Goodnow's admiration for the neutral expert reflected important social trends of the era. A five-fold increase in the professional middle class between 187o and 191092 was accompanied by efforts to identify and elaborate internal professional norms based on skill and craft. In his famous lectures on professional ethics in 1898-19oo, the French sociologist Emile Durkheim found in the rise of profes sionalism the potential for re-creating new, "organic" guild norms that, on the one hand, would substitute for declining religious constraints and, on the other, would serve as an alternative to the reign of unrestrained self-interest in the market.93 By the time Durkheim made these observations, the turn to neutral professionalism was already underway in the United States.
The growth of professional education at Harvard and Johns Hopkins after 1870, together with the emergence of professional social science by 1900, produced a corps of experts on a scale unknown just a generation earlier. Scholars at the forefront of emergent disciplines sought to wrap themselves in the additional mantle of scientific expertise. The prestige of the natural sciences was apparent both to Langdell, who sought to model a science of law on the physical sciences,` and to the founders of positivist social sciences such as economics, sociology, and behavioral psychology.95
As the Progressive disenchantment with the competence of courts to perform social engineering tasks combined with a loss of faith in the sensitivity of judges to questions of social justice, the effort to replace courts with administrative experts became more pronounced. Increasingly, those concerned with social engineering came to regard the rule of law as an archaic set of ideas that exalted private rights over the public interest and procedural red tape over substantive policy. By the time Landis and Pound split over New Deal administrative regulation, the two positions had become sharply defined. The legalist position embodied in the delegation theory was treated by its opponents as merely a cover for reactionary positions on social policy; the anti-legalist scientific position, based upon several varieties of expertise theory, was viewed by its opponents as an effort to eliminate all legal restraints standing in the way of statism and collectivism.
The Legalist Tradition
In striking contrast to Landis's views, Pound drew on a powerful tradition of hostility to administrative law that, a half century earlier, had suddenly acquired the status of sacred dogma through the writings of A. V. Dicey, the Vinerian Professor of Law at Oxford. Dicey's Law of the Constitution96 (1885) became instantly famous not only for coining the phrase "the rule of law," but also for positing an irreconcilable conflict between the traditional ideal of the rule of law and the emergence of a modern system of administrative regulation.
Dicey had drawn a sharp distinction between the French system of droit administratif and the English system of judicial determination of the power of administrators through decisions concerning the "regular law."97 In France, he wrote, "the relations of the government and its officials towards private citizens are regulated by a whole body of special rules . . . which differ from the laws which govern the relations of one private person towards another."98 The French administrative tribunals were composed of "persons who, if not actually part of the executive, are swayed by official sympathies, and who are inclined to consider the interest of the state or of the government more important than strict regard to the legal rights of individuals. "99 By contrast, the English rule of law required "the predominance of regular law as opposed to the influence of arbitrary power" and "exclud[ed] the idea of any exemptions of officials or others from the duty of obedience to the law which governs other citizens or from the jurisdiction of the ordinary tribunals." 100
That Dicey evidenced "a thorough misinterpretation of French law" has been demonstrated many times. "[M]odern constitutional scholars," his biographer concludes, "have shown striking unanimity in their condemnation of Dicey."101 Nevertheless, his influence "long threw a chilly shadow over administrative law" 102 and for the next fifty years managed to persuade Anglo-American lawyers that administrative law was simply "a misfortune inflicted upon the benighted folk across the Channel." 103
Law of the Constitution went through eight editions over the next thirty years, and Dicey's conception of the rule of law acquired a permanent place in all subsequent discussions of the growth of the administrative state. While his political and economic views were muted in the original formulations, they eventually became more explicit, as he increasingly linked the growth of administration with the decline of individualism and with the corresponding rise of collectivism and socialism.
Dicey combined the laissez-faire hostility of nineteenth-century Manchester Liberals toward the emergent English welfare state with the nineteenth-century English Whigs' identification of common law courts as the foundation of constitutional government. He brought to the rise of administration all of the conservative common lawyer's antipathy to public law as coercive, political, and redistributive. His great ideological-and intellectual-achievement was in successfully asserting the existence of a conflict between the rule of law and the rise of administrative regulation. He succeeded not only in identifying all forms of regulation with socialism but also in representing the administrative state as a continuing enemy of legality.
In Law and Public Opinion (1905)104 Dicey associated his anxieties for the rule of law with his fear and loathing of the rise of collectivism. Delivered first as lectures at Harvard Law School in 1898, his attack on the English factory laws as harbingers of socialism was greeted by orthodox American legal opinion as a strong authority for the emerging Lochner era in the U.S. Supreme Court. For an American legal establishment in the midst of the Lochner era, Dicey's praise for a lost age of laissez-faire individualism was warmly received in the only Western society where that doctrine continued to dominate public philosophy. 105
By 1914, as Dicey's "fears of socialism" became "more intense," his introduction to Law and Public Opinion degenerated, his biographer observed, into "a political diatribe that had not the slightest veneer of objectivity or scholarship." 106 "I have lived on into a generation which is not my own," Dicey confided in a letter. "[M]y last words are the voice of 1886 heard in 1913." 107
Rooted in his laissez-faire vision, Dicey's conception of the rule of law was simply irreconcilable with the emerging welfare-regulatory state. It created, in the minds of both proponents and opponents of the regulatory state, the conviction that rule of law ideals could be nurtured only in a political culture whose values were fast coming to be regarded as unacceptable. For more than a half century after Dicey first wrote, then, the rule of law ideal came to be increasingly regarded as inseparable from reactionary political and social views.
Condemnation of administrative power did, however, come from influential voices less extreme than Dicey. The Chief Justice of England, Lord Hewart, also wrote deploringly about the growth of administration in The New Despotism (1929). "Parliamentary institutions and the rule of law have been tried and found wanting, and . . . the time has come for the departmental despot, who shall be at once scientific and benevolent, but above all a law to himself. . . ."108
Hewart treated Dicey's analysis with some ambivalence. On the one hand, he followed Dicey in seeing "the sharpest possible contrast."109 between administrative law and the rule of law. He agreed that it makes "all the difference" 110 that under the English Constitution there are not separate courts, one for actions against officials, another for ordinary litigation between citizens. And like Dicey, he deplored the rise of the executive, extending his analysis to the recent growth of cabinet government, which had eroded parliamentary supremacy. On the other hand, Hewart departed from Dicey's most extreme pronouncements and conceded that, "rightly understood, [the French] `droit administratif' is a definite system of law, the rules and principles of which . . . [constitute] true 'administrative law,' administered by a tribunal which applies judicial methods of procedure.""' In contrast to France, the emerging "despotism" in England actually presented the greater danger of "administrative lawlessness"]
12 in that it did not involve even this "application of known rules and principles, and a regular course of proce- dure."113 Instead, it represented an "indescribably more objectionable method" than French administrative law in its delegation to bureaucrats of unreviewable power to make law. 114
Hewart embraced Dicey's stringent common law view that the supremacy of law "means something more than the exclusion of arbitrary power, and something more also than the equality of all citizens before the ordinary law of the land administered by the ordinary Courts." It means, wrote Hewart, "that in this country, unlike some foreign countries, the principles of the Constitution are, in Dicey's phrase, inductions or generalisations based upon decisions pronounced by the Courts as to the rights of particular individuals." 11 S Beyond his plea for judicial review of administrative action, then, Hewart also reiterated Dicey's insistence upon treating determinations of the validity of administrative regulation as no different from any other individualized common law determination of rights. Above all, he continued to insist that administrative law should be derived from private law.
In his 1938 attack on "administrative absolutism,""(' Pound invoked the full weight and rhetorical fervor of Dicey and Hewart. If Hewart sought to restore parliamentary supremacy by entrenching in England the principle of judicial review of administrative action, that principle had already been established in America. Pound's main debt to Hewart was therefore to borrow the latter's call for "judicial procedures" in administrative determinations "to achieve a workable balance between the judicial and the administrative processes which will be effective for the ends of the legal order." 117 Thus, Pound sought the additional bulwark of traditional common law process in administrative justice.
Attacks on the administrative state came also from the Continent. Outside of the common law countries, the writings of Dicey and Hewart were limited as general theory because of their Anglo-Saxon parochialism. Their identification of the rule of law with regular case-by-case determinations of common law courts was not likely to be of paramount interest to Continental legal theorists, who identified the rule of law with European codes promulgated by parliaments. On the Continent, instead, nineteenth-century liberalism had embraced the ideals of generality and predictability of rules as the essence of a government of laws. Indeed, European liberals regularly questioned whether the common law system was itself compatible with the rule of law. It was one of those liberals, Friedrich von Hayek, who delivered one of the most formidable attacks on the growth of the administrative state.
Hayek showed how intimately connected were the laissez-faire political and economic ideals of nineteenth-century liberalism and its commitment to the rule of law. In The Road to Serfdom (1944), he delivered a scathing attack on the rise of socialism as incompatible with legality and as not fundamentally different from the worldwide threat of totalitarianism.
Dedicated to "The Socialists of All Parties," The Road to Serfdom is the cri du coeur of a nineteenth-century Viennese liberal against the worldwide drift toward dictatorship and totalitarianism.
It is necessary now to state the unpalatable truth that it is Germany whose fate we are in some danger of repeating. . . . [S]tudents of the currents of ideas can hardly fail to see that there is more than a superficial similarity between the trend of thought in Germany during and after the last war and the present current of ideas in the democracies. . . . [I]n Germany it was largely people of good will, men who were admired and held up as models in the democratic countries, who prepared the way for, if they did not actually create, the forces which now stand for everything they detest. . . . [T]he rise of fascism and nazism was not a reaction against the socialist trends of the preceding period but a necessary outcome of those tendencies. 18
The problem with socialism, Hayek wrote, was that to achieve legitimate ends it needed to use dubious means through "which the entrepreneur working for profit is replaced by a central planning body." 119
But centralized socialism was not Hayek's only target. Even "some middle way between" "the extreme decentralization of free competition" and "the complete centralization of a single plan" "means that neither will really work and that the result will be worse than if either system had been consistently relied upon." 120 Centralized planning and competition were fundamentally incompatible forms of social organization.
For Americans debating the merits of the growth of administration, the most influential part of Hayek's book was his chapter on "Planning and the Rule of Law." 121 First, he dismissed Dicey's work, suggesting that Dicey's focus on the indispensability of common law courts was irrelevant for Continental jurists, for whom "[t]he wider and older meaning of the [rule of law] concept" was associated with the early nineteenth-century German Rechtsstaat. 122
"Stripped of all technicalities," Hayek wrote, the rule of law "means that government in all its actions is bound by rules fixed and announced beforehandrules which make it possible to foresee with fair certainty how the authority will use its coercive powers in given circumstances, and to plan one's individual affairs on the basis of this knowledge.""' Generality of rules barred "ad hoc action.""' Rules "could almost be described as a kind of instrument of production, helping people to predict the behaviour of those with whom they must collaborate, rather than as efforts toward the satisfaction of particular needs." 125
Economic planning, by contrast, "cannot tie itself down in advance to general and formal rules which prevent arbitrariness. It must provide for the actual needs of people as they arise and then choose deliberately between them." 126 Decisions in concrete cases therefore had to be left "more and more to the discretion of the judge or authority in question." 127 The result is
that formal equality before the law is in conflict, and in fact incompatible, with any activity of the government deliberately aiming at material or substantive equality of different people, and that any policy aiming directly at a substantive ideal of distributive justice must lead to the destruction of the Rule of Law.128
This distinction between "formal law or justice and substantive rules" was, for Hayek, "the salve as that between laying down a Rule of the Road, as in the Highway Code, and ordering people where to go; or, better still, between providing signposts and commanding people which road to take." 129
Hayek was correct, I believe, in seeing the intimate connection between formal and general rules and the rule of law tradition. Whether he successfully established a similar connection between planning, on the one hand, and particularity and individualization, on the other, is a more difficult question. In England and America, administrative regulation was often justified as importing generality into what otherwise would have been a particularized, case-by-case adjudication of common law courts.
The core of Hayek's analysis focused on a fundamental conflict between a regime of formal and impersonal rules and one that sought to achieve substantive ends. He therefore did not limit his critique to administrative discretion. He equally deplored long-standing judicial tendencies to move from strict rules to vague standards-"to qualify legal provisions increasingly by reference to what is `fair' or `reasonable.' " 130 It was thus not only the growth of administrative regimes dedicated to economic planning or social welfare to which Hayek objected. More fundamentally, he challenged the pervasive attack on formalism that was part of the movement for social reform not only in the United States but also in pre-Nazi Germany. 131
Hayek put forward the most cogent statement of the classical rule of law ideal. He showed how powerfully that ideal was connected, first, to the classical liberal laissez-faire tradition and, second, to a conception of an autonomous realm of law and legal reasoning. Impersonal general rules applied neutrally and apolitically by independent judges would assure citizens certain and predictable consequences wherever they acted. Law was to perform the neutral umpire role that classical liberalism had assigned to the night-watchman state. In Hayek's view, any activist, interventionist state was incompatible with the rule of law ideal.
Emerging from a very different intellectual, political, and social milieu than that of the Legal Realists, Hayek's critique ignored the insights of the Realist attack on formalism. Hayek sought to draw on a rule of law tradition that identified predictability with generality. The Legal Realist critique had shown, however, that considerable political discretion entered into the application of highly general formal rules to concrete cases. Hayek's views failed to take account of dramatic changes in theories of language and legal reasoning that cast doubt on the determinacy of formal and general rules. If one accepted the Legal Realist internal critique of formalism, Hayek's vision was no longer viable.
Moreover, the Legal Realists had claimed that while formal and general rules may have produced relatively little injustice in an earlier homogeneous society, the problems of over- and under-inclusiveness of rules grew more severe as society became more heterogeneous and variegated. Hayek insisted that the rule of law required ignoring "particular needs of different people" 132 at the very moment that these differences were growing more striking. One was reminded of Anatole France's remark that the rule of law equally prohibited the rich and the poor from sleeping under bridges.
Indeed, if Legal Realism was essentially correct, the real problem now became one of creating a certain and predictable legal regime after the demise of a nineteenth-century formalist world view. In a post-formalist era, particular and concrete rules, sub-categorized to deal with a variety of highly differentiated economic and social problems, may have offered the best hope of legal predictability. Yet it was the legalist approach, extolling general rules, that would soon prevail in the legislature.
The Renewed Struggle Over the Regulatory State
The legalists' attack on the regulatory-welfare state, begun by Pound and the American Bar Association in 1938, finally bore fruit with the passage of the Administrative Procedure Act (APA) of 1946.133 Because it was passed without any discernible opposition in Congress, in "unquestioning-we might even say un critical-unanimity," as Justice Frankfurter put it, 134 the act has often been misread as simply codifying a consensus on administrative law and therefore as a continuation of pre-World War II administrative theory. In fact, as I hope to show, the APA is one of many expressions of a post-war resurgence of a legalist mentality, in this case riding the wave of renewed political opposition to the New Deal regulatory-welfare state. The act represented the triumph not of all the specific proposals in the "Pound Report" of 1938 but of its legalist mindset, which New Dealers had been vigorously resisting in one official report after another ever since Pound first launched his attack.
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