Ius & Iustitium is pleased to present this guest post by José Ignacio Hernández G. Professor Hernández G. is professor of administrative law at “Andrés Bello” Catholic University and Central University, Venezuela, and a fellow of the Harvard Kennedy School.
I
Last November, the Centro de Estudios Políticos y Constitucionales in Madrid held a seminar based on Cass Sunstein’s and Adrian Vermeule’s recent and inspiring book: Law & Leviathan. The purpose was to discuss the book’s main ideas from the European, Spanish and Latin American perspectives. Professor Luis Arroyo gave the European vision, while Professor Silvia Díez explained the Spanish perspective. I completed the comparative study from the point of view of Latin American administrative law, which I will focus on in this brief essay.
It was a rare event. Unfortunately, the fact is that the study of comparative administrative law is still a nascent field.
Law & Leviathan opens new doors for this comparative approach. The book’s main idea is that administrative law should be studied from the perspective of Fuller’s inner morality of law through general principles that both constrain administrative action and facilitate it in order to promote the common good. Rather than dismantle the modern administrative state, the book proposes to reinforce its framework through the principles of legal morality, such as the principles that “agencies must follow their own rules; retroactive rulemaking is disfavored and must be limited to prevent abuse; and official agency declarations of the law and policy must be congruent with the rule that agencies actually apply” (Law & Leviathan, p. 9).
Although Fuller’s ideas have not had an influence in the systems of administrative law inspired in the French models, including those of Latin America, they have a strong resemblance to one of the core institutions of those systems: the general principles of administrative law. The idea of general principles is similar to the morality of administrative law, and they help us to better understand, on the one hand, the connections between administrative law and the classical legal tradition, and the relevance of the common good in administrative law, on the other.
II
The historical origin of French administrative law is unique. One of the norms resulting from the French Revolution was that courts should not interfere with government decisions. But because the government must act in accordance with the principle of legality (i.e., it must act pursuant to law), it was necessary to create a new legal order different from that applied by the courts. The Blanco decision, handed down in 1873 by the Tribunal des conflits, provided the answer: the organs of public administration are not subject to the common law (the law applied by courts) but to a special and “exorbitant” law, namely, “administrative law,” which was under the jurisdiction of a specialized organ, the Conseil d’État or Council of State. A practical problem arose, however: there was no written administrative law to apply. Hence, the Council of State had the task of creating this “special” law. As Weil has explained, in France “the State Council has segregated administrative law like a gland secretes its hormone.”
This creation of a new legal order was largely based on unwritten law. A law of principles rather than statutes. And as the French Professor Jean Rivero has explained, the source of the Council of State’s general principles was the Natural Law. In Rivero’s words:
“Few legal constructions in contemporary positive law present such a clear affinity with the classical conception of the Christian West as the theory of general principles of law in the jurisprudence of the Council of State…”
Other jurisdictions took on the French model’s “exorbitant” content, but jurisdictional review was vested in the judiciary and not in an executive body like the Council of State. One of those jurisdictions was Spain. According to Professor Eduardo García de Enterría, the “principle of legality,” which provides that administrative action must be carried out only pursuant to law, cannot be understood to refer to the petrified legal order of the “voluntas legislatoris,” but as a dynamic “voluntas legis.”
The general principles approach, García de Enterría explains, was a consequence of the crisis of legislative positivism: the written law (lex) alone is not a proper tool to rule humans. General principles (ius) can give rise to flexible rules to govern human action while still remaining within the bounds of the principle of legality (which, unlike the positivistic principle, is not limited to the written law).
Those ideas have been adopted in Latin America, too. In Argentina, Juan Carlos Cassagne concluded that general principles reflect the “escape from the positive law” because they are based on moral principles that act as “rules of reason.”
Based on this conclusion, it is possible to assert that in the civil tradition, general principles work like the principles of the morality of administrative law discussed by Sunstein and Vermeule. Both approaches promote a rational legal order without the rigid constraints of fixed and immutable rules that may inappropriately impair administrative action. In Fuller’s words, the general principles of administrative law facilitate the subordination of the public administration to “the governance of rules” as “the product of a sustained purposive effort.”
III
As Sunstein and Vermeule propose regarding the principles of legal morality, the general principles of administrative law are Janus-faced: they simultaneously constrain and enable administrative action.
Historically, general principles were designed to prevent the abuse of power. In the French model, this is the first purpose of the principle of legality: the public administration can only act within the scope of the law, and any excess, any act that is ultra vires, should be reviewed and annulled.
But with the evolution of administrative law, general principles fulfilled other tasks, including to enable administrative action and prevent what is called “administrative inactivity,” which occurs when the public administration fails to fulfill its goals. Particularly in Spain and Spanish America, this evolution results in what have come to be known as the standards of good administration.
These standards are generally inspired in the ideas of Aristotle and Aquinas about the ”good life.” In Spain, Luis Meilán Gil has written:
“the exercise of public power is justified by and for the pursuit of the common good, the vivere bene of the members of political society in the classic expressions of Aristotle and Thomas Aquinas, the happiness of the subjects and their well-being…”
The standards reinforce the idea that the focus of administrative law should be the well-being of citizens and human dignity. According to Spanish Professor Jaime Rodríguez-Arana, the good administration should promote the “environment in which each citizen can exercise their freedom in solidarity.”
In Latin America, administrative procedure laws recognize those standards. As explained by Venezuelan Professor Brewer-Carías, those laws regulate something more than the procedure for administrative action, they encompass the general principles of administrative law. For that purpose, in Latin America, the principle of legality is not limited to written, statutory law, but also includes general principles. As summarized in Article 138 of the Constitution of the Dominican Republic, for example, the public administration is subject to the “legal order,” a concept that integrates the written law (lex) and general principles (ius). General principles, as the Peruvian Danós has explained, help organize the core ideas of the legal order. General principles can thus resolve legal loopholes and lacunae, as for example, the Costa Rican administrative procedure law recognizes.
In that sense, Jorge Coviello of Argentina, based on the interconnections between administrative law and the natural law, explains that care for the common good is the administrative action’s peculiar note. While the “general interest” is based on the quantitative aggregation of individual interest, the common good has a qualitative meaning based on human dignity. The common good, according to Delpiazzo of Uruguay, reinforces the “assistive” nature of administrative action, aimed to guarantee “conditions suitable for obtaining the full sufficiency of life in society and reaching the ultimate goal of man, in accordance with his own nature.” This idea reflects the vicarial nature of the administrative actions that serve citizens’ well-being.
The common good is also a relevant principle in the Inter-American System of Human Rights and the “Ius Commune Constitutionale in Latin America.” According to the Inter-American Court of Human Rights “it is possible to understand the common good, within the context of the Convention, as a concept referring to the conditions of social life that allow the members of society to achieve the highest degree of personal development and the greatest validity of democratic values.”
The standards of good administration have a strong resemblance with some of the general principles encompassed in the United States Administrative Procedure Act, which Sunstein and Vermeule analyzed through the lens of the inner morality of law. This resemblance has been studied by Jerry Mashaw, comparing the United States and European models. The standards of good administration, explains Mashaw, are “familiar to American lawyers as well.” For instance, “the right to be heard and to have decisions on one’s interests made fairly and impartially” is one of the standards and also a general principle in the American Administrative Procedure Act that Sunstein and Vermeule discuss.
IV
The emergence of the modern administrative state in the United States has triggered critiques about its legality, questioning whether the administrative state has any basis in the Constitution. Richard Epstein believes that the morality of the administrative state is dubious. To address these critics, Sunstein and Vermeule propose that the principles of legal morality can act as surrogate safeguards. Although administrative law cannot be dismantled, it can be contained within the bounds of a legal and rational order that enables administrative discretion while preventing arbitrariness. Fuller’s morality can redeem modern Anglo-American administrative law.
The general principles of administrative law also facilitate the protection of the common good. The main goal of administrative law cannot be, exclusively, to constrain the leviathan. On the contrary, it should also enable the leviathan’s action based on standards of good administration. This goal cannot be pursued under a rigid perspective of a static legal order. In Spain, Garcia de Enterría warned about the risk of the “supremacy of the positive law” and the discredit of the Natural Law when explaining the relevance of the general principles of administrative law as Janus-faced principles. The modern administrative state requires a modern administrative law based on the voluntas legis, not a mere voluntas legislatoris.
Analyzing President Biden’s recent executive orders, Pat Smith recalled that “the government not only can but also should pursue substantive ends through state action.” As Thurgood Marshall concluded in his concurrence in the 1985 case Heckler v. Chaney:
“The problem of agency refusal to act is one of the pressing problems of the modern administrative state, given the enormous powers, for both good and ill, that agency inaction, like agency action, holds over citizens.”
Precisely, the general principles of administrative law, as “common-good principles,” prevent both the abuse of power and administrative inaction. They enable and they force, at the same time, the public administration to act towards the common good. The standards of good administration summarize this idea: the administrative state must pursue citizens’ well-being based on human dignity.
The COVID-19 pandemic is demonstrating the relevance of this conclusion. Francis Fukuyama concluded, in March 2020, that the pandemic will illustrate the necessity of capable states. The idea that “liberal democracies necessarily have weak governments” is, in his view, a “popular misconception” because “all modern governments have developed a powerful executive branch because no society can survive without one.“
When the pandemic hit Latin America, and governments decided to decree states of emergency, the main concern was to prevent government abuse. But as Latin America became the epicenter of the pandemic, it was clear that the main risk was not the government’s abuse but the lack of effective government. With “paper leviathans,” as they have been called by Acemoglu and Robinson, the pandemic demonstrates the failure of administrative law in Latin America in creating capable agencies that can fulfill the common good in the most socially unequal region of the world. It is necessary, thus, to “redeem” administrative law in the post-pandemic.
The pandemic is a unique opportunity to reflect on the necessity of an efficient administrative state. Not “big” or “small” government, but a capable administrative state aimed at promoting the common good. As Pope Francis wrote in paragraph 66 of Fratelli Tutti:
“We are called to direct society to the pursuit of the common good and, with this purpose in mind, to persevere in consolidating its political and social order, its fabric of relations, its human goal.”
In times of pandemic, the principles of legal morality open a door for a new dialogue between the United States, Europe, and Latin America towards constructing an administrative law for the common good.
José Ignacio Hernandez G.