Edited by Susan Rose-Ackerman and Peter L. Lindseth
Chapter 7: Written Constitutions and the Administrative State: On the Constitutional Character of Administrative Law
Tom Ginsburg Administrative law is the poor relation of public law; the hard-working, unglamorous cousin laboring in the shadow of constitutional law. Constitutional law, it is generally believed, resolves the great issues of state and society, while administrative law, in its best moments, merely refines those principles for dealing with the administrative state. Law students flock to constitutional law classes, of which most law schools have three or four in the curriculum. The same students enroll in administrative law with a sense of obligation, as if the subject is a chore one has to manage. The two fields are, of course, intimately related, and share an overarching purpose of managing the relationship between state and citizen, with an emphasis on protection of the latter in democratic states. On the other hand, the fields reflect different legal sources and modalities. In some countries, they are adjudicated by entirely different courts. While constitutional law is becoming ever more comparative, with judges regularly citing each other’s opinions, administrative law remains bound to the nation state. This chapter makes three arguments. First, it argues that the conceptual division between administrative and constitutional law is quite porous, and that along many dimensions, administrative law can be considered more constitutional in character than constitutions. Second, it shows that written constitutions do relatively little to legally constrain the administrative state. Rather, their role is to establish the broader structural apparatus of governance and accountability, in which the bureaucracy is the great unspoken. This leaves administrative law as...
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