Democracy and Administrative Legitimacy
David J. Arkush
University of Richmond - School of Law
June 1, 2012
Wake Forest Law Review, Vol. 47, 2012
This Essay examines the three ideals that underlie most models of administrative legitimacy — the rule of law, sound public policy, and democracy — as well as their associated models of administration, and it argues that administrative legitimacy efforts are best focused on the democracy ideal. Reforms guided by the rule of law and public policy ideals have far less potential to contribute to administrative legitimacy for two reasons: there is little evidence that the ideals are underserved in present administration, and each ideal suffers from deep conceptual problems that inherently limit its contributions.
Reforms driven principally by the democracy ideal also have fallen short. Indeed, unlike the rule of law and public purposes ideals, there is evidence that the democracy ideal is underserved by present administration, which suggests that progress in realizing the ideal could enhance legitimacy. In addition, unlike the other ideals, the most prominent challenges for realizing the democracy ideal are matters of practical design, not flaws in the ideal’s very conception. This analysis suggests that it may be possible to make administration more democratic and that doing so should be the most fruitful path to improving administrative legitimacy.
Number of Pages in PDF File: 16
Keywords: administrative law, legitimacy
Date posted: June 2, 2012 ; Last revised: October 30, 2012