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. [https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/256111/judge.pdf]
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 utoronto.ca