Law’s Abnegation by Adrian Vermeule
I have not mentioned as many books and articles as I would have liked to over the course of the year. Let me try to make up for this by recommending a book to put in the Christmas stocking of the administrative lawyer in your life: Law’s Abnegation by Adrian Vermeule. The blurb says:
Ronald Dworkin once imagined law as an empire and judges as its princes. But over time, the arc of law has bent steadily toward deference to the administrative state. Adrian Vermeule argues that law has freely abandoned its imperial pretensions, and has done so for internal legal reasons.
In area after area, judges and lawyers, working out the logical implications of legal principles, have come to believe that administrators should be granted broad leeway to set policy, determine facts, interpret ambiguous statutes, and even define the boundaries of their own jurisdiction. Agencies have greater democratic legitimacy and technical competence to confront many issues than lawyers and judges do. And as the questions confronting the state involving climate change, terrorism, and biotechnology (to name a few) have become ever more complex, legal logic increasingly indicates that abnegation is the wisest course of action.
As Law’s Abnegation makes clear, the state did not shove law out of the way. The judiciary voluntarily relegated itself to the margins of power. The last and greatest triumph of legalism was to depose itself.
Various elements of Vermeule’s thesis — a response to critics of the administrative state, a discussion of rationally arbitrary decisions, and an analysis of deference and due process — will be familiar to readers of this blog. They are skilfully drawn together in Law’s Abnegation in support of the argument summarized in the blurb.
The thesis is particularly eyecatching because of the methodology Vermeule has employed. A decade ago, in Judging Under Uncertainty, Vermeule set out an “institutionalist” approach to legal interpretation, arguing: “In view of their limited information and competence, judges should adopt a restrictive, unambitious set of tools for interpreting statutory and constitutional provisions, deferring to administrative agencies where statutes are unclear and deferring to legislatures where constitutional language is unclear or states general aspirations”.
The methodology in Law’s Abnegation could not be more different. It is expressly Dworkinian! From institutionalism to interpretivism in a decade! That is not to say, however, that Vermeule has become an interpretivist in all senses. As he explains, his “methodological commitments” follow from his “framing” (at p. 8) of modern judicial review of administrative action as “a highly deferential exercise that attempts only to determine whether administrative agencies have clearly gone beyond the outer bounds of the defensible…” (at p. 7). He goes on to write:
I mean to offer an internal lawyer’s argument throughout, rather than an argument from economics or political science or political theory. Indeed the argument throughout is itself Dworkinian in the sense that is neither descriptive nor normative but interpretive. The aim is to uncover the best constructive interpretation of law’s trajectory – “law as integrity”. Thus I systematically tack back and forth between fit and justification. Rather than theorize from first principles, I will attempt to show that, conditional on accepting the broad thrust of the extant legal doctrine, abnegation based on good lawyerly reasoning is the best principled justification of that doctrine. Using all the traditional lawyer’s tools of precedent, constitutional and statutory text, and mid-level principles of institutional design and operation, I aim to show that the law has leashed itself under the throne of the administrative state, and it has done so because the best internal understanding of the legal arguments, worked pure by virtue of a commitment to reasoned consistency, has indicated that it should (at p. 8).
Dworkin was notoriously silent on the administrative state. For Vermeule, Dworkin probably stayed silent because applying Dworkin’s theory of law as integrity to administrative law would demonstrate the parochial pretensions of those ruling Law’s Empire: “Law’s reasons, understood through fit and justification, have pointed the way towards law’s abnegation in the face of the administrative state” (at p. 219).
This content has been updated on December 13, 2016 at 11:34.