on to the first component of this agency problem, that is to say, the nature of the principal and the agent.