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ABSTRACT
This essay inquires whether a constitutional state, understood as one ruled not by natural persons but by laws and legal decisions that free persons can endorse, can accommodate the administrative state, understood as one wherein executive agencies exercise law-making, statute-interpreting, and sanction-levying powers. Drawing from Rousseau and Hegel, it distinguishes between two stringent models of the constitutional state – a democratic-republican model and one ordered to an autonomous concept of Law – and compares their abilities to accommodate an executive with a robust law-making and statute-interpreting authority. The essay concludes that, whereas the democratic-republican model is hostile to the administrative state, the Law-centred model is at ease with it and allows it to flourish within bounds. The Law-centred model is thus the only one to reconcile a stringent concept of the constitutional state with the executive power that state needs to fulfil its positive obligations to its citizens.
Disclosure statement
No potential conflict of interest was reported by the author(s).
Notes
1 In this essay, the term executive agency refers (1) to a person or body that exercises governmental powers conferred by statute or (2) to the independent will of such a person or body.
2 597 US__(2022); 20–1530 West Virginia v. EPA (06/30/2022) (supremecourt.gov).
3 ibid 3.
4 ibid.
5 ibid 4.
6 St. Thomas Aquinas, On Kingship: To the King of Cyprus (Gerald Phelan tr, Pontifical Institute of Medieval Studies 1949).
7 For an opinion by a Canadian judge aligning with that of Gorsuch SCJ in the West Virginia case, see Côté SCJ’s dissent in Reference re Greenhouse Gas Pollution Pricing Act [2021] 1 SCR 175.
8 J-J Rousseau, The Social Contract and Discourses (first published 1762, GDH Cole tr, Dent 1968), Du Contrat Social ou Principes du Droit Politique, in Collection complète des oeuvres, Genève (1780–1789), vol. 1, <http://www.rousseauonline.ch/Text/du-contrat-social-ou-principes-du-droit-politique.php> [henceforth Du Contrat Social]; GWF Hegel, Outlines of the Philosophy of Right (Stephen Houlgate, ed, TM Knox tr, OUP 2008), [henceforth Philosophy of Right]. Since my objects of inquiry are models of the constitutional state and what they imply for the role and limits of executive power, I focus on The Social Contract and the Philosophy of Right, which present the models in their conceptual purity. I do not consider Rousseau’s Second Discourse because his model of the constitutional state is not there. Nor do I give extensive consideration to the writings – The Government of Poland and the unfinished Projet de Constitution pour la Corse – in which Rousseau radically adjusts the model to what was practically possible in the Poland and Corsica of his time; see Willmoore Kendall, ‘Introduction’ to J-J Rousseau, The Government of Poland (first published 1772, Bobbs-Merrill 1972) xiv–xv. Of course, the literature on the political thought of Rousseau and Hegel is vast. Works I have found particularly helpful are Judith Shklar, Men and Citizens (CUP 1969) and Peter Steinberger, Logic and Politics: Hegel’s Philosophy of Right (Yale 1988). However, since my focus is on two models of the modern constitutional state and on what each says about the legitimacy of the administrative state, I engage only with those expositors of Rousseau and Hegel who dispute my understanding of the models.
9 We cannot have this confidence in John Locke’s depiction of the liberal republican constitution. Locke agrees with Rousseau on the essentials of this constitution: on the supreme authority of the people’s legislative assembly, on the separation of the executive from the legislature, and on the impermissibility of the legislature’s delegating its power to make law; see John Locke, Two Treatises of Government (first published 1689, Peter Laslett ed, CUP 1963), Second Treatise §§ 141, 143, 149. However, Locke muddies the pure model of liberal republicanism with features of the British constitution of 1690 that are obviously incompatible with the model. For example, he accepts (as part of a constitution ‘than which there cannot be a wiser’ one) the immunity from coercion of the chief executive in a commonwealth where that office is held by a monarch whose natural person is considered ‘sacred’ (§ 205). Thus, short of a pattern of illegality putting him into a state of war against his subjects, the monarch is ‘not liable to force or any judicial censure or condemnation’ for extra-legal acts (§ 205). Nor does Locke see anything wrong with a monarch’s having an equal part in the legislature, whose laws he may accept or reject as he pleases (§ 151). Accordingly, Locke’s ideal republic is tainted by historical remnants of absolute monarchy.
10 By a minimal state I mean one whose sole justifying aim is to actualise and protect rights to liberty and property, even if it must build public works and feed the destitute in order to sustain the civil order directed to this limited aim. By a positive state I mean one whose public character depends, not only on its protecting liberty and property against interference, but also on its forwarding the common good of self-determination through basic entitlements protecting life plans against accident and disease and ensuring autonomy in labour relations.
11 J-J Rousseau, The Social Contract 4 [Du Contrat Social 191].
12 ibid 12 [203].
13 ibid 13 [204].
14 ibid 30 [230]. One might think that, taken literally, this would exclude from the category of law a Landlord and Tenant Act, a Merchant Shipping Act, and the like. However, the important requirement is that there be no non-reciprocal legal obligations. A law applying only to named persons or to groups singled out for legal restriction would run afoul of this requirement, but a law specifying the generally applicable laws of property for particular classes of proprietary interests or specifying the law promoting transportation safety for the particular perils of marine transportation would not; for all who are bound by the general law are by implication bound by its determinations.
15 ibid 3 [190].
16 ibid 13 [204].
17 ibid 74, 78 [294, 300].
18 ibid 88 [315].
19 For the austerity of Rousseau’s conception of civic freedom, see Eoin Daly, Rousseau’s Constitutionalism: Austerity and Republican Freedom (Hart 2017) chaps. 4 and 5.
20 Alexander Hamilton, James Madison, John Jay, The Federalist Papers (first published 1787–8) Nos. 10, 51.
21 Rousseau, The Social Contract 25 [Du Contrat Social 222].
22 Rousseau, The Social Contract 20 [Du Contrat Social 214].
23 ibid. Inferentially, this would hold true even were the king or president chosen by the people in a general election. The people cannot authorize a head of state to make law on its behalf, for that would be an unconstitutional alienation of its sovereignty.
24 Two recent articles argue that by the ‘law’ reserved for the legislature Rousseau means the fundamental law of the constitution, not ordinary legislation, which, according to this view, can be the business of the executive; see Peter Steinberger, ‘Hobbes, Rousseau, and the Modern Conception of the State’ (2008) 70(3) The Journal of Politics 595, 601–3 and Joel I Colón-Rios, ‘Rousseau, Theorist of Constituent Power’ (2016) 36(4) OJLS 885, 888–93. This reading clashes with both Rousseau’s statements and his principles. It conflicts with Rousseau’s statement that the executive stands to the legislature as force stands to will or as the physical stands to the moral (46) [252]. It is contradicted by Rousseau’s including civil and criminal law within the category of ‘law’ (44) [251]. Colón-Rios argues that, for Rousseau, civil and criminal laws form part of the constitutional structure. He surmises that these laws would be open-textured, prohibiting acts against public order in the abstract, leaving the executive to specify which acts are against public order. However, this hypothesis contradicts a fundamental principle of Rousseau’s. It implies that the executive may make civil and criminal laws for all. Yet Rousseau would regard this as an executive usurpation of the general will’s sovereignty, for only the general will emergent from the assembly may prescribe for all; republican self-rule depends on this. Moreover, the claim that the executive may legislate for all contradicts Rousseau’s statement that the specific power conferred on the executive by the legislature is the power to issue commands that do not apply to the commander (‘the right to demand that another shall do what he does not do himself'). (80) [304]. Also opposing that claim is Rousseau’s statement that ‘the government gets from the Sovereign the orders it gives to the people’. (47) [254]. The textual evidence offered by Steinberger is no stronger. The fact that Rousseau denies the sovereign the power to make war and to choose a prince is supposed to show that the sovereign legislature is not concerned with ordinary legislation. But Rousseau denies that these are acts of ordinary legislation (30) [230]. Other arguments are non-sequiturs. From the undoubted fact that Rousseau gives constituent power to the legislature and often speaks of it, it hardly follows that he excludes ordinary legislation from its competence. From the fact that Rousseau himself is concerned only with fundamental law, it does not follow that the legislature will be similarly limited. In short, the case for reading Rousseau as limiting the legislature to fundamental law, while leaving ordinary legislation to the executive, is extremely weak.
25 Rousseau, The Social Contract 21 [Du Contrat Social 216].
26 ibid 80 [304].
27 ibid 46 [253].
28 ibid 30 [229]. In The Government of Poland, Rousseau acknowledges that a sectional body necessarily has sectional interests; see (n 8) 42.
29 The Federalist Papers No. 51.
30 The Social Contract 30 [Du Contrat Social 230]: ‘What a man … commands of his own motion cannot be a law’.
31 ibid 46 [252].
32 ibid 47 [253].
33 ibid 47 [254].
34 ibid 50 [258].
35 ibid 49 [257]:
Thus the dominant will of the prince is, or should be, nothing but the general will or the law; his force is only the public force concentrated in his hands, and, as soon as he tries to base any absolute and independent act on his own authority, the tie that binds the whole together begins to be loosened.
36 For Rousseau, the executive can take the form of a monarchy, an aristocracy, or a democracy; ibid 53 [263].
37 ibid 50 [258].
38 ibid 51 [260].
39 Rousseau, The Government of Poland (n 8) 3: ‘Putting law over men is a problem in politics that I like to compare to that of squaring the circle in geometry’.
40 ibid xvi–xvii.
41 ibid 41, 43, 63, 64.
42 ibid 53.
43 Eion Daly argues that Rousseau reconciles the magistrate’s discretion with the general will’s sovereignty with an account of judicial virtue as imitating the republican virtue called for in the first instance by independent-minded legislators; see ‘Principle, Discretion, and Symbolic Power in Rousseau’s Account of Judicial Virtue’ (2016) 29(2) Ratio Juris 223, 232–34. However, even if we accept Daly’s view of Rousseau’s assembly as a gathering of atomistic legislators (rather than of co-deliberators), it is doubtful that Rousseau could have accepted the decision of the virtuous judge as one of the general will. In an all-citizen assembly of civic minded legislators, the majority vote transforms the legislators’ private opinions of what the general will requires into a public opinion – into the general will itself. The virtuous magistrate opines alone.
44 AV Dicey, Introduction to the Study of the Law of the Constitution (8th edn, Macmillan 1915) 271; Rt Hon Lord Hewart of Bury, The New Despotism (Benn 1929).
45 The Social Contract 71 [Du Contrat Social 290–91].
46 The legislature’s approval of an executive rule cannot be inferred from silence, because silence may betoken indecision or lack of awareness. When Rousseau says that silence implies consent, he is referring to the legislature’s constantly affirming a law of its own that it does not ‘abrogate’. ibid 73 [293].
47 This was the standard applied in several constitutional democracies in the post-war period until the 1980s; see, for example, Anisminic Pty Ltd v Foreign Compensation Commission [1969] 2 AC 147; Metropolitan Life Insurance Co v International Union of Operating Engineers, Local 796 [1970] SCR 425. For critical comment, see David Dyzenhaus and Evan Fox-Decent, ‘Rethinking the Process/Substance Distinction: Baker v Canada’ (2001) 51 UTLJ 193, 201.
48 There is a growing call for emergency powers to deal with climate change; see, for example, Mark Nevitt, ‘Is Climate Change a National Emergency’ (2021) 55 UC Davis L. Rev. 591. To be sure, temporary emergency powers conferred and constrained by statute are not inherently incompatible with the constitutional state, but matters stand differently when the emergency becomes indistinguishable from the prevailing climate, so to speak.
49 The pivotal cases are Council of Civil Service Unions v Minister for the Civil Service [1984] 3 All ER 935; Chevron USA, Inc v Natural Resources Defense Council, Inc [1984] 467 U.S. 837; Canadian Union of Public Employees, Local 963 v New Brunswick Liquor Corp [1979] 2 SCR 227; Canada (Minister of Citizenship and Immigration) v Vavilov [2019] 4 SCR 845. For interesting discussion, see Alan Freckelton, The Concept of Deference in Substantive Review of Administrative Decisions in Four Common Law Countries (unpublished Master of Laws thesis, UBC Faculty of Law 2013); .item (bac-lac.gc.ca).
50 Richard Epstein, ‘Why the Modern Administrative State is Inconsistent with the Rule of Law’ (2008) 3 NYU J of Law and Liberty 491; Gorsuch SCJ (n 2) 19: ‘But the Constitution does not authorize agencies to use pen-and-phone regulations as substitutes for laws passed by the people’s representatives. In our Republic, “[i]t is the peculiar province of the legislature to prescribe general rules for the government of society”'. (Citing Fletcher v Peck [1810] 6 Cranch 87, 136); Joseph Postell, ‘From Administrative State to Constitutional Government’ <www.heritage.org/political-process/report/administrative-state-constitutional-government>; (Alyn) James Johnson, ‘The Case for a Canadian Nondelegation Doctrine’ (2019) 52 UBC. L. Rev. 817; Reference re Greenhouse Gas Pollution Pricing Act [2021] 1 SCR 175 [237], per Côté SCJ: ‘This excessively broad delegation of power removes the regulation of [greenhouse gases] from the legitimizing forum of the legislature and places it into the hands of the few’.
51 The checks-and-balances constitution of the American republic departs from Rousseau’s ideal republic in making the legislature, executive, and judiciary co-equal authorities, each harbouring a particular interest, each a potential tyrant. Sovereignty now resides, not in the legislature, but in the general will of a people as expressed in their delegates’ constitution-founding and -amending acts and in the general election of the natural person in whom executive power reposes (the President). In the interval between these acts, the purely general will sleeps (see Richard Tuck, The Sleeping Sovereign [CUP 2016]), speaking (gibbering?) only through the contaminating particularisms of the President and of the natural individuals who, as Supreme Court judges, interpret the Constitution. This departure from Rousseau’s scheme gives the executive branch a commanding will of its own, but how far this commanding will may extend to law-making now admits of no definite answer. The fact that sovereignty no longer rests exclusively with the legislature means that no unlawful alienation of sovereignty occurs with the legislature’s delegating its law-making power to administrative agencies. The only question is: given that the sovereign people have chosen to vest federal legislative power in Congress, to what extent may Congress hand off that power without thwarting the people’s will to separate the powers so as to prevent tyranny? This turns Rousseau’s clear non-delegation principle into an exercise in quantitative line drawing. When does a delegated law-making power become so unbounded by an ‘intelligible principle’ that it ceases to be a power to make subordinate, implementing law and becomes an unaccountable or (in the President’s case) autocratic power to legislate simply? (J. W. Hampton, Jr & Co v United States [1928] 276 U. S. 394, 409). The indefiniteness of the line leaves the answer open to partisan determination by a judge’s comparative valuation of the positive state and democratic republicanism; compare Kagan SCJ’s judgment with Gorsuch SCJ’s in Gundy v United States 588 U. S.__ (2019).
52 Thomas Hobbes, Leviathan (first published 1651, Michael Oakeshott ed, Blackwell 1957) 118.
53 Hegel, Philosophy of Right § 272–3. Here we must not picture Law’s concept as hovering mysteriously in the air. The moments of the concept are those of self-consciousness (or Mind) writ large as a united people’s purposive agency.
54 Hegel, Philosophy of Right § 279 Addition.
55 For discussions of Hegel’s justification of constitutional monarchy, see Bernard Yack, ‘The Rationality of Hegel’s Concept of Monarchy’ (1980) 74 American Political Science Rev. 709; Alan Brudner, ‘Constitutional Monarchy as the Divine Regime: Hegel’s Theory of the Just State’ (1981) 2 History of Political Thought 119; Mark Tunick, ‘Hegel’s Justification of Hereditary Monarchy’ (1991) 12 History of Political Thought 481; Eli Diamond, ‘Hegel’s Defence of Constitutional Monarchy and its Relevance within the Post-National State’ (2004) Animus 105.
56 ‘In the sovereignty, in the majesty, of the prince lies precisely the ultimate, groundless decision, and this is not something transferred, not something received from another’. GWF Hegel, Philosophie des Rechts: die Vorlesung von 1819/20 in einer Nachschrift (Dieter Henrich ed, Suhrkamp 1983) 248 (my translation). The thought here is not simply that dynastic succession is the best way to secure independence from factions (though Hegel mentions this consideration too), but that dynastic succession ‘constitutes the idea’ of the Crown’s majesty (Philosophy of Right § 281). I read this as saying that dynastic succession is the way in which the attributes belonging to majesty, namely, independence and continuity, are materially presented or expressed.
57 Here I keep to the example of Elizabeth II despite the death of Elizabeth Windsor in order to indicate an evolution of one person.
58 Hegel, Philosophy of Right § 283.
59 Richard Epstein worries that executive law-making on single issues makes the executive especially vulnerable to capture by the interest groups the legislature intended to regulate; (n 50) 492–3. To my knowledge, Hegel says nothing about bureaucratic capture (he is more concerned with excessive bureaucratic intervention in private affairs), but it may be worthwhile to point out that his system of formal legislative representation itself brings in occupational associations whose economic interdependence gives each a conscious stake in the general interest, so that civic-mindedness and self-concern are joined (Philosophy of Right § 303). Once large interests are transparently and equitably represented in the formal representative process, the justification for their backroom and haphazard representation as a needed supplement to the atomistic representation of the formal process falls away.
60 It turns out that the Law-centred constitutional state is more respectful of the demos than representative democracies. This is so because, beginning their justification from a stateless condition, representative democracies see individuals as having alienated their personal sovereignties to that of a representative legislature. But then there is no constitutional necessity (as distinct from a prudential, moral, or political reason) for the legislature to respect the will of the demos. As sovereign, it may suspend or overturn elections at will, while countering the political fall-out by disseminating lies about the integrity of an election. By contrast, the Law-centred constitution requires that the Crown’s claim of purity be regularly confirmed by the autonomous will of the governed. That means regular elections during which the Crown’s government submits to a performance review by the demos.
61 Limited by the historical material available to him, Hegel gives this reviewing role to a chamber filled by a hereditary aristocracy (Philosophy of Right § 303), but the qualifications he prescribes for this body – independence and expertise – are better met by a Constitutional Court appointed by the monarch on advice from a body of constitutional law experts.
62 This article is not the place to refute the domesticating and quite misleading portrayal of the mature Hegel as a civic republican not fundamentally different from Rousseau; see Frederick Neuhouser, Foundations of Hegel’s Social Theory (HUP 2000) chap. 2, and Kenneth Westphal, Hegel’s Civic Republicanism (Routledge 2020) chap. 11. Suffice it to point to Philosophy of Right § 301, where Hegel says that the Estates Assembly’s role is not to legislate or even to contribute wisdom to the legislative process but to legitimate by oversight, by advice regarding the special needs of the associations represented, and finally by critical assent the laws drafted by expert civil servants in the higher executive and proposed to the Assembly by the executive council. The civic republican reading of the mature Hegel is certainly at odds with Hegel’s own characterization of the rational constitution as a constitutional monarchy; Philosophy of Right § 279 Addition.
63 Observe that the Law-centred constitutional state is neither a democracy nor an aristocracy nor a monarchy, for it has elements of all three traditional forms of rule. Yet it is not a mixed or polycentric (see n 64) constitution either, for it unifies these elements into a rational whole ordered to the rule of Law; see Philosophy of Right § 273.
64 Philip Pettit’s, ‘Popular Sovereignty and Constitutional Democracy’ (2022) 72(3) UTLJ 251 founders on the (apparent) antinomy between the unitary and divided sovereign. Against HLA Hart and Hans Kelsen, Pettit wishes to maintain the notion of a sovereign, but against Rousseau (among others), he seeks to reconcile the concept of sovereignty with a polycentric constitution capable of restraining the excesses of populism. To seek the sovereign in one of several centres of power, argues Pettit, is to commit the category mistake of seeking the universal among the side-by-side particulars. Just as the university is not another institution alongside its colleges, so a sovereign is not one person or body alongside others. It is, Pettit argues, ‘the polity as a whole’, (270) and it emerges from its constitutive parts. So far so good, but without Hegel’s distinction between majesty and its constitutional realisation, Pettit faces an insurmountable difficulty. Like the university, the polity as a whole must have an agency of its own with which to represent the whole and give it existence. If it does, then the whole acts through a separate organ of the constitutional system, the very conclusion Pettit seeks to avoid. If the whole does not act through a separate organ, then it either lacks agency qua whole or else it subsumes all other centres of power. In a polycentric constitution, the whole would lack an agency of its own except in the watered-down sense of a network of interacting agencies having ‘the aggregate effect of giving the whole the profile of an agent’ (271). However, without a central agency, the whole would not exist. It would hover fictitiously above the parts, like the Holy Roman Empire or the German Confederation from 1815 to 1871. Accordingly, Pettit’s argument for a polycentric sovereign captures the differentiated state by diluting the concept of a state.
65 Canada’s written constitution vests executive power in a monarch who in practice, however, acts only on the advice of Cabinet (Constitution Act 1867, s 9). This marks a difference from Hegel’s model, in which the monarch stands apart from both the executive and the legislature. This model, I submit, captures the unwritten Westminster Constitution more elegantly than does Canada’s Constitution Act; for the latter requires us to think of the executive power to administer justice as having been delegated to the Attorney General by a monarch who is nevertheless powerless to revoke its authorisation.
66 Here I interpret Hegel’s royal prerogative in accordance with what his theoretical model demands rather than in accordance with what he publicly wrote. Prohibited by his aspiration toward science from overleaping his time (and no doubt mindful of the censor), Hegel retains the monarch’s non-accountable prerogative in the issuance of pardons, the appointment of ministers, and the conduct of foreign affairs; Philosophy of Right §§ 282, 283, 329. For a focus on these statements see Thom Brooks, Hegel’s Political Philosophy (Edinburgh UP 2009) 106–13.
67 Here and in what follows ‘constrained’ means that if they fail to do the thing required by duty, their acts have no legal force. No one is obligated to pay attention to them, and everyone may resist the force used to give them effect.
68 Some will find strange an account of the constitutional state beginning from Law’s autonomous concept, for that account de-centres the individual, whose outlook is, after all, the source of all things familiar. Yet if the individual’s centricity is an unexamined prejudice, nothing is gained for its veracity by its being a prejudice to which all are accustomed. Further, it is for the sceptics to explain why the Law-centred account is less plausible than one beginning from a hypothetical (i.e., unreal) ‘state of nature’ admitted to be logically unstable. At least the Law concept’s step-by-step realisation has an historical counterpart. Besides, the Law-centred story can also be told from the standpoint of the individual’s quest for a state wherein autonomy and sovereignty are reconciled. From that side, one would show how this quest comes to nought (ending with either an untrammelled sovereign or a fragmented state) if we begin from an individual-centric position, but succeeds when we individuals accept the centricity of Law’s concept and build the remaining institutions its sovereignty needs.
69 It might be argued that Hans Kelsen paints a similar picture of the state as a hierarchy of legal norms and that legal positivism can thus reach the same result at which Hegel arrives without the natural law commitment; see Pure Theory of Law (first published 1934, Max Knight tr, U. Cal. Press 1967). However, like Rousseau’s, Hegel’s constitutional state is a version of the just state; it is not merely a state whose officials act in accordance with positive laws and regulations of the correct constitutional pedigree, though it is also that.
70 Immanuel Kant, Metaphysics of Morals (first published 1797, Mary Gregor tr, CUP 1991) 127 [Prussian Academy edn, 6: 317].
71 Advice the monarch cannot refuse seems oxymoronic, but it isn’t because there are two persons here, a natural one and a noumenal one. Elizabeth II can only be advised because she alone commands. But if she refuses the advice, she is not the one who cannot be commanded; she is Elizabeth Windsor, who can be ordered to step down by the next in line.