In the very first book of the Digest of the Emperor Justinian, the great jurist Papinian lists the sources of the ius civile, the civil law of Rome, as “statutes, plebiscites, decrees of the Senate, imperial decrees, or authoritative juristic statements”—and then immediately adds that “praetorian law is that which the praetors have introduced in aid or supplementation or correction of the ius civile.” Just as the ius civile is, in part, a determination or specification within reasoned boundaries of the more general principles of the natural law, so too the edicts of the praetors—high magistrates of Rome, just beneath the consuls—added specification to or adjusted the contours of the ius civile as necessary. Even more detailed specification could be added through the application of the edict to facts in particular cases by the courts. Non curat minima praetor became the maxim; the praetor does not attend to small details. The function of the praetor was to determine important questions of policy within the bounds of the ius civile, adjusting it to lived realities and changing circumstances. Each praetor’s edict was in force only for the praetor’s own term, but each successive officeholder tended to adapt the edict of his predecessor as a baseline, making adjustments at the margin. The result was a system in which, as the jurist Marcian put it, the edicts of the praetors were “the living voice of the ius civile.”
Although there can of course be no straight mapping of this system onto our own, very different one, there is an imperfect analogy here to the functions of the great executive departments, tribunals, and independent administrative agencies of our constitutional order, as it has developed over time. These bodies too act under authority of great statutes and presidential orders that are, in many cases, quite old and need to be fleshed out, supplemented, and adapted to lived realities and changing conditions over time. Administrative agency heads use edicts to set broad policy outlines within the contours of the positive law, and those policies are then further specified and applied to particular cases by administrative adjudicators and, ultimately, the courts. The whole process is one of successive, iterated determination of the general into the particular, and the adaptation and adjustment to changing circumstances of broad positive instruments. In this sense, administrative agencies have come to occupy the position once held by common-law courts; agencies make and interpret law in a system featuring, by and large, broadly deferential judicial review. Agencies are the living voice of our law.
In this system what, if anything, ensures that agencies act for the common good? Nothing; asking for certainty is to ask more than any system of government can give. Administrative agencies will always make blunders and even engage in localized abuses – just as did common-law courts in their heyday. Nonetheless, there is much to be said about how law can help agencies act to fashion reasoned ordinances that conduce to the common good. In a book released this week, Law and Leviathan, my co-author Cass Sunstein and I attempt to answer this question.
Law and Leviathan suggests that, as the subtitle says, the administrative state can be redeemed from the aspersions cast by its critics, by means of principles of rational legality and procedural regularity drawn from the work of legal theorist Lon Fuller. An example is the principle that agencies are bound by their own rules unless and until changed — a principle that, in American law, predates the enactment of the positive text of the Administrative Procedure Act in 1946. (Here there is both an interesting analogy and disanalogy to the praetor, who in 67 B.C., during the late Roman Republic, was bound to adhere to his own edicts by the lex Cornelia de edictis.)
We argue that “these principles follow a kind of natural logic for the creation of … law that serves the common good, emphatically including administrative law.” (Law and Leviathan p. 39). The principles we discuss show how law functions well as law, in ways that enable the administrative state to act for the common good and help make it more efficacious as a form of legal rule. They are principles of morality, but also of distinctively legal morality. Like all principles, they have dimensions of scope and weight—they do not always apply, and can sometimes be defeated by weighty contrary reasons even when they do apply — but that does not detract from their nature.
In historical and doctrinal terms, these principles were developed by a complex interaction between courts, agencies, the Presidency, and occasionally Congress, and they function as surrogate or substitute safeguards for older forms of legality. They have come to substitute for classical legal constraints, such as a strong requirement of independent, de novo judicial review of all legal questions. The classical constraints have been undone, over time, by the action of those same institutions, and cannot be revived or restored.
I won’t summarize the whole argument here. But I do wish to underscore the strong continuity among the book’s project; the project of what I refer to, tongue only somewhat in cheek, as Dworkinian administrative law; and the larger project of Ius & Iustitium to revive the classical and Roman conception of law and to adapt it to modern circumstances. (I speak only of my own view here, without claiming to speak for my co-author.)
As our administrative law, itself a central component of our largely unwritten constitutional order, has developed over time, it is structured around neither positive textual rules nor ad hoc administrative commands, although both of those things do continue to play important roles. Rather our administrative law is built around juridical principles that are part of the larger domain of political morality, yet retain their distinctive character as legal morality—in just the way the legal theorist Ronald Dworkin characterized all of law towards the end of his career. As the book emphasizes throughout, these principles are not necessarily traceable to or rooted in positive enacted texts like the Administrative Procedure Act of 1946. Rather they are principles of broader legality and natural procedural justice that are, nonetheless, indisputably part of our law.
When the book, then, refers to administrative “law,” it centrally refers to law as ius, not merely as written positive lex. In this sense, what Ulpian said in majestic terms—that “the law [ius] is the art of goodness and fairness, and of that art, we jurists are deservedly called the priests”—is emphatically true of our administrative law, even or especially in 2020. And there is no inconsistency at all between seeing administrative law, administrative lawyers, and judges in this way, and in seeing the system as one that is broadly deferential to our magistrates. After all, broad deference to administrative determinations is itself a juridical principle, rooted in political morality, that can serve the common good.
Adrian Vermeule
