The Purpose of Administrative Law and the Legitimacy of Administrative Government

Jerry Mashaws Reasoned Administration and Democratic Legitimacy: How Administrative Law Supports Democratic Government attempts to rescue American administrative law from two contemporary threats. On one flank, there are those who claim that administrative law contributes best to administrative governance by (in essence) getting out of the way. On this deflationary view, administrative law is and should be peripheral to the machinations of the administrative state. On another flank, however, one encounters outright hostility from scholars who see American administrative law as constitutionally compromised and thus call for a radical overhaul. In contrast to such approaches which style American administrative law as either modest or monstrous Mashaw sees in the law the promise (and partial fulfilment) of a mode of democratic governance specifically adapted to the practical inevitability of the administrative state in the modern world. This review begins by explaining how reason-giving requirements sit at the centre of Mashaws bold and illuminating rendition of American administrative law and its implications for democratic legitimacy. It then turns to consider two interesting questions the book poses for Australian public law scholars. The first of these is motivated by the expansion of reason-giving requirements in Australia: might reasoned administration or something like it also be a candidate theory for a better understanding (and perhaps justification) of Australian administrative law? The second question concerns the extent to which reasoned administration depends upon getting the doctrinal settings for unreasonableness review right, given that reason-giving requirements are unlikely to bite unless combined with some sort of oversight of the adequacy of reasoning processes. (A later version of this review appears in (2019) 30 Public Law Review 330-336.)