Edited by Susan Rose-Ackerman and Peter L. Lindseth
Chapter 6: Administrative State Socialism and its Constitutional Aftermath
Kim Lane Scheppele The temple of bourgeois authority is legislation and its fetish is the law; the temple of the socialist world system is administration and its divine service is work. It is by no accident that the political ideals of the bourgeoisie are embodied in parliamentarism and the Rechtsstaat, whereas, the socialist community is, in its very nature, primarily a community of administration. (A.G. Goikhbarg, quoted in Quigley 2007: 55)1 The usual narrative about the rise of the administrative state seems universal – and runs as follows. Modern states do a great deal more than did pre-modern states. A great many of these new functions are highly technical in nature. They are so technical, in fact, that generalist parliaments cannot possibly write statutes detailed enough to provide precise and responsive guidance in all of the areas where states now act. To do all of the things that modern states do, therefore, there must be a division of labor among constitutional norms of the most general sort that provide the horizons of principle and procedure, legislative norms of intermediate generality that set general policy in specific fields and regulatory norms that provide the detail necessary for actual day-to-day governance. The administrative state is the result of the growth of norms in this last category. Over time, regulation has increased in scope and complexity, so that the historical sweep of administrative change always moves toward an ever-increasing density of administrative regulation and administrative governance. The challenge for modern administrative law is...
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