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Ginsburg, Tom --- "Written Constitutions and the Administrative State: On the Constitutional Character of Administrative Law" [2010] ELECD 809; in Rose-Ackerman, Susan; Lindseth, L. Peter (eds), "Comparative Administrative Law" (Edward Elgar Publishing, 2010)

Book Title: Comparative Administrative Law

Editor(s): Rose-Ackerman, Susan; Lindseth, L. Peter

Publisher: Edward Elgar Publishing

ISBN (hard cover): 9781848446359

Section: Chapter 7

Section Title: Written Constitutions and the Administrative State: On the Constitutional Character of Administrative Law

Author(s): Ginsburg, Tom

Number of pages: 11

Extract:

7 Written constitutions and the administrative state:
on the constitutional character of administrative
law
Tom Ginsburg


Administrative law is the poor relation of public law; the hard-working, unglamorous
cousin laboring in the shadow of constitutional law. Constitutional law, it is generally
believed, resolves the great issues of state and society, while administrative law, in its best
moments, merely refines those principles for dealing with the administrative state. Law
students flock to constitutional law classes, of which most law schools have three or four
in the curriculum. The same students enroll in administrative law with a sense of obliga-
tion, as if the subject is a chore one has to manage.
The two fields are, of course, intimately related, and share an overarching purpose of
managing the relationship between state and citizen, with an emphasis on protection of
the latter in democratic states. On the other hand, the fields reflect different legal sources
and modalities. In some countries, they are adjudicated by entirely different courts.
While constitutional law is becoming ever more comparative, with judges regularly citing
each other's opinions, administrative law remains bound to the nation state.
This chapter makes three arguments. First, it argues that the conceptual division
between administrative and constitutional law is quite porous, and that along many
dimensions, administrative law can be considered more constitutional in character
than constitutions. Second, it shows that written constitutions do relatively little to
legally constrain the administrative state. Rather, their role is to establish the broader
structural apparatus ...