Written Constitutions and the Administrative State: On the Constitutional Character of Administrative Law
University of Chicago Law School
October 24, 2010
COMPARATIVE ADMINISTRATIVE LAW, Susan Rose-Ackerman, Peter Lindseth, eds., Edward Elgar Publishing, 2010
U of Chicago, Public Law Working Paper No. 31
This forthcoming book 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. Administrative law is more enduring and at least as constraining as are 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 a relatively free-standing field characterized by great flexibility and endurance, features that are usually thought to be more embodied in constitutions. Third, the chapter concludes that the exercise of comparison helps to expose the limits of written constitutions, and to call for greater attention to comparative administrative law as a feature of the unwritten constitution of nation states.
Number of Pages in PDF File: 12working papers series
Date posted: October 25, 2010 ; Last revised: November 19, 2010
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