Theory Of Administrative Process Values

There is no royal road in solution of the questions on the administrative law. Only through the research of process itself, can we fundamentally understand the administrative law. The administrative process weighed heavily, it contains profuse and precious value connotations. However, as far as the entire legal domain or the administrative realm is concerned, studies about the administrative process still rest on the idiographic forms and the phenomena, while the values of the administrative process as a specific legal process are rarely well researched, the theory of administrative process values remains immethodical. This article attempts to carry on the in-depth excavation and the explanation from the perspective of philosophy of law, putting the administrative process values as the pivot of the administrative process researches. For analytical and inferential purposes, the paper makes use of jurisprudence means, such as the value analytical method and the positivism analytical method. By right of these methods, this paper tries to give an account of the essentials of the administrative process, the administrative process value system and sequence, elaborate the independence of process values and the academic principles whereby the administrative process values might self-exist, then to analyze how does the democracy become core value of the administrative process, thorough dissection in multi-level and different perspectives. It is helpful to provide an essential theoretical platform for the practice of the administrative process in our country. Only through understanding the accurate meaning of value, could we overcome the process instrumentalism, thus excavate the administrative process and discover its independent intrinsic values. On all accounts, this paper highlights the verity of administrative process-----the administrative process is the compulsory course of administrative actions, and its fulfillment ends administrative actions, while the administrative body and the private party and other closely related parties are all the subject of the process; the goodness of administrative process-----not only administrative process manifests its legal nature, but has its in-depth moral principle foundations by which the democracy and the just values would be promoted; the aesthetics of administrative process-----programming administrative process in consideration of process length as well as coordinating democratic values and efficiency value perfectly . This paper is altogether divided into four parts, as follows: Chapter One presents a framework for analyzing the discourse and basic research conditions about the administrative process and the administrative process value. This part first enters into the theme of process through a historical survey on the process and the legal process, make clear meanings about "the process", "the legal process", "the administrative process", "the value", "the process value", "the administrative process value"and so on, the core categories in this article, by means of linguistic analytical method. Then launches the analysis of the nature and the essentials of administrative process, and shows the legal and administrative natures of the administrative process. As far as we know, there are many different thoughts or viewpoints about the administrative process and the value, which will also be made some longitudinal reviews and crosswise comparison in the article. The administrative process itself is valuable, and then, expressing some other kinds of values. Objective as the administrative process values are, which means that administrative process must manifest the generally accepted elementary values a legal process should have except its own values. Values of the administrative process already include not only the values the process own itself which is called "process values"or "intrinsic values", but the values that they embodies called extrinsic values. The intrinsic values are the independently fine characters the administrative process own inherently, thiskind of values directly carry and manifest the spirits and the values of law, meanwhile, satisfy people's needs and desires. On the contrary, the extrinsic values often rely on the reflection and embodiment of the substance of the process, which is even exterior and tangible. The values of administrative process vary according to the multifarious needs of people in different periods. The process values viz. intrinsic values should stay its precedence in the sequence of the values of administrative process. Theoretical grounds for the independence of administrative process values and the superior position of these independent values are directly addressed in Chapter Two, through intensive analysis with several perspectives on the dimensionality of constitutionalism, the ethical premise, psychologic and economic origins. This part attempts to explore the roots of the intrinsic values of administrative process, and to affirm the status of process values in administrative process, rather than to discover merely the intrinsic values of administration process. The intrinsic values could be taken into account, and exert their instructional functions in the administrative process, on condition that how these values do become independent, and how they act on process are well proved. Frames of reference are discussed in detail. First, that there is no predefined standards of verity for a justicial process, that coming into existence and justice of a decision can hardly be guaranteed, no other than through specifying the subjective station of process parties, prescribing the participators'rights and duties, making certain the operational modes, channeling the dissension, as well as enlarging the space for rational ponder and free choice, and obviating interference outside the process. The administrative process is not only one kind of process to discover the fact and implement substantive laws, but also a process of value choice and actualization. The selection of process value itself contributes to the soul of procedural justice. Second, that the process values viz. intrinsic values cannot be simply estimated by the results, since it is a virtue in the process'blood. The goodness of administrative process is just opened through its own values. All of the values, especially those lowest moralstandards and the common goodness should be prized in the process. Now that the administrative process is a process about human behaviors, the subject position of individuals should not be overlooked. Human beings are implicit, while the process or values are relative. Researches on the intrinsic values of administrative process are expected exactly to develop the idea of keeping human subjective. The process value is after all the integration of the immanent characters and the exterior temperament of the process. Third, Only a physiological study of administrative process will disclose the process values. Values can be found during the psychological process that administrative process participators are feeling on, moved by and trying to accept the process. Compared with the process instrumentalism that pay more attention on the facts discovery than on intrinsic purpose of process, the theory of process values prefer to attaching importance to process apperceiving as well as problem solving practically and psychologically. What the intrinsic values can facilitate precisely is to endue the substantive standards with some consistency and certainty by exercise of the process. The intrinsic values are more acceptable and helpful to resonate among people, when they have been commented on psychologically. The handicap in communication among process participators could be effectively overcame, if the intrinsic values are well showed in an administrative process. Fourth, we learn from reviewing all sorts of theories of costs analysis of legal process that legal rights are specifically concrete, they reflect the moral rights but cannot include certain moral rights completely. The process provides certain space and scheduling for the activities of process participators, and delimits clear scope for their behaviors, therefore, the processes and the choices are connected. The administrative body and private party holding different interests are always stay in gambling in the relation of administrative law. Some leading factors must be measured in the processes of gambling between rights and powers, such as the relationship between individual interests of private party as well as other closely related parties and the costs of exercising process what the administrative body do expend to carry outadministrative action. The administrative process possesses both outcome benefit and process benefit, as far as the process participators are concerned. To maximize the process benefit is quite demanded in setting of the administrative process, which is to maintain the furthest rationality, and the acceptability of the process, and fully ensure various procedural rights of process participators. Chapter Three focuses on democratic values, mainly on the outlines analysis foundations of the first two chapters. In this part, I will argue that how does the democracy become the core administrative process value. The democracy is one kind of universal value, and it integrates various essential factors like philosophy, politics and society and so forth. At the same time, the democracy goes beyond a question of theoretics or ideas, that it is even an important matter of practice. The democracy gets such-and-such relations to people with diversified manner. The democratic value is the core of the intrinsic values of the administrative process due to the evolution of democratic ideas and its intrinsic idiosyncracy, it manifestes some kind of values come from freedom, equality and fairness etc. Moreover it is one kind of value by which some given matters might be associated and harmonized. As a intrinsic value of the administrative process, administrative democracy has independent character that also conforms to the nature of general administrative action. The democracy is the value attributed to "the introspection"ingredient and the inherent virtue of the administrative process. The democratic values not only can manifest the other process values, but also is suitable for all the sorts of administrative processes, what with its high generalization quality. The democracy includes some values, such as participation, dignity, transparency, equality, rationality and accountability. Here, the value of efficiency is in good harmony with the democracy. Administration without the democracy value will be synonymous with despotism, thus we can say that the democracy should be fundamental characteristic of modern administration. The democracy with which administration is largely concerned calls for the democratization ofadministration. In a sense, democratization of the administrative relations contributes to the chief theme of administrative law as a whole. The administrative process provides necessary opportunity for the exercise of executive powers, by which the rationality and validity of these powers might be well proved, moreover, the resentment and bafflement rose to private party in the course of administrative affairs or services might be eased up and called away. But, the process is rather a course of conversation or argumentation than a catharsis mechanism. And what differentiate the administrative process from other legal processes is mainly attributed to the frequent and extensive conversations between process participators. The conversation is an elementary factor of modern democracy, and during it the intrinsic values of process are manifested, for that the semplice instrumental values or the extrinsic values perhaps need no converse at all. The conversation works as the main form of embodiment and the intrinsic standards of judgment for modern democratic administration, it holds each and every good qualities of the democratic value. Chapter Four is concerned with achievement of administrative process values, and its relation with the advancement of administrative democratization and government by law of our country. This part examines the practice of making Chinese administrative process statute, and then reviews the functions of administrative process and realization of values, with particular reference to reconsideration of the orientation of administrative process values. At first, reflects on the value orientation of administrative process in our country, through carrying on the critique to the administrative process values and current situations of the government by law domestically. It is unavoidable that we are confronted with such a sensitive problem-----the connection between the central objective of a process and some else values, when understanding and achieving administrative process value. And which values should be taken into account in devising and operating the administrative process? How do these values associate with the ultimate purpose or the primary goal? The process is absolutely necessary for theadministrative action, without option, without alteration, and can never be abnegate at discretion. The process values should not be sacrificed even though they collide with those what is called ideal results inevitably. Great conflicts that the administrative process values are likely to face focus on: the conflict between democracy and efficiency, efficiency and fairness, democracy and fairness. The actuality of government by law of our country calls for coordinating democracy and efficiency, to which well attention should be given. The administrative process has its own values, which are independent of the outcomes of the administrative substances, with its peculiar jurisprudence foundations and self-evaluation criteria. To be sure, these process values and criteria should receive certain respect. Although to design a process looks as a simple practical problem, those devised processes might often consume massive costs but miss the anticipative intentions, in case they are not designed scientifically, reasonably, or they overlook giving voice to the intrinsic values of administrative process. The criteria governing processes can be applied accurately to the very process, as long as they are put clearly. However, the process programming is more than practices, that is to say, the processes bound up with kinds of resources that are undoubtedly limited. Meanwhile, diversified criteria based on values in different sequences must adapt well to each other and be properly conciliated, in the competition between various purposes and the values of process. It should be pointed out that the actualization of administrative process values is a system engineering, there is need also for a series of institutional, practical arrangements and safeguards in political, legal and social context.