The Perilous Position of the Rule of Law and the Administrative State

Richard A. Epstein

Recent scholarship in the academy has turned again to an intensive study of the rule of law in the modern administrative state, a topic which I have addressed in detail in my book Design for Liberty: Private Property, Public Administration, and the Rule of Law. One way to view this question is to treat it as a definitional matter. That approach, however, is not a fruitful one, for the concept of a rule of law is today not essentially contested today. Professor Shane gave a perfectly accurate definition, one to which I subscribe but for which I claim no originality. Many of the essential elements of the modern account are found in the Second Treatise of Government by John Locke. That vision is then further elaborated in the same form, more or less, by Lon Fuller in his book The Morality of Law. The elements of this definition of the rule of law speak of known, consistent, and certain rules that are applied prospectively by neutral judges to the cases before them. The key virtue of this definition is its generality; its application does not commit any defender of the rule of law to any particular substantive view of which laws are desirable, nor does it presuppose some distinctive relationship of individuals to the state or of individuals to one another. It therefore offers a minimum condition that is consistent with, and constituent of, any just and efficient legal regime.