Synopses & Reviews
This book argues that many of the basic concepts that we use to describe and analyze our governmental system are out of date. Developed in large part during the Middle Ages, they fail to confront the administrative character of modern government.
These concepts, which include power, discretion, democracy, legitimacy, law, rights, and property, bear the indelible imprint of this bygone era's attitudes, and Arthurian fantasies, about governance. As a result, they fail to provide us with the tools we need to understand, critique, and improve the government we actually possess.
Beyond Camelot explains the causes and character of this failure, and then proposes a new conceptual framework, drawn from management science and engineering, which describes our administrative government more accurately, and identifies its weaknesses instead of merely bemoaning its modernity.
This book's proposed framework envisions government as a network of connected units that are authorized by superior units and that supervise subordinate ones. Instead of using inherited, emotion-laden concepts like democracy and legitimacy to describe the relationship between these units and private citizens, it directs attention to the particular interactions between these units and the citizenry, and to the mechanisms by which government obtains its citizens' compliance. Instead of speaking about law and legal rights, it proposes that we address the way that the modern state formulates policy and secures its implementation. Instead of perpetuating outdated ideas that we no longer really believe about the sanctity of private property, it suggests that we focus on the way that resources are allocated in order to establish markets as our means of regulation. Highly readable, Beyond Camelot offers an insightful and provocative discussion of how we must transform our understanding of government to keep pace with the transformation that government itself has undergone.
Review
This ambitious work offers a refreshing, insightful reconceptualization of the modern administrative state. . . . [A] beautifully written contribution. -- Harvard Law Review [A] fascinating and provocative book. . . . Rubin is to be congratulated. Beyond Camelot is an extraordinary effort, brilliant in places; it is certain to provoke a great deal of thought and suggest numerous avenues of future research. -- Howard Schweber, Journal of Politics Anyone who desires to understand modern government should read Beyond Camelot. -- Brian Z. Tamanaha, Law and Politics Book Review
Review
"This ambitious work offers a refreshing, insightful reconceptualization of the modern administrative state. . . . [A] beautifully written contribution."--Harvard Law Review
Review
"[A] fascinating and provocative book. . . . Rubin is to be congratulated. Beyond Camelot is an extraordinary effort, brilliant in places; it is certain to provoke a great deal of thought and suggest numerous avenues of future research."--Howard Schweber, Journal of Politics
Review
"Anyone who desires to understand modern government should read Beyond Camelot."--Brian Z. Tamanaha, Law and Politics Book Review
Review
Anyone who desires to understand modern government should read Beyond Camelot. Journal of Politics
Review
“
Is Administrative Law Unlawful? is a work of the very highest quality, a learned scholarly exegesis setting out the intellectual foundations—in medieval and early modern English constitutional thought—for the proposition that the contemporary American administrative state is profoundly unconstitutional and unlawful. Philip Hamburger’s argument is intricately wrought and forcefully expressed. Its indictment of modern administration in America doubles as a major statement on the virtues of a genuinely constitutional government.”
Review
"With characteristic erudition, Philip Hamburger shows how virtually every aspect of the modern administrative state undermines the Anglo-American legal tradition—or at least that part of the tradition that most informed the American founding. It is a provocative thesis, but one that is amply supported by extensive scholarly argument and fascinating historical study. Hamburger makes an impressive case that modern administrative law owes its lineage to claims of monarchical prerogative and civil law absolutism that were precisely the ideas that the American revolution was trying to reject. This is a tremendously important book."
Review
“An important new book that is very much worth reading."
Review
"The most important book I have read in a long time."
Review
“The administrative state is a modern invention. It was, and remains, a necessity in our complex modern age. Or so goes the argument. . . . Hamburger meticulously (and sometimes laboriously) demonstrates how the modern administrative state revives all the attributes of the royal prerogative and absolute power.”
Review
“A serious work of legal scholarship. . . . This is a book that rewards the reader with a deepened understanding of the Constitution and the challenges that confront us in the task of restoration. . . . The news of the day repeatedly buttresses the powerful case Hamburger makes against the legitimacy of the vast administrative apparatus that does so much to dictate the way we live now. It is a book not only of this season but of many seasons to come.”
Review
“An interesting new work by Philip Hamburger dispenses with the tiresome back and forth between Republicans and Democrats. Instead, it focuses on Washingtons permanent administration—the ever-expanding federal bureaucracies that have come to play a central role in health care, finance, housing and work, and large roles in education, energy and whatever else constitutes the American system. . . . Hamburgers book is filled with details of how the centralisation of power divorced from a popular or court mandate leads to insularity and even insurrection as hopes of efficiency and expertise give way to bureaucratic inertia.”
Synopsis
This book argues that many of the basic concepts that we use to describe and analyze our governmental system are out of date. Developed in large part during the Middle Ages, they fail to confront the administrative character of modern government.
These concepts, which include power, discretion, democracy, legitimacy, law, rights, and property, bear the indelible imprint of this bygone era's attitudes, and Arthurian fantasies, about governance. As a result, they fail to provide us with the tools we need to understand, critique, and improve the government we actually possess.
Beyond Camelot explains the causes and character of this failure, and then proposes a new conceptual framework, drawn from management science and engineering, which describes our administrative government more accurately, and identifies its weaknesses instead of merely bemoaning its modernity.
This book's proposed framework envisions government as a network of connected units that are authorized by superior units and that supervise subordinate ones. Instead of using inherited, emotion-laden concepts like democracy and legitimacy to describe the relationship between these units and private citizens, it directs attention to the particular interactions between these units and the citizenry, and to the mechanisms by which government obtains its citizens' compliance. Instead of speaking about law and legal rights, it proposes that we address the way that the modern state formulates policy and secures its implementation. Instead of perpetuating outdated ideas that we no longer really believe about the sanctity of private property, it suggests that we focus on the way that resources are allocated in order to establish markets as our means of regulation. Highly readable, Beyond Camelot offers an insightful and provocative discussion of how we must transform our understanding of government to keep pace with the transformation that government itself has undergone.
Synopsis
This book argues that many of the basic concepts that we use to describe and analyze our governmental system are out of date. Developed in large part during the Middle Ages, they fail to confront the administrative character of modern government.
These concepts, which include power, discretion, democracy, legitimacy, law, rights, and property, bear the indelible imprint of this bygone era's attitudes, and Arthurian fantasies, about governance. As a result, they fail to provide us with the tools we need to understand, critique, and improve the government we actually possess.
Beyond Camelot explains the causes and character of this failure, and then proposes a new conceptual framework, drawn from management science and engineering, which describes our administrative government more accurately, and identifies its weaknesses instead of merely bemoaning its modernity.
This book's proposed framework envisions government as a network of connected units that are authorized by superior units and that supervise subordinate ones. Instead of using inherited, emotion-laden concepts like democracy and legitimacy to describe the relationship between these units and private citizens, it directs attention to the particular interactions between these units and the citizenry, and to the mechanisms by which government obtains its citizens' compliance. Instead of speaking about law and legal rights, it proposes that we address the way that the modern state formulates policy and secures its implementation. Instead of perpetuating outdated ideas that we no longer really believe about the sanctity of private property, it suggests that we focus on the way that resources are allocated in order to establish markets as our means of regulation. Highly readable, Beyond Camelot offers an insightful and provocative discussion of how we must transform our understanding of government to keep pace with the transformation that government itself has undergone.
Synopsis
Today, administrative law is the usual means used by the federal government to create regulations. Most commentators usually trace the origins of administrative law to the 1930s, seeing it as a response to modern circumstances which could not have been anticipated by the Constitution. Philip Hamburgers provocative book offers a revisionist account that shows administrative law to be, instead, more closely related to the much older tradition of royal prerogative. Rather than a novel power necessitated by modernized society, he shows administrative law to have its roots in an ancient and persistent sort of power, one which enabled rulers to exert their will through a mechanism other than the law. His massive historical account of absolute power, and the responses to it, spans the Middle Ages to the present. Medieval parliaments sporadically attempted to confine the Crown to governing through the law, but the most effective response was the development of constitutional law in the seventeenth century. Englishmen then put an end to binding prerogative powers by concluding that their constitution required their government to rule only through the law and the courts. Hamburger argues that the U.S. Constitution imposed such requirements even more vigorously, but that the prerogative power re-emerged here as the modern administrative state under FDR began to take shape. Since then, administrative law has transformed American government and society. For Hamburger, administrative law represents a kind of absolute power that our Constitutionand constitutions in generalwere designed to prevent.
Synopsis
Is administrative law unlawful? This provocative question has become all the more significant with the expansion of the modern administrative state. 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 Constitutionand constitutions in generalwere 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 perniciousand profoundly unlawfulreturn to dangerous pre-constitutional absolutism.
About the Author
Edward L. Rubin is dean of Vanderbilt University Law School. He is the author of "Judicial Policymaking and the Modern State: How the Courts Reformed America's Prisons and Federalism: A Theoretical Inquiry", both with Malcolm Feeley. He has served as a legal consultant to the Russian Federation and the People's Republic of China.
Table of Contents
Acknowledgments vii
Chapter One: Introduction 1
The Thesis 1
The Method 12
The Administrative State 22
PART I: THE STRUCTURE OF GOVERNMENT 37
Chapter Two: From Branches to Networks 39
The Government as Body and Branches 39
The Modern Image of a Network 48
Applying the Network Model 56
Chapter Three: From Power and Discretion to Authorization and Supervision 74
Power and Discretion 74
Authorization and Supervision 91
The Microanalysis of Intra-Governmental Relations 96
Chapter Four: From Democracy to an Interactive Republic 110
The Pre-Modern Concept of Democracy 110
Electoral Interaction 120
Administrative Interaction 131
Chapter Five: From Legitimacy to Compliance 144
The Pre-Modern Concept of Legitimacy 144
The Compliance Model 160
The Large-Scale Application of the Compliance Model 171
Conclusion to Part I 179
PART II: LEGAL OPERATIONS 189
Chapter Six: From Law to Policy and Implementation 191
Law and Regularity 191
Policy and Implementation 203
The Morality of Policy and Implementation 214
Chapter Seven: From Legal Rights to Causes of Action 227
The Concept of Legal Rights 227
Causes of Action 237
Causes of Action v. Legal Rights 246
Chapter Eight: From Human Rights to Moral Demands on Government 260
Natural Rights and Human Rights 260
The Concept of Moral Demands on Government 268
The Content of Moral Demands on Government 287
Chapter Nine: From Property to Market-Generating Allocations 296
Property as Control 296
Market-Generating Allocations 308
The Protection of Individual Interests 323
Conclusion to Part II 330
Notes 341
Author Index 455
Subject Index 459