The Enlightenment of Administrative Law: Looking inside the Agency for Legitimacy

Abstract

The discourse over the legitimacy of unelected administration has produced two paradigms. Administrative law scholarship has focused almost exclusively on a rational-instrumental paradigm that seeks to legitimate from the outside in, relying on political oversight, judicial review, and scientific and social methodologies to squeeze the discretion out of public administration. By comparison, public administration scholarship has focused on a deliberative-constitutive paradigm that seeks to legitimate from the inside out, relying on administrative expertise, deliberation, and reason giving to ensure reasonable decision-making. This paradigm accepts administrative discretion both as unavoidable and as necessary.

Besides failing at its own goal of eliminating discretion, the rational-instrumental paradigm has produced rulemaking ossification, bureaucracy bashing, a misunderstanding of the role of science in administration, and a failure to build a comprehensive theory of administrative accountability, one which takes into account both paradigms. Despite these defects, contemporary administrative law scholarship and practice is so deeply enmeshed in rational-instrumental accountability that it is difficult for administrative lawyers to imagine that there is a complementary approach to legitimacy. Yet, the history of administrative law in this and other jurisdictions highlights the significance of the deliberative-constitutive paradigm. In light of the demise of interest group pluralism in rulemaking, and the scholarly dead end in which we find ourselves, it is time to recognize and develop the deliberative-instrumental paradigm.