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Articulating the realm of the possible: two farm marketing boards and the legal administrative field Jardine, David Neil 1996

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ARTICULATING THE REALM OF THE POSSIBLE: TWO FARM MARKETING BOARDS AND THE LEGAL ADMINISTRATIVE FIELD by DAVID NEIL JARDINE LL.B., The University of Alberta, 1977 A THESIS SUBMITTED IN PARTIAL FULFILLMENT OF THE REQUIREMENT FOR THE DEGREE OF MASTER OF LAWS in THE FACULTY OF GRADUATE STUDIES (Department of Law) We accept this thesis as conforming to the^ eouired standard THE UNIVERSITY OF BRITISH COLUMBIA November 1996 © David Neil Jardine, 1996 In presenting this thesis in partial fulfilment of the requirements for an advanced degree at the University of British Columbia, I agree that the Library shall make it freely available for reference and study. I further agree that permission for extensive copying of this thesis for scholarly purposes may be granted by the head of my\ department or by his or her representatives. It is understood that copying or publication of this thesis for financial gain shall not be allowed without my written permission. Department of L~<XAJJ The University of British Columbia Vancouver, Canada Date f)0U6v*->k*A DE-6 (2/88) 11 ABSTRACT This thesis suggests that it is impossible to consider any administrative agency in the abstract without losing important elements of the nature of the legal environment within which the agency operates. There is a large gap between the theories of formal administrative law and the experience of practice in particular administrative settings. Drawing upon the work of sociologist Pierre Bourdieu, the thesis develops the concept of the legal administrative field as a means to approach this issue. The use of Bourdieu's concepts of field, habitus and capital help to articulate and give a theoretical structure to a process and series of practices that are otherwise hard to identify or study. Two Alberta farm marketing boards, and certain specific legal issues faced by each board, are examined in detail and analyzed in terms of the concept of the legal administrative field. It is shown that for each board, the realm of what was 'legally possible' shifted despite the fact that there were no changes in the formal administrative law and that legal practice in these fields involves far more than the application of the principles of formal administrative law. The intersection of the principles and habitus of formal administrative law, the structure provided by the legislative and regulatory framework, and the respective capital and habitus of all the individuals, agents and agencies within the field all interact and these complex interactions are what structure the legal administrative fields and shape the shifts which occur within them. In the struggles of interpretation which occur in these fields an attempt to make a clear demarcation between the practice of law by lawyers and the administration of the system by administrators is inadequate; it simplifies and renders invisible much of the complex series of interactions in which the legal practitioner is a participant and which create the field in which he or she practices. Ill The conclusion is that the heuristic value of the legal administrative field in relation to the legal issues faced by the two marketing boards, and in relation to legal practice in the farm marketing area has been established and that this concept provides a useful perspective and a valuable supplement to a more traditional approach. iv TABLE OF CONTENTS Abstract ii Table of Contents iv Acknowledgment viii Chapter One The Concept of the Legal Administrative Field 1 Introduction 1 Outline of the Thesis 3 The Gap Between Theory and Practice in 5 Administrative Law The Formal Approach to Administrative Law: A 8 Critique The Legal Administrative Field: An Expanded 20 Approach to Administrative Law The Legal Administrative Field and the Work of Pierre 23 Bourdieu The Juridical Field 29 A Problem of Methodology 36 An Internal Point of View 41 A Different Perspective: the Point of View of the 44 Agency Lawyer Conclusion 45 Chapter Two The ACP and the APPDC: The Legislative and 47 Regulatory Framework Introduction 47 The Marketing of Agricultura I Products A ct: An 49 Overview Producer Plans 50 The Marketing Council 54 V The Appeal Tribunal 56 Review of Marketing Council Decisions 58 Summary of the Act 60 The Regulatory Structure of the ACP (to 1992) 61 The Regulatory Structure of the APPDC (to 1993) 65 Analysis of the Legal Framework 70 Conclusion 72 Chapter Three Government Intervention, the Farm Income Problem 74 and the Development of Farm Marketing Boards Introduction 74 Marketing Boards: Heretics Among the Heretics 75 Government Intervention: the Impact of the Political 79 Field The Importance of the Economic Field 85 The Farm Income Problem 86 Lack of Market Information 87 Low and Unstable Prices 88 Market Power 89 Factors Which Led to the Development of Farm 92 Marketing Boards The Experience of the Co-operatives 93 The Impact of the Depression 101 The Further Development of Marketing Boards 104 The 1960s 109 Economic Limitations on Marketing Boards 110 Capital and Habitus: Why is History Important? 112 Chapter Four The Alberta Context: the APPDC and the ACP 115 Introduction 115 Marketing Boards: the Early Experience in Alberta 116 The Creation of the APPDC 118 The Selling System 122 vi Economic Constraints on the Marketing System of the 125 APPDC Conflict Within the System 131 The ACP: Early History of Chicken Production 132 The Canadian Experience 136 The Creation of the ACP 137 The Issue of Integration and Cooperation with 139 Processors The National Marketing Plan 142 The Marketing System 145 The Price Setting Power of the ACP 146 The Value of Quota 147 The Political Field in Alberta 149 Conclusion 153 Chapter Five Legal Issues Dealt with by the APPDC and ACP 154 Introduction 154 The APPDC's Conflicts with the Processors and the 155 Marketing Council The ACP and the National Plan 189 The ACP and Roaster Factor 194 Unregulated Production 209 Conclusion 211 Chapter Six Analyzing the Legal Issues of the APPDC and ACP in 213 Terms of the Legal Administrative Field Introduction 213 The Impact of the Political Field 215 The Impact of the Economic Field 223 The Impact of the Courts 229 The Impact of the Marketing Council 234 A Change in Approach by the Marketing Council 235 vii Conflict Between Marketing Boards and Their 241 Regulators The Impact of Shifts in Producers' Habitus 248 Chapter Seven The Legal Administrative Fields of the APPDC and the 251 ACP: The Perspective of the Marketing Board Lawyer Introduction: An Internal Perspective 251 Limitations of this Study 253 The Problem of Agency 255 Habitus and Conflicting Ideologies 259 The Role of Informal Communications 269 Informal Communications and Conflict Resolution 274 Formal Administrative Law and Informal 278 Communications An Extended Form of Legal Habitus 281 The Role of Interpretation within the Legal 284 Administrative Field The Importance of the Notional Court 291 Who Interprets "the Law"? 293 Conclusion 296 Bibliography 299 Appendix Marketing Boards in Canada: A Legislative and 323 Constitutional Chronology Vlll ACKNOWLEDGMENT I would like to thank Professor Phillip Bryden for his supervision, assistance, encouragement and patience in the preparation of this thesis. I would also like to thank Professor Joel Bakan for his assistance and for exposing me to a number of the works which influenced my thinking in the process leading to finalizing my topic. I am also indebted to the University of British Columbia for awarding me a University Graduate Fellowship which helped to make it possible to spend the time that I felt that this thesis required. A number of people provided me with a great deal of support and encouragement. I particularly want to acknowledge my sister Lynne Nadema, my niece Danielle Nadema (who reminded me that there are more important things than a thesis), my colleague Bill Shores, and my friends Susan Crandall, Char Power, and Roger Pipe. Most of all I want to acknowledge Leslie Roman, who more than anyone else, experienced this thesis process with me for the last two years. Finally, I want to acknowledge and thank the directors and staff of both the Alberta Pork Producers' Development Corporation and the Alberta Chicken Producers, both for their assistance during this project and for a very enjoyable professional association over the last 15 years. 1 Chapter One The Concept of the Legal Administrative Field Introduction In its simplest form my thesis is that each administrative agency operates within a legal administrative field, the shifting parameters of which determine what is or is not 'legally' possible at a particular point in time in relation to a particular issue. The parameters of this legal administrative field are determined by a complex group of constantly shifting elements of which the constituting statute and regulations and the general principles of formal administrative law form important,1 but not necessarily decisive, parts. Issues arise within this field and are resolved by the agency and the participants all of whom are part of and influence and are influenced in greater or lessor degree by the elements which constitute the legal administrative field. As a result of the interaction of these various participants and elements, the law concerning what is possible within the legal administrative field may change over time without any obvious change in the formal elements of the law. It is therefore not possible to consider any administrative agency in the abstract without losing important elements of the legal administrative field within which that agency functions. In this thesis I want to examine in considerable detail two Alberta farm marketing boards, the Alberta Pork Producers Development Corporation and the Albert as Chicken Producers and certain specific issues faced by each board, in order to illustrate the operation of the concept of the legal administrative field. I want to attempt to make visible some parts of the legal administrative field which would remain invisible if considered from the 1For a definition of what I mean by 'formal administrative law' see the section of this chapter commencing on page 8. 2 standpoint of formal administrative law. I suggest that this approach is valuable for a number of reasons: it emphasizes that the 'legal field' in which any particular agency operates is created and influenced by factors which go far beyond those normally considered as purely 'legal' and that these complex and shifting factors may create significant changes in the 'legal field' without any obvious changes in the formal law which applies;2 it attempts to bridge a perceived gap between the theory of administrative law as it is set out in judicial decisions, texts and articles and the practice of administrative law in particular contexts; it tries to partially address a methodological problem which creates an over-emphasis in administrative law literature on 'formal law' and formal legal and administrative proceedings and a corresponding failure to emphasize and examine the importance and the role of 'informal law' and informal contacts between participants; it emphasizes that the distinction between 'law' and 'administration' is extremely difficult to apply in specific situations - law is created, practiced, and interpreted by more than courts, legislators, and lawyers; it illustrates that law acts not only to restrain administrative power but also to enable it and to insulate it from review; and it points out the difficulty of maintaining dichotomous either/or positions in respect to issues such as judicial review. This approach is not proposed as a replacement for formal administrative law; I also do not propose the farm marketing boards that I examine as paradigm agencies. However, I do suggest that each of these points is important and has significant implications for the study and practice of administrative law and I suggest that the concept of the legal administrative field is one way of attempting reconcile some of the gap between the theory and practice of administrative law. 2Therefore, I use the term "legal administrative field" rather than referring to an exclusively "legal field" to highlight the distinction that I draw between the approach that I am advocating, and the approach employed in formal administrative law. The source and definition of the term "legal administrative field" is developed below beginning at page 20. 3 Outline of the Thesis In the balance of this chapter, I propose to examine in greater detail each of the issues set out above and why I suggest that they are significant. I will begin with a discussion of the 'gap' between the practice of administrative law and the manner in which administrative law is treated in most texts and articles. This will be followed by a critique of what I term 'formal administrative law' and the perspective that views 'law' as something external to the operations of agencies. I will then discuss the concept of the 'legal administrative field' and why I suggest that it is a useful tool of analysis for considering administrative law in a broader pluralistic context. This will involve a consideration of the work of the French sociologist Pierre Bourdieu from whose work I take the concept of the 'field'. Finally, I will discuss a methodological problem which makes it easier to concentrate on formal law rather than informal law and how a shift from an external viewpoint to a more internal one may address some, but not all, of this problem. In the second chapter I will examine in some detail the statute under which the two marketing boards are created and I will provide an overview of the regulations of each board. This is an important starting point because it outlines the legal framework which forms part of the parameters of legal administrative fields for each board and it gives a sense of some of the legal relationship between important agencies within the field. While this review will provide an introduction to the marketing legislation and to the Plans and Regulations under which each board is created and operates, it will also point out how little can be determined concerning the agencies or their legal administrative fields simply by a review of the Act and the regulations. The third chapter will look at some of the significant political, economic, and historical factors which impact on agricultural marketing and which have a major influence on the shape of the legal administrative fields in question. The nature of the farm income problem 4 will be discussed and the history of the development of marketing boards as one response to this problem will be reviewed. This review will end in the 1960s at the point where the Alberta Pork Producers Development Corporation and the Alberta Chicken Producers were first established. The fourth chapter will provide a brief history in an Alberta context of the development of each marketing board and will discuss some of the significant economic and political constraints which limit the very broad powers apparently conferred under the Act and regulations. It will also provide a brief overview of the operations of each board. The chapter will close with a discussion of the political field in Alberta in relation to farm marketing. This chapter and chapter 3 provide some sense of important features of each legal administrative field that are normally invisible to an approach which focuses on formal administrative law. They also provide the context in which to examine specific legal issues dealt with by each board. Chapter 5 will look at some specific legal issues faced by each marketing board and how these issues were resolved. The issues selected will be major legal issues faced by each board which involved significant legal input over an extended period of time. This detailed examination of specific issues will illustrate the operation of the legal administrative fields in question and serve to develop the points made in chapter 1. Chapter 6 will analyze the detailed issues discussed in chapter 5 in terms of the concept of the legal administrative field. It will show how this concept provides a better means of analyzing those aspects of the shifts in the field which are not considered by an approach using formal administrative law. The value of the legal administrative field, and its related terms, habitus and capital, in looking at the shifting relations between various agents within the field will be established. The analysis will show how for each marketing board the legal administrative field, and the realm of what was legally possible for the marketing 5 board within that field, shifted despite the fact that there were no changes in the formal administrative law. Chapter 7 will shift the perspective to a more clearly internal perspective, that of a lawyer retained for these marketing boards. Certain limitations of the study will be noted as will the importance of certain features of the legal administrative field: the role of individuals and their complex habitus and ideologies; the importance of informal communications; and the role of interpretation within the field. This discussion will focus on the role of some of these factors in creating the gap between practice and formal administrative law. An extension of Bourdieu's concept of legal habitus will be presented as one way of dealing with this gap. The chapter and the thesis will conclude with an argument for the value of the legal administrative field and of detailed case studies such as those of >these two marketing boards in dealing with the issues identified in chapter 1. The Gap Between Theory and Practice in Administrative Law My starting point is a perception grounded in my own experience that the subject matter of the bulk of administrative law as reflected in texts, in periodicals, and in the courts does not reflect a large part of the daily experience of many administrative lawyers.3 There is a large portion of the practice of administrative law which is essentially invisible. Others have also made this observation: it has been illustrated by Graham Steele describing the perspective of an administrative lawyer in private practice;4 by H.A. Arthurs describing an historical perspective of administrative law in nineteenth century England and advocating a 3I have practiced in the Province of Alberta since my admission to the Bar in 1978. A significant portion of that practice has been in the area of administrative law both on behalf of administrative agencies and professional associations and on behalf of individuals dealing with other administrative agencies. Throughout this period I have acted on behalf of a number of agricultural product marketing boards and commissions including the two boards which I am discussing in this thesis. 4 G . Steele, "Private Lawyers, Public Law: Administrative Law in the Making" (1992) 35 Canadian Public Administration 1 [hereinafter "Steele"]. 6 pluralistic as opposed to centralist view of the law;5 by H.N. Janisch describing the role of various agencies;6 by Robert Reid in various discussions concerning the relation between judicial review and the activities of agencies;7 by Jerry Mashaw in describing the activities of various agencies in the United States;8 and by various studies in political science, sociology and public administration.9 However, these articles do not reflect approaches which are common in the bulk of the administrative law literature which concentrates on the judicial review of administrative actions. This concentration on the courts and litigation leaves a gap between the theory and practice of administrative law that is apparent to both practitioners and to those teaching administrative law.10 One of the best and most comprehensive statements concerning this gap from the point of view of a practitioner is by Peter Hutt, an American administrative lawyer quoted in an article by Peter Strauss: Over 90 percent of his practice ... is entirely informal, occurring outside hearings of any character. Litigation is avoided where it can be, and what the administrative law teacher must do is bring students to understand the variety of ways in which this can be done. The ideal course, working from the bottom up rather than the top 5 H.W. Arthurs, 'Without the Law': Administrative Justice and Legal Pluralism in Nineteenth-Century England (Toronto: University of Toronto Press, 1985) [hereinafter Without the Law]. 6 H.N. Janisch, "Independence of Administrative Tribunals: In Praise of Structural Heretics" (1988) 1 C.J.A.L.P. 1. 7The Hon. Robert F. Reid, "Judicial Review: A Poor Way to Run a Railroad" L.S.U.C. [1992] Administrative Law: Principles, Practice and Pluralism 455; and "Hot Buttons" in P. Anisman and R. Reid eds., Administrative Law: Issues and Practice (Toronto: Carswell, 1995) See also various editorials in Reid's Administrative Law (Toronto: Carswell, various dates). 8 J.L. Mashaw, Bureaucratic Justice: Managing Social Security Disability Claims (New Haven: Yale University Press, 1983) [hereinafter Mashaw, Bureaucratic Justice]; J.L. Mashaw & D.L. Harfst, "Inside the National Highway Traffic Safety Administration: Legal Determinants of Bureaucratic Organization and Performance" (1990) 57 University of Chicago Law Review 443. 9See e.g. K. Hawkins, ed., The Uses of Discretion (Oxford: Clarendon Press, 1992); R. Melnick, "Administrative Law and Bureaucratic Reality" (1992) 44 Administrative Law Review 245; G Skogstad, "The Farm Products Marketing Agencies Act: A Case Study of Agricultural Policy" (1980) 6 Canadian Public Policy 89-100; R. Harris and S. Milkis, The Politics of Regulatory Change: A Tale of Two Agencies (New York: Oxford University Press, 1989); R. Ellickson, Order Without Law: How Neigfibors Settle Disputes (Cambridge, Massachusetts: Harvard University Press, 1991). 10Steele, supra note 4; J. Law, "Tensions within the Traditional Model of Control of Government" (1992) 6 C.J.A.L.P. 13 [hereinafter "Law"]; D. Townsend, "The Growing Irrelevance of Judicial Review: Administrative Law and the Entrepreneurial Culture" (1992) 6 C.J.A.L.P. 79 [hereinafter "Townsend"]; N. Lyon, "Reforming Administrative Law" (1989) 2 C.J.A.L.P. 315 [hereinafter "Lyon"]. 7 down, would begin with a sense of the history and mission of the agency with which one is concerned, a history which often predetermines both procedure and substance. A look at the statute will provide a sense of how to use it, of what procedures and choices it opens. Much the larger proportion of the impact of any given statute can be inferred from the regulatory mechanism it establishes. Then one may consider what the style of the given regulation is (hard-line enforcement or softer); what the agency's budget is and how the agency is treated by its appropriation committee; what the political atmosphere is and the attitude of important congressmen; what relationships exist between the agency and other federal agencies; what procedures it employs; who its personnel are and what their attitudes are; how competitors use or manipulate the statute for their own purposes; what the role of chance is in shaping the agency's agenda; what the general competence is of the staff being dealt with. One must know not only how to get meetings with agency officials but also what the publicity requirements are going to be of meeting with officials at varying levels; one must know what policy is likely to be driving the agency, for that will drive the procedures that the agency chooses. And then there is the need to become thoroughly familiar with the mass of detail that bears on the particular issues to be presented for decision. Only then does one come to the point of exposure to public materials or public processes.11 While portions of this quotation are more directly applicable to the specifics of Mr. Hutt's practice before American Federal Administrative Agencies, the emphasis on the informal nature of most contacts, the importance of political influence and policies, the importance of the agency personnel, their attitudes and the ability to meet with them, the importance of the history and context in which the agency operates, and the amount of legal practice which occurs before any public materials or court or hearing processes of any kind are invoked, are all vital matters in understanding how a particular agency operates within its particular legal administrative field. Yet most of these considerations are absent from consideration in formal administrative law. n P . Strauss, "Teaching Administrative Law: The Wonder of the Unknown" (1983) 33 J.Leg.Ed. 1 at 8 quoted in W. Gellhorn et al., Administrative Law: Cases and Comments, 8th ed. (Mineola, New York: Foundation Press, Inc., 1987) [hereinafter "Gellhorn et al."] at 2. Gellhorn etal, in general, and the Strauss article, in particular, respond to the position expressed by Hutt and provide a defence and a rationale in respect to the manner in which administrative law is taught which will be discussed later in this chapter. 8 The Formal Approach to Administrative Law: A Critique When I refer to the formal approach to administrative law, I mean an approach which concentrates on the control of administrative action by judicial review or through legislative restrictions. The object of study is primarily judicial decisions which review the actions of agencies. The statutes and regulations by which a particular agency is constituted are studied primarily in relation to either the courts' interpretation of particular provisions of a constituting statute or, in a more general sense, in relation to the principles which should be followed in the legislation establishing an agency and limiting its operations. Administrative law is perceived as a means to structure and control administrative discretion, which traditionally has been viewed by lawyers with suspicion, on behalf of individuals who must deal with these agencies and who must be protected from them.12 This control over discretion is usually considered in relation to judicial review, the development of rules to control administrative action, or the importing of judicial values and procedures to administrative proceedings by either the courts or the legislature. The paradigmatic expression of this point of view is judicial review - the control of administrative action by the judiciary. This discussion is not an attempt to define 'administrative law', although what I refer to as formal administrative law conforms fairly closely to the traditional model of administrative 1 2This generally negative attitude to regulation is not restricted to law. The pervasiveness of regulation and administration has long been a theme of sociologists, critical theorists and other social philosophers. Weber's iron cage of bureaucracy; Adorno's administered world; Foucault's pastoral power and disciplinary norms; and Habermas's colonization of the life-world are only a few of the more prominent examples. In each case, the image evoked is negative: regulation and administration are perceived as invasive, restrictive, confining, and a threat to individual freedom or autonomy although the authors cited would differ substantially in the degree to which they would accept the concept that autonomous individuals exist. 9 law as it is reflected in most texts.13 The traditional model of administrative law establishes a model of the state as a unified entity which has clearly defined structures and which must be restrained from infringing on individual autonomy and private rights by the courts through the Rule of Law. John Law describes this model as follows: Succinctly put, the traditional model is that of common law, judicial review, by the superior courts over the actions of the administration, undertaken to protect the individual, in his realm of private autonomy, from unwarranted, excessive, and unlawful government interference. With its hierarchical structure, i.e., review of inferior tribunals by superior courts, it symbolizes the domination of the former by the latter and it implicitly accords less value to administrative decisions. 1 4 Most approaches to administrative law are grounded in this model and focus on judicial review whether from a positive or negative point of view. Law discusses the concept of two approaches to administrative law, "red light theories" and "green light theories", and he notes that underlying these "loose classifications" is a theory of the state or government.15 Those who have a negative view of government emphasize the role of the Rule of Law in maintaining individual autonomy through the courts restricting unwarranted government interference with the liberty of the individual. They see the 1 3The question: "what is administrative law?" is one often heard by both practitioners and scholars yet there is no single clear or generally accepted definition. As Gellhorn et al., supra note 11 at 2 point out: '"Administrative Law' means different things to different people." Both the existence and the scope of a coherent theory of administrative law remain contentious issues. I do not propose to revisit this much debated area. Standard texts cited in the bibliography such as: Wade; Craig; Jones and DeVillars; Evans, Janisch and Mullan; and Dussault and Bourgeat, each provide definitions. For useful American definitions see Gellhorn et al. at 1-3; K.C. Davis and R.J. Pierce, it., Administrative Law Treatise 3rd ed., 3 vols. (Boston: Little Brown and Company, 1994); and R. Stewart "The Reformation of American Administrative Law" (1975) 88 Harvard Law Review 1667 at 1669-1670. For some interesting discussions on the issue see the following articles cited in the bibliography: Law; Lyon; Townsend; J. Mashaw, "Imagining the Past; Remembering the Future," 1991 Duke L.J. 711; and P. Bryden, "Canadian Administrative Law in Transition: 1963 - 1988" (1988) 23 U.B.C. L. Rev. 147 and "Canadian Administrative Law: Where We've Been" (1991) 16 Queen's Law Journal 7. 1 4Law, supra note 10 at 18. Perhaps the classic modern articulation of this perspective appears in W. Wade and C. Forsyth, Administrative Law 7th ed. (Oxford: Clarendon Press, 1994) [hereinafter "Wade"]: "The essence of administrative law lies in judge-made doctrines which apply across the board and which therefore set legal standards for public authorities generally." (Wade at 6). 1 5Law at 18-20. As Law notes, the concept of red light theories and green light theories is taken from C. Harlow and R. Rawlings, Law and Administration, (London: Weidenfield and Nicolson, 1984) [hereinafter "Harlow and Rawlings"] at 12 & 33 where this point is developed at greater length. 10 growth of the administrative state as threat to individual liberty and are particularly concerned that all administrative agencies be subject to control by the courts.16 Those who see a greater scope for progressive action in legislation and political action have a more positive view of administrative agencies. They tend to see the courts as a conservative institution, devoted to upholding the status quo. They place their faith in democratic political action and in expert tribunals in fields such as labor law which they feel have a better understanding of the complexities of the field and the dynamics of the parties involved.17 Yet even these critics of judicial review focus most of their attention on the effect of judicial review on agencies. Although the conclusion is different, the focus remains on the courts and the viewpoint is external. Even many positions which oppose judicial intervention and champion the position of agencies tend to concentrate their discussion on the relationship between the courts and administrative agencies or to view the control of administrative discretion from the point of view of a detached third party. For example, while Mashaw does concentrate on the 1 6Dicey is of course the automatic starting point in any such discussion, but similar positions can be found in any number of judicial pronouncements, both in and out of court. Holloway quotes both Lord Hewart from The New Despotism and the former Chief Justice of Ontario, Sir William Mulock, in terms which would surpass even Dicey. (I. Holloway, ""A Sacred Right": Judicial Review of Administrative Action as a Cultural Phenomenon" (1993) 22 Manitoba Law Journal 28 at 28-31 [hereinafter "Holloway, "A Sacred Right"] and "The Transformation of Canadian Administrative Law" (1992) 6 C.J.A.L.P. 295 at 296-297. Such major reports on administrative law as the Frank's Report in Britain and the McRuer Report in Ontario reflect this view as well. For a useful review of some of the major reports or studies on administrative law see M. Priest, "Structure and Accountability of Administrative Agencies" L.S.U.C. [1992] Administrative Law: Principles, Practice and Pluralism 11 [hereinafter "Priest"] and R. Macauley, Practice and Procedure Before Administrative Tribunals Vols. 1 & 2 (Toronto: Carswell, 1991) [hereinafter "Macauley"]. 17See e.g. A. Hutchinson and P. Monahan, eds., The Rule of Law: Ideal or Ideology (Toronto: Carswell, 1987) [hereinafter "Hutchinson and Monahan"]; J. Bakan, "Constitutional Interpretation and Social Change: You Can't Always Get What You Want (Nor What You Need)" (1991) 70 Canadian Bar Review 307; A. Hutchinson, "The Rise and Ruse of Administrative Law and Scholarship" (1988) 48 Modern Law Review 293 and "Mice Under a Chair: Democracy, Courts and the Administrative State" (1990) 40 University of Toronto Law Journal 374; H. Arthurs, "Rethinking Administrative Law: A Slightly Dicey Business" (1979) 17 Osgoode Hall Law Journal 43. In the American context, see Mashaw, Bureaucratic Justice, supra note 8. In the British context, see Harlow and Rawlings supra note 15 and I. Harden, and N. Lewis, The Noble Lie: The British Constitution and the Rule of Law (London: Hutchinson Education, 1986) [hereinafter The Noble Lie]. 11 agency itself and while he is critical of the value of judicial review, his primary concern in respect to reform is still developing controls over the bureaucracy to protect individuals. Even the practitioner based comments of Steele and Hutt cited above,18 take the viewpoint of a lawyer dealing with agencies on behalf of private clients and are therefore essentially an external perspective. This external perspective is not surprising in light of the prevailing view in formal administrative law that law is something separate and distinct from administration. John Law places the traditional model clearly within the scope of red light theories and sees its underlying theory as one of limited government whose roots lie in "the ideology of 19th century laissez faire liberalism". He suggests that while the traditional model has undergone refinement and development, its essential and fundamental form has remained intact despite the growth of the size and scope of government. He suggests that this is not surprising considering the ideology of judges and lawyers.19 He sees this process as continuing in law schools which treat "administrative law as the study of judicial review." He quotes Noel Lyon in "Reforming Administrative Law": "[t]oo much of present legal education encourages the belief that administrative law is a process whereby superior courts bring statutory authorities to heel."20 The almost exclusive focus on judicial review in formal administrative law creates a number of problems. Only a very small and perhaps almost statistically insignificant number of decisions made by administrative agencies are actually ever subject to judicial 18Supra notes 4 and 11. 1 9In his discussion of the ideology of judges and lawyers, Law quotes the Law Reform Commission of Canada, Harlow and Rawlings and J.A.G. Griffiths. A similar point on the ideology of the judiciary in favour of intervention by the courts is made by Holloway who points out that this approach has historical antecedents which pre-date Dicey by centuries (Holloway, "A Sacred Right"). Bryden supra note 13 refers to "the tenacity of Dicey's grip on the Canadian judicial imagination" although, like Holloway, he does not feel that the system of judicial review is necessarily wrong. 2 0Lyon supra note 10 at 20. Once again a classic expression of this position can be found in Wade which states that all the "detailed law" about the "composition and structure" of administrative agencies is "though clearly related to administrative law,... beyond the true scope of the subject." (Wade at 5). 1 2 review. Of those cases, the majority are generated by a limited number of agencies most of which have proceedings that in some manner or another perform adjudicative functions and which employ some form of hearing procedure.21 The vast majority of agencies generate very few cases which are heard by the courts. In addition, most legal studies which have been done of particular agencies have concentrated at the federal level or have been very general in scope. There have been relatively few case studies of particular provincial agencies which perform less adjudicative functions and which do not generate significant numbers of cases. Yet huge amounts of administrative law are generated by these agencies within their fields of practice and their impact is felt at every level of society.22 In accordance with the focus on judicial review, the legal literature on administrative law contains very little discussion of the implementation and operation of particular agencies. Where there is discussion of particular agencies most of the discussion centres on federal tribunals or on independent regulatory agencies or on those tribunals, such as labour relations boards, which most closely resemble the courts. Yet, I would suggest that a great deal of law is generated internally by a variety of agencies many of whom do not conform closely to the judicial model and whose hybrid nature makes the application of the 21Perhaps the most obvious examples are labour tribunals, human rights tribunals, immigration tribunals, planning tribunals, securities commission hearings, professional discipline tribunals and a limited number of regulatory agencies such as the CRTC, the National Energy Board or public utilities boards which hold regular hearings. 2 2It is trite, but nonetheless accurate, to suggest that there is virtually no aspect of life in our society which is not subject to regulation directly or indirectly from before birth to after death. The pervasiveness of regulation and administration has long been a theme of sociologists, critical theorists and other social philosophers (see e.g. the works of the authors cited in note 12).This fact is also recognized in the various studies which have been done on administrative law. (See Priest and MacAuley supra note 16 for a review of the bulk of these studies). A negative view of this development forms part of the basis for those judges and legal theorists who uphold the Rule of Law as the bulwark of protection for the individual in a world overrun by regulation. The fact that no aspect of life is untouched by regulation has been recognized in a less critical manner by the Supreme Court of Canada in a number of recent judgments (See e.g. Nfld. Telephone v. Nfld. (Public Utilities Bd., [1992] 1 S.C.R. 623 at 634-635) and in comments from various members of the Court.(See infra notes 29, 30, and 31). 13 traditional model difficult. Much of the practice of administrative law takes place within this internal context, far from the courts or the legislatures. And numerous studies recognize that the most important controls are internal self-controls generated within the agency since the vast majority of administrative decisions will never be subject to review.23 The study of the operations and internal practices of administrative agencies which make by far the bulk of the legal decisions in our society are left outside the discipline to the sociologists, the political scientists and the students of public management. There is limited awareness within the legal community of this work outside the discipline and only a very limited Canadian legal literature which incorporates such work.24 Yet from my standpoint as a practitioner, particularly one who has acted on behalf of agencies, it is in the internal operations and practices of particular agencies and not in formal proceedings or court challenges, that the bulk of administrative law takes place. In these areas historical, political, institutional, economic, social, cultural and personal factors considered relevant by sociologists, political scientists, or students of public management but ignored 23See Harlow and Rawlings, Gellhorn et al, Mashaw, Hawkins and Melnick. See also comments by Arthurs and Macauley and D. Galligan, Discretionary Powers: A Legal Study of Official Discretion (Oxford: Clarendon Press, 1986). 24There have been changes in this traditional approach. The Council of Canadian Administrative Tribunals (CCAT) was established in 1985-86 and its conferences and the volumes of the Canadian Journal of Administrative Law & Practice include a significantly higher proportion of articles and comments which reflect the agency point of view and which do not come exclusively from a formal legal or judicial perspective. The 1992 Special Lectures of the Law Society of Upper Canada Administrative Law: Principles, Practice and Pluralism contain a number of very valuable articles dealing with agency perspectives and a conception of administrative law which extends beyond judicial review. Indeed the very title of the lecture series with its reference to pluralism suggests a broader definition of administrative law. These forums together with such special editions on administrative law as 16 Queen's L.J., 40 U.T.L.J. and 6 C.J.A.L.P. provide a useful perspective and some degree of interaction between lawyers and administrators which may assist in providing a degree of translation between "lawyers values" and "administrative values," a concern which has not really changed since the terms were used by John Willis over 25 years ago. However, despite these developments, the bulk of administrative law remains focused on judicial review. While I am aware that the American literature on administrative rule-making, regulation and the legal aspects of bureaucracy is more extensive, those American administrative law texts that I have examined continue to display a primary concern with the role of the courts (Gellhorn et al, Davis and Pierce, Edley, Aman and Schwartz) For more general references to regulation and administration refer to the works cited in the bibliography by: Rose-Ackerman, Sunstein, Breyer, Breyer and Stewart, Mashaw, Melnick and Stewart. 14 in formal administrative law, are relevant and important factors in determining how legal issues are resolved. I hope to illustrate this point and draw on some of the insights developed in one of these fields, that of sociology, in my discussion of the legal administrative field within which the two Alberta farm marketing boards operate. This critique of formal administrative law is not an attempt to debate the merits of judicial review or the role of the Rule of Law. I do not propose to engage in another study of whether judicial review is a "good" or a "bad" idea and I am not suggesting that judicial review is unimportant or that it should not be studied. There are several reasons for this. First, the issue has been debated to death and is reviewed endlessly in the legal literature -it is no exaggeration to say that the bulk of administrative law literature deals with some aspect of judicial review.25 In fact, a narrow definition of administrative law would be virtually co-extensive with the study of judicial review.26 Second, judicial review is not going away; the Rule of Law is specifically referred to in the Charter27 and despite many detailed and convincing criticisms of Dicey's original formulation28 it remains widely accepted, if somewhat difficult to define. Recent statements by Justices Lamer,29 La Forest,30 and McLachlin31 all support a role for the judiciary in upholding the Rule of Law. 2 5The examples to illustrate this point are far too numerous to mention. Some examples would include: any of the administrative law texts cited; the articles by Holloway, Bryden, MacLauchlin, Stewart Edley, and Aman; the attacks on judicial review by Petter and Hutchinson, Hutchinson, Bakan and Harden and Lewis. 26Note that many criticisms of the teaching of administrative law make exactly this point. See Lyon and Townsend supra note 10; Law is less critical but makes a similar point. See the discussion above in the text accompanying and following this note. 2 1 Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982 c. 11 [hereinafter the Charter]. 28See e.g. A. Arthurs, "Rethinking Administrative Law: A Slightly Dicey Business" (1979) 17 Osgoode Hall Law Journal 43; A, Petter and A. Hutchinson, "Private Rights and Public Wrongs: The Liberal Lie of the Charter" (1988) 38 University of Toronto Law Journal 278; P. Craig, "Dicey: Unitary, Self-Correcting Democracy and Public Law" (1990) 106 L.Q.R. 105; and The Noble Lie. 29"Administrative Tribunals - Future Prospects and Possibilities" (1991) 5 C.J.A.L.P. 107 at 115. 30"The Courts and Administrative Tribunals: Standards of Judicial Review of Administrative Action" [1992] L.S.U.C. 1 at 2. Note that La Forest, J. is more explicit about the limitations of judicial review and the need to face administrative justice primarily at the agency level. 31"Rules and Discretion in the Governance of Canada" (1992) 56 Sask. Law Review 167. This entire article deals with the rule of law and its relation to the control of discretion. While Justice McLachlin 15 Similar support can be found in judicial decisions at all levels and in the political rhetoric of all major parties. While there are swings between periods of greater or lesser judicial intervention,32 the courts have consistently resisted attempts to exclude their power to intervene and despite considerable academic literature decrying the effect of the courts,33 I do not believe that either the public or politicians are in favor of abolishing judicial review.34 In general, the courts enjoy a greater degree of public trust and are accorded a greater degree of legitimacy than either administrative agencies or politicians. A third reason for not taking a position "for" or "against" judicial review is that I consider either/or dichotomies to be an inappropriate method of dealing with the complexity, diversity, and size of the administrative law domain. Attempts to fit one model, or one answer, to all agencies or even to all issues within the context of a particular agency are extremely difficult and in my opinion of questionable value. All conclusions concerning judicial review start from some underlying assumptions, often unacknowledged, about the nature of the state, the individual and the role of the courts. Most of these assumptions start with generalizations that do not accord with the complexities of actual agencies and the contexts in which they operate. A single answer for or against judicial review does not address the concerns faced by administrative agencies or by those dealing with them. rejects the "either/or fallacy" of the rule of law or administrative discretion which she sees reflected in Dicey's model, she firmly supports a modified form of the rule of law as fundamental to protecting the values of Canadian society. She provides an extended list of the values reflected in and protected by the modified form of the rule of law. 3 2 For a discussion of these shifting periods of intervention see: Stewart, Aman, Sunstein and Edley in the US; Bryden, MacLauchlin, and Holloway in Canada; and Harlow and Rawlings and Craig for England. Both Holloway "A Sacred Right", in the Canadian context, and Without the Law, in the context of the history of the 19th century in England, suggest a growing judicialization and an aggressive campaign by the courts to expand their prerogatives. 33Petter and Hutchinson; Hutchinson and Monahan; Bakan; The Noble Lie; Arthurs; Mashaw, Bureaucratic Justice; Melnick. See generally supra notes 17 and 28. 34See Holloway, "A Sacred Right" on this point: judicial review is what the public wants. See also Bryden, "Canadian Administrative Law in Transition: 1963 - 1988" (1988) 23 U.B.C. L. Rev. 147 and "Canadian Administrative Law: Where We've Been" (1991) 16 Queen's Law Journal 7 for a discussion of this point and for a generally favourable assessment of the system of judicial review which has developed. 16 In regard to my own position, my experience, and in all likelihood my professional training and socialization as a lawyer, makes me doubt that judicial review is always antagonistic to agencies or that legal values expressed in the rule of law have no place in an administrative milieu.35 While I am not certain that I could go so far as the historian E.P. Thompson in referring to the rule of law as an "unqualified human good,"36 I believe that the potential for judicial review can provide a counterbalance to flagrant misuse of authority and can create a degree of sensitivity on the part of the tribunal or agency to issues of fairness and natural justice.37 There are times when a review by a court which has no direct involvement in the matter in issue may seem preferable to one or more of the parties to a dispute rather than what they perceive as a clearly partisan review by an administrative appellate tribunal whose legitimacy and expertise they do not accept. The availability of judicial review, even if the possibility of success may not be high can have a positive effect on the behaviour of both participants to a proceeding and the agency itself.38 35See McLachlin, J.'s article supra note 31 for a useful list of these values by a current member of the Supreme Court of Canada. 3 6 E.P . Thompson, Whigs and Hunters: The Origin of the Black Act, (Harmondsworth: Penguin, 1975) at 266 [hereinafter Whigs andHunters]. This statement has engendered considerable debate particularly since it comes from an avowedly Marxist historian. It has been cited and supported by those who defend some form of the liberal ideal and has been criticized by those who feel it ignores the structural and ideological support that liberalism in general and the rule of law in particular provide to the dominant groups in society and the degree to which it is part of a system of domination. It is also challenged, directly or implicitly by those who reject all forms of enlightenment humanism be they liberal or Marxist, (see e.g. the works by Foucault, Luhmann and Bourdieu; various secondary sociological and philosophical sources are also cited in the bibliography). 3 7This is not to suggest that most agencies are not themselves concerned with these issues; in my experience those I have acted for have been aware of and concerned with the need for fairness. But I have also seen instances, acting both for agencies and for individuals, where the prospect of a judicial challenge increased the degree of sensitivity to these points and where judicial decisions provided some guidance as to what procedures might be appropriate in particular contexts. 3 8 I am aware of how problematic and context dependent this position is. I am not dismissing criticisms of the legal system and am not advocating its neutrality or suggesting that its underlying assumptions are not problematic. I am simply not certain that it is clear that the abolition of judicial review is a better alternative. I am less confident than many opponents of judicial review concerning either the expertise of some tribunals or the ability of the political process to redress problems. In Alberta there has been only one change of government since 1935 - the degree to which the political process operates as a check on executive power in such circumstances is extremely limited. 17 In addition, while I share the concerns of many 'green light' theorists, I think that suggestions that judicial review is always an unjustified interference with the operation of agencies fail to give sufficient weight to the degree to which courts support the authority of administrative agencies. Notwithstanding the tension between judicial attitudes and the needs of administration and notwithstanding the various swings in the degree of judicial intervention sanctioned by the courts,39 judicial deference to agencies is very real and the majority of legal challenges to agency actions fail.40 Although a court challenge requires resources and time from the agency and the potential for such challenges may inhibit agency initiatives,41 when the agency is successful, the legitimacy of its actions and its mandate are enhanced by being confirmed by the courts. As well, the concept of judicial deference when set out in a decision relating to a particular agency can place significant areas of the agency's activities outside the scope of judicial review for any subsequent challenges. Accordingly, the results of judicial review can be to enhance the agency's authority and legitimacy. This positive aspect of judicial review, from the agency perspective, is important in another sense. The general focus of administrative law is not only external to the agency but it also focuses on relations between the agency and members of the public. The perspective taken is usually that of an individual or group dealing with the agency. Less emphasized are the relationships between the agency and other arms of the government; yet these relationships can be a major focus of agency attention and resources and they often have a far more significant impact on agency policy and practice than judicial review or formal legislation or regulation. Once again, this is an area which is evident in practice *9Supra note 32. 40See Harlow and Rawlings; P. McCormick, "Party Capability Theory and Appellate Success in the Supreme Court of Canada, 1949 -1992" (1993)" 27 Canadian Journal of Political Science 523. 41See Mashaw, Bureaucratic Justice and Melnick on this point. For a Canadian comment from an agency perspective, see D. Cohen, "Procedural Fairness and Incentive Programs: Reflections on the Environmental Choice Program" (1993) 31 Alberta Law Review 544 and "Regulating Regulators: The Legal Environment of the State" (1990) 40 U.T. L.J. 213. 18 but which is only infrequently reflected in administrative law literature. The impact of judicial review which defines the agency's sphere of activity can be significant in relationships within the area of government administration. On occasion, a favorable court decision can help to insulate an agency from attempts by its supervising, appointing or funding bodies to restrict or define its powers. In inter-agency relations, an agency may have more confidence in having a court define its authority than in relying on a supervising agency and conflicts in interpretation between levels of agencies may result in court action. In some circumstances, the agency may regard court action as a means of preserving its independence. Once again, the attitude to judicial review will depend on the perspective taken, the matter in issue, and the context in which the issue arises. Therefore while I have serious concerns about the degree to which formal administrative law leaves a gap between the theory and practice of administrative law and renders much of the law practiced in specific contexts invisible, I recognize that it serves an important role. Some general principles which apply across agencies and which reflect generally accepted standards of administrative conduct are essential. While it may be difficult to provide a fully coherent and complete theory of administrative law, I believe that there does exist a considerable degree of consensus on a number of principles of administrative law although their application in specific circumstances may be less clear. I do not disagree with the viewpoint that by and large the courts in Canada have reached a pragmatic and workable accommodation with the administered state and I accept that this is a fluid developing process which needs to be monitored, studied and debated.42 In so far as the academy is concerned, I recognize that no administrative law course could cover all the diverse and complex factors within which each agency operates; to do so would be 4 2 For articulations of this viewpoint, see Bryden, supra note 34; J. Mashaw "Imagining the Past; Remembering the Future" 1991 Duke L.J. 711; Macauley, supra note 16. 19 impossible. The attempt would also be counter-productive by burying students and professors in a mass of detail which most of them would never require.43 My concern, therefore, is not to replace the teaching or study of formal administrative law, but to suggest that the perspectives and approaches that it represents can be usefully supplemented by an awareness of and sensitivity to the importance of the varying legal administrative fields within which different agencies operate. While approaches which emphasize formal administrative law, judicial review and the rule of law are valuable and deal with important issues, they reflect an emphasis on what Arthurs terms a "legal centralist" as opposed to a "legal pluralist" viewpoint.44 I want to suggest the concept of 4 3This is the point made by Gellhorn et al. in response to the criticism by Hutt. See supra notes 10 and 11 and accompanying text. 44Arthurs, Without the Law. Arthurs defines legal centralism as follows: The basic paradigm, the central assumption, the crucial structure that dominates the way most lawyers, judges, law professors - even most people - think about law is this: law is formal; it exists as a thing apart from society, politics, or economics; law has the capacity to achieve, and does achieve, results by encouraging or discouraging behaviour, by attaching specified consequences to behaviour that facilitate it, deter it or undo its harmful effects; law is made and administered by the state; and access to law is provided in courts by legal professionals - lawyers and judges - who invoke a body of authoritative learning in order to argue and decide cases.... Each step in this analysis, which crudely approximates the way most of us think about law, rests on the assumption that law lies at the centre of events. Law is neutral - unsullied by close identification with contending interests or classes or political philosophies - yet it engages the power and prestige of the state. Law commands, people obey, and the course of future events is fixed. Law is knowledge, and that knowledge is disseminated by those who understand it best to those who understand it least. Not without reason has this paradigm of law been identified as "legal centralism." Without the Law 1-2. Legal pluralism is defined as: Thus, social scientists have not hesitated to propose new definitions of law which at least link it to other apparently similar phenomena. For example, it has been proposed that law consists 'primarily of rules by which persons in society order their conduct, and only secondarily of "norms for decision" developed by courts and of legislation enacted by the state.' Some of these rules are found in statute books and law reports, to be sure, but others are often unwritten yet well-understood codes defining standards of behaviour in industrial enterprises and business transactions, among neighbours, and within universities, churches or public bureaucracies. If this is what law is, it follows that it must be closely intertwined with the purposes of both the state and the groups or institutions that produce or consume it. Thus, we can no longer ignore its economic function, its political content, or its social effects. Nor can we fail to address the ongoing processes by which different manifestations of law come into existence, shape and are given shape by events, and interact with each other. And finally, we must accept that law is much more diverse in its content, causes, and effects than our original paradigm [legal centralism] proposed. This new way of looking at law we may therefore call "legal pluralism." Without the Law 2-3. 20 the legal administrative field as one means of taking a more legal pluralist approach and to defend the value of this approach. I also suggest that it is a sensitivity to this legal administrative field, whether conscious or unconscious, that constitutes one of the major differences between administrative law as it is practiced within a particular legal administrative field, and the more general, formal and external approaches found in texts, administrative law courses, and the courts. In the more formal approach much of the legal administrative field is invisible. While the field may not be clearly 'visible' in practice, the practitioner and all those within the field must respond to and operate within its effects; this is one of the sources of the distinction between 'theory' and 'practice' which I have noted and critiqued. I intend to illustrate this point in my examination of certain legal issues which arose in the legal administrative fields in which the two farm marketing boards operated. The Legal Administrative Field: An Expanded Approach to Administrative Law My thesis is that each agency operates within a field of law some of which is general in nature and some of which is specific to that agency. Formal administrative law provides important tools to analyze and, in some cases, control an agency's activities and may be important in examining the formal structures and procedures created for the agency. As such it is an important element in examining an agency's 'legal field'. But an understanding of the practice and legal environment of particular administrative agencies requires far more. Concentrating on formal administrative law misses a vital and nearly invisible part of administrative law: the informal and internal law developed and applied within the agency and in relation to its supervisory bodies. It also ignores the historical, political, economic, and social factors which also shape the legal administrative field within which the agency and those who deal with it function. I choose the term "legal administrative field" rather than simply referring to a legal field because I want to emphasize the position that in 21 regard to particular agencies, the law is formed, shaped and practiced within a field that is shaped by factors which extend far beyond those recognized by formal administrative law. There is a great deal of law created and applied "without the law."45 In looking at the field of law and administration within which a particular agency exists and operates, an expanded and practice oriented perspective on 'administrative law' is necessary to appreciate the complexity or, to use Arthur's term, the 'plurality' of the various elements which make up a particular legal administrative field. This expanded perspective on administrative law relates to what the law is, to who creates and applies it, and to what is or is not possible within the field of legal relations in which the agency is situated. It involves going beyond a formalist approach to what the law consists of and questions the boundaries that such a formalist approach draws between law and administration and between law and other disciplines such as sociology, political science, economics and public management. Any attempt to establish clear boundaries dividing law and administration or lawyers and administrators depends upon the questionable assumption that either set of terms are unitary entities which reflect a common coherent viewpoint practiced by identifiable individuals which can be contrasted to the opposing position practiced by other individuals. While there is some value to such distinctions at a general level, they break 4 5This term is taken from Without the Law, Arthur's book on the development of administrative law in England. This book develops the point that the development of administrative law in England has a longer history than is usually assumed and that much of the law created and administered owed very little to the courts. The point that in many contexts law is not central to the maintenance of social order is also made by Robert C. Ellickson in Order Without Law: How Neighbors Settle Disputes (Cambridge, Massachusetts: Harvard University Press, 1991) which is a study of how neighbors in Shasta County, California, resolve various disputes relating from straying cattle. The central finding of the study was that in this case parties would generally resolve their disputes in a cooperative fashion without any regard for the laws that would apply to those disputes. Recourse to the law was available but was seen as an unacceptable way for neighbors to resolve disputes. The book then discusses the implications of these findings in relation to law, economics, sociology and game theory with particular reference to how standard approaches such as the Coase theorem in law and economics must be modified to account for these findings. 22 down in practice in particular concrete situations. Administrators make, interpret and implement law and lawyers are intimately involved in administration: drafting, interpreting, implementing, defending, creating and revising administrative procedures and policies. Particular agencies perform a complex mixture of executive, administrative, judicial and legislative functions. This situation is not a new development. In Without the Law H.A. Arthurs points out that administrative law in England has a far longer history than is generally accepted in traditional histories on the development of administrative law in England and that many of the commissioners and civil servants dealing with the commissions and other agencies he describes were lawyers and that the practice of many private lawyers revolved around these commissions and agencies. Much of this work was accomplished without any reference to the courts. The history and practice of administrative law did not begin with the administrative reforms of the 1860's and 1870's and it did not centre on the role of the courts; in a sense administrative law was not created by the courts, it was colonized by them. Arthurs points out that the historical evidence does not support either the demonic view of administrators or the benign neutral and protective view of the courts propounded by Dicey and he challenges Dicey's assumptions and his historical images concerning the role of the courts in the control of administration and the protection of individual liberty.46 Arthurs suggests that his historical study undercuts some of the assumptions which form the root of legal centralism, and he ^Without the Law. Arthurs points out that some of the growth in administrative systems were a response to the institutional and personal weaknesses of lawyers and judges in the nineteenth century: After all, we have seen in our historical evidence lawyers and judges who did not hesitate to subvert the laws for personal gain or from class bias, and administrators whose moral presence and humane concerns were exemplary. We have heard of regular courts whose procedures had atrophied, whose costs were bloated, whose capacity to deliver justice or defend liberty had virtually ceased to exist. And alongside these we have glimpsed communal institutions and administrative bodies that offered most Englishmen the only justice they would ever receive. Without the Law 212. For less historical, but equally devastating critiques of Dicey, see Arthur's "Rethinking Administrative Law: A Slightly Dicey Business." and Craig, "Dicey: Unitary, Self-Correcting Democracy and Public Law" supra note 28. Other critiques are listed in the same note. 23 advocates a pluralistic, context sensitive approach which draws on approaches and knowledge drawn from other disciplines. Arthurs does not reject the importance of law or the need for norms of conduct in administration but he argues that it should not automatically be assumed that legal centralist values and judicial intervention are always appropriate in all circumstances. The position taken by Arthurs is similar in many respects to the position that I am advocating. A basic theme of my thesis is that any general comprehensive theory of formal administrative law involves a degree of abstraction that becomes difficult to apply given the myriad of administrative agencies and the diversity and complexity of the issues and interests with which they deal. There is no single approach or theory which can be applied in all circumstances and with respect to all agencies. An approach which is successful in particular context may not work in another situation even where that second situation apparently shares many of the same characteristics; generalizations can be useful but they can also be dangerous. As well, a particular form of administrative action, or the control thereof, may generate unanticipated and even paradoxical results. At best what can be hoped for is a constructive dialogue between the values and knowledge reflected in a formal legal approach and the values knowledge and needs reflected in a particular administrative agency; a dialogue sensitive to the imperatives and values which shape both of these discourses in a particular, situated context. That this notion is incapable of complete realization is evident; that it has no value as a goal is not. I want to suggest and defend the concept of the legal administrative field as one means of developing these concerns. The Legal Administrative Field and the Work of Pierre Bourdieu At this point I want to review the source of and to clarify what I mean by my use of the term "legal administrative field." I take the term 'field' from the work of the French 24 sociologist, Pierre Bourdieu.47 This concept is part of Bourdieu's attempt to go beyond an opposition that he sees in traditional sociology between either a 'subjectivist' position or an 'objectivist' position.48 Bourdieu suggests that neither of these positions adequately reflect social life which must be understood both in relation to objective material, social and cultural structures and to the constituting practices and experiences of individuals and groups. Bourdieu also seeks to overcome an opposition between "a theoretical knowledge of the social world as constructed by outside observers and the knowledge used by those who have a practical mastery of their world."49 These are ambitious goals and there is considerable academic debate on the degree to which Bourdieu's work successfully 47Bourdieu is perhaps the pre-eminent sociologist in France. His work has been extensively translated into English. Many of his major works in translation are listed in the bibliography together with a number of secondary sources. This is not to suggest that Bourdieu is the either the first or the only scholar to use the term 'field.' However, it is his approach that I draw upon. For a discussion of somewhat similar uses of the terms 'force-field' and 'constellation' by Benjamin and Adorno see: M. Jay, Adorno (Cambridge, Massachusetts: Harvard University Press, 1984) at 14-15 and Force Fields: Between Intellectual History and Cultural Critique (New York: Routledge, 1993) at 1-3; R. Bernstein, The New Constellation: The Ethical-Political Horizons of Modernity!Postmodernity (Cambridge, Massachusetts: MIT Press, 1992) at 9. 48"Speaking in very general terms, social science, in anthropology as in sociology or history, oscillates between two apparently incompatible points of view, two apparently irreconcilable perspectives: objectivism and subjectivism, or, if you prefer, physicalism and psychologism (which can take on diverse colourings, phenomenological, semiological, etc.). On the one hand, it can 'treat social phenomena as things', in accordance with the old Durkheimian maxim, and thus leave out everything that they owe to the fact that they are objects of cognition - or of miscognition - in social existence. On the other hand, it can reduce the social world to the representations that agents make of it, the task of social science then consisting in producing an 'account of the accounts' produced by social subjects." P. Bourdieu, In Other Words: Essays Towards a Reflexive Sociology (Stanford: Stanford University Press, 1990) 124 [hereinafter//! Other Words]. Another form of stating this issue is the relation between 'structure' and 'agency'. At issue is the degree to which effects which are observed are the result of the actions and decisions of individual agents or the result of particular social structures which condition and determine the actions of particular agents as well as collective social bodies. This has been and continues to be recognized as a central problem in sociology. It is a central issue in the works of sociologists such as: M. Weber, A. Giddens, J. Habermas, Z. Bauman, F. Crespi, J. Alexander, C. Lemert which are cited in the bibliography. See also: A. Giddens & J. Turner eds. Social Theory Today (Stanford: Stanford University Press, 1987) and B. Turner ed., The Blaclcwell Companion to Social Theory (Oxford: Blackwell, 1996). Other important attempts to theorize alternatives to the subject/object distinction have been made by feminists like Sandra Harding and Donna Haraway. 4 9 C . Calhoun, E. LiPuma and M. Postone eds. Bourdieu: Critical Perspectives (Chicago: University of Chicago Press, 1993) at 3 [hereinafter Bourdieu: Critical Perspectives]. In terms of this thesis, this opposition could be framed in terms of the opposition that I have described between a formal legal centralist approach to administrative law and an approach oriented to the practice in a particular area or agency. 25 achieves the desired transcendence of oppositions.50 In his attempt to achieve these objectives, Bourdieu makes extensive use of three concepts: "habitus", "capital" and "field". "Habitus" is an old term used by Aristotle arid the scholastic philosophers but Bourdieu uses it in a specific way to develop a theory of practice which tries to move beyond either objectivism or subjectivism. Bourdieu defines habitus as "a set of dispositions which incline agents to act and react in certain ways. The dispositions generate practices, perceptions and attitudes which are "regular' without being consciously co-ordinated or governed by any 'rule.'"51 The dispositions which make up the habitus are: 1. inculcated through a gradual process of inculcation; 2. structured in the sense that they reflect the social conditions within which they were acquired; 3. durable in the sense that they endure through the life history of the individual and operate in a way that is pre-conscious and therefore not easily subject to reflection and modification; 4. generative and transposable in the sense that they can generate practices in social fields other than those in which they were originally acquired.52 For Bourdieu, the habitus provides individuals with a sense of how to act and to respond to events in their daily lives. It 'orients' their actions and tendencies but does not strictly determine them. He often describes this as a 'feel for the game', a sense of what is appropriate in circumstances and what is not, a 'practical sense'.53 This concept provides a 50See e.g. Bourdieu: Critical Perspectives; D. Robbins, The Work of Pierre Bourdieu: Recognizing Society (Boulder: Westview Press, 1991). A detailed critique is provided in J. Alexander, Fin de Siecle Social Theory (London: Verso, 1995) and F. Crespi, Social Action & Power (Oxford: Blackwell, 1992) at 30-35 discusses the attempts of both Bourdieu and Giddens to transcend this opposition. 5 1 P . Bourdieu, Language and Symbolic Power (Cambridge, Massachusetts: Harvard University Press, 1991) Editor's Introduction at 12. [hereinafter Language and Symbolic Power]. 52Ibid., 12-13. For a more detailed discussion see P. Bourdieu, The Logic of Practice (Stanford: Stanford University Press, 1990) [hereinafter The Logic of Practice]. 5 3Once again I find these metaphors suggestive for the sense that I want to convey of the experiences of legal practitioners within a particular legal administrative field. 26 basis to explain why individuals respond in regular, if not fully predictable ways, even in the absence of any explicit rules. Hence, Bourdieu can speak of a 'logic of practice'. Yet, Bourdieu makes clear that habitus cannot be considered in isolation. When individuals act they always do so in specific social contexts or settings. Bourdieu considers that particular practices or perceptions are created not by the habitus considered in isolation but rather by the relation between the habitus and the specific social contexts or 'fields' within which individuals act. Bourdieu has offered various definitions of a 'field.' What follows is a very general outline of his definition.54 To begin, it is important to understand that the concept is relational not linear: "To think in terms of field is to think relationally" ;55 "We are dealing with a network of relationships that get reduced to linear processes." The term attempts to avoid a fixed, mechanical concept of structure.56 A field is a social space structured with its own laws of functioning and its own relations of force which are particular and relatively autonomous to that field. The structure of a field at any given time is determined by the relations between the positions that agents occupy in the field. Each position is defined by its relationship to all the other elements in the field.57 5 4While 'field' is the most common term Bourdieu uses, he also sometimes refers to such social contexts as 'games' or 'markets.' When these other terms are used they must be understood in the particular sense that Bourdieu has developed for the field and not in terms of game theory or economic theory. They must also be understood in the sense that what is being described is a process to orient a research procedure rather than an abstract formal and static definition. As such, the descriptions and use of the field have varied and evolved over the course of the extensive work done by Bourdieu in various areas and he often refers to them as 'open' definitions which acquire their full meaning and form only by application to a particular context and problem. 5 5 P . Bourdieu and L. Wacquant, An Invitation to Reflexive Sociology (Chicago: University of Chicago Press, 1992) at 96. [hereinafter An Invitation to Reflexive Sociology]. 5 6 P. Bourdieu, In Other Words at 44. The field can be related to a magnetic field or a force field. It is not a mechanical structure: In Other Words at 194. For a similar use of the term force field and a related term constellation, both drawn from the work of Benjamin and Adorno, see Jay and Bernstein, supra note 47.However, Bourdieu distinguishes the social field and a magnetic field: "Sociology is not a chapter of mechanics and social fields are fields of forces but also fields of struggle to transform or preserve those fields of forces." An Invitation to Reflexive Sociology, at 101. 5 7 " At each moment, it is the state of the relations of force between players that defines the structure of the field." Invitation to Reflexive Sociology at 99. 27 The field is dynamic; a change in the agents' positions means a change in the structure of the field. In any given field there is a competition between agents occupying the diverse positions within the field, or attempting to create new ones, for control of the interests and resources (capital) which are specific to the field in question. Agents enter a field with different amounts of capital which they can 'invest' in the contest. The relative positions of the agents within the field are determined by the amount of capital that they possess or acquire and their interrelationships with other positions or agents in the process. The emphasis in study is not on interactions between individuals, but rather on the relationship between positions occupied by agents which can be analyzed independently of the characteristics of the occupant of the position. Any social formation, such as a particular society or state, is made up of a series of fields and sub-fields. Each field is relatively autonomous but still structurally related with other fields within the social formation. Bourdieu summarizes this in the following terms: In analytic terms, a field may be defined as a network, or a configuration, of objective relations between positions. These positions are objectively defined, in their existence and in the determinations they impose on their occupants, agents or institutions, by their present and potential situation (situs) in the structure of the distribution of species of power (or capital) whose possession commands access to the specific profits that are at stake in the field, as well as by their objective relation to other positions (domination, subordination, homology, etc.). In highly differentiated societies, the social cosmos is made up of a number of such relatively autonomous social microcosms, i.e., spaces of objective relations that are the site of a logic and a necessity that are specific and irreducible to those that regulate other fields.58 Although Bourdieu uses the term 'capital' to describe the resources possessed and struggled for by agents within a field , he makes clear that his analysis is not a purely economic one. The economic field, while important, is only one of many fields. Like habitus, capital does not exist and function except in relation to a field. Different fields 58An Invitation to Reflexive Sociology at 96. 28 have different forms of capital which are not always measured by economic criteria. Capital can take different forms - economic, social, symbolic, or cultural - and it exists in different proportions in different social fields.59 It can be transferred from one field to another and it is the product of previous struggles and accumulations. It can also be converted from one form into another. For example, cultural capital in the form of educational qualifications may be converted into economic capital through the acquisition of lucrative jobs. The amount and type of capital possessed by an agent or a 'player' determines "her 'relative force in the game', her position in the space of play, and also her strategic orientation toward the game. "60 For Bourdieu the effects created within a field are not the sum of a series of random actions or the result of a concerted plan. Instead they are the product of a competition within the field for the capital available within the field. The characteristics of the competition are shaped by the nature of the field which in turn is related to the assumptions which are written into the very structure of the field itself.61 The outcome of these competitions can change the relations between the positions occupied by agents who are participating in the competition and this process can change the parameters of the field 5 9It is often difficult to distinguish Bourdieu's use of the term 'capital' from the term 'power' and he sometimes uses them interchangeably although capital is the preferred term. The relationship can be seen in the following quotation: We also have trump cards, that is, master cards whose force varies depending upon the game: just as the relative value of cards changes with each game, the hierarchy of the different species of capital (economic, social, cultural and symbolic) varies across the various fields. In other words, there are cards that are valid, efficacious in all fields - these are the fundamental species of capital - but their relative value as trump cards is determined by each field and even by the successive states of the same field. This is so because, at bottom, the value of a species of capital (e.g., knowledge of Greek or of integral calculus) hinges on the existence of a game, of a field in which this competency can be employed: a species of capital is what is efficacious in a given field, both as a weapon and as a stake of struggle, that which allows its possessors to wield a power, an influence, and thus to exist, in the field under consideration instead of being considered a negligible quantity. An Invitation to Reflexive Sociology at 98. 6 0 A « Invitation to Reflexive Sociology at 99. 6 1 P. Bourdieu, "The Force of Law: Toward a Sociology of the Juridical Field" (1987) 38 Hastings Law Journal 814 at 852 [hereinafter "The Force of Law"]. 29 and the rules of the game themselves. Therefore, while the actions of the agents are structured by the form of the field and the agents' relative positions within the field as determined by their respective volume and type of capital, the outcome of the relations and struggles between the agents can alter the parameters and the form of the field and part of the competition between agents may involve attempts to alter the parameters or the field or the 'rules of the game'. The actions of agents within the field are not generally outcome of conscious calculation of costs and benefits. In the relations between agents within the social field, the concept of habitus is of major importance. As Bourdieu states: The motor - what is sometimes called motivation - resides neither in the material or symbolic purpose of action, as naive finalists imagine, nor in the constraints of the field, as the mechanistic thinkers suppose. It resides in the relation between the habitus and the field which means that the habitus contributes to determining what determines it.62 By virtue of habitus, agents are already predisposed to act in certain ways. Because individuals are products of particular histories reflected in their habitus, their actions can never be analyzed simply as the outcome of an abstract rational calculation. Instead, they are the result of an encounter between the habitus and capital possessed by agents and the social field in which the action is taking place.63 The Juridical Field Bourdieu has applied his work to law. In an article in The Hastings Law Journal, Bourdieu describes the juridical field in the following terms: 62In Other Words at 195. ^Language & Symbolic Power at 17. "To be more precise, the strategies of a "player" and everything that defines his "game" are a function not only of the volume and structure of his capital at the moment under consideration and of the game chances (Huygens spoke of lusiones, again from ludus, to designate objective probabilities) they guarantee him, but also of the evolution over time of the volume and structure of this capital, that is, of his social trajectory and of the dispositions (habitus) constituted in the prolonged relation to a definite distribution of objective chances." An Invitation to Reflexive Sociology at 99. 30 The juridical field is a social space organized around the conversion of direct conflict between directly concerned parties into juridically regulated debate between professionals acting by proxy. It also the space in which such debate functions. These professionals have in common their knowledge and their acceptance of the rules of the legal game, that is the written and unwritten laws of the field itself, even those required to achieve victory over the letter of the law ...Thus, a superior power appears before the litigants, one which transcends the confrontation of private world-views, and which is nothing other than the structure and the socially instituted space in which such confrontations are allowed to occur.64 In his discussion of the juridical field Bourdieu also points out another important feature of the juridical field which is common to all fields: Entry into the juridical field implies the tacit acceptance of the field's fundamental law, an essential tautology which requires that, within the field, conflicts can only be resolved juridically - that is, according to the rules and conventions of the field itself. For this reason, such entry completely redefines ordinary experience and the whole situation at stake in any litigation. As is true of any "field," the constitution of the juridical field is a principle of the constitution of reality itself. To join the game, to agree to play the game, to accept the law for the resolution of the conflict, is tacitly to adopt a mode of expression and discussion implying the renunciation of physical violence and of elementary forms of symbolic violence, such as insults. It is above all to recognize the specific requirements of the juridical construction of the issue. Since juridical facts are the products of juridical construction, and not vice versa, a complete retranslation of all of the aspects of the controversy is necessary in order, as the Romans said, to ponere causam (to "put" the case), that is to institute the controversy as a lawsuit, as a juridical problem that can become the object of juridically regulated debate, [italics in the original]65 Bourdieu sees the juridical field as place of competition between actors who possess a socially recognized technical competence to "interpret a corpus of texts sanctifying a correct or legitimized version of the social world."66 He develops his concept of the juridical field to critique both an internal legal formal perspective which sees law as 64"The Force of Law" at. 831. 65"The Force of Law" at 831-832. 66Ibid. at 817. 31 absolutely autonomous in relation to the social world,67 and an external instrumental perspective which perceives law as a reflection or tool of the dominant groups.68 He tries to show how his approach can account for both the relative independence from external determinations and pressures of legal practice and discourse and the fact that the law always responds to a state of power relations and "the choices which those in the legal realm must constantly make between differing or antagonistic interests, values and world-views are unlikely to disadvantage the dominant forces."69 Bourdieu's essay attempts to achieve this objective through an analysis of the juridical field by studying the social universe (the field) in which law operates and in which judicial authority is produced and exercised. Bourdieu suggests that the logic of the juridical field is the product of two factors: "on the one hand, by the specific power relations which give it its structure and which order the competitive struggles (or, more precisely, the conflicts over competence) that occur within it; and, on the other hand, by the internal logic of judicial functioning which constantly constrains the range of possible actions, and, thereby, limits the realm of specifically judicial solutions."70 Bourdieu looks at the division of juridical labour, the role of legal habitus, the role of juridical language and interpretation, the institution of a juridical monopoly in legal professionals, the power of law in naming where law has a role as "the quintessential form of authorized, public, official speech which is spoken in the name of and to everyone" and as "the quintessential form of "active" discourse, able by its own operation to produce its effects,"71 the relation of law 67Bourdieu uses Kelsen as his ultimate exponent of pure legal theory freed from any social determination. He suggests that this 'formalist ideology' has become the 'professional ideology of legal scholars.' "The Force of Law" at 814. 6 8The example used is Alfhusser and the 'structuralist Marxists'. Bourdieu critiques the metaphor of base and superstructure and the relative autonomy of law as ignoring both the historical conditions under which that relative autonomy emerges from struggles within the political field and the specific form of judicial discourse which contributes to this autonomy. 69"The Force of Law" at 842. 70Ibid. at 816. 71Ibid. at 838-839. 32 and those who practice it to the dominant economic and political powers, and the law as "an intrinsically powerful discourse coupled with the physical means to impose compliance on others... a quintessential instrument of normalization."72 In his conclusion Bourdieu deals with the fact that it is the structure of the juridical field and not the simply the combination of the individual actions taken within the field which creates the effects of the field: But the effects that are created within social fields are neither the purely arithmetical sum of random actions, nor the integrated result of a concerted plan. They are produced by competition occurring within a social space. This space influences the general tendencies of the competition. In turn, these tendencies are tied to the assumptions that are written into the very structure of the game whose fundamental law they constitute - in the case considered here, for example, the relationship between the juridical field and the field of power. Like the function of reproducing the juridical field with its internal divisions, and hierarchies, and the principle of vision and division which is at its base, the function of maintaining the symbolic order which the juridical field helps to implement is the result of innumerable actions which do not intend to implement that function and which may even be inspired by contrary objectives.73 It is open to argument whether Bourdieu succeeds in establishing his stated objective of transcending the debate between legal formalism and instrumentalism. My own conclusion is that while he provides a productive and interesting perspective on the issues, he does not achieve the grand reconciliation or transcendence that he states as his objective. First, Bourdieu understates the sophistication and subtlety of both the formalist and instrumentalist positions which he critiques.74 Second, Bourdieu's analysis is what it claims 72Ibid. at 848. The role of law as an instrument of normalization is also prominent in the work of another French intellectual, Michel Foucault who speaks of disciplinary norms and the internalization of such norms. See M. Foucault, Discipline and Punish: The Birth of the Prison (New York: Vantage Books, 1979) [hereinafter Discipline and Punish]; other relevant works include: "Governmentality" in G. Burchell, C. Gordon and P. Miller eds. The Foucault Effect: Studies in Governmentality with Two Lectures and an Interview with Michel Foucault (Chicago: University of Chicago Press, 1991) at 87 and "Two Lectures" in Power/Knowledge: Selected Interviews and Other Writings 1972-1977, Colin Gordon ed. (New York: Pantheon Books, 1980) at 78 [hereinafter Power I Knowledge]. 73"The Force of Law" at 852. 7 4It is a common enough rhetorical technique to establish a simplified and caricatured image of an opposing position (an academic straw man/woman) in order to refute it. However, I would suggest that 33 to be - a 'sociology'; while this is one perspective, it is relatively general and theoretical in its treatment of the participants in the judicial field and the nature of judicial processes and discourse.75 Finally, this is extraordinarily complex issue and I question whether a grand synthesis is possible. A detailed discussion on this point would require another thesis which would relate and compare Bourdieu's approach to that of other sociologists, philosophers and legal theorists.76 For the purpose of this thesis, the value of "The Force of Law" is that it illustrates Bourdieu's application of his concepts to the juridical field. While my use of the term field is influenced and inspired by Bourdieu's work, I take this as a starting point, a method of looking at a particular problem rather than as a full theoretical model which can be applied without modification. Most of Bourdieu's work which is available in translation, operates at a fairly general, technical and theoretical level.77 Hence he can speak of an economic field, a juridical field, a political field, an academic field, or a field of cultural production. I am interested in a more limited field, what Bourdieu would call a sub-field and I am interested in it from the perspective of a lawyer practicing within the field. I find Bourdieu's work productive but I do not suggest that I use his terms exactly as he would, nor do I approach the study with the perspective or expertise of a sociologist; I am interested in a particular sub-field, the legal most contemporary Marxist and formalist positions take much more nuanced and complex positions than those portrayed by Bourdieu in the article in respect to the issue of law's relative autonomy. 75Hence it is open to some of the same criticisms that I make of formal administrative law. Such a degree of abstraction is difficult to apply in all contexts. 76See supra notes 48 and 50 for references to the work of other sociologists and critiques of Bourdieu in relation to this point. None of these references deal specifically with Bourdieu's work in relation to law. 7 7 I am aware that Bourdieu would take issue with this statement and point to his detailed empirical studies in a broad series of fields. However, many of these studies are not available in translation. Most of the work that I have seen does divide social space into very broad general fields. There is very little work done at a specific agency level. That which there is makes considerable use of technical quantitative sociological methods such as surveys, statistical information, and questionnaires which are in no way part of my approach. Bourdieu makes considerable emphasis on a 'scientific' approach and while his work talks of a balance between an objective structural approach and an individual phenomenological approach, his work weighs heavily toward the structural, objective side. From my perspective, he appears more interested in Grand Theory and overall approaches to social issues and philosophy than he is in the messiness of individual instances. 34 administrative field of these marketing boards, and I wish to focus on legal issues from the standpoint of a lawyer involved in that sub-field as a participant on behalf of the marketing boards. What is suggestive, in Bourdieu's work, and perhaps novel in the context of the present thesis, is the opening that the concept of the field provides in order to look at the complex factors which make up the legal administrative fields in which the Alberta marketing boards operate. The relational and shifting nature of the field captures a sense of the dynamics and interplay of various factors all of which impact on the legal environment in which participants resolve issues. Some of the sense in which I find this most useful is apparent in Bourdieu's discussion of the state. He discounts the notion of the state as "a well-defined, clearly bounded and unitary reality which stands in a relation of externality with outside forces that are themselves clearly identified and defined": In fact, what we encounter, concretely, is an ensemble of administrative or bureaucratic fields (they often take the empirical form of commissions, bureaus and boards) within which agents and categories of agents, governmental and nongovernmental, struggle over this peculiar form of authority consisting of the power to rule via legislation, regulations, administrative measures (subsidies, authorizations, restrictions, etc.), in short everything that we normally put under the rubric of state policy as particular sphere of practices related, in this case, to the production and consumption of housing.78 78An Introduction to Reflexive Sociology at 111. The case that Bourdieu is discussing was an analysis of the role of the state in the economics of housing in France between 1970 and 1980. Bourdieu points out that the forces belonging to both the private sector and the public sector are "sub-universes themselves organized as fields that are both united by and divided over internal cleavages and external oppositions." Ibid, at 112. Thus, although he questions the value of the notion of the 'state' except as 'a convenient stenographic label - but for that matter a very dangerous one,' Bourdieu would define the state as: the ensemble of fields that are the site of struggles in which what is at stake is - to build on Max Weber's famed formulation - the monopoly of legitimate symbolic violence, [internal footnote relating to the state as the source of symbolic power and commenting on the adaptation of Weber's maxim omitted] i.e., the power to constitute and to impose as universal and as universally applicable within a given "nation", that is within the boundaries of a given territory, a common set of coercive norms. Ibid, at 112. 35 By focusing on a particular field in which I have considerable experience, I hope to be able to illustrate a similar dynamic in the operation of its legal administrative field. The concept of habitus is also useful because it provides a means for developing a 'logic of practice' or a 'feel for the game' in relation to the practice of law within this specific field. It is with the notion of a legal habitus conditioned and modified by its relation to this particular legal administrative field that I hope to articulate some of the sense of practice within this area without losing in a minutiae of detail some of the importance of the structures and dispositions created by the impact of formal administrative law in this area. I want to convey some of the 'feel for the game' that is essential in practice in determining what I term "the realm of the possible": the particular range of outcomes which are possible within a particular legal administrative field in relation to a particular issue. However, with the concept of the field and the capital possessed by participants within the field, I want to examine some of the elements which structure the parameters and form of the field and the rules by which the 'game' is played by the participants. In this respect formal administrative law has an important role both directly in structuring aspects of the legal administrative field and indirectly through its influence on the habitus of the participants. I also seek to show how this specific legal administrative field is influenced and must adapt to shifts induced by other broader fields which impact upon it and to which it must relate. Thus, like Bourdieu, I seek to move beyond the arbitrary division between theory and practice and between "lawyers' values" and "administrators' values." I also hope that these concepts and my own experience will enable me to examine these issues from a perspective which can at least partially address two issues: 1. a problem of methodology that is faced in any detailed examination of administrative law within the context of a particular agency; 2. the fact that almost all work in administrative law takes a viewpoint which is 'external' to administration. 36 I propose to deal first with the problem of methodology. A Problem of Methodology I have argued that a significant criticism of administrative law is that it deals with only a very limited portion of the field in that it concentrates unduly on the issue of judicial review and the role of the courts. Furthermore, this approach ignores the nature of the administrative process by focusing too much on the formal administrative law and too little on informal administrative law. Similar criticisms of law as formalistic and process oriented; concentrating on procedure and forms and ignoring the substance of what is happening have been made from a number of standpoints. Whether the criticism is directed from the standpoint of legal realism,79 Marxist legal studies,80 feminist legal studies,81 79See e.g. W. Fisher III, M. Horowitz and T. Reed eds. American Legal Realism (New York: Oxford University Press, 1993) [hereinafter American Legal Realism]. The law in action is emphasized instead of the law in books. Law is what judges and administrators do. See also G. Minda, Postmodern Legal Movements: Law and Jurisprudence at Century's End (New York: New York University Press, 1995