At the level of political theory, my book, Is Administrative Law Unlawful?, questions the usefulness of the notion of rule of law. This amorphous principle has been used by some commentators, such as Richard Epstein, to critique administrative power, but more typically it has lent itself to justifications of this sort of power. And this should be no surprise, for much administrative power has statutory authorization, and it therefore is not obvious that it violates the rule of law.
What more clearly is at stake in administrative and other extralegal power is the principle of rule through law (or, if you prefer, rule by law). As explained by my book, absolute power in the 17th century was an attempt to rule outside the law, and, in response, constitutional law (both in England and America) was framed as a means of imposing rule through law, including rule through the regular courts. Precisely to preclude rule by prerogative or administrative edict, constitutional law placed lawmaking power in a legislative body and judicial power in courts, thereby allowing only rule by law.
Unfortunately, however, ideas about rule of law have increasingly displaced the ideal of rule by law. And this was not unconnected to the rise of administrative power. Nineteenth-century Germans lived in states that had shifted almost seamlessly from prerogative to administrative power, and when 19th-century German liberals worried about this power, they called for a Rechtsstaat. The strong version of a Rechtsstaat moved at least partially in the direction of rule through law. But when German liberals in the mid-19th century realized that they could not achieve even this, they eventually contented themselves with a weaker version of a Rechtsstaat, in which administrative power would at least work through rules and other regularized means that roughly resembled law. This mattered for Anglo-American ideas of the rule of law, because in the 19th and 20th centuries, when Anglo-American legal scholars studied German scholarship on the Rechtsstaat, they acquired academic foundations for concluding that administrative power was consistent with the rule of law.
The confusion surrounding the rule of law is so serious that this principle is not a useful tool for understanding administrative power. As some philosophers have recognized, this principle is so weak, it leaves room for a wide range of profoundly oppressive modes of government.
It therefore is time to return to the principle that underlay the development of constitutional law: rule through law. This was the foundation on which the English constitution was understood to preclude prerogative power, and this was what the U.S. Constitution accomplished by placing the different powers of government in different branches. Nowadays, the ideal of rule through law is a valuable foundation for understanding how the U.S. Constitution bars administrative power. More generally, it is valuable for understanding an alternative vision of government to that which currently prevails.
In this, my concluding post, I want to thank Eugene for allowing me to guest-blog my book, Is Administrative Law Unlawful?
Overall, my book shows that administrative law is a form of extralegal power, and it thereby revives prerogative power — indeed, what used to be understood as absolute power. It thereby also shows that this was the sort of power that provoked the development of constitutional law. Thus, far from being a modern sort of power that the Constitution could not have anticipated, administrative power is an old and familiar power that constitutional law systematically repudiated.
Sadly, administrative power is not just a modern development. Instead, it appears to be a recurring phenomenon — a part of the long-standing tension between absolute power and government through law. Repeatedly over the past thousand years, rulers have attempted to exercise binding power, legislative and judicial, not merely in a regular manner through the law and the courts of law, but also irregularly, through prerogative or administrative commands.
Magna Carta already took a stand against this sort of power. The 1354 and 1368 due process statutes even more emphatically barred it. But English kings persisted in exercising extralegal power until, in the 17th century, the English adopted constitutional ideas to put an end to this danger. Similarly, American constitutions barred extralegal power. Nonetheless, it has come to back to life.
The tendency toward extralegal power thus seems to arise not from the nature of modern society, but from the nature of human beings, who always seek more power, if not through law, then outside the law. This is an old danger, and the long history of the common law over the past thousand years has consisted of repeated efforts to beat back this threat by establishing rule through law.