The Last Invention of Democracy: Legitimating the Administrative State

Abstract

The modern administrative state has exceptionally broad powers to generate rules and conduct adjudications that bind, coerce, or even expand, the rights and liberties of every citizen. Despite these powers, contemporary political theory has said relatively little about the place of the administrative state in democratic governance. This dissertation demonstrates that political theory did not always ignore administration. In fact, there was a robust conversation among 19th Century legal and political theorists in Europe regarding how to contain, control, and legitimate the nascent administrative state. However, lawyers on both sides of the Atlantic eventually became tasked with justifying the power of administrative institutions through administrative law. Unfortunately, well over a Century later, the task of legitimating the administrative state remains elusive to legal scholars.

This dissertation then brings together intellectual history, public law, and political theory to generate a novel theory of administrative legitimacy called relational fairness. Relational fairness is an institutional structure whereby all potentially affected persons have the opportunity to actively participate on an equal basis with each other and the agency during administrative policymaking. Instead of justifying the administrative state through its connections other political institutions, such as the legislature or executive, the theory directly legitimates administrative institutions by structuring the relations between agencies and persons. The dissertation ends by applying relational fairness to the American federal administrative state to show how concrete doctrinal and structural changes according to the theory can improve its legitimacy.