The Background Of Administrative Law

A new framework for understanding contemporary administrative law, through a comparative analysis of case law from Australia, Canada, England, Ireland, and New Zealand. The author argues that the field is structured by four values: individual self-realisation, good administration, electoral legitimacy and decisional autonomy.

“Hamburger argues persuasively that America has overlaid its constitutional system with a form of governance that is both alien and dangerous.” —Law and Politics Book Review While the federal government traditionally could constrain liberty only through acts of Congress and the courts, the executive branch has increasingly come to control Americans through its own administrative rules and adjudication, thus raising disturbing questions about the effect of this sort of state power on American government and society. With Is Administrative Law Unlawful?, Philip Hamburger answers this question in the affirmative, offering a revisionist account of administrative law. Rather than accepting it as a novel power necessitated by modern society, he locates its origins in the medieval and early modern English tradition of royal prerogative. Then he traces resistance to administrative law from the Middle Ages to the present. Medieval parliaments periodically tried to confine the Crown to governing through regular law, but the most effective response was the seventeenth-century development of English constitutional law, which concluded that the government could rule only through the law of the land and the courts, not through administrative edicts. Although the US Constitution pursued this conclusion even more vigorously, administrative power reemerged in the Progressive and New Deal Eras. Since then, Hamburger argues, administrative law has returned American government and society to precisely the sort of consolidated or absolute power that the US Constitution—and constitutions in general—were designed to prevent. With a clear yet many-layered argument that draws on history, law, and legal thought, Is Administrative Law Unlawful? reveals administrative law to be not a benign, natural outgrowth of contemporary government but a pernicious—and profoundly unlawful—return to dangerous pre-constitutional absolutism.

Designed to complement the first volume on administrative law which was published as part of the original series of The International Library of Essays in Law and Legal Theory, the articles contained in this volume pick up on themes dealt with in the first, while others reflect different concerns and new developments in administrative law scholarship. It offers a representative sample of the best contemporary writing in administrative law - theoretical, empirical and doctrinal.

During the past decade, administrative law has experienced remarkable development. It has consistently been one of the most dynamic and potent areas of legal innovation and of judicial activism. It has expanded its reach into an ever broadening sphere of public and private activities. Largely through the mechanism of judicial review, the judges in several jurisdictions have extended the ambit of the traditional remedies, partly in response to a perceived need to fill an accountability vacuum created by the privatisation of public enterprises, the contracting-out of public services, and the deregulation of industry and commerce. The essays in this volume focus upon these and other shifts in administrative law, and in doing so they draw upon the experiences of several jurisdictions: the UK, the US, Canada, Australia and New Zealand. The result is a wide-ranging and forceful analysis of the scope, development and future direction of administrative law.

With dynamic learning features and visual aids, the Inside Series helps you make the most of your study time, throughout the semester and as you prepare for the final. Unlike heavily abridged treatises, the Inside Series is carefully written in a concise, straightforward style that clearly identifies the essential components of the law and how they fit together. You can quickly learn what is important and why. Overviews and Tables of Contents in each chapter act as a roadmap to guide you through topics, showing you how each relates to the larger legal framework. FAQs clarify points of law and help you avoid common mistakes and misconceptions. Sidebars give fascinating additional detail from legal history, policy, famous cases and more. The graphic design supports your visual learning, and features such as bolded key terms, summaries, and Connections help reinforce your understanding while giving you ample opportunity for self-review. Surprisingly concise, visually compelling, the Inside Series is extremely useful throughout the semester to help you identify the essential components of the law and how they fit together. Comprehensive coverage of the essential topics emphasizes what you need to know and why. Clear, straightforward, informal writing explains every topic for you without over-simplifying the concepts. Overviews and Tables of Contents in each chapter act as a roadmap to guide you through topics, showing you why each matters and how it fits into the larger framework of the law. FAQs clarify points of law and help you avoid common mistakes and misconceptions. Sidebars enrich the text with fascinating detail from legal history, policy, famous cases and more. Bolded key terms, Connections and summaries reinforce your understanding and give you ample opportunity for self-review. The overall graphical design of the series supports your visual learning.