‘Always Embedded Administration’: Historical Reflections on Administrative Justice as an Aspect of Modern Governance

Peter Lindseth, University of Connecticut School of Law

Abstract

Positive law is the legal avatar of political modernity. It is the expression, in legislative terms, of the will of the modern state to remake society – first by constructing, and then by regulating, both national market economies and national political communities. Positive law is not, however, self-executing. Rather, it is in many respects merely the opening gambit in a complex process of negotiation between state and society over the form and substance of regulatory norms. To emphasize the diffuse and fragmented character of this phenomenon, legal scholars now commonly use the term ‘governance’ – rather than the more traditional and hierarchical term ‘government’ – to capture the complex means by which regulatory norms are actually formulated in modern society. Important normative decisions are still made at the summit of the state, of course, and this process itself entails significant political negotiation between public and private interests. However, once those general decisions are set, the difficult work of negotiation then shifts to the administrative sphere, and it is there that the ideal of hierarchical government arguably begins to break down.