In practice, the separation between the ethical and the factual elements in judgment can usually be carried only a short distance. The values involved in administrative decisions are seldom final values in any psychological or philosophical sense. Most objectives and activities derive their value from the means-ends relationships which connect them with objectives or activities that are valued in themselves. By a process of anticipation, the value inhering in the desired end is transfened to the means. The product of a manufacturing process is valued by its producers for its convertibility into money (which in turn has value only in exchange) and by its purchasers for the values to be derived from its consumption. Just so, the activities of a fire department, or a school system, are valued ultimately for their contribution to human and social life, and they retain their value only so long as they serve those more final ends.
To the extent that these intermediate values are involved, valuation includes important factual as well as ethical elements. Since the results of administrative activity can be considered as ends only in an intermediate sense, the values that will be attached to these results depend on the empirical connections that are believed to exist between them and the more final goals. To weight properly these intermediate values, it is necessary to understand their objective consequences.
At best it might be hoped that the process of decision could be sub- divided into two major segments. The first would involve the development of a system of intermediate values, and an appraisal of their relative weights. The second would consist in a comparison of the possible lines of action in terms of this value system. The first segment would obviously involve both ethical and factual considerations; the second segment could be pretty well restricted to factual problems.
As already pointed out, the reason for making a division of this sort lies in the different criteria of “correctness” that must be applied to the ethical and factual elements in a decision. “Correctness” as applied to imperatives has meaning only in terms of subjective human values. “Correctness” as applied to factual propositions means objective, empirical truth. If two persons give different answers to a factual problem, both cannot be right. Not so with ethical questions.
1. Vagueness of the “Policy and Administration” Distinction
Recognition of this distinction in the meanings of “correctness” would lend clarity to the distinction that is commonly made in the literature of political science between “policy questions” and “administrative questions.” These latter terms were given currency by Goodnow’s classical treatise, Politics and Administration,13 published in 1900. Yet, neither in Goodnow’s study nor in any of the innumerable discussions that have followed it have any clear-cut criteria or marks of identification been suggested that would enable one to recognize a “policy question” on sight, or to distinguish it from an “administrative question.” Apparently, it has been assumed that the distinction is self-evident—so self-evident as hardly to require discussion.
In The New Democracy and the New Despotism, Charles E. Merriam sets forth as one of the five principal assumptions of democracy “the desirability of popular decision in the last analysis on basic questions of social direction and policy, and of recognized procedures for the expres-sion of such decisions and their validation in policy.”20 As to the exact scope and nature of these “basic questions,” he is less explicit:
It may be asked, Who shall decide what are “basic questions,” and who shall determine whether the ways and means of expressing the mass will are appropriate and effective? We cannot go farther back than the “general understandings” of the community, always the judge of the form and functioning of the legal order in which the system is set.21
Similarly, Goodnow, in the original statement of the roles of politics and administration in government, fails to draw a careful line between the two. In fact, he comes perilously close to identifying “policy” with “deciding,” and “administration” with “doing.” For example:
.. . political functions group themselves naturally under two heads, which are equally applicable to the mental operations and the actions of self-conscious personalities. That is, the action of the state as a political entity consists either in operations necessary to the expression of its will, or in operations necessary to the execution of that will.22
These two functions of government may for purposes of convenience be designated respectively as Politics and Administration. Politics has to do with policies or expressions of the state will. Administration has to do with the execution of these policies.17
At a later point in his discussion, however, Goodnow retreats from this extreme position, and recognizes that certain decisional elements are included in the administrative function:
The fact is, then, that there is a large part of administration which is unconnected with politics, which should therefore be relieved very largely, if not altogether, from the control of political bodies. It is unconnected with politics because it embraces fields of semi-scientific, quasi-judicial and quasi-business or commercial activity—work which has little if any influence on the expression of the true state will.18
Without embracing Goodnow’s conclusion regarding the desirability of removing some portions of administration from political control, we may recognize in this third statement an attempt on his part to segregate a class of decisions which do not require external control because they possess an internal criterion of correctness. The epistemological position of the present volume leads us to identify this internal criterion with the criterion of factual correctness, and the group of decisions possessing this criterion with those that are factual in nature.
In discussions of administrative discretion from the point of view of administrative law there has sometimes been a tendency to deny that there exists any class of factual questions which possess a unique epistemological status. Neither Freund nor Dickinson is able to find a justification for administrative discretion except as an application of decisions to concrete instances, or as a transitory phenomenon confined to a sphere of uncertainty within which the rule of law has not yet penetrated.23
To be sure, the two men offer different suggestions for the gradual elimi- nation of this area of uncertainty. Freund relies upon the legislature to restrict discretion by the exercise of its function of policy determination.24 Dickinson thinks that administrative discretion can gradually be replaced by general rules to be formulated by the courts, as principles gradually emerge to view from a given set of problems.25 Neither is willing to admit any fundamental difference between the factual and normative elements involved in law-find- ing, or to see in that difference a justification for discretionary action.
The courts have come somewhat closer to a recognition of this dis- tinction, though their separation of “questions of fact” from “questions of law” places in the latter category a great many factual issues—especially when “jurisdictional facts” and “constitutional facts” become “questions of law.”26 This is not the place, however, to discuss the whole problem of judicial review. These brief comments serve merely to illustrate the lack of any general agreement as to the fundamental difference between factual and value questions in the field of administrative law.
Opposed to the view that discretion is inherently undesirable, is the equally extreme view that all administrative decisions can safely be guided by the internal criteria of correctness, and that legislative control can be supplanted by the control which is exercised by the fellowship of science.27
Our own analysis exposes the fallacy of an argument that declares decisions to be all factual as clearly as it refutes an argument that declares them to be all ethical.
The position to which the methodological assumptions of the present study lead us is this: The process of validating a factual proposition is quite distinct from the process of validating a value judgment. The former is validated by its agreement with the facts, the latter by human fiat.
2. Legislator and Administrator
Democratic institutions find their principal justification as a procedure for the validation of value judgments. There is no “scientific” or “expert” way of making such judgments, hence expertise of whatever kind is no qualification for the performance of this function. If the factual elements in decision could be strictly separated, in practice, from the ethical, the proper roles of representative and expert in a democratic decision-making process would be simple. For two reasons this not possible. First, as has already been noted, most value judgments are made in terms of intermediate values, which themselves involve factual questions. Second, if factual decisions are entrusted to the experts, sanctions must be available to guarantee that the experts will conform, in good faith, to the value judgments that have been democratically formulated.
Critics of existing procedures for enforcing responsibility point to the high degree of ineffectiveness of these procedures in practice.24 But there is no reason to conclude that the procedures are inherently valueless. First, for the reasons already explained, self-responsibility of the administrator is no answer to the problem. Second, the fact that pressure of legislative work forbids the review of more than a few administrative decisions does not destroy the usefulness of sanctions that permit the legislative body to hold the administrator answerable f or any of his decisions. The anticipation of possible legislative investigation and review will have a powerful controlling effect on the administrator, even if this potential review can be actualized only in a few cases. The function of deciding may be distributed very differently in the body politic from the final authority for resolving disputed decisions.
It would not be possible to lay down any final principles with regard to a subject so controversial, and so imperfectly explored.25 Nevertheless, if the distinction of factual from ethical questions is a valid one, these conclusions would seem to follow:
- Responsibility to democratic institutions for value determination can be strengthened by the invention of procedural devices permitting a more effective separation of the factual and ethical elements in decisions. Some suggestions will be offered along these lines in later chapters.
- The allocation of a question to legislature or administrator for decision should depend on the relative importance of the factual and ethical issues involved, and the degree to which the former are A proper allocation will become increasingly possible, without overburdening the legislature, to the extent that Point 1 above is successfully carried out.
- Since the legislative body must of necessity make many factual judgments, it must have ready access to information and advice. However, this must take the form not merely of recommendations for action, but of factual information on the objective consequences of the alternatives that are before the legislative body.
- Since the administrative agency must of necessity make many value judgments, it must be responsive to community values, far beyond those that are explicitly enacted into law. Likewise, though the function of making value judgments may often be delegated to the administrator, especially where controversial issues are not involved, his complete answerability, in case of disagreement, must be retained.
If it is desired to retain the terms “policy” and “administration,” they can best be applied to a division of the decisional functions that follows these suggested lines. While not identical with the separation of “value” from “fact,” such a division would clearly be dependent upon that fundamental distinction.
It would be naive to suggest that the division of work between legislature and administrator in any actual public agency will ever follow very closely the lines just suggested. In the first place the legislative body will often wish, for political reasons, to avoid making clear-cut policy decisions, and to pass these on to an administrative agency.26 In the second place the administrator may be very different from the neutral, compliant individual pictured here. He may (and usually will) have his own very definite set of personal values that he would like to see implemented by his administrative organization, and he may resist attempts by the legislature to assume completely the function of policy determination, or he may sabotage their decisions by his manner of executing them.
Nevertheless, it would probably be fair to say that the attainment of democratic responsibility in modem government will require an approxi- mation to those lines of demarcation between legislature and administrator that were outlined above.
3. A Note on Terminology
Before concluding this chapter, it should be pointed out that the term “policy” is often used in a much broader and looser sense than the meaning given here. In private management literature, particularly, “policy” often means either (a) any general rule that has been laid down in an organization to limit the discretion of subordinates (e.g. it is “policy” in B department to file a carbon of all letters by subject), or (b) at least the more important of these mles, promulgated by top management (e.g. an employee is allowed two weeks’ sick leave per year). In neither of these usages is it implied that policy has any ethical content. Serious ambiguity would be avoided if different terms were used for these three concepts— the one discussed in preceding paragraphs, and the two listed j ust above. Perhaps the ethical premises of management could be called “legislative policy”; the broad non-ethical rules laid down by top management, “management policy”; and other rules, “working policy.”
In addition to these several kinds of policy, or authoritatively promul- gated mles, there are to be found in almost every organization a large number of “practices” which have not been established as orders or regulations, and which are not enforced by sanctions, but which are nevertheless observed in the organization by force of custom or for other reasons. Often, the line between policy and practice is not sharp unless the organization follows the “practice” (or “policy”) of putting all its policies in writing.
Source: Simon Herbert A. (1997), Administrative Behavior, Free Press; Subsequent edition.