15
The New Architecture of Public Law
The modern state stands as a representation of the people and, in light of its
democratic foundation, is placed in the service of the people. Since the state now
concerns itself with whatever appears to hold humans together as a collective
association, its governing institutions have become highly intricate. This modern notion of the state has grown alongside the emergence of civil society, conceived as a sphere of individual autonomy and energy. Although the relationship
between society and government is a factor which shapes the way the state is
conceived, the rise of civil society does not lead to the decline of government.
Since the workings of markets and individual action possess the power to destroy
as well as create, such operations stand in need of regulation by government. For
government to realize these responsibilities, an extensive administrative apparatus is needed: the modern state becomes an administrative state.
In the name of promoting security, liberty, and prosperity, modern governments
have greatly expanded the range of their activities. They now assume responsibility not only for providing order and security but also for furthering economic
and social development, managing the economy, and providing for the welfare of
their citizens. This extension in role has resulted in government acquiring a large
and sophisticated administrative apparatus. With this growth in administrative
power, the efficacy of conventional constitutional checks is placed in question.
Under these conditions, the traditional Prussian adage that ‘freedom depends
much more on administration than on constitution’ is given a renewed force.¹ But
what impact does this extension of the administrative powers of government have
on constitutional arrangements? This chapter examines legal and institutional
responses to the establishment of administrative regimes of government and considers their implications for conceptualization of contemporary public law.
I. The Emergence of Administrative Law
The growth of the administrative powers of government has been accompanied
by the emergence of a new legal categorization, that of administrative law. From
¹ BG Niebuhr (1815), cited in Leonard Krieger, The German Idea of Freedom (Chicago:
University of Chicago Press, 1957), 217.
436
The New Architecture of Public Law
the outset, administrative law has remained an ambiguous and controversial concept. One reason is that its establishment in continental Europe—especially in
Prussia, Austria, and later in France—was pioneered by authoritarian regimes.²
These origins have given administrative law, understood in a continental sense,
a distinctive identity. The commonality of its features enables us to treat continental administrative law as a single system, albeit one with particular national
variants.
Two preliminary points concerning the characteristic features of this continental system of administrative law might be highlighted. The first is that during
the construction of the authoritarian state the judiciary became absorbed into
the general system of government. That is, notwithstanding their special role,
judges were treated essentially as servants of the state: the judiciary was perceived to be performing dispute-settlement functions within a unitary official
system.³ Secondly, it was determined that within this unitary system the task
of enforcing regulations and ordinances relating to administrative action did
not lie within the competence of the ordinary courts.⁴ This decision reflected
the Cameralist position that the exercise of the police power is a non-juridical
type of regulation, one that sought to maintain disciplinary rather than legal
order.⁵ Over time, these administrative procedures did become standardized
and Cameralist principles came to be influenced by legal values. By this stage,
however, a distinct administrative jurisdiction had developed and eventually a
separate system of administrative law, running parallel with the regular civil
courts, was formed.
The emergence of this separate system of administrative law is thus tied to the
processes of modernization, rationalization, and centralization. Since the authority of the judiciary had traditionally been associated with the (feudal) ordering of
estates, the policy of removing administrative questions from the jurisdiction of
the courts and placing them under the control of special administrative bodies
became a central plank of the modernizing movement of enlightened absolutism.
‘The victory of the king over the estates and of the administrator over the feudal judiciary’, notes Friedrich, ‘also constitutes the victory of centralizing forces
over local powers’.⁶ This centralizing and modernizing movement, it must be
² This is not merely circumstantial. As Hume noted: ‘All absolute governments must very much
depend on the administration; and this is one of the great inconveniences attending that form of
government’. See David Hume, ‘That politics may be reduced to a science’ in his Political Essays
Knud Haakonssen (ed) (Cambridge: Cambridge University Press, 1994), 4–15, 5.
³ In Prussia, the influential figure was Samuel von Cocceji (1679–1755) who, under Frederick
William I and Frederick II, incorporated the courts into the centralized administrative system: see
Carl Joachim Friedrich, Constitutional Government and Politics, Nature and Development (New
York: Harper, 1937), 88–90.
⁴ See in particular the decree of 1748 of Frederick II maintaining that public law issues should
not be brought before the regular courts: Friedrich, ibid, 90.
⁵ See above ch 14, 422–429.
⁶ CJ Friedrich, ‘The Continental Tradition of Training Administrators in Law and
Jurisprudence’ (1939) Journal of Modern History 129–148, 142.
I. The Emergence of Administrative Law
437
emphasized, was not placed in the service of arbitrariness. Once this victory had
been achieved, new legal methods of regularizing official action were devised.
These methods were set in place during the latter half of the eighteenth century
and once these reforms had been set in place ‘the force of law could be enlisted on
the side of the central administration and its claims’.⁷ The result was the creation
of a new type of law, a system of administrative law. Administrative law was a
product of governmental modernization.
Th is system of administrative law was strengthened by improving the professional training of government officials. The fi rst stage of this process had
been realized by promoting training in the Cameralist principles of efficient
resource management. But once administrative procedure had been regularized, it became evident that legal knowledge was an essential component of
competent administration.⁸ Here we find the origins of the lawyer-civil servant, a bureaucratic type that occupies a predominant position in the official
service of continental European regimes. The lawyer-administrator is the
product of enlightened absolutism, and in particular the policy of promoting
modernization through the formation of a centralized and rational administrative system. In this type of system, rulers express their will through law,
and lawyer-bureaucracies become the medium through which that will is
efficiently and impartially executed.⁹ Bureaucracy thus emerges as a key element of rationalization and modernization in government. And eventually it
becomes a foundational element not only of a new architecture of government
but also of public law.
The growing importance of bureaucracy in modern government is a major
theme of Weber’s investigations.¹⁰ Weber argues that bureaucratization of government ‘is everywhere a late product of historical development’ and that ‘since
bureaucracy has a “rational” character, with rules, means-ends calculus, and
matter-of-factness predominating, its rise and expansion has everywhere had
“revolutionary” results’.¹¹ Weber identifies six key characteristics of modern
bureaucracy:
⁷ Ibid.
⁸ The reforming Prussian monarchs had been first to require official training but they had a distaste for lawyers, seeing in them ‘troublesome and irritating formalists who inclined to split hairs
where common sense gave an obvious indication of what was substantive justice’ (Friedrich, ibid,
143). The first to require legal training were the Austrians: ‘Austria, in an effort to legalize administration, soon adopted the practice of written recording for all important work. These so-called
“protocols” gave a decided advantage to the legally trained official and soon led to the requirement of “legal” education for the higher officials. Since any man could enter a complaint against
a governmental act on the basis of its conflict with codified law, it is evident that knowledge of
these codes became a conditio sine qua non for effective administration. We consequently find new
courses being offered in the universities after 1774’ (Friedrich, ibid, 144).
⁹ It is in this sense that the Rechtsstaat emerged in post-1848 Germany ‘as an ambiguous
compromise between liberalism and monarchical authoritarianism’: see above ch 11, 319–320.
¹⁰ Max Weber, Economy and Society: An Outline of Interpretive Sociology Guenther Roth and
Claus Wittich (eds) (Berkeley: University of California Press, 1978), vol 2, ch 11.
¹¹ Ibid, 1002.
438
The New Architecture of Public Law
(i) Official tasks are ordered by rules (laws or administrative regulations),
allocated into functionally distinct spheres, and are undertaken on a regular
and continuous basis.
(ii) Offices are arranged hierarchically, through a clearly established system of
super- and sub-ordination in which lower offices are supervised by higher
offices.
(iii) Offices are based on a clear public-private distinction and discipline in work
is maintained through production of written documents and files.
(iv) Administration presupposes thorough training in a field of specialization.
(v) Administration requires the permanent, full-time working capacity of
officials.
(vi) Administration works in accordance with general, stable and comprehensive
rules which can be learned. Knowledge of these rules, which are both legal
and administrative, is a special technical expertise which officials possess.¹²
These characteristic features of bureaucracy can also be used to specify the
essential elements of a system of administrative law. Administrative law thus arises
because of the allocation of governmental tasks to a permanent staff (v), organized into functionally distinct spheres (i), and working in accordance with general,
stable, and comprehensive rules (vi). This system of administrative law evolves
through the medium of lower administrative tribunals being integrated under the
supervisory jurisdiction of a higher administrative court (ii), a movement which
relies on the skills of a specialized judiciary that possesses direct knowledge of the
administrative process (iv). This system of administrative law generally operates by
way of review of the documentary record (iii). As Weber notes: ‘Precision, speed,
unambiguity, knowledge of the files, continuity, discretion, unity, strict subordination, reduction of friction and of material and personal costs—these are raised
to the optimum point in the strictly bureaucratic administration’.¹³ Similarly,
these are the qualities that a system of administrative law must promote.
These German practices, developed in eighteenth century, were built upon in the
construction of the French system after the Revolution. Under the Ancien Regime
the lack of co-ordination between the executive and judicial branches, and especially the slow and costly nature of the latter, had caused serious friction.¹⁴ After the
Revolution, a new system was devised. Adopting Montesquieu’s theory that liberal
government rested on the separation of legislative, executive, and judicial powers,
the revolutionary leadership established a system under which the administration
was able, without restriction, to fulfil the tasks entrusted to it. This arrangement
prohibited any interference by the judiciary in the conduct of administration.¹⁵
¹² Ibid, 956–958.
¹³ Ibid, 973.
¹⁴ L Neville Brown and John S Bell, French Administrative Law (Oxford: Oxford University
Press, 4th edn, 1993), 22–23.
¹⁵ Law of 16–24 August 1790, Art 13: ‘Judicial functions are distinct and will always remain
separate from administrative functions. It shall be a criminal offence for the judges of the ordinary
courts to interfere in any manner whatsoever with the operation of the administration, nor shall
I. The Emergence of Administrative Law
439
The administration of post-revolutionary France ‘was thought of as a separate
machine, independent of both legislature and the “ordinary” judiciary’.¹⁶ Except
for a complaint procedure, it left the citizen without an avenue of independent
review. This deficiency was resolved only with the gradual emergence during the
nineteenth century of the Conseil d’Etat as an independent administrative court.¹⁷
Once established, the administrative court system could be seen to possess distinctive advantages: its hierarchical structure offered a relatively accessible and
inexpensive means of administrative redress; its judiciary developed a technical
competence that could not be expected of the ordinary judiciary; its un-codified
character (unusual in civil law) meant that this administrative jurisdiction was able
to evolve incrementally, in accordance with experience; and its position within the
administration helped to place legal values more securely within the administrative
process and more effectively to shape the general character of the administration.¹⁸
Once set in place, this system of administrative law was adopted by many
European regimes. Enriched by his study of the methodology of the French system of droit administratif, Otto Mayer in the 1890s produced the classic work on
German administrative law. Mayer’s work quickly acquired a status similar to
that achieved by Laband in constitutional law.¹⁹ It established the ‘modern legaladministrative method’ of the German system.²⁰ Reforms in other European
regimes followed, together with scholarly reconstruction, so that by the latterhalf of the nineteenth century a relatively uniform system of administrative law
existed.²¹ This development saw lawyers placed in a central role in the administrative systems of modern government, though it might be noted that their training in public law, which incorporated studies in political science, economics, and
public finance, entailed a much broader understanding of the range of juristic
inquiry than that which existed in the common law tradition. The adoption of
this legal-administrative method in turn helped to shape the architectural form
of modern government.
they call administrators to account before them in respect of the exercise of their official functions’
(cited in Neville Brown and Bell, ibid, 43).
¹⁶ Ibid, 23.
¹⁷ Ibid, 42–47.
¹⁸ One illustration of the latter is the way in which the doctrine of proportionality has been
developed by the French administrative courts: see ibid, 218–220.
¹⁹ Otto Mayer, Theorie des französischen Verwaltungsrecht (Strassbourg: Trübner, 1886); Otto
Mayer, Deutsches Verwaltungsrecht (Munich: Duncker & Humblot, 3rd edn, 1924). For Mayer’s
achievement, see Michael Stolleis, Public Law in Germany, 1800–1914 (New York: Berghahn
Books, 2001), 392–394.
²⁰ Ernst Forsthoff, Lehrbuch des Verwaltungsrechts (Munich: Beck, 9th edn, 1966), 49: ‘Sie ist
das Werk Otto Mayers, der als der eigentliche Schöpfer und Klassiker der modernen deutschen verwaltungsrechtlichen Methode gelten darf ’ (‘ . . . It is the work of Otto Meyer, who counts as the sole creator and classic author of modern German administrative legal methods’).
²¹ For the Italian case, see Vittorio Emanuele Orlando, Principi di diritto amministrativo [1890]
(Florence: Barbèra, 1952). On the influence exercised by Orlando (who shared the positivist method of
Laband), see Sabino Cassese, Culture et politique du droit administratif (Paris: Dalloz, 2008), 23–30.
440
The New Architecture of Public Law
II. The English Quarrel with Administrative Law
The system of administrative law that emerged in continental Europe during the
eighteenth and nineteenth centuries was antithetical to English ways of governing. Every facet of the emerging system ran contrary to the common law tradition.
That judges form part of the official system of government rather than existing
as an independent body mediating between government and society; that law
is a set of rules to be taught and learned rather than a body of evolving practice,
knowledge of which is acquired through experience; that law is the will of the
legislature rather than the product of the artificial reason of the judiciary; that
‘law’ is a term to be applied to regulations and directives issued by and to official
bodies rather than being a common set of rules of conduct; that special official
agencies (administrative courts) rather than the general institution of judicature
could possess the ultimate authority to determine the meaning of administrative
rules and regulations that affect the rights of the subject—all of these facets of the
system of administrative law were offensive to the traditions of the common law.
This common law tradition derives in large part from the claim that the institutional outlines of English government can be traced to some remote past. This
claim gave rise to a peculiar trope: the myth of the ancient constitution. This
myth turns on the claim that there existed an ancient Anglo-Saxon constitution founded on principles of liberty and democracy and which is the originating
source of the fundamental laws.²² The myth, which was central to the English
rejection of administrative law, first assumed an importance during the seventeenth-century constitutional conflicts, when it was invoked primarily for the
purpose of asserting the privileges of Parliament and the common law courts
against the prerogative claims of the crown. But the myth also permeated the
writings of the grand nineteenth-century school of constitutional history; later
known as the ‘Whig interpretation of history’, this school promoted the claim
that the history of the English constitution is a story of the unfolding of liberty.²³
The ancient constitution, it was suggested, was erected on two platforms: a practice of local self-government, and the fact that Parliament, formed from the
representatives of these localities, is the central institution of government and
formed the pivot that was able to balance authority and liberty. In this frame of
thought, English constitutional history is the history of the struggle to ensure
that the ancient local liberties—the fundamental laws—are not usurped by the
²² JGA Pocock, The Ancient Constitution and the Feudal Law (Cambridge: Cambridge University
Press, 1957), esp ch 2; JW Gough, Fundamental Law in English Constitutional History (Oxford:
Clarendon Press, 1955).
²³ See JW Burrow, A Liberal Descent. Victorian Historians and the English Past (Cambridge:
Cambridge University Press, 1981); Herbert Butterfield, The Whig Interpretation of History
(London: Bell, 1931); Butterfield, The Englishman and His History (Cambridge: Cambridge
University Press, 1944).
II. The English Quarrel with Administrative Law
441
king’s prerogative claims to make law or levy taxation without first obtaining the
consent of the nation as assembled in Parliament.
The existence of these practices of local government and parliamentary
representation ensured that there has never emerged in England a hierarchical
and undifferentiated concept of administration. Local institutions evolved not as
creatures of the central authority but as representations of historic communities
within a structure of national laws to which both the crown and the localities are
equally bound. Central government possessed no inherent superior jurisdiction
over local institutions, and in this sense the English inheritance is a tradition
of local government rather than a system of local administration. This tradition
is also tied to the principles of parliamentary sovereignty and the rule of law.
The common law, as an undivided system of national laws, could not be altered
by the crown alone; the crown could act only with the consent of the people
expressed in Parliament. There being few significant prerogative powers in the
domestic sphere, the Crown-in-Parliament, as a supreme legislature, exercised
absolute authority over internal administration: the Act of Parliament became
the form through which was framed not only all new laws but all the ordinances
which regulated administrative activity. Administrative bodies therefore became
answerable not only to the central authority, but to the courts and to Parliament.
Since the relationships between the centre and local administrative bodies were
not worked out through a central–local hierarchy but through an intricate network of relationships between local government, central government, Parliament,
and the courts, no formal system of administrative law could be established.
The constitutional aspects of this inheritance had been authoritatively laid
down by Dicey, who in his Law of the Constitution of 1885 devoted a section
(in later editions an entire chapter) to a comparison between British arrangements known as ‘the rule of law’ and ‘a scheme of administrative law . . . known
to Frenchmen as droit administratif ’.²⁴ Dicey argued that the French expression
had no proper English equivalent since ‘the words “administrative law”, which
are its most natural rendering, are unknown to English judges and counsel’ and
the concept ‘rests on ideas foreign to the fundamental assumptions of our English
common law’.²⁵ He argued that modern droit administratif received its form from
Bonaparte, who ‘fused together what was strongest in the despotic traditions of
the monarchy [ie, the Ancien Régime] with what was strongest in the equally despotic creed of Jacobinism’; it had, he argued, developed along similar lines since.²⁶
At the centre of the French system lay the Conseil d’Etat whose function ‘in so
far as they acted judicially (for they fulfilled many duties that were not judicial)
was to determine questions of administrative law’.²⁷ This system, Dicey claimed,
removed the ordinary courts from considering matters of administrative law, led
²⁴ AV Dicey, Introduction to the Study of the Law of the Constitution (London, Macmillan, 8th
edn, 1915), ch 12 (quotation at 324–325). See also above ch 11, 315–317.
²⁵ Dicey, ibid, 326, 325.
²⁶ Ibid, 331–332.
²⁷ Ibid, 336.
442
The New Architecture of Public Law
to sterile jurisdictional disputes, protected government officials from legal challenge, and bore the hallmarks of the prerogative claims of the Tudors and Stuarts
that were defeated in the mid-seventeenth-century English revolution.
Notwithstanding its veneer of analytical positivism, Dicey’s argument about
the constitution rested on pre-modern conditions and assumptions. Until the
nineteenth century, internal administration had indeed been the preserve of local
institutions, which had been left free to deal with their administrative responsibilities with few restraints on the manner of their exercise.²⁸ But with industrialization and urbanization, these arrangements were shown to be entirely inadequate:
new administrative powers and new administrative authorities were required to
exercise these increasingly important regulatory powers of police. Through the
private bill procedure, Parliament had initially been able to assume a jurisdiction which in continental states had become the preserve of the central authority
operating within a system of administrative law.²⁹ But it soon became evident
that radical administrative reforms were needed and that these would require
active central supervision. The initiative moved from Parliament to government.
Under the prevailing influence of Benthamism, a plethora of schemes for
reform of the power of police was promoted, especially with respect to education, poor law reforms, prisons, and urban infrastructure. The reforms tended to
follow a common administrative pattern of increased centralization, continuous
governmental supervision, and the subjection of public administration to market-based disciplines.³⁰ Bentham’s projects thus envisaged the establishment of
extensive schemes of administrative regulation subject to overarching control by
central government.³¹ These reforms were leading to the growth of administrative power and, by virtue of official checks and controls, to the emergence of an
informal structure of ‘administrative law’.
Some jurists openly acknowledged this fact and advocated the need to make
consequential constitutional adjustments.³² But Dicey vehemently rejected
²⁸ See WS Holdsworth, History of English Law (London: Methuen, 1938), vol 10, 160–162 for
an inventory of the powers and duties of the justices of the peace.
²⁹ See OC Williams, The Historical Development of Private Bill Procedure and Standing Orders in
the House of Commons (London, HMSO, 1948); Sheila Lambert, Bills and Acts: Legislative Procedure
in Eighteenth Century England (Cambridge: Cambridge University Press, 1971).
³⁰ See Nancy L Rosenblum, Bentham’s Theory of the Modern State (Cambridge, MA: Harvard
University Press, 1978), ch 6; David Roberts, ‘Jeremy Bentham and the Victorian Administrative
State’ (1959) 11 Victorian Studies 193–210.
³¹ See Elie Halévy, The Growth of Philosophic Radicalism M Morris (trans) (London: Faber &
Gwyer, 1928), 432: ‘The State, as conceived by Bentham, is a machine so well constructed that
every individual, taken individually, cannot for one instant escape from the control of all the individuals taken collectively’.
³² See, eg, FW Maitland, The Constitutional History of England [1887–1888] (Cambridge,
Cambridge University Press, 1908), 505–506: ‘Do not imagine that English law is exhausted by
those departments of it that you can study here [in the university]—the law of crimes, the law of
property, torts, and contracts, and that part of constitutional law which is concerned with king and
parliament. No, there are vast departments of law lying outside these boundaries; some of them
belong to constitutional law, others perhaps may be called administrative law; for the most part
II. The English Quarrel with Administrative Law
443
the contention that the existence of these powers could change the character of
English law or alter the nature of the constitution. He defended the tenets of
classical liberalism that he believed to be firmly embedded within the British
constitution. And he defended these most vigorously against the emergence of
‘collectivism’, which he believed to form the ideological basis of governmental
growth and the originating source of the threat of administrative law.³³ For
Dicey, the rise of administrative law meant the decline of the constitution.³⁴
In his last edition of the Law of the Constitution in 1915, Dicey complained
that the rule of law had recently suffered a ‘marked decline’, arguing that this
was occurring because ‘the law of England is being “officialised” . . . by statutes
passed under the influence of socialistic ideas’.³⁵ This was due ‘to the whole
current of legislative opinion in favour of extending the sphere of the State’s
authority’.³⁶ Although Dicey overlooked the extent to which an administrative jurisdiction had developed in Britain in the mid-nineteenth century and
had misunderstood the degree to which the Conseil d’Etat in France had during the latter-half of the nineteenth century established its independence as an
administrative court, this message was bolstered by Dicey’s followers. During
the early decades of the twentieth century, Dicey’s disciples were the predominant legal voice, proclaiming that the growth of the administrative function was
leading rapidly to a ‘new despotism’, marked by ‘administrative lawlessness’ and
‘bureaucracy triumphant’.³⁷
Th is dominant (normativist) argument was challenged by a small group of
self-styled ‘modern’ public law scholars promoting a functionalist approach.³⁸
Influenced by political movements variously referred to as ‘new liberalism’,
they are statutory and of recent creation, the work of the last fifty years: but their importance is
very great. . . . Only do not neglect their existence in your general conception of what English law
is. If you do, you will frame a false and antiquated notion of our constitution. . . . The governmental
powers . . . have become of the greatest importance and to leave them out of the picture is to make
the picture a partial one-sided obsolete sketch’.
³³ AV Dicey, Lectures on the Relation between Law and Public Opinion in England during the
Nineteenth Century (London: Macmillan, 1905). It might be noted that Dicey too claimed to follow Bentham: ‘Benthamism was . . . little else than the logical and systematic development of those
individual rights, and especially of that individual freedom which has always been dear to the common law of England. . . . Benthamism is heavily indebted to Coke, and utilitarianism has inherited
some of its most valuable ideas from Puritanism’ (ibid, 175).
³⁴ Cf Mayer, Deutsches Verwaltungsrecht, above n 18, vol 1, Foreword: ‘ “Verfassungsrecht vergeht,
Verwaltungsrecht besteht”; dies hat man anderwärts schon längst beobachtet’ (‘ “Constitutional law
dies, administrative law survives”; one has observed this elsewhere some time ago’).
³⁵ Dicey, above n 24, xxxviii, xliv.
³⁶ Ibid, xxxix.
³⁷ See Lord Hewart of Bury, The New Despotism (London: Benn, 1929); CK Allen, Bureaucracy
Triumphant (London: Oxford University Press, 1931).
³⁸ See Martin Loughlin, Public Law and Political Theory (Oxford: Clarendon Press, 1992),
esp chs 6, 7; Martin Loughlin, ‘The Functionalist Style in Public Law’ (2005) 55 University of
Toronto Law Journal 361–403.
444
The New Architecture of Public Law
progressivism, or social democracy,³⁹ these scholars opposed the classical liberalism espoused by most constitutional lawyers. Arguing that ‘true’ freedom
required collective action, they promoted the virtues of administrative government organized through a comprehensive system of administrative law. In
this ambitious objective they were singularly unsuccessful,⁴⁰ which left them
either making constructive proposals for the reform of particular statutory
schemes, or engaging in critical assessment of the persistent failure of the common law judiciary to engage in judicial review in a manner conducive to good
administration.⁴¹
Only during the last decades of the twentieth century was more systematic
constructive work undertaken. Throughout the twentieth century, concern
had been expressed about the acquisition of legislative and judicial powers
by administrative bodies,⁴² and the solution proposed entailed reform of the
methods by which the administrative powers acquired by government could
be subjected to supervision by the common law courts.⁴³ Only after reform to
judicial review procedures,⁴⁴ and only after the judiciary had made significant
³⁹ See John A Hobson, The Crisis of Liberalism: New Issues of Democracy (London: PS King,
1909); James T Kloppenberg, Uncertain Victory: Social Democracy and Progressivism in European
and American Thought 1870–1920 (New York: Oxford University Press, 1986); Marc Stears,
Progressives, Pluralists, and the Problems of the State: Ideologies of Reform in the United States and
Britain, 1909–1926 (Oxford: Oxford University Press, 2002).
⁴⁰ See, eg, William A Robson, Justice and Administrative Law (London: Stevens, 3rd edn, 1951),
ch 6; J Willis, The Parliamentary Powers of English Government Departments (Cambridge, MA:
Harvard University Press, 1933), 171–172; JDB Mitchell, ‘The causes and effects of the absence of a
system of public law in the United Kingdom’ (1965) PL 95–118.
⁴¹ See Loughlin, Public Law and Political Theory, above n 38, 165–181; 191–206. For an
American scholar’s observations, see Fritz Morstein Marx, ‘Comparative Administrative Law: The
Continental Alternative’ (1942) 91 University of Pennsylvania Law Review 118–136, 123: ‘At times,
the [English] courts have ventured forward with more verve than understanding, and the result
occasionally reminds one of the proverbial bull in the china shop. More frequently, however, they
have acted on the hypothesis that it is sounder to leave administrative judgment alone. There is
ground for suspicion that this hesitation is caused by the perfectly natural uneasiness which must
befall the courts when they are confronted with matters too elusive for any mind devoid of expert
knowledge’.
⁴² See MJ Taggart, ‘From “Parliamentary Powers” to Privatization: the chequered history of delegated legislation in the twentieth century’ (2005) 55 University of Toronto Law Journal 575–627.
⁴³ See, eg, Report of the Committee on Ministers’ Powers Cmd 4060 (London: HMSO, 1932),
which reported that the existing procedures of judicial control were ‘too expensive and in certain respects archaic, cumbrous and too inelastic’ (at 99); Alfred Denning, Freedom under the Law
(London: Stevens, 1949), 126: ‘No one can suppose that the executive will never be guilty of the
sins that are common to all of us. . . . But if and when wrongs are thereby suffered by any of us what
is the remedy? Our procedure for securing our personal freedom is efficient, our procedure for preventing the abuse of power is not. Just as the pick and shovel is no longer suitable for the winning of
coal, so also the procedure of mandamus, certiorari, and actions on the case are not suitable for the
winning of freedom in the new age. They must be replaced by up to date machinery. . . . Of all the
great tasks [for courts] that lie ahead this is the greatest. Properly exercised the new powers of the
executive lead to the welfare state; but abused they lead to a totalitarian state’.
⁴⁴ See Harry Woolf, Protection of the Public—A New Challenge (London: Stevens, 1990),
38–56. The procedural reform of the late-1970s establishing the application for judicial review was
followed in the 1980s by the transformation of the Divisional Court of the Queen’s Bench Division
III. Administrative Government and the Separation of Powers
445
progress in developing a more coherent set of public law principles,⁴⁵ could
the haphazard arrangements of administrative tribunals be streamlined into
an ordered system.⁴⁶ In a slow, incremental, and typically pragmatic way, the
administrative jurisdiction of governmental bodies was eventually brought
under the supervision of the High Court. Not until the twenty-first century
had the path enabling the establishment of a more rational system of administrative law been cleared.
III. Administrative Government and the Separation of Powers
The institutional adjustments that states made in response to government growth
have tended to vary according to their understanding of the doctrine of the separation of powers. The English response, for example, was shaped by the conviction that once the executive acquires legislative and adjudicatory powers, a way
is opened that leads inexorably towards despotism. For the English, ‘administrative law’, in the French sense of a special regime of powers and appeals, is an
oxymoron. But the French initiative in constructing a system of administrative
law was driven precisely by their adherence to the doctrine of the separation of
powers. Since the prince was not bound by the laws and is autonomous with his
own sphere, French jurists argued, it was necessary to develop a special body of
law—administrative law, in contrast to civil law—to ensure that the essential
powers of governing were directed to public purposes and susceptible to check
and review. The concept of administrative law adopted thus depends on the governing regime’s grasp of the meaning of the separation of power.
These responses are testament to the power of ideas to shape practices. But they
also suggest that lawyers engaged in the practical tasks of state-building should
guard against becoming overly swayed by abstract concepts. This has been a recurring theme of British political practice, where the assertion of any general principle
must invariably be qualified by a multiplicity of exceptions. The history of the
English Parliament is such, for example, that it cannot easily be allocated to the
role of a legislature; throughout most of its history it has been issuing administrative regulations and instructions and playing a significant role in governing
into the Administrative Court, with specially nominated High Court judges forming a specialized
court to hear all public law claims and generally to assert supervisory jurisdiction over all aspects
of administration.
⁴⁵ See Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374. Lord
Diplock signalled the success of the procedural reforms and modernization of the principles of
judicial review in R v IRC, ex p National Federation of Self Employed [1982] AC 617, 641: ‘the progress towards a comprehensive system of administrative law . . . I regard as having been the greatest
achievement of the English courts in my judicial lifetime’.
⁴⁶ Tribunals, Courts and Enforcement Act 2007.
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The New Architecture of Public Law
the country.⁴⁷ A similar point can be made about the relationship between administrative and judicial functions. ‘It is curious’, notes Maitland, ‘that some political
theorists should have seen their favourite ideal, a complete separation of administration from judicature, realised in England; in England of all places in the world,
where the two have for ages been inextricably blended’.⁴⁸ The mistake ‘comes of
looking just at the surface and the showy parts of the constitution’.⁴⁹
This type of criticism applies with renewed effect in the light of the emergence during the twentieth century of extensive administrative government.
Government today is ubiquitous and it functions through an administrative
modality. The precise forms may, and do, change: the size of the public sector varies over time (as particular activities become public functions or as such functions
are privatized), and the modes of regulation may alter (as, for example, commandand-control methods are replaced by contractual arrangements). What does not
change is the fact that ‘increasingly the real work in all organizations is done by
salaried employees and by functionaries of all kinds’. ‘Everything else’, Weber
argues, ‘has become window-dressing’.⁵⁰ For Weber, the only really inescapable
power is that of bureaucracy.
Weber’s thesis challenges many of the assumptions on which modern constitutionalism is founded, not least because constitutional concepts tend to rest on
eighteenth-century assumptions of limited government. ‘Virtually all the terms
and concepts we employ in political and legal theory’, notes Rubin, ‘are heuristics, or metaphors, rather than observable features of the world’.⁵¹ Statutes ‘are
real enough, but law is a metaphor; elections are real but democracy is a mental
image; the president, Congress, and the federal judiciary are certainly observable
⁴⁷ See, eg, Maitland, above n 32, 382: ‘For a long time past political theorists have insisted
on the distinction between legislation and the other functions of government, and of course the
distinction is important though it is not always easy to draw the line with perfect accuracy. But it
seems very necessary to notice that the power of a statute is by no means confined within what a
jurist or a political philosopher would consider the domain of legislation. A vast number of statutes
he would class rather as privilegia than as leges; the statute lays down no general rule, but deals only
with a particular case’. Maitland notes that only after 1832 does Parliament ‘begin to legislate with
remarkable vigour . . . but about the same time it gives up the attempt to govern the country, to say
what commons shall be enclosed, what roads shall be widened, what boroughs shall have paid constables and so forth’ (at 384). The modern practice is reflected in Sir Courtenay Ilbert’s comment
that nine-tenths of the statute book continued to be concerned with administration rather than
legal principles: Sir Courtenay Ilbert, Legislative Methods and Forms (Oxford: Oxford University
Press, 1901), 6. See also CK Allen, Law in the Making (Oxford: Oxford University Press, 6th edn,
1958), 296: ‘The great bulk of legislation is concerned with public law. It is for the most part of a
social or administrative character, defining the reciprocal duties of State and individuals, rather
than the duties of individuals inter se’.
⁴⁸ FW Maitland, ‘The Shallows and Silences of Real Life’ in his Collected Papers HAL Fisher
(ed) (Cambridge: Cambridge University Press, 1911), vol 1, 467–479, 478.
⁴⁹ Ibid. See also Robson, above n 40, ch 1.
⁵⁰ Weber, above n 10, vol 2, 1400.
⁵¹ Edward L Rubin, Beyond Camelot: Rethinking Politics and Law for the Modern State (Princeton,
NJ: Princeton University Press, 2005), 15.
III. Administrative Government and the Separation of Powers
447
entities, but the three branches of government exist only in our minds’.⁵² The
problem, Rubin suggests, is that we have been thinking and arguing within these
categories for so long that they have become reified: we treat them as natural
entities and, rather than observing what is going on, we seek actively to shape the
data to fit our inherited categories.
This problem has become particularly acute as a consequence of the growth in
scale and complexity of contemporary government. The defence, security, health,
education, social care, energy, transport, and income support services on which
we rely for the purpose of sustaining social ordering are all provided through
administrative arrangements. The government’s reach extends further still: the
quality standards of the air we breathe, the water we drink, the food we eat, the
goods we consume, the professional services we use are all regulated by administrative agencies. In its formative stage, this growth in the government’s reach was
accommodated to constitutional requirements mainly by creating large central
government departments headed by ministers. These bureaucracies, established
to oversee the delivery of public services and monitor the performance of a variety of regulatory bodies, were made accountable to parliamentary institutions,
and ultimately to citizens, by virtue of the fact that they are headed by ministers
who, being drawn from elected representatives, maintain political responsibility
for their operations. But these administrative arrangements also displayed manifest deficiencies, which included restrictions inherent in the bureaucratic mode
of action (delay, addiction to formalities, lack of responsiveness, etc), the limits of
ministers’ ability to impose their will, and the remoteness of the mechanisms
of parliamentary accountability. During the last decades of the twentieth century, against the background of fiscal restraint and rising expectations, such deficiencies generated radical critique, which in turn produced basic reforms to the
administrative mode of operation.⁵³
The reforms that have been implemented—which include privatization,
deregulation, promotion of competition for public service provision, and a more
extensive use of regulatory techniques—have had a major impact on the institutional arrangements of most western governments. The public/private boundary has not only shifted (through privatization schemes and distinction between
policy and service delivery responsibilities), but has also become more blurred
(through various public/private partnership schemes). At the same time, there has
been a hollowing-out of ‘core executive tasks’: by breaking down big departments
⁵² Ibid.
⁵³ See, eg, Mancur Olson, The Rise and Decline of Nations. Economic Growth, Stagfl ation and
Social Rigidities (New Haven, CT: Yale University Press, 1982); Claus Offe, Contradictions of the
Welfare State (London: Hutchinson, 1984), ch 2; Christopher D Foster and Francis Plowden, The
State Under Stress: Can the Hollow State be Good Government? (Buckingham: Open University
Press, 1996); Christopher Hood et al, Regulation Inside Government: Waste-Watchers, Quality
Police, and Sleaze-Busters (Oxford: Oxford University Press, 1999); Michael Moran, The British
Regulatory State: High Modernism and Hyper-Innovation (Oxford: Oxford University Press, 2003);
Ezra Suleiman, Dismantling Democratic States (Princeton, NJ: Princeton University Press, 2003).
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The New Architecture of Public Law
and creating executive agencies operating at arm’s-length from ministers, such
reforms have produced a considerable amount of institutional fragmentation.
These radical shifts have led to the emergence of what has been called a ‘new public management’ ethos.⁵⁴
These recent administrative reforms have raised questions about government
effectiveness, but they also pose issues for public law. They raise doubts about
whether we can continue to work within the enlightenment scheme of a separation of powers. But they go further. The new phase of governing which is opening up take us beyond questions about the architecture of government; they also
force us to ask whether a new architecture of public law is being erected.
IV. The Rise of the Ephorate
One consequence of institutional differentiation in government is that many
governmental tasks are now being undertaken by agencies that operate at a considerable distance from the main institutions of democratic legitimation. The
traditional hierarchical arrangement, in which central departments headed by
ministers operate at the apex of the system, is being replaced by more differentiated arrangements comprising elaborate policy and service networks in which a
great number of public bodies operate at some remove from electorally authorized
sources of authority. Decisions taken by independent central banks, the energy
sector regulators, the various inspectorates (schools, health and safety, pollution,
pension, police, and prisons), and a variety of miscellaneous bodies (such as, in
the United Kingdom, the National Institute for Health and Clinical Excellence
(NICE) or the Information Commissioner) often have greater impact on public
policy formation than decisions of ministers and other elected politicians.
But the critical issue is not simply that of distance; the essential point is that
the work of many of these public bodies cannot easily be explained by reference
to the principal-agency distinction. These bodies—which political scientists have
called non-majoritarian institutions or, more simply, unelected bodies⁵⁵—owe
their authority and legitimacy to sources other than delegation of public power
from the legislature. This point, together with a growing recognition that these
bodies now form a new branch of government, presents significant conceptual
challenges. The branch that is coming into existence forms what might be called
a new ephorate.⁵⁶
⁵⁴ Christopher Pollitt and Geert Bouckaert, Public Management Reform: A Comparative Analysis
(Oxford: Oxford University Press, 2nd edn, 2004).
⁵⁵ Mark Thatcher and Alec Stone Sweet, ‘Theory and Practice of Non-Majoritarian Institutions’
(2002) 25 West European Politics 1–22; Frank Vibert, The Rise of the Unelected: Democracy and the
New Separation of Powers (Cambridge: Cambridge University Press, 2007).
⁵⁶ See Johannes Althusius, Politica: Politics Methodically Set Forth and Illustrated with Sacred
and Profane Examples [1603] Frederick S Carney (trans and ed) (Indianapolis: Liberty Fund, 1995),
IV. The Rise of the Ephorate
449
In the United Kingdom this ephorate consists of around 650 public bodies; some carry out executive functions, though most have regulatory or advisory responsibilities. Their work can be categorized according to five main
functions:⁵⁷
(i) Service providers. Examples include the Bank of England’s responsibility
for monetary policy and the BBC, established as an independent public corporation with responsibility for broadcasting services.
(ii) Risk assessors. These constitute a range of specialist bodies that gather scientific and technical evidence and evaluate probabilities which feed into public
policy decision-making with respect to a broad range of subjects including
food safety, medicines, sport, nuclear waste, environmental pollution, and
health and safety at work.
(iii) Boundary watchers. These agencies police the boundaries between public
and private to ensure that proper regard is paid to the public interest. One
prominent type are the utility regulators that ensure that monopolistic positions are not exploited. Other types include those that ensure that confidentiality and privacy is maintained with respect to the enormous amounts
of personal information that agencies acquire when undertaking public
functions.
(iv) Auditors. Auditors and inspectors have traditionally ensured that public bodies lawfully and efficiently spend money allocated for designated
public purposes. In the new arrangements, this function has considerably
expanded, largely through their acquisition of a primary role in monitoring
general performance against their public objectives.
(v) Adjudicators. These bodies—tribunals, appeals bodies, ombudsmen, review
agencies—exist to provide an administrative method of effective disputeresolution by offering alternatives to traditional methods of legal or political
redress.
During the late-eighteenth century, Fichte had argued that in order to check
the state’s undivided sovereign power it was essential that the people appoint an
ephorate. Fichte conceived the ephorate as a group of the wise and the learned
which, while overseeing government, must remain independent; they ‘must
not have any connections, relationships, friendships or the like with those who
administer executive power’.⁵⁸ In Fichte’s image, the ephors exist to monitor and
oversee the exercise of public power, and specifically to ensure that the governing
institutions of the state remain geared towards the realization of right and law.
They are not designed as a higher authority than the executive; the executive is
ch 18. See above ch 3, 95; JG Fichte, Foundations of Natural Rights According to the Principles of the
Wissenschaftslehre [1796] Michael Baur (trans) Frederick Neuhouser (ed) (Cambridge: Cambridge
University Press, 2000), 141–144, 151–62. See above ch 5, 145.
⁵⁷ See Vibert, above n 55, 20–30.
⁵⁸ Fichte, above n 56, 158–159.
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The New Architecture of Public Law
not directly answerable to them, since it ‘is accountable to no one other than the
assembled populace’.⁵⁹ But although the ephors ‘cannot sit in judgment of those
who hold public power . . . they must . . . constantly observe how state business is
conducted’ and they ‘have the right to make inquiries wherever they can’.⁶⁰ For
Fichte, their authority lay in their ability not to overturn particular decisions but
to dissolve the entire government on the grounds that it is acting contrary to the
foundational principles of right.
The unelected bodies that are now emerging to constitute what might be called
the new ephorate may be of the same genus but they perform slightly different
role. Although the new ephorate does not generally exercise governmental power
in a direct sense, its actions can have a major impact on policy decision-making.
Its decisions often circumscribe the autonomy of elected authorities, making
the influence of politicians over public policy processes more peripheral. In this
respect, it can be portrayed as constituting a danger to democracy or as expressing the emergence of what Fichte called ‘aristo-democracy’.⁶¹ But the phenomenon is more complicated.
The rise of the ephorate expresses a new phase in the development of government. Over the last 150 or so years, organized politics has tended to revolve
around the question of fair distribution of goods between social classes—in
particular, between capital and labour. But recently such questions of distribution have come to be addressed in a variety of registers: increasingly these political issues are addressed in the language of fairness, and especially fairness with
respect to the allocation of risk or the allocation of rights.⁶² One consequence of
this shift has been to alter the balance between traditional institutions of democratic expression and the power of the ephorate: questions of fair distribution of
risk now directly engage the concerns of agencies like the Food Standards Agency
or the Environment Agency, just as the Equality and Human Rights Commission
has the potential to play a pivotal role in deliberations over rights.
The ephorate thus presents itself as a new branch of government comprising
office-holders who possess the type of expertise and specialized knowledge that
has become the basis of effective governmental decision-making. In the new
phase of governing that is opening up, the work of the ephorate might be seen as
constraining and structuring political decision-making. But it does not necessarily limit the expression of democracy. Indeed, some have argued that it may even
possess the potential to strengthen it. What the ephorate evidently does, however,
is to impose a strict discipline over the processes of policy-making and over the
democratic process itself.
The role of the ephorate is most clearly revealed once the activity of governing is conceived as an exercise in practical problem-solving. Once governing is
⁵⁹ Fichte, ibid, 151.
⁶⁰ Ibid.
⁶¹ Ibid, 143.
⁶² Ulrich Beck, The Risk Society: Towards a New Modernity Mark Ritter (trans) (London: Sage,
1992); Colin Crouch, Coping with Post-Democracy (Cambridge: Polity Press, 2004).
IV. The Rise of the Ephorate
451
treated as an exercise of solving collective action problems through processes that
require the bringing of reason and evidence to bear on the issue, and once politics is viewed as the art of reasonable accommodation of difference, then its role
is presented in a clearer light. Public decision-making can be assumed to involve
two basic elements: the bringing of knowledge and evidence to bear on the issue
and, in the light of that evidence, the making of a value judgment. The primary
function of the ephorate is to perform the central role in the first stage of this
process. And it is the independent and unelected nature of these agencies that
constitute a distinct advantage in the performance of this function, since these
features help to ensure that they are able to bring objective knowledge to bear on
the policy question.
Vibert has even argued that this new branch of government ‘strengthens democracy because it provides a safer environment for people to benefit from expertise
and the latest state of knowledge, to gather information that is reliable and relevant to themselves, to trust the information and to draw their own conclusions for
their own actions’.⁶³ The rise of the ephorate ‘helps citizens distinguish between
the different components of public policy and the different responsibilities of different contributors to public policy’ and having such better-informed citizens
‘makes it more difficult for elected politicians to play fast and loose with the facts
or to claim privileged access to knowledge’.⁶⁴ Its rise is part of a general process
of continuing institutional differentiation. This leads to a more formalized distinction being drawn between the information-gathering and policy-judgment
aspects of public decision-making, with these agencies playing the roles of generating information, analyzing evidence, and, through redress mechanisms, also
providing processes for subjecting policy decisions to review against canons of
rationality and proportionality.
The rise of the ephorate provides the clearest indication that a new phase in
governing is opening up. This is a complex process because it presents new challenges of discipline and judgment. Although these developments are open to the
criticism that they entail a narrowing of political decision-making by channelling the exercise of political judgment into some technocratic problem-solving
exercise, they simultaneously possess the benefit of helping to clarify the responsibility of representative institutions to articulate the values and principles that
determine policy decisions. The ephorate is valued because, by forming their own
epistemic communities that cut across the public/private boundary and by having their distinct specialized tasks, they are well-placed to be able to bring the
best information and evidence to bear on an issue. Further, being independent
and expert institutions, these agencies might elicit greater trust in acting as the
conduit for disseminating robust knowledge. In this role, they can assist with
questions of legislative design as well as helping executives ensure that adopted
regulatory standards are based on the best available evidence.
⁶³ Vibert, above n 55, 3.
⁶⁴ Ibid.
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On the other hand, this development is symptomatic of the extension of the
disciplinary mechanisms of police to the central questions of government: fiscal
rules devised in the regulatory network discipline ministers, monetary policies
laid down by central banks constrain governments, audit regulations structure
the programmes of public bodies, and performance targets established through
these arrangements structure the ways in which they undertake their responsibilities. The ephorate clarifies political judgment through the imposition of strict
disciplines over decision-making processes. But in the course of so doing, the
nature of political judgment is altered. Effective political decision-making certainly needs a steady throughput of new information, but in this sphere the way
that information is assembled—as well as what counts as new information—
must constantly be questioned. Political decision-making tales places ‘in an arena
in which the standards for evaluating what is “success”, what is a good idea, and
what is a desirable outcome, are themselves always changing and always in principle up for renegotiation’.⁶⁵ The type of discipline being imposed also carries the
danger of corroding the nature of political decision-making itself.
V. The New Separation of Powers
The rise of the ephorate exemplifies one of the main themes of public law development: that authority is enhanced by the imposition of constraints. This theme
can be traced back to Bodin’s classic analysis. ‘The best kind of Commonwealth’,
Bodin argued, ‘is that, wherein the sovereign holds what concerns his majesty, the
Senate maintains the authority thereof, the magistrates execute their power, and
justice has her ordinary course’. But ‘if the prince or the people shall take upon
themselves the authority of the Senate, or the commands, offices, or jurisdictions
of the magistrates; it is much to be feared, least that they . . . shall at length be
spoiled of their own sovereign majesty also’.⁶⁶ Bodin’s thesis is that a well-ordered
state is one in which the institutions of government keep to their essential tasks
and do not invade the sphere of competence of the others. As government in
the modern world has increased in scale and administrative complexity, Bodin’s
principle—that power is enhanced through an evolving institutional differentiation—has continued to do its work.
Although Bodin’s principle originally operated to establish an institutional
framework that bolstered monarchical rule, its importance has been transformed
with the rise of democracy. Today it is most commonly expressed in constitutional thought as the doctrine of the separation of powers. This doctrine claims
⁶⁵ Raymond Guess, ‘What is political judgement?’ in Richard Bourke and Raymond Geuss
(eds), Political Judgement: Essays for John Dunn (Cambridge: Cambridge University Press, 2009),
29–46, 42.
⁶⁶ Jean Bodin, The Six Bookes of a Commonweale Richard Knolles (trans) [1606] Kenneth
Douglas McRae (ed) (Cambridge, MA: Harvard University Press, 1962), 518.
V. The New Separation of Powers
453
that governmental authority can be reconciled with individual liberty by the
method of allocating the three main functions of government—rule-making,
rule-execution, and rule-adjudication—to different institutions which are then
able to check the actions of the others. As has been noted, however, the growth of
administrative power threatens not only to unbalance the workings of this doctrine but also to render it anachronistic. The various controversies over the nature
and scope of administrative law express the range of possibilities of finding juridical solutions to these threats. But how does the growth of the ephorate affect
these controversies?
On one interpretation the rise of the ephorate exacerbates the threats posed by
the growth of administrative power. The ephorate, so the argument goes, marks
the entrenchment of the power of unelected elites to influence government
while insulating itself from the processes of democratic accountability. But this
analysis has been contested: it is claimed that, properly understood, the ephorate
not only represents an emerging fourth branch of government, but also operates in accordance with Bodin’s principle. This new branch of government not
only bolsters a culture of blame-avoidance amongst contemporary politicians;
it also strengthens the government’s capacity to acquire the types of specialized
knowledge that today are essential preconditions of effective government. Far
from undermining it, the ephorate actually strengthens democracy, and it does
so by establishing an institutional framework through which the distinction
between professional judgments founded on specialized knowledge and political judgments based on values and principles can be more clearly demarcated.
Understood in this light, the ephorate—far from corroding the separation of
powers—operate to clarify the boundaries between the core tasks of the primary institutions of government.
This thesis is most explicitly presented by Vibert, who claims that the ephorate should be seen to be a democracy-reinforcing institution. Vibert’s argument
rests on the claim that representative democracy is itself a highly elitist conception of democracy.⁶⁷ He suggests that the rise of the ephorate ‘overturns one of
the key assumptions of representative democracy, that people are better off delegating judgements and decisions to their elected representatives on the grounds
that elected representatives are better informed and have more knowledge at their
command’.⁶⁸ One consequence of this ‘new separation of powers’ is that elected
representatives are unable to claim ‘privileged access to information’. Responding
to the fact that citizens no longer trust the information that governments provide,
⁶⁷ On which see Bernard Manin, The Principles of Representative Government (Cambridge:
Cambridge University Press, 1997), arguing that ‘what today we call representative democracy has
its origins in a system of institutions (established in the wake of the English, American, and French
revolutions) that was in no way initially perceived as a form of democracy or of government by the
people’ (at 1).
⁶⁸ Vibert, above n 55, 13.
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The New Architecture of Public Law
this new separation ‘makes it possible for people to rely on sources of information
untainted by machinery of government’.⁶⁹
The rise of the ephorate is thus linked to the decline of the deferential electorate.
It is claimed that provided this new branch confines its role to that of gathering
and disseminating information and analysing evidence, it can play an important
role in reinforcing democratic government. For the ephorate to realize this potential, however, it must claim an original, rather than a delegated, authority. Most
accounts seek to explain the ephorate’s constitutional position as being somehow
derived from the authority of representative institutions. But such accounts are
‘implausible in practice and mistaken in theory’.⁷⁰ The ephorate acquires its legitimacy from its own modus operandi. Just as the judiciary acquires its legitimacy
from an independence derived from its own powerlessness,⁷¹ so too does the ephorate. Just as the judiciary’s authority derives not from delegation from the people
but from the integrity of its own procedures, so too must that of the ephorate.
The ephorate’s authority must be acquired by virtue of the role it performs in
maintaining a well-ordered commonwealth. It does this primarily by generating
information in a form that promotes the responsiveness of the other branches
of government. It feeds scientifically acquired evidence into governmental
processes, thereby opening up new avenues of accountability for governmental
decision-making. In this respect, it forms a distinct branch of government that
devises its own procedures for determining facts—procedures that may be different from parliamentary procedures, bureaucratic methods, or judicial processes.
The authority of the ephorate rests on its ability to instil co-ordination and discipline into the processes of contemporary government. The rise of the ephorate
signals the need to supplement a system of administrative law with a new type
of institutional ordering which is more explicitly driven by a police (or disciplinary) logic, as distinct from a juridical logic. The ephorate thus presents itself as
a fourth branch of government, and it stands in a similar relation to the power of
police as does the judicature in relation to modern constitutions.
Some scholars have promoted a more radical analysis and claimed that
recent changes to government have been so profound as to render the entire
modern edifice of constitutionalism obsolete. Pioneering this type of argument, Rubin argues that we need to ‘bracket the metaphor that government is
⁶⁹ Vibert, ibid.
⁷⁰ Ibid, 15.
⁷¹ See James Madison, Alexander Hamilton, and John Jay, The Federalist Papers [1788] Isaac
Kramnick (ed) (London: Penguin, 1987), No 87 (Hamilton), 437: ‘The Executive not only dispenses the honours, but holds the sword of the community. The legislature not only commands the
purse, but prescribes the rules by which the duties and rights of every citizen are to be regulated.
The judiciary, on the contrary, has no influence over either the sword or the purse; no direction
either of the strength or of the wealth of the society; and can take no active resolution whatever. It
may truly be said to have neither force nor will, but merely judgment; and must ultimately depend
upon the aid of the executive arm even for the efficacy of its judgments’. Hamilton here follows
Montesquieu, The Spirit of the Laws [1748] Anne M Cohler, Basia Carolyn Miller, and Harold
Samuel Stone (trans and eds) (Cambridge: Cambridge University Press, 1989), 160: ‘Of the three
powers of which we have spoken, that of judging is in some fashion, null’.
V. The New Separation of Powers
455
divided into three distinct branches’ and replace it with an alternative image
of government as a network.⁷² Deploying this image of the network—a set of
interconnections between particular nodes that serve to transmit energy or
information—Rubin jettisons modern constitutional concepts on the ground
that they now act as a barrier to understanding. Network analysis, he maintains, enables us more directly to confront the institutional challenges of contemporary government.
Rubin argues that the three-branch metaphor underpinning the doctrine of the
separation of powers is based on an out-dated model of limited government and
provides a poor conceptual framework for understanding contemporary processes. The growth of the administrative apparatus, he claims, has outstripped the
ability of the tripartite scheme of legislature, executive, and judiciary to capture
the complex dynamics of contemporary government. The problem today is that
government ‘will become inefficient or oppressive, that its massive, stable structure will become too self-contained to devote its efforts to the people’s needs, and
that it will either ignore the people or oppress them’.⁷³ It is because of these threats
that ‘we have developed administrative agencies to manage our social processes
and we have assigned elected policy makers and doctrinally oriented judges to
monitor those agencies’.⁷⁴ But thinking about government in the ‘conceptually
coagulated terms’ of the tripartite doctrine does not assist in the task. Rather,
the chief executive, the legislature and the judiciary are now best viewed as being
engaged in a common enterprise: the control of the administrative apparatus. The
network metaphor, he claims, ‘is much more likely to generate a microanalysis of
our government that enables us to accept its existence, comprehend its complex
operations, and generate practical ideas for its improvement’.⁷⁵
This radical analysis takes us beyond the consideration of the separation
of powers doctrine and the need to make adjustments in the light of contemporary developments: it suggests that it is necessary to reconsider the essential
character of public law today. Rubin is aware of the scale of this challenge. He
recognizes that with the shift ‘from a sacerdotal to an instrumental conception
of government, highlighted by the network model, the moral locus shifts from
past to future’.⁷⁶ In a passage that takes us back to the transition paradoxes of
modernity,⁷⁷ he notes that politics ‘no longer appears as the elaboration of some
initial premise, divine spark, or pre-political agreement’; it must now be seen ‘as
an ongoing process that generates new meanings and commitments’.⁷⁸ Politics
‘is no longer a product of our essential and unchanging human nature, but an
adventure in self-development and political evolution’.⁷⁹ Government must now
⁷² Rubin, above n 51, 48.
⁷³ Ibid, 73.
⁷⁴ Ibid.
⁷⁵ Ibid.
⁷⁶ Ibid, 188.
⁷⁷ See above ch 1, 46–49 and ch 2, 83–88.
⁷⁸ Rubin, above n 51, 188.
⁷⁹ Ibid. Cf Marcel Gauchet, The Disenchantment of the World: A Political History of Religion
Oscar Burge (trans) (Princeton, NJ: Princeton University Press, 1997), 184–185: ‘The collapse of
ideologies means the simultaneous collapse of the vestigial form of the religious—the last possible
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The New Architecture of Public Law
be recognized as ‘an instrumentality by which we not only implement our current values, but transform ourselves by virtue of the way those values become
manifest’.⁸⁰ To address Rubin’s argument properly, the functionalist claims made
of modern public law must be reconsidered.
VI. The Transformation of Public Law
The network model marks an advance in understanding, argues Rubin, primarily because it enables us to avoid having to analyse institutions of government
‘through the dusty and distorting lens of delegation’.⁸¹ Statutes should be conceived as ‘feed forward signals issued from the legislature to other governmental units’ and though they occasionally take the form of commands, they often
constitute other, more general and vague performatives.⁸² Legislation therefore
constitutes ‘a complex signal whose design depends on the particular goals that
the legislator is attempting to achieve, and upon a wide range of empirical information about the signal’s recipient’.⁸³ The judiciary should similarly be removed
from its pedestal. Independence ‘is a political resource, to be deployed when it
can be specifically justified by normative or practical concerns, not an inherent
feature of any particular governmental unit’.⁸⁴ Courts perform a variety of tasks,
including policy-making,⁸⁵ and the notion that they are ‘the primary interpreters of law is misleading’ since ‘administrative agencies are generally the primary
interpreters of statutes in the modern state, and most of these interpretations are
never reviewed by the judiciary’.⁸⁶
Th is network model expresses a relational concept of power,⁸⁷ and it rejects
the clear distinction between law and politics often made by jurists. By bringing the structure of government into alignment with its operations, the network model is able to draw the legal and political systems into a unified frame.
reconstruction of a lay social order’s image in terms of an external order . . . In other words, the secularization of history is completed as the future becomes unrepresentable. The faceless and nameless
future, unconstrained and unaffected by occult determinism, is the pure future, removed from the
theological cocoon which concealed it for two centuries. From now on, no more diviners, mediators, and sacrificers. For herein lies the future’s main paradox: the more the order of the invisible
comes to light, the more secular it becomes; the more predictable it becomes, the less inevitable it
is; the more accountable it makes us, the more it teaches us that we create it. . . . The more we accept
ourselves as authors of history, the only remaining enigma is we ourselves’.
⁸⁰ Rubin, above n 51.
⁸¹ Ibid, 61.
⁸² Ibid.
⁸³ Ibid, 62–63.
⁸⁴ Ibid, 65.
⁸⁵ See, eg, Abram Chayes, ‘The Role of the Judge in Public Law Litigation’ (1976) 89 Harvard
Law Review 1281–1316; Malcolm Feeley and Edward Rubin, Judicial Policy Making and the Modern
State: How the Courts Reformed America’s Prisons (Cambridge: Cambridge University Press, 1998).
⁸⁶ Rubin, above n 51, 64. Similarly, the main bulk of adjudications is undertaken by administrative agencies rather than the ordinary judiciary: see Jerry Mashaw, Bureaucratic Justice: Managing
Social Security Disability Claims (New Haven, CT: Yale University Press, 1983).
⁸⁷ Rubin, above n 51, 76–84.
VI. The Transformation of Public Law
457
Building on the legacy of legal realism, the network model is task-orientated
and offers an image of law as a set of techniques—signalled through statutes,
regulations, and enforcement policies—which are designed to realize certain
practical objectives. Advocates of the network model argue that ‘the only category of governmental action that can possibly be distinguished from politics is adjudicatory decision-making, not law in general’; consequently, ‘any
concept of law that relies on law’s separate identity from politics . . . must be
understood as a theory of adjudication, not of legislation or administrative
implementation’.⁸⁸ Th is image of law as a practical tool of regulation has exercised considerable influence over sociologically orientated public lawyers, many
of whom now finesse the distinction between constitutional and administrative law and claim that regulation—and regulatory law—constitutes a discrete
disciplinary field.⁸⁹
Notwithstanding recent academic interest in this regulatory conception of
public law, the jurist who most clearly articulated the nature of the transformative shift effected by such a move remains Léon Duguit.⁹⁰ Duguit acknowledged
that ‘the idea still dominant in public law is that the real guarantee is to be found
in the electoral and representative system’. But there are still ‘strange illusions
abroad as to the benefits of this system and the guarantees it can afford’.⁹¹ A
major strand of his thesis concerning the eclipse of sovereignty is that ‘we cannot
to-day be satisfied with the over simple notion of a sovereignty which expresses
itself in an electoral majority’, not least because ‘majority rule is no longer the
fundamental principle of modern democracy’.⁹² Duguit’s argument about the
way in which modern public law has been transformed as a result of the emergence of an objective law constructed on the principle of public service exposes
the juristic underpinnings of Rubin’s network model.
For Duguit, public law (droit politique) is not expressed in command (the subjective will of the sovereign); rather, it is based on an objective law (that which
‘serves the public need and secures the co-ordination of the modern corporate
life’).⁹³ This claim has specific implications for the way we conceptualize legal
instruments. Constitutional statutes are fundamental not because of their source
but because ‘their object is to give the state the best means of serving social
needs’.⁹⁴ This basic functional principle is the key to understanding the force of
legal instruments in general.
In a system founded on the will of the sovereign, statutes are made only by
the institution that expresses that sovereign will. But in the administrative state
⁸⁸ Ibid.
⁸⁹ See, eg, Julia Black, ‘Decentring Regulation: Understanding the Role of Regulation and Self
Regulation in a “Post-Regulatory World” ’ (2001) 54 Current Legal Problems 103–147; Julia Black,
‘Proceduralising Regulation’ (2000) 20 OJLS 597–614 (Pt I); (2001) 21 OJLS 33–59 (Pt II).
⁹⁰ See above ch 13, 402–406.
⁹¹ Léon Duguit, Law in the Modern State Frida and Harold Laski (trans) (London: Allen &
Unwin, 1921), 55.
⁹² Ibid, 34, 35.
⁹³ Ibid, 118.
⁹⁴ Ibid, 76.
458
The New Architecture of Public Law
where alongside legislation properly so-called ‘we have a legislation which is really
executive in character and yet which has for private citizens, administrators, and
the courts, the same compulsion as formal statutes’,⁹⁵ this type of claim is puzzling. Duguit contends that a theory of delegation cannot adequately account for
the shift which characteristically takes place within the administrative state. The
nature of the shift suggests that in reality legislation no longer retains a necessary
connection with sovereign will; rather than trying to find the authority of an
instrument in its source, we should be looking to its purpose. The ‘essential element of every legal act’ (a concept that for Duguit includes acts of administrative
agencies) is ‘the end it has in view’.⁹⁶
Once purpose becomes the overarching criterion, then all legal acts are reviewable in the light of this ‘objective law’. The force of a statute ‘is derived from its
relation to a means of satisfying the social need’ and there can no longer exist the
notion of a discretionary power that is immune from review.⁹⁷ Similarly, it can
no longer be the task of a court simply to apply the statute; alongside all other
governmental institutions, courts have the duty to review all legal instruments,
including statutes, in the light of their overriding purpose—that of promoting
the objective law. This is not a special duty attached to courts: it is incumbent
on all institutions and officers to ‘intervene to protect and guarantee against all
obstacles . . . to the realization of social solidarity’.⁹⁸ Those entrusted with the tasks
of governing do not possess ‘a subjective right to public power’; rather, they are
‘under the obligation to employ their power to organize public service, to assure
and control its development’.⁹⁹ When Rubin argues that the system of government forms a complex network and that its elaborate arrangements are designed
with the overall purpose of keeping governing institutions geared to social needs,
he is adopting the type of juridical scheme first systematized by Duguit.
The radical nature of Duguit’s thesis is revealed most clearly when we turn to
his analysis of regulations and ordinances that form the ligatures of the administrative state. These include not only the regulations made by administrative agencies designed to further its objects, but also the mass of rules which govern the
way agencies conduct their business. For some, these rules are in the nature of
disciplinary law, a type of law that belongs to groups in general as distinct from
the state.¹⁰⁰ Duguit accepts that disciplinary law is the penal law of the group and
⁹⁵ Ibid, 81.
⁹⁶ Ibid, 142–143.
⁹⁷ Ibid, 78, 185.
⁹⁸ Léon Duguit, ‘The Law and the State’ (1917) 31 Harvard Law Review 1–185, 184.
⁹⁹ Ibid.
¹⁰⁰ Duguit, above n 91, 107. Cf Jellinek who, as an advocate of the subjective foundation of
public law (the state as a legal person), had argued that disciplinary power is a different type of
control from penal laws since only the latter type is derived from the state’s power to command:
Georg Jellinek, System der subjektiven öff entichen Rechte (Tübingen: Mohr, 2nd edn, 1905) 214:
‘die Disziplinargewalt des Staates über seine Beamten ist nicht eine ausschliesslich dem Staatsrecht
angehörige Erscheinung. Denn Disziplinargewalt ist nicht Herrschergewalt, sie ist nicht Ausübung von
Imperium, selbst wenn sie durch Imperium begründet wird ’ (‘the disciplinary power of the state over
its officials does not belong exclusively to public law. Since disciplinary power does not belong to
the power of rulership, it is not an exercise of Imperium even if it is founded by Imperium’).
VI. The Transformation of Public Law
459
that the group has an organic law. But the group ‘has also a penal law of which
the basis is the same as that of all repressive law; namely, the need to punish every
act which may inherently compromise the life of the group which is here the
operation of the service’.¹⁰¹ The national penal law ‘has as its end the security of
the people as a whole’, while the penal law of particular agencies ‘assures its operation in conformity with its fundamental purposes’.¹⁰² This discipline, Duguit
explains, ‘is simply a part of the objective law by which any given public service is
organised’. And ‘it may thus itself be organised in the form of jurisdiction’.¹⁰³
Duguit thus sees ‘disciplinary repression’ as a phenomenon that evolves with
the growth of the administrative state. ‘For some officials’, he notes, ‘the power
to discipline is exercised by real courts’ and in other cases ‘the scale of penalties
is definitely established’ within the agencies.¹⁰⁴ But the general point is that ‘the
evolution of discipline, in fact, goes, step by step, along the same road as the public services towards autonomy’.¹⁰⁵ Duguit notes finally that modern society is
a mass of groups—associations, trade unions, and corporations—and the ‘theory of the modern state is . . . compelled to adapt itself to the existence of these
powerful groups’.¹⁰⁶ The state must, in particular, ‘determine a method of their
co-ordination’ and ‘settle their relations with the government that exercises public
power’.¹⁰⁷ The collectivist solution (which is ‘only an extreme form of the imperialist theory’¹⁰⁸) would be for the state to absorb all these groups. But Duguit’s
argument is that the state shifts its mode from command to co-ordination. These
groups are regulated by a government bound by an objective law: ‘It is the law of
a government which serves the public need and secures the co-ordination of the
modern corporate life’.¹⁰⁹
When Duguit shows how public law in the administrative state is founded
on co-ordination (social solidarity or public service) rather than command, he
is demonstrating the rise of potentia and the decline of potestas or, in Mann’s terminology, the rise of infrastructural power and the decline in despotic power.
The architecture of this system of public law is that of a complex network of
institutions, both public and private, that are co-ordinated in the service of the
public good (what Duguit, following Durkheim, calls social solidarity). The code
by which public law undertakes its work is not derived from the tension between
the subjective right of the individual and the subjective right of a personified
state; rather, it is generated by the tensions and trade-offs involved in sustaining
this network of social co-ordination. This has significant juristic implications. It
suggests in particular that there can be no clear break between justice and police:
¹⁰¹ Duguit, above n 91, 108.
¹⁰² Ibid.
¹⁰³ Ibid, 109.
¹⁰⁴ Ibid. Duguit gives as an illustration the regulations of Parliament which are established by
resolutions of each chamber and are not formal statutes: ‘They establish penalties, one of which—
censure and temporary exclusion—may, in the Chamber of Deputies, actually lead to imprisonment’ (ibid, 110). This, he argues, is a penal law and ‘is obviously a sentence pronounced by a court’.
But it is ‘difficult to reconcile all this with the conception of law as the command of a sovereign
will’ (ibid).
¹⁰⁵ Ibid, 109.
¹⁰⁶ Ibid, 117.
¹⁰⁷ Ibid.
¹⁰⁸ Ibid, 118.
¹⁰⁹ Ibid.
460
The New Architecture of Public Law
the juridical logic of legal/illegal blends into, and with respect to issues of administrative government tends to be supplanted by, the disciplinary logic of proportionate/ disproportionate.¹¹⁰
In this light, the basic law of the administrative state is a type of disciplinary
law. All governmental action becomes reviewable in the light of a means-end
rationality, the precise specification of which is determined by the institutional
remit and competence of the particular official agency. Virtually all administrative agencies are now subject to forms of performance review in accordance
with value-for-money principles, a process that has been both strengthened
and systematized as a result of the rise of the ephorate.¹¹¹ All public authorities,
including the finance ministries that institute them, are bound by tight fiscal
rules. Even the judiciary now views itself as a supervisory institution whose purpose is to oversee the work of lower-tier dispute-settlement agencies.¹¹² When
exercising their public law jurisdiction, the courts review the decisions of other
public bodies—that is, all agencies that have taken on the task of promoting or
co-ordinating the ‘public interest’—in the light of the rationality, reasonableness,
and proportionality of their action.
The jural foundations of the network model Rubin advocates had thus been
laid down almost 100 years earlier by Duguit. But its roots are even deeper. ‘How
¹¹⁰ Cf Coke’s assertion to James I that justice is ‘not to be decided by natural reason, but by the
artificial reason and judgment of law, which law is an act that requires long study and experience
before that a man can attain to the cognizance of it’: Prohibitions del Roy (1607) 12 Co Rep 63.
¹¹¹ Value-for-money performance review operates according to an ‘input-throughput-outputimpact’ framework: service costs (inputs) are converted into resources, which are then transformed
as throughputs into outputs, and these outputs are measured, by reference to overall service objectives, as outcomes (impact). The relation between cost and resources created yields the measure of
economy, that between resources and outputs, efficiency, and that between outputs and outcomes,
eff ectiveness. Frameworks of this nature have become highly influential methods of evaluating public service and the performance indicators they generate have become key variables driving public
service reforms. See Michael Power, The Audit Society: Rituals of Verification (Oxford: Clarendon
Press, 1997).
¹¹² See, eg, Secretary of State for Constitutional Affairs, Transforming Public Services: Complaints, Redress and Tribunals Cm 6243 (London: HMSO, 2004), 6: ‘The proposals set out in this
White Paper are a major early step in the wider strategy we are developing to transform civil
and administrative justice and the way that people deal with legal problems and disputes. Our
strategy turns on its head the Department’s traditional emphasis first on courts, judges and court
procedure . . . It starts with the real world problems people face. The aim is to develop a range of
policies and services that, so far as possible, will help people avoid problems and legal disputes in
the first place; and where they cannot, provides tailored solutions to resolve the dispute as quickly
and cost-effectively as possible. It can be summed up as “Proportionate Dispute Resolution” ’. See
also Anufrijeva v Southwark London Borough Council [2003] EWCA 1406 at [79]–[81], per Woolf
LCJ: ‘In the course of the hearing of these appeals the court asked the parties to indicate the scale
of costs incurred by them in the court below. . . . we were concerned that, even if the proceedings
were conducted as economically as possible, the cost of the proceedings would be totally out of
proportion to the damages likely to be awarded. Th is has proved to be the position . . . The costs
at first instance of each party were totally disproportionate to the amount involved. When the
total costs of both sides are looked at, including the appeal, the figures are truly horrendous, and
the situation is made even more worrying by the fact that all the parties are funded out of public
funds . . . What can be done to avoid a repetition of this situation in future proceedings?’
VII. The Triumph of the Social?
461
can it be’, asked Rousseau, ‘that they [the people] obey and no one commands,
that they serve yet have no master; all the freer in fact than in apparent subjection,
no one loses any more of his own freedom than might harm someone else’s?’¹¹³
This marvel, Rousseau explains, is a consequence of adopting the principle of the
general will and then ensuring that, through the workings of droit politique, the
institutions of law are able to operate to give this principle practical effect.
Under modern conditions, Rousseau’s ‘general will’ is converted into a variety of surrogate formulae: ‘the greatest happiness of the greatest number’
(Bentham), ‘the promotion of social solidarity’ (Duguit), ‘provision for existence’ (Forsthoff ),¹¹⁴ or even, simply, the network’s point of optimality. Whatever
the precise terminology, the basic point was first explicitly stated by Rousseau.
Rousseau recognized not only that the aim of political association is ‘the preservation and prosperity of its members’ but also discovered the metric for measuring
it: ‘All other things equal, the Government under which the Citizens . . . populate
and multiply, is without fail the best: that under which a people dwindles and
wastes away is the worst’.¹¹⁵ Having so identified the principle, Rousseau is able
to proclaim: ‘Calculators, it is now up to you: count, measure, compare’.¹¹⁶ The
basic principle of droit politique, that of promoting the general will, is in the modern era converted into the principle of social solidarity, and under conditions of
late-modernity absorbs a disciplinary logic and may once again be transformed
into the point of optimality of the administrative network of government.
VII. The Triumph of the Social?
The transformation of public law signalled by Duguit and his followers is highly
controversial, not least because the shift in orientation required for the objective
law to be realized results in a blurring of many of the conventional distinctions
on which the concept of public law has been constructed. Objective law seeks to
eclipse the public in the name of the social.
Once objective law is set in place, the chain of authorization of subjects
(people—sovereign—officials—citizens) is broken and the distinction between
¹¹³ Jean-Jacques Rousseau, Discourse on Political Economy [1756] in The Social Contract and
other later political writings Victor Gourevitch (ed) (Cambridge: Cambridge University Press,
1997), 3–38, 10.
¹¹⁴ Ernst Forsthoff, author of the leading post-war German administrative law text, contended
that administrative law was best explained by focusing on functions rather than forms and that
the basic function of administrative law is that of Daseinvorsorge, the provision of the basic means
for human existence. See Ernst Forsthoff, Lehrbuch des Verwaltungsrecht (Munich: Beck, 9th edn,
1966), 9–10. See further Jens Kersten, ‘Die Entwicklung des Konzepts der Daseinvorsorge im
Werk von Ernst Forsthoff ’ (2005) 44 Der Staat 547–569; Florian Meinel, ‘Ernst Forsthoff and
the Intellectual History of German Administrative Law’ (2007) 8 German Law Journal 785–799;
Peter Caldwell, ‘Ernst Forsthoff and the Legacy of Radical Conservative State Theory in the Federal
Republic of Germany’ (1994) 15 History of Political Thought 615–641.
¹¹⁵ Rousseau, The Social Contract [1762], above n 113, 39–152, 105.
¹¹⁶ Ibid.
462
The New Architecture of Public Law
matters constitutional (relating to the conferral of jurisdictional authority on
institutions of government) and matters administrative (concerning the mode of
discharge of governing tasks) is rendered redundant. All governing bodies now
claim their authority not from some original conferral of jurisdiction but from
their ability effectively to discharge public (ie, social) tasks. This undermines the
public/private distinction: if government is conceived as forming an elaborate
network geared to the realization of social objectives, then once those objectives
are adequately specified the mode of delivery is determined by the metric of efficiency and effectiveness, and this is likely to involve a mix of private and public
agencies. The public/private distinction ceases to be one of clear institutional specification. It is the concept of the social that now seems to determine regulatory
objectives and to shape the variety of techniques (some public, others private)
required to ensure their realization. Once the network metaphor is set in place,
the foundational elements of public law need to be reconsidered. The triumph of
objective social law would signal an overcoming of the tensions between potestas
and potentia, and mark the destruction of the modern edifice of public law.
The extent of this challenge is highlighted once it is recognized that the blurring of the public/private distinction has been accompanied by the erosion of
another formative boundary: that between national and international. Once government is conceived not as the exercise of sovereign authority but the realization
of social objectives through a network of institutions, then not only is the public/
private distinction blurred but so too is the traditional distinction between inside
and outside. Just as a mix of public and private bodies is harnessed in the service
of collective goals, so too may a range of domestic and international agencies
be deployed. Over the last 50 years or so, there has been a steady increase in the
amount of governing power being exercised by transnational, supranational, and
international bodies. This growth has led to a fragmentation of international law,
as international organizations, multinational corporations, and international
NGOs emerge alongside states as actors in the international legal sphere.¹¹⁷ Such
developments compound the confusion by adding a blurring of inside/outside to
that of public/private.
The internationalization of governing power may be seen across several dimensions: not only through the extending influence of the United Nations (especially with respect to humanitarian intervention and international criminal
jurisdiction), but also with respect to sectoral organizations such as the World
Trade Organization (especially with respect to its enforcement mechanisms), and
regional institutions such as the European Union. The last illustration has a specific relevance for this study since the transfers of powers to the European Union
¹¹⁷ See Martti Koskenniemi and Päivi Leino, ‘Fragmentation of International Law? Postmodern
Anxieties’ (2002) 15 Leiden Journal of International Law 553–579; Martti Koskenniemi,
‘Formalism, Fragmentation, Freedom: Kantian Themes in Today’s International Law’ (2007) 4
No Foundations: Journal of Extreme Legal Positivism 7–28; Martti Koskenniemi, ‘The Fate of Public
International Law: Between Technique and Politics’ (2007) 70 MLR 1–30.
VII. The Triumph of the Social?
463
include legislative, executive, and judicial functions. And although Member
States remain ‘masters of the treaties’, the legal acts of EU institutions can have
direct effect within the legal orders of Members States and may take primacy over
provisions of domestic law. The extension of the competences of the European
Union has thus generated considerable political controversy. These controversies
must be set in an appropriate context.
This context is framed by three main factors: the growth of the police power,
the rise of the ephorate, and the new separation of powers. First, virtually all the
tasks assumed by the European Union concern matters of police. Both the EU’s
founding objectives and driving impetus have been those of economic regulation
and the rationalization and integration of the economies of western Europe.¹¹⁸
The European Union is mainly concerned with rule-making and regulation in
such technical fields of government as trade, monetary policy, and regulatory
standards;¹¹⁹ it has no significant responsibility for those major areas of governmental service provision—such as health, education and social welfare provision, pensions and family policies, law and order, and the provision of physical,
social, and cultural infrastructure—that remain the responsibility of nationstates. The evolution of the European Union might therefore best be understood
in the context of the rise of the ephorate: much of the EU’s functions relate to
the acquisition of technical knowledge in these regulatory fields, and assisting
inter-governmental institutions (notably the Council of Ministers) to make policy decisions. It is when we turn to the issue of the separation of powers, however,
that the problems are thrown into relief. In particular, as Vibert notes, ‘functions
that are being separated out at the national level are mingled together within EU
and at the international level’.¹²⁰ The threat posed by internationalization arises
because the extension of the authority of such bodies simply cannot be explained
in terms of supporting political decision-making in a technical context; many
of these ‘expert’ bodies are directly taking on political decision-making responsibilities in ways that cannot be justified according to the precepts of modern
constitutionalism.¹²¹
¹¹⁸ See Alan S Milward, The Reconstruction of Western Europe, 1945–1951 (London: Methuen,
1984); Milward, The European Rescue of the Nation-State (London: Routledge, 1992).
¹¹⁹ Giandomenico Majone, Regulating Europe (London: Routledge, 1996), esp Pt I.
¹²⁰ Vibert, above n 55, 16. This problem is seen most notably with respect to institutions like the
European Commission which, although unelected, possess many powers with respect to policymaking, law-making, and enforcement action which violate not only the traditional notions of the
separation of powers but also the new ideas of separation of powers arising from the growth of the
ephorate.
¹²¹ Moravcsik’s thesis—that there is no ‘democratic deficit’ in these contexts—is therefore
only partly correct. To the extent that he highlights the technical/regulatory role of such institutions he correctly specifies the police function undertaken by these bodies. But he underplays the
degree to which expert bodies that exists to support decision-making are themselves becoming
decision-makers. See Andrew Moravcsik, ‘The Myth of Europe’s “Democratic Deficit” ’ (2008)
Intereconomics 331–340.
464
The New Architecture of Public Law
The juristic solutions proposed to this apparent blurring of national/international boundaries all tend to be variations on the theme of the rise of objective
social law. Some have promoted the creation and extension of the concept of jus
cogens as a set of higher status values and principles that structure the entire international sphere.¹²² Some have extended this general argument and advocated the
‘constitutionalization’ of transnational and international bodies,¹²³ and have even
extended their claims to make the case for a universal ‘multi-level constitutionalism’ that structures governmental decision-making from local to global levels.¹²⁴
Others assert ‘humanity’ as the foundational principle of public law (whether
domestic or international)¹²⁵ or claim that the entire edifice of public law must be
overcome in favour of ‘societal constitutionalism’.¹²⁶ Notwithstanding variations
in style of presentation—ranging from the assertion of a new natural law to the
adoption of late-modern systems theory—all can be understood to be elaborations of Duguit’s basic thesis concerning the continuing evolution of objective
law into what he calls the ‘intersocial’ arena.
Duguit argues that once social groups (ie, nation-states) are organized in
accordance with the discipline of objective law, bonds of solidarity are formed
between individuals belonging to different groups, and these eventually evolve
into an ‘intersocial law’, which is an embryonic form of modern international
law.¹²⁷ With the growing interdependence between members of different social
groups, a sentiment of intersocial justice emerges, by which he means ‘the sentiment that distributive justice and commutative justice should be as much
respected in the relations of individual members of different groups as in the
relations of members of the same group’.¹²⁸ And through the ‘double sentiment
of intersocial sociality and intersocial justice’, which can exist only at a ‘fairly
advanced stage of human history’, an international juridical norm is created. This
norm does not, of course, rest on promulgation by superior will: it rests ‘on the
consciousness existing in the individuals to whom it applies that this rule should
¹²² See, eg, Jonathan I Charney, ‘Universal International Law’ (1993) 87 American Journal of
International Law 529–551.
¹²³ See, eg, Jan Klabbers, Anne Peters, and Geir Ulfstein, The Constitutionalization of
International Law (Oxford: Oxford University Press, 2009); cf Martin Loughlin, ‘What is constitutionalization?’ in Petra Dobner and Martin Loughlin (eds), The Twilight of Constitutionalism?
(Oxford: Oxford University Press, 2010), ch 3.
¹²⁴ See, eg, Ingolf Pernice, ‘Multilevel Constitutionalism and the Treaty of Amsterdam:
European Constitution Making Revisited?’ (1999) 36 CML Rev 703–750; Thomas Cottier and
Maya Hertig, ‘The Prospects of 21st Century Constitutionalism’ (2003) 7 Max Planck Yearbook of
United Nations Law 261–328.
¹²⁵ See Anne Peters, ‘Humanity as the A and Ω of Sovereignty’ (2009) 20 European Journal of
International Law 513–544.
¹²⁶ See, eg, Gunther Teubner, ‘Fragmented Foundations: Societal Constitutionalism beyond
the Nation State’ in Dobner and Loughlin (eds), above n 123, ch 16.
¹²⁷ Léon Duguit, ‘Objective Law’ (1920) 20 Columbia Law Review 817–831 (Pt I); 21 Columbia
Law Review 17–34 (Pt II); 126–143 (Pt III); 242–256 (Pt IV), at 250.
¹²⁸ Ibid, 251.
VII. The Triumph of the Social?
465
be furnished with a sanction by compulsion’.¹²⁹ International law, it is argued,
now establishes objective (social) norms that governments of all nation-states are
obliged to respect.
The rise of the social marks the return of the religious, albeit in a different
form. It signals the return of the overarching claims of the right and the true.
This amounts to a direct and fundamental challenge to the concept of public law
which has here been elaborated. Public law is founded not only on the drawing of
a distinction between the political and the social, but also between the discourses
of public reason and religious truth. As its early-modern founders fully appreciated, the most basic purpose of the practices of public law was that of maintaining
the civil peace against a backcloth of (often violent) competing truths.¹³⁰ Public
law is born of a compromise effected between antagonists who cannot defeat one
another and it is in this sense that it becomes ‘the organising schema of a de
jure fragmented public space assuring unresolvable confrontation’.¹³¹ Those who
today seek to overcome this prudential public reason in the name of some higher
universal truths are unlikely to be able to realize their apparent objectives. But to
the extent that their ideas are now exerting a major influence in public affairs, it
is likely to ensure only that the future will be marked by confusion, disappointment, and the generation of new forms of conflict.
¹²⁹ Ibid, 253.
¹³⁰ See above ch 2, 73–83. See also Gary Wickham, ‘The social must be limited: Some problems
with Foucault’s approach to modern positive power’ (2008) 30 Journal of Sociology 29–44.
¹³¹ Gauchet, above n 79, 192.