Administrative Unlaw?

This is not a court.

I recently read a newish book by Philip Hamburger called Is Administrative Law Unlawful? (Chicago: University of Chicago Press, 2014). The book is one in an ever-growing genre of roughly libertarian legal studies that defend a position that public law (in most cases specifically “administrative law”) as it is practiced today is either (i) degenerate law, or (ii) not really law at all. Usually these claims go along with an implicit or explicit claim that only the common law is “real” law — along with the US Constitution (as interpreted by originalists), if the writer happens to be American.

The genre is not a new one. I have more than once in this blog cited Lord Bury’s The New Despotism (1929) with approval. And I openly admit to being in sympathy with the idea that state action, in the guise of “administrative law”, tends towards overexpansion and poses a threat to liberty. However, when one descends to details, it is more difficult to say why administrative law is so different from other kinds of law in a way that makes it more dangerous/ illegitimate/ arbitrary or less law-like than common law and constitutional law.

Often it is argued that administrative law is a creature of executive power, and hence dangerous. But in a sense all law is the creature of executive power, at least insofar as laws require an executive for their enforcement. When the executive decides to neglect the enforcement of laws duly passed, this too is a form of arbitrary “tyranny” in which the executive usurps authority from the legislature. And yet this phenomenon curiously gets ignored by libertarians, though it happens all the time. My point is that, upon reflection, it is not always easy to draw a nice clear line between “executive” and “legislature”.

Similarly, it is also often argued that administrative law is undemocratic, because law-making power gets delegated to administrative bodies that are unelected. This may be true. But the argument loses some of its bite when we consider that the body doing the delegating is an elected legislature, and that the bodies to whom it is delegated are themselves created by that elected legislature. As such, administrative law clearly has at least some connection to a democratic process. And in theory it is always open to that democratic legislature to reverse the process, either dissolving such administrative bodies or taking back the law-making powers it delegated. (Of course, the public choice theorist in me recognizes that it is rarely that simple in practice.)

Furthermore, consider this: If it was a mistake for the elected legislature to have created such administrative bodies or to have delegated law-making authority to them, then who is to blame for this evil? Clearly the elected legislature. Which perhaps ought to make us wonder why we should hold these elected legislatures in such reverence.

Clearly articulating what is bad about administrative law is not as easy as many libertarian types would have us believe. I would like to present two more illustrations of this point, drawn from claims in Hamburger’s book.

At page 50, Hamburger notes that “extralegal legislation [i.e. administrative law] did much to provoke the development of constitutional law”. This is a historical claim. The point he is getting at is that what he calls “constitutional law” — but what I would prefer to call “constitutionalism” in order to sidestep the thorny issue of what exactly counts as “law” — arose as a defensive reaction to executive encroachment (think here of old King John at Runnymede or George III enforcing his horrific three penny tea tax at the point of redcoat bayonets.)

Hamburger’s point here raises a problem for his own larger position: If constitutional law arose as a reaction to administrative law, then the latter predates the former. Administrative law certainly predates any particular constitution that Hamburger is talking about — at least given his narrow definition of “constitution” as a form of government resulting from consent/agreement of the people (see p. 44). And yet throughout his book he relies on constitutional legal thought to undercut administrative law. He expects us to take for granted that the US Constitution acts as some kind of trump wherever it runs up against a practice, while he hasn’t really even bothered to defend this position. He is therefore begging the question. You can’t argue for the primacy or normative authority of constitutional law over administrative law by simply assuming the primacy of constitutional law. This is especially the case where it is open for one to argue at the very least that (i) administrative law is in many cases expedient and useful, and (ii) as a kind of law-making authority it pre-existed constitutional law.

However, to my mind, there is a deeper flaw in Hamburger’s book, and in most books like it. Hamburger has a tendency to slip back and forth between constitutional law and common law as if they’re somehow synonymous. They are not (especially, again, given his narrow view of “constitution”). There is almost nothing in the US Constitution that an Englishman living in the Middle Ages (the heyday of the common law) would find intelligible.

As it stands, this would just be a criticism about his loose use of language. But it has deeper ramifications. Hamburger offers a potted history of administrative law and its relation to common law and the rise of  constitutional law that is very selective, to say the least. For one thing, it only really covers developments from the Tudors on. This is problematic, because if he were to go further back, for example if he were to read Pollock and Maitland on English law before Edward I, he would find that the common law itself is mostly a creature of administration: the common law system of courts, etc. was created by the executive to solve administrative/ governmental problems. And what was the exchequer court but an administrative body? Yet it was considered a common law court. Therefore, historically, common law is (or at least was) administrative law.

The very term “common” law derives from the fact that it was the law as applied in all the King’s courts across the land, in what was a blatant usurpation of the local authority of his barons. In that sense the introduction of the common law was possibly the most audacious and far-reaching encroachment of state power in the history of the English-speaking peoples.

One might also mention the history of the Court of Chancery. In certain kinds of cases where it was found that the common law could provide no remedy or would work palpable injustice, appeal could be had to the Lord Chancellor. Now the Chancellor was an administrator par excellence, a minister appointed by and serving at the pleasure of the King, and to whom the King had delegated authority to grant remedies not otherwise available — to in effect make law. Would Hamburger therefore wish to say that equity (the law administered in the Court of Chancery) was mere administrative law, or that for that reason it was not law at all? If so, then we would have to jettison such areas of law as trusts and wills, and such remedies as injunctions and specific performance, which originated in Chancery. The simple fact is,

In the beginning, all law was administrative law.

And perhaps it is still so to a greater degree than we care to imagine.

Finally, Hamburger’s focus on post-Tudor developments leads him to overplay the role of Parliament (and hence elected legislatures) in the creation of law. In the first formative period of the common law, “parliament” would largely have consisted of what we call the House of Lords, in which there was no popular representation or participation. Even a little later, when the commons were allowed some representation, Parliament was essentially an advisory body, not a legislative one. Does that mean that there was no such thing as law in England before the struggles of the 17th century? Or that there was no constitution? The claim would be absurd, but it follows from just about everything Hamburger is arguing in this book.