Sunstein and Vermeule — The Morality of Administrative Law

Many readers will be interested by this new paper by Sunstein and Vermeule, “The Morality of Administrative Law“:

As it has been developed over a period of many decades, administrative law has acquired its own morality, closely related to what Lon Fuller described as the internal morality of law. Reflected in a wide array of seemingly disparate doctrines, but not yet recognized as such, the morality of administrative law includes a set of identifiable principles, often said to reflect the central ingredients of the rule of law. An understanding of the morality of administrative law puts contemporary criticisms of the administrative state in their most plausible light. At the same time, the resulting doctrines do not deserve an unambiguous celebration, because many of them have an ambiguous legal source; because from the welfarist point of view, it is not clear if they are always good ideas; and because it is not clear that judges should enforce them.

Download it here.

This is an appropriately nuanced account of the utility of the Fullerian rule-of-law principles in the administrative law context. In some circumstances, courts will not be well placed to insist on high standards of administrative conduct: as I suggested in a previous post, the courts are better able to punish bad decision-making than to promote good decision-making.

Incidentally, see the comment of Lady Hale in R (C) v Secretary of State for Work and Pensions [2017] UKSC 72, a very recent case involving a human rights complaint about the administration of welfare benefits for people with reassigned genders. In addressing (in favour of the Department of Work and Pensions) the balancing act performed between administrative efficiency and the intrusion into private lives, she remarked:

Most importantly, it is not for this or any other court to administer the benefits system. That is the business of the DWP. The courts can correct individual decisions or actions which violate an individual’s human rights: if a DWP official gained unnecessary or unauthorised access to a customer’s records, or made improper use of the information obtained through authorised access, the customer would have a claim under section 6(1) of the Human Rights Act 1998 against a public authority which had acted incompatibly with her privacy rights. The courts can also correct legal provisions which violate human rights (unless contained in an Act of the United Kingdom Parliament). But the courts can only rarely correct the systems set up by the responsible government departments or public authorities to administer the law – unless perhaps they systemically and inevitably result in violations of individuals’ rights. That is not this case (at para. 36).

But for an approach that evidences much more optimism about the ability of courts to enhance the internal morality of administrative law, see Evan Fox-Decent’s book, Sovereignty’s Promise: the State as Fiduciary.

This content has been updated on November 20, 2017 at 11:36.