The legitimacy of US administrative law and the foundations of English administrative law: Setting the historical record straight

Administrative law is rightly regarded, together with constitutional law, as one of the twin pillars of public law. This is equally true for civil law regimes as it is for those grounded in the common law. The conceptual and normative foundations of administrative law should be examined with care, in the same way as for any other body of legal doctrine. Philip Hamburger recently posed a provocative challenge to administrative law in the USA, as attested to by the title to the book, which asks whether administrative law is unlawful. His thesis is grounded in English administrative law, as it developed in the seventeenth century and eighteenth centuries, when lawyers in the American colonies would have been familiar with it. Indeed this analysis occupies approximately half of the book. It is perfectly legitimate for Hamburger to pose searching questions concerning the legitimacy of administrative law. It is by the same token equally fitting to subject this analysis to close critical scrutiny, which is the purpose of this article. This is more especially so given that there is much that is imperfectly understood about English doctrinal history in this area, and the misconceptions in this respect bear analogy to those revealed in Jerry Mashaw’s seminal work on the foundations of US administrative law. The ensuing analysis does not consider the fit between Hamburger’s argument and modern US administrative and constitutional law. There has been valuable literature on this by those better versed than I in such issues, and I agree with their arguments. What follows is directed towards the central parts of Hamburger’s thesis that are built on English administrative law. It will be argued that his thesis is misconceived, and does not represent the reality of this law in the seventeenth century or thereafter, with which American colonists might have been familiar. The argument presented below is also of more general relevance, since it will be shown that Hamburger’s thesis is predicated on certain conceptual distinctions that are untenable.