Showcase–New Directions in Administrative Law Research: The Distinction between Constitutional and Administrative Law

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[Editor’s Note: This is the final entry in an eight-part Showcase on new ideas in administrative law theory. The introductory post is available here.]

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–Farrah Ahmed, University of Melbourne

Are constitutional and administrative law distinguishable? If so, how? These questions are often met with indifference or scepticism. In the UK it is said that “the dividing line between constitutional and administrative law [is] hard to locate and somewhat artificial” and that “[t]he twofold division of public law (into constitutional and administrative law) is of no great significance.” In the US, scholarship blurs the boundary between constitutional and administrative law. In South Africa, complex connections between administrative law and constitutional text and principle make untangling the two challenging. In India the expansive interpretation of ‘Fundamental Rights’ has obscured the distinctive nature of administrative law norms.

Are constitutional and administrative law distinguishable? If so, how? These questions are often met with indifference or scepticism. In the UK it is said that “the dividing line between constitutional and administrative law [is] hard to locate and somewhat artificial” and that “[t]he twofold division of public law (into constitutional and administrative law) is of no great significance.” In the US, scholarship blurs the boundary between constitutional and administrative law. In South Africa, complex connections between administrative law and constitutional text and principle make untangling the two challenging. In India the expansive interpretation of ‘Fundamental Rights’ has obscured the distinctive nature of administrative law norms.

There is an easy answer to the suggestion that constitutional and administrative law are indistinguishable, at least in jurisdictions with codified Constitutions: the rules that are traditionally or generally found in codified Constitutions are ‘constitutional’, and other public law rules are ‘administrative’. This is a neat distinction, but it is unsatisfying because it does not tell us why some public law rules are generally found in texts of Constitutions and others are not.  

In this post, I would like to explore and fine-tune the best available account of the distinction: namely, that offered by John Gardner. I will also suggest that this account points to an important insight about the nature of administrative law, at least in jurisdictions sharing common law grounds of review.

Gardner tells us:

[T]he distinction between questions of constitutional law and questions of ordinary public law (also known as administrative law) lies in the type of institutions that these respective parts of the law regulate. Administrative law regulates institutions whose powers are delegated [‘administrative institutions’]. Constitutional law regulates those that do the delegating, i.e. institutions whose powers are not delegated but are, as it is sometimes put, inherent or original [‘constitutional institutions’].

Gardner later clarifies that the pedigree of the institution does not determine the category to which it belongs. Institutions are constitutional when significant practical (but not necessarily legal) impediments stand in the way of their powers being revoked. For instance, on one understanding of the US Constitution, the powers of the US Congress, President and Supreme Court might be revoked by a reconstituted Constitutional Convention (like the 1787 Philadelphia Convention); but this far-fetched possibility does not change the constitutional status of Congress, the President or the Supreme Court. In the UK, even if Parliament and the High Court began life with delegated powers from the Crown, they are constitutional institutions today because the delegation is now practically irrevocable. Thus, in the UK, constitutional institutions include Parliament, the Crown and the High Court; administrative institutions include local councils, tax inspectors and tribunals.

With this clarification, on Gardner’s account:

• constitutional institutions are state institutions whose powers are either inherent or practically irrevocable by the delegating institutions,
• administrative institutions are state institutions whose powers are practically revocable by the delegating constitutional institutions, and
• constitutional law regulates constitutional institutions while administrative law regulates administrative institutions.

I would tweak this slightly in response to recent work reminding us of the significance of rules of tort in regulating official action. What distinguishes these rules from administrative law? Tort law applies to a range of actors; it does not regulate administrative institutions qua administrative institutions. The tweaked distinction is now: constitutional law regulates constitutional institutions qua constitutional institutions; administrative law regulates administrative institutions qua administrative institutions.

This proposed distinction is an answer to scholarly complaints about the difficulties with delineating constitutional and administrative law with which I began. But the question remains: is the distinction significant? Does it tell us anything important about either of these bodies of law or the institutions they regulate?

On one view, no. Constitutional and administrative institutions are state institutions. We would expect that they have shared and similar duties, and that they should be more or less regulated in the same way. So even if a line can be drawn between them, the line does not mark out a significant difference.

Such a view overlooks the import of the idea underpinning Gardner’s distinction: that administrators are delegates of constitutional institutions. Delegates, by virtue of their position as delegates, have moral duties that others may not. Private law recognises this in the way that delegates (agents) are regulated. I am currently developing a theory of judicial review of administrative action that argues that public law does the same. The ‘delegation theory of judicial review’ argues that the legal duties of administrators, which form the grounds of common law judicial review, reflect their moral duties as delegates of constitutional institutions. If this is right, then the distinction between administrative and constitutional law is profoundly significant, at least in jurisdictions sharing common law grounds of review.

Suggested Citation: Farrah Ahmed, Showcase–New Directions in Administrative Law Research: The Distinction between Constitutional and Administrative Law, Int’l J. Const. L. Blog, Sept. 24, 2019, at: http://www.iconnectblog.com/2019/09/showcase–new-directions-in-administrative-law-research:-the-distinction-between-constitutional-and-administrative-law