Law and Leviathan – Rescuing the Administrative State

Eduardo Berliner, Untitled, 2018
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By RAFAEL VALIM & WALFRIDO WARDE*

Preface to the newly edited book by Cass Sunstein and Adrian Vermeule

This work, authored by two distinguished American jurists, is a provocative invitation to reflect on the challenges of the contemporary State. It is not a simplistic apology for the administrative State, but a well-elaborated theoretical construction on the foundation and limits of administrative agencies in charge of satisfying, according to technical criteria, heterogeneous and changing collective needs.

Although the work has the American legal system as its starting point, classic debates in public law and political science emerge from it, for the benefit of any and all readers, such as, for example, the risks of administrative discretion and the dichotomy between bureaucracy and policy.

For the Brazilian public, the book is of special interest, as it dialogues with themes of great relevance to the national public debate. Allow us to point out some examples.

The “Administrative State” that professors Cass Sunstein and Adrian Vermeule talk about was the inspiration for the “agencification” movement of Brazilian administrative law, in the context of State reform in the nineties of the last century. At the time, through a colonized discourse, regulatory agencies were uncritically “sold” as something inescapable, a panacea capable of curing all the ills of Brazilian public administration, and their critics were, naturally, described as “dinosaurs”.

Without going into the advantages and disadvantages of the agency model, it is curious to observe how in the United States there is still a battle to legitimize these entities. Unlike what was said and still is said in Brazil, agencies are a disputed model in the United States and raise the same concerns in both countries, especially with regard to the tension between technical knowledge and democratic will. By the way, it is exactly to answer the critics and legitimize them that the authors published the work that we now have the honor of prefacing.

Another extremely important aspect of the book for Brazil is the rescue of Lon Fuller's theory on the morality of Law, whose classic work, entitled The morality of law,[1] it is not even translated into Portuguese. According to the eminent Harvard professor, the legal phenomenon would be subject to a “procedural” morality. An internal morality, therefore, to Law, which would translate into the following principles: generality; advertising; non-retroactivity; intelligibility; consistency; practicality; stability; and congruence.

Cass Sunstein and Adrian Vermeule make use of Lon Fuller's theory to introduce the idea of ​​morality in administrative law, through which administrative agencies would be based, but, at the same time, would be limited. In the words of the authors, “the principles of morality of administrative law strengthen and constrain the administrative state”. It would be a way to assuage critics' concerns about the exercise of discretionary administrative powers by bureaucrats.

The Brazilian Constitution explicitly consecrated morality as a constitutional principle of Public Administration (art. 37, caput), under the influence of the Brazilian administrative jus doctrine which, in turn, sought inspiration in the French doctrine on the subject, whose precursor is Maurice Hauriou. However, the problem created by this principle in Brazilian law is widely known. Not infrequently, in the light of a supposed “norm of social morality”, administrative morality is used to prohibit or punish situations that were not provided for by law, thus promoting a true breach of legality.

Lon Fuller's morality of law, as Cass Suntein and Adrian Vermeule make clear, does not weaken legality, but rather reinforces it, which is why this clash of views on the internal morality of law seems so rich.

It remains for us to point out one last salient feature of this extraordinary work. In the current era, where, on the one hand, there is the rise of an extreme right-wing populism – which denies science and, consequently, the so-called “technical discretion – and, on the other, a dysfunctional expansion of the Judiciary Power – which empties the discretion of political agents – it is essential to revisit the issue of administrative discretion. The authors of this book provide precious elements for this.

* Rafael Valim, lawyer, holds a PhD in administrative law from PUC-SP, where he taught from 2015 to 2018. Author, among other books, of Lawfare: an introduction (with Cristiano Zanin and Valeska Zanin Martins) (Countercurrent).

*Walfrido Warde, lawyer, is doctor in commercial law from USP. Author, among other books, of The spectacle of corruption (Leia).

 

Reference


Cass R. Sunstein & Adrian Vermeule. Law and Leviathan: Rescuing the Administrative State. Translation: Nathalia França. São Paulo, Contracurrent, 2021, 180 pages.

 

Note


[1] Lon L. Fuller. The morality of law. 2nd ed. New Haven: Yale University Press, 1969.

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