#Undisturbed subtle points of law series#

For example, to count as law, legal requirements must inhere in rules, must be accessible to those who are to be bound by law, must not be changed so often (or so unpredictably) as to be difficult to know, and must not demand things that cannot reasonably be expected.Īll of these are reasonable requirements for law. Instead, law must meet requisites of an inner morality that reflects essential ingredients of the rule of law. Hart, is that law isn’t simply whatever a legally constituted authority says or what people recognize as a binding command.

And they see it as the best explanation of what law is, especially what the law and practice of the American administrative state are.įuller’s central argument, in opposition to positivists such as H.L.A. Sunstein and Vermeule-with ample reason-see this list as the prototype for concerns all of us should have about law and legal systems. The authors pay continuous homage to lessons drawn from Fuller’s book on The Morality of Law, building their discussions around Fuller’s list of ways that law and legal systems can fail. Law and Leviathan’s “Fullerian” core-its key to taming the administrative state-is evident throughout. Fuller Morality: Law’s (and Leviathan’s) Core (Think of it as the administrative law version of “How to Train Your Dragon”-it’s directed at making something scary into the kind of thing you’d be alright having at home.) II. Ultimately, the message is that, looked at in this manner, the administrative state not only isn’t your nemesis, it’s your friend. In their telling, thinking about these concerns and the ways courts and the administrative state have addressed them should give readers confidence that the most pressing problems of discretionary power are under control. Sunstein and Vermeule endeavor to persuade readers that the most important aspects of law and of a well-functioning, developed economy and society-and the broader organs of government that go with that-are best understood through reflecting on Fuller’s concerns. For Fuller, avoiding these pitfalls defines the moral core of law. Most famously, Fuller articulated a set of concerns about law through which to judge legal systems-his eight ways legal systems can fail. Fuller pushed back against the notion that law at its core is about keeping within the rules that constitute government and empower governing instead, he argued that certain precepts about the character of rules, rulemaking, and rule enforcement matter critically to what should be regarded as properly within the framework of law.

#Undisturbed subtle points of law series#

Instead, it’s a blend of exploration, intrigue, and argument, presented through a series of overlapping discourses that mix anecdote, reflection, legal analysis, and jurisprudence, wrapped around a core of ideas associated with Lon Fuller’s famous work, The Morality of Law.

The book isn’t a straightforward explication of Sunstein and Vermeule’s thesis. (Okay, the metaphors are mixed, but the message should be clear.)Īs fits both authors’ style, Law and Leviathan isn’t designed to bludgeon skeptical readers into submission, but instead to seduce them. And they make clear from the outset that their mission is not to refute them, but to reduce them-to pour oil on these troubled waters. In fact, they start with a litany of complaints about the administrative state. Sunstein and Vermeule don’t avoid the headwinds faced by the administrative state. So, too, for readers who have been thinking about the fit between our present administrative state and the constitutional structure that should govern it or who recognize that structure as the yardstick against which to measure the administrative state as it faces increasingly frequent legal challenges. Their book offers a subtle, sophisticated, and in many ways soft presentation of reasons to put aside qualms about the administrative state.įor readers who wait interminably at the DMV or on the phone trying to connect with one of the agencies that rule our lives or who struggle to understand the complex morass of rules and regulations that control virtually every corner of our businesses, this may be a hard sell. Unlike Twain and Nye’s, Sunstein and Vermeule’s is a serious argument, presented seriously. Cass Sunstein and Adrian Vermeule, two of America’s most notable professors of constitutional and administrative law, have produced a book whose central argument is that the modern administrative state is really much better than it rules. Mark Twain popularized the quip by Bill Nye (not that Bill Nye!) that Wagner’s music is really much better than it sounds. Beauty, Beast, Bureaucracy: Music to Whose Ear? A review of Law & Leviathan: Redeeming the Administrative State, by Cass Sunstein & Adrian Vermeule.