*This is the seventh post in a series on Cass Sunstein and Adrian Vermeule’s new book Law and Leviathan: Redeeming the Administrative State. For other posts in this series, click here.
When Thomas Hobbes published Leviathan in 1651, the bloody Civil War between Royalists and Parliamentarians had just concluded and the need to restore legal order was acute. But instead of relying on the myth of divine right or installing a strongman to cut the Gordian knot of internecine disagreement, Hobbes provided a secular argument to explain the legitimacy of law and legal authorities in a pluralistic society. The genius of Hobbes’ account was that it explained how individuals can defer rationally to the Sovereign’s decisions instead of clinging to personal liberty and self-interest in a chaotic state of nature. In the absence of a legitimate legal institution—a Leviathan or commonwealth—capable of resolving political disagreement, Hobbes famously observed there is “no Knowledge of the face of the Earth; no account of Time; no Arts; no Letters; no Society; and which is worst of all, continuall feare, and danger of violent death; And the life of man, solitary, poore, nasty, brutish, and short.”11.Thomas Hobbes, Leviathan, Richard Tuck (ed) (Cambridge, Cambridge University Press, 1996) 89.
While Hobbes clearly perceived the need for legal order, his theory leads a peculiar double life in the realm of jurisprudence and political philosophy. The dominant reading of Leviathan casts Hobbes’ Sovereign in the menacing role of Mr. Hyde—an uncommanded commander unconstrained by law, imposing its arbitrary will on individuals backed by the omnipotent power of the State. This interpretation, popularized by John Austin’s version of legal positivism, assumes that the constitutive, natural law precepts that Hobbes employed to pave a rational path for individuals to escape the state of nature are rendered obsolete once the Sovereign is installed so that there is no necessary connection between law and morality in the long run.
The other, more complex reading of Leviathan portrays the Hobbesian Sovereign as the more humane Dr. Jekyll—the natural law precepts which pave the path out of the state of nature have a constitutional, civilizing influence over the continuing exercise of sovereign power, such that legislation must be interpreted equitably and legal disputes adjudicated fairly in order to sustain the legitimacy of the legal order from the internal perspective of subjects and other legal officials. The civilizing influence of unwritten principles, reflected in Lon Fuller’s anti-positivist jurisprudence, is tied to concepts like legality or the rule of law, which condition the exercise of sovereign power so that its decisions must be published, transparent, intelligible, and justified reasonably in light of available legal standards in order to warrant the deference of individuals and legal officials. In his famous riposte to HLA Hart, Lon Fuller argued that Hart’s attempt to rehabilitate Austinian positivism was deeply flawed, because it failed to account for law’s legitimacy from an internal perspective or “fidelity to law”. Fidelity to law, as Fuller understood it, meant that “[i]f laws, even bad laws, have a claim to our respect, then law must represent some general direction of human effort that we can understand and describe, and that we can approve in principle even at the moment when it seems to us to miss its mark.”22.Lon Fuller, “Positivism and Fidelity to Law—A Reply to Professor Hart” (1958) 71 Harvard Law Review 630, 632. Thus, Fuller argued that the value of legality does not reside in the fact that it makes easier for the sovereign to bend individuals to its purpose or impose its will on society, but in its ability to sustain the legitimacy of a legal order through a mode of governance that treats people with dignity, concern, and respect.
At first blush, it seems that Law & Leviathan aligns with the second, Fullerian reading of Leviathan. Cass Sunstein and Adrian Vermeule argue that Fuller’s conception of legality is embedded in the fundamental legal principles that sustain the legitimacy of American administrative law. They argue that the constitutional legitimacy of administrative law is not precluded by the conventional meaning of the constitutional text circa 1787 or imposed via the brute force of the Presidency. Rather, the legitimacy of administrative law is underpinned by the way administrative institutions are constituted, and how those institutions operate in accordance with the moral principles of legality.
Their argument is conceived as a rebuttal to reheated (and overdone) claims that the American administrative state is unconstitutional tout court, and administrative decisions (by definition) are not “law”. These critiques of the administrative state and administrative law, which initially gained prominence during the Lochner period, have returned with a vengeance as prominent members of the United States Supreme Court suggest the American administrative state violates the formal conception of the separation of powers between the legislative, judicial, and executive branches of government. The upshot of these critiques is that vast swathes of the American administrative state that enjoy institutional independence or rely on broad statutory delegations of discretionary power would be deemed unconstitutional, and common law doctrines of judicial deference to administrative interpretations of law would be consigned to the dustbin of history. As in Hobbes’ day, the stakes could not be higher as governments around the world struggle to respond to a deadly pandemic while public confidence in essential administrative institutions tasked with mitigating the ensuing risks to health and economic welfare is sapped by manipulation, misinformation, mistrust, and misanthropic politics.
The main attraction of Law & Leviathan is that it reframes recurrent critiques of the administrative state in order to engage with deeper questions about the legitimacy of administrative law. Instead of being drawn into debates about the conventional meaning of the constitutional text or a hidebound conception of the separation of powers, the authors suggest that administrative law is best understood as a case study in applied jurisprudence. In this vein, they suggest that “contemporary critics of the administrative state are best seen as offering rule-of law objections—of urging that agencies are violating one or more of Fuller’s eight principles.”33.Cass Sunstein and Adrian Vermeule, Law & Leviathan: Redeeming the Administrative State (Cambridge, Belknap Press, 2020) 104. However, as we will see, there is reason to believe that Sunstein and Vermeule have only half-digested the practical implications of Fullerian jurisprudence.
Nevertheless, by reframing the constitutional debate about the legitimacy of administrative law, Sunstein and Vermeule raise fundamental questions that extend far beyond American borders. In this respect, the orientation of Law & Leviathan resonates with Mark Walters’ recent book, AV Dicey and the Common law Constitutional Tradition: A Legal Turn of Mind, which is destined to be the defining intellectual biography of the United Kingdom’s most influential constitutional theorist of the 20th century.44.Mark Walters, AV Dicey and the Common Law Constitutional Tradition: A Legal Turn of Mind (Cambridge, Cambridge University Press, 2020). Dicey famously claimed that administrative law “rests on ideas foreign to the fundamental assumptions of our English common law, and especially to what we have termed the rule of law.”55.AV Dicey, Introduction to the Study of the Law of the Constitution, 10th ed (London, Macmillan & Co, 1959) 329. But Dicey’s categorical rejection of administrative law assumed various guises. At times, Dicey conflated the very concept of administrative law with the despotic rule of the Stuarts; at other times, his animus stemmed from his fervent commitment to laissez-faire economic policy and equally fervent contempt for the notion of distributive justice embodied by the welfare state. And on yet other occasions, he asserted that the concept of administrative law was utterly incompatible with the exclusive constitutional role reserved for the judiciary in determining the meaning of the law. However, Walters reveals that Dicey’s extravagant views about administrative law waned when he began to appreciate how the principles of natural justice might condition the exercise of administrative power. This legal turn of mind regarding the potential legitimacy of administrative law was tied to the same notion of internal morality that ostensibly informs the general approach of Law & Leviathan.
But even though Sunstein and Vermeule are keen to leverage the moral purchase of Fuller’s conception of legality, they concede that “not everything government does is subject to, or best understood through the lens of, law’s internal morality” because “[t]hat morality, however excellent within its proper domain, has inherent limitations.”66.Sunstein and Vermeule, Law & Leviathan, 94. And even though they claim that there are “distinct boundaries” beyond which law’s inner morality “should and typically does give way to other considerations”, those boundaries are ill-defined.77.Ibid, 90. Instead, what follows is a brief allusion to trade-offs and limits entailed by distributive justice, welfare economics, and realpolitik.88.Ibid, 94. The authors do not linger on this point, perhaps because they assume that the necessity of countervailing, undefined limits or trade-offs is more or less self-evident.
The problem here is not so much about what Sunstein and Vermeule say in Law & Leviathan, but that they cannot reconcile their jurisprudential argument about law’s inner morality with their penchant for governance strategies that corrode fidelity to law. Sunstein, for example, has long championed a regulatory strategy that enables administrative officials to tinker purposefully with the choice architecture of society to steer individuals towards outcomes that officials deem desirable.99.Richard Thaler and Cass Sunstein, Nudge: Improving decisions about health, wealth, and happiness (New Haven, Yale University Press, 2008); Cass Sunstein, Why Nudge? The Politics of Libertarian Paternalism (New Haven, Yale University Press, 2014). Vermeule has argued that American administrative law is essentially Schmittian, which means that the sovereign regularly exercises discretionary power unconstrained by the constitution, the APA, legislation, or common law principles. Thus, he argues that, “black and grey holes are inevitably integral to administrative law, and that because their presence is inevitable, there is no point in condemning them. To do so is quixotic.”1010.Adrian Vermeule, “Our Schmittian Administrative Law” (2009) 122 Harvard Law Review 1096, 1103. This remarkably sanguine posture resurfaces in a more recent plea for “illiberal legalism”, whose “main aim is certainly not to maximize individual autonomy or to minimize the abuse of power (an incoherent goal in any event), but instead to ensure that the ruler has the power needed to rule well.”1111.Adrian Vermeule, “Beyond Originalism” The Atlantic (31 March 2020).
If one employs Fuller’s argument merely as window dressing for corrosive governance strategies, how does this restore public confidence in essential administrative institutions (especially after a former President incited a mob deluded by deep state conspiracy theories to invade the United States Capitol)? It is difficult to understand how their views about practical governance strategies can be reconciled with a Fullerian argument premised upon values of dignity, concern, and respect for legal subjects.1212.Jeremy Waldron, “It’s All for Your Own Good” The New York Review of Books (9 October 2014); David Dyzenhaus, “Schmitten in the USA” Verfassungblog.de (4 April 2020).
Matthew Lewans is a Professor at the University of Alberta Faculty of Law.