Illiberalism and Administrative Government

Law and Illiberalism, eds. Austin Sarat, Lawrence Douglas, and Martha Merrill Umphrey (University of Massachusetts Press, 2022), 62-77.

16 Pages Posted: 13 Jan 2023 Last revised: 18 Jan 2023

See all articles by Jeremy Kessler

Jeremy Kessler

Columbia University - Law School

Date Written: February 18, 2022

Abstract

Driven by the perception that liberal democracy is in a state of crisis across the developed world, political and legal commentators have taken to contrasting two alternatives: “illiberal democracy” (or populism) and “undemocratic liberalism” (or technocracy). According to the logic of this antinomy, once an erstwhile liberal-democratic nation-state becomes too populist, it is on the path toward illiberal democracy; once it becomes too technocratic, it is on the path toward undemocratic liberalism. What is the relationship between this discourse of liberal democratic crisis and debates about the legitimacy of administrative government?

This essay argues that illiberal democracy and undemocratic liberalism are most usefully understood as expressions of the desire to overcome the alienations that constitute administrative government, and to resolve the internal conflicts among political representatives and technical experts that come to preoccupy that mode of governance. Meanwhile, actually existing liberal democratic societies are so dependent on administrative government that they cannot help but become identified with it, their ideals compromised by it. While administrative government need be neither fully illiberal nor fully antidemocratic, its very effort to embody liberal and democratic values tends to distort those values, and to accentuate their contradictions. To the extent that defenders of administrative government ask us to accept unconvincing and ineffective proxies for liberalism and democracy as the things themselves, they feed the desire for less alienating and contradictory — if often more unjust — alternatives.

Keywords: Administrative Law, Public Administration, Legal Theory, Political Theory, Law & Political Economy

Suggested Citation

Kessler, Jeremy, Illiberalism and Administrative Government (February 18, 2022). Law and Illiberalism, eds. Austin Sarat, Lawrence Douglas, and Martha Merrill Umphrey (University of Massachusetts Press, 2022), 62-77., Available at SSRN: https://ssrn.com/abstract=4037869

Jeremy Kessler (Contact Author)

Columbia University - Law School ( email )

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