Maitland's Challenge for Administrative Legal Theory

Abstract

This paper challenges the familiar strategy for theorizing administrative law. Theories of administrative law typically take the existence of administrative bodies for granted, and then ask, all things considered, what moral aim they should serve. The resulting approaches are committed to varying moral aims ranging from the rule of law to efficiency, but converge on the shared idea that the purpose of administrative law is to promote aims that could, in principle, be realized apart from it. As a critical matter, this paper argues that the familiar strategy opens the door to a devastating skeptical challenge. Because the benefits that administrative law brings can, in principle, be realized without it, administrative law may be rightly abandoned. As a constructive matter, this paper defends the idea that administrative law has a moral purpose that is inseparable from it: administrative law constitutes the exclusive means of realizing what positive rights demand.