Edited by Susan Rose-Ackerman and Peter L. Lindseth
Chapter 2: Explaining Administrative Law: Reflections on Federal Administrative Law in Nineteenth Century America
Jerry L. Mashaw Historians of administrative law, including several contributors to this volume, address the same general question: What explains the emergence of a ‘law of administration’ in its various forms across different nation states? While hardly objecting to alternative accounts, scholars emphasize a number of different factors. Bernardo Sordi’s chapter stresses particular constitutional and ideological consequences in the historical development of certain leading nations (notably, France, Germany, and Britain). In Sordi’s presentation, these developments do much to explain the emergence of a specifically public law governing ‘administrative acts’ of the state, distinguished from the evolving realm of private law, both ancient and modern. John Ohnesorge, while certainly acknowledging the significance of these national contributions (notably that of Germany, along with that of the United States), also suggests the importance of timing or staging of developments in particular economies and in a nation’s political organization and political ideology. Nicholas Parrillo pays particular attention to pragmatic adjustments in administrative forms that ultimately coalesce – or fail to coalesce – into a new paradigm of governance that becomes distinctive to a nation’s administrative arrangements. And moving beyond historical perspectives strictly speaking, Elizabeth McGill and Daniel Ortiz focus on constitutional structure and critique positive political theory by showing that it cannot explain the prevalence of active judicial review in Europe’s parliamentary systems. These chapters, plus the discussions at the conference of which they were a part, considered the steady growth of state activity and its proliferation into new domains. As the state grows, administrative law...
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