A Road to Redemption? Reflections on Law & Leviathan
Forthcoming in: Heidelberg Journal of International Law 82 (2022)
18 Pages Posted: 1 Mar 2022 Last revised: 15 Mar 2022
Date Written: February 23, 2022
Following a trajectory similar to most (Western) constitutional systems, US administrative agencies have exponentially grown in power and scope during the twentieth century. As such expansion has often taken place with weak legal bases and, more generally, thin congressional oversight, this situation has triggered a highly heated debate within US legal-political debates on the legitimacy of the so-called administrative state. In their book ‘Law & Leviathan’, Cass Sunstein and Adrian Vermeule advance a proposal to settle ‘long-continued and hard-fought contentions’, offering a defence—a redemption—of the administrative state. They aim to individuate a common framework—already emerging from the practice of US courts—based on a set of procedural principles inspired by Lon Fuller’s conception of law’s inner morality.
This review argues that ‘Law & Leviathan’ is a useful source to learn about the current state of US public law discourse. The reader can find an interesting mapping of concerns and solutions related to developments which—to different degrees and under various labels—have taken place in most Western constitutional systems, as well as within the institutional structures of global governance. Beyond that, however, the book shows significant limits, which can be grouped under three headings: self-referentiality, use of the concept of ‘legitimacy’, and instrumental redirection of Fuller’s ‘morality of law’. The paper also puts the book in the broader context of the authors’ respective intellectual trajectories, showing how the reviewed book fits within the respective agendas.
Keywords: Comparative constitutional law, administrative state, legal theory, legitimacy, Lon Fuller, morality of law, libertarian paternalism, common good constitutionalism, Cass Sunstein, Adrian Vermeule
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