Sunday, January 22, 2017

Legality's Affirmation

Guest Blogger

David Dyzenhaus

For the Symposium on Adrian Vermeule, Law's Abnegation

My blurb for Law’s Abnegation attests to my admiration of its argument. Before editing by the press, it read: “The administrative state does not fit neatly into any conception of constitutional legal order. For that reason, there are calls from time to time to rid our legal orders of the ‘lawless’ administrative state so that we can return to some pristine era, ruled by the rule of law with judges as its guardians. In this simply and powerfully argued book, Adrian Vermeule suggests that this pristine era probably never existed. But more important is that he shows that the administrative state developed in accordance with an internal legal logic of the US constitutional order.  Legislatures and judges cooperated in ‘working the law pure’ to bring about a legal order in which judges appropriately relegated themselves to the margins of legal order.  Both critics and supporters of the administrative state will learn much from his careful, imaginative and non-polemical analysis.”
Here, I proceed from praise to (I hope) constructive criticism focused on two points crucial to the overall argument of the book: first, the conception of ‘law’ in Vermeule’s account; second, the claim that anything produced in conformity with constitutionally mandated principles is for that reason constitutionally legitimate. If, as I will try to show, Vermeule is vulnerable to criticism on these two points, it is because his main analytical tool is law rather than legality, and moreover a conception of law that at times seems little different from that of his foils who argue that the administrative state is unconstitutional and lawless.
The problem starts with Vermeule’s title: Law’s Abnegation: From Law’s Empire to the Administrative State. To abnegate is to deny, renounce or reject and the thought is that the denial is a self-denial: American public law contained an irresistible internal dynamic that led to the transition from an empire over which law as interpreted by judges ruled to an administrative state in which something quite different is afoot. But when it comes to the question of what is afoot Vermeule is rather ambivalent. Throughout he seems tempted by the implications of a literal understanding of law’s abnegation—that the administrative state is in fact lawless--a realm of arbitrary power, but one that is still constitutionally legitimate because it is the result of ‘principled, properly differentiated decisions reached at the higher level of statutory enactment and delegation’ [73]. If that were right, it would be hard to see what exactly distinguishes his view from the resoundingly affirmative answer to the question posed in the title of a recent book, Philip Hamburger’s Is Administrative Law Unlawful? (2014), despite the devastating review Vermeule wrote of it, and that one of his chapters repeats the essentials of his review. (I should mention that at this point my claim about the ‘non-polemical’ tone of Vermeule’s argument must be taken with a pinch of salt. See, for example, note 51, at 225.)  If anything, the distinction would seem to be about whether the result of a properly authorized procedure is for that reason constitutional, as Vermeule suggests, or whether illegality may be the result of a scrupulously lawful process. (See Hamburger’s brief rejoinder along these lines in “Vermeule Unbound” (2016) 94 Texas Law Review 205, at 209.) 

For a reader educated in the British public law tradition, this debate evokes a palpable sense of déjà vu as Hamburger’s rather naive diatribe will seem little more than an echo from 1929 of The New Despotism by Lord Hewart, Lord Chief Justice of England and Wales. Hewart’s politicking led to the creation of a Parliamentary Commission which reported that the developing administrative state was chockfull of law--legal procedures for producing rules and contesting their application and interpretation. In addition, while the judiciary did not have a central part in these procedures, they retained their constitutional role in checking that the officials of the administrative state stayed within the limits of their delegated authority. Instructive here is the judicial stance later in the century on privative clauses. These are legislative provisions that seek to oust this role in respect of part of the administrative state. But judges refused to take them literally because, although produced in accordance with the formal criteria for enacting valid law, substantively they did have the effect of putting administrative action in some sense beyond the law. Finally, not only is the administrative state staffed in significant part by lawyers, but its officials who are there because of other kinds of expertise are often legally attuned by their training. Consider, for example, the famous ‘The judge over your shoulder’ instruction booklet that the UK civil service provides for civil servants, which in the Preface to the fourth edition of 2006 says:
We have always kept in mind the purpose and target audience of this book. Its purpose is not ‘How to survive Judicial Review’, but rather to inform and improve the quality of administrative decision-making – though, if we are successful, that should have the incidental effect of making decisions less vulnerable to Judicial Review. The target audience consists of reasonably well-informed and interested junior administrators whose task is to make decisions affecting members of the public, or to prepare the material to enable others to make such decisions. []
Far from Hamburger’s cartoon of lawlessness, we have then a picture of an administrative state minutely controlled by law, although its controls cannot be understood in accordance with an image of law’s empire, which has it that the legislature legislates general rules, the executive applies them, and judges check that the application is faithful to the content of the legislated rules. But that image is no less of a cartoon than that of the lawless administrative state. Rather, the law of the modern state has always been a matter of hierarchies of official activity, as legal theorists from Thomas Hobbes to Hans Kelsen have taught.
In a national legal order, at the top is its constitutional law, then its legislated law, then the progressive concretization of legislated law by legal officials, including both judges and administrative officials. The process of concretization is always both creative and controlled. It is creative because every occasion of law application requires intelligent judgment. It is controlled because the appliers must be both formally legally authorized to perform their role and must take account of all those material legal norms that bear on the situation. The scope for creative judgement will vary immensely. Legislators involved in a new area of legal reform will have great creative freedom but are still controlled by the constitutional norms that delegate legislative authority to them and that constrain where pertinent their reform efforts. The apex court of the legal order has less creative scope but still more than its subordinate courts, just as officials who are authorized by legislation to make rules have more freedom than the officials charged with application of the rules to those subject to them. Moreover, the interaction between the courts and the administrative state will be a matter of deliberate ex ante design, constitutional and legislative. But it will also be to some extent, and to great extent in the family of common law legal orders, the product of creative acts of interpretation. Finally, if we conceive of the modern state as a legal order in which there are these hierarchies of authorization and norm concretization, we should also note that interpretations travel from bottom to top as well as from top to bottom. Applications at the coal face of decisions about how the law applies in a particular situation to a discrete individual or group of individuals can result in changes at the level of understanding the content of constitutional norms.
When Vermeule is not engaged in making his more dramatic claims about how law has subverted itself because of its own internal dynamic, and turns to describe the dynamic, the picture we get is not of the lawless modern state in which law does not control, but the complex structure of legality in which, as Kelsen liked to say, law regulates its own production. We do not then have what Vermeule frequently calls the ‘long arc of the law’ but (and this is the title of a manuscript on which I am working) the ‘long arc of legality’. As I have indicated, how that arc manifests itself in a particular legal order at a particular point in time will differ greatly. But as striking to the reader educated in the British public law tradition as the “been here, done that” sense of Hamburger’s intervention is that Vermeule, despite his almost exclusive focus on US administrative law, brings to the fore the most important themes in the development of administrative law in the common law family of legal orders.
In this regard, his book can be fruitfully read with Matthew Lewans, Administrative Law and Judicial Deference (2016). Lewans fully explores for the first time the influence of US legal theory of the 1930s on the development of Canadian administrative law in order to explain why Canadian courts came up with rather different solutions from those arrived at in the UK, in particular the explicit articulation of the appropriate constitutional relationship between the legislature, the courts, and the administration. But perhaps because Lewans need not be distracted in his context to any great extent by claims about the lawlessness of the administrative state,  his account of the internal dynamic is one that sets out the dense structure of legality that emerges once one moves beyond ideology to attention to practice.
My claim here is not that there is some value neutral analysis available. Rather, it is that if one wishes, as Vermeule does, to give an account of the administrative state from the internal point of view of the participants in its legal order, that account will attempt to elaborate the constitutional value structure of legality that animates their efforts. But then we must do more than move from talk of law to legality. We must also see, and this concedes some ground to Hamburger, that formal authorization does not suffice for constitutional legitimacy. As the story of privative clauses tells us, the administrative state must develop along constitutional lines if it is to be a rule of law rather than a prerogative state. And, in my view, Vermeule’s book is best interpreted as a rich contribution to that endeavor.

 David Dyzenhaus is University Professor of Law and Philosophy at the University of Toronto. You can reach him by e-mail at david.dyzenhaus at

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