Moshe Cohen-Eliya and Iddo Porat: The Administrative Origins of Constitutional Rights
Many explanations have been suggested for the divide between the European (especially the German-based) and the American models of constitutional law and for the unique character of American constitutionalism in particular.
In this post, based on a recent article, we would like to explore a new explanation for this divide. Our argument would be that the gap between American and European constitutional law stems partly from the fact that American constitutional law developed well before American administrative law, whereas European constitutional law developed well after European administrative law. This historical fact, we shall argue, has created a different conception of constitutional law and of constitutional rights which keeps informing both systems to this day.
The circumstances in which the American Constitution was adopted point to a particular conception of rights in which text has a central role. We will term this conception the “Constitutional Model of Rights” because rights adjudication in this model is based on the prior existence of a constitutional text.
The process by which the American Constitution was adopted, especially if compared to similar processes elsewhere in the world, involved a high degree of popular participation and consent. This helped form the idea that the legitimacy of the Constitution derives from popular consent and from the democratic process that ensured it, and was congenial to the development of particular method of interpretation according to which the Court should try and approximate the result of this deliberation and the choices that were actually accorded by popular consent. In particular, since democracy is the legitimating force behind the text, the Court should be careful not to subvert this process, achieved in the political sphere, by substituting it with its own conception of what is good and just. Hence – Originalism, Textualism and the counter-majoritarian difficulty – all staple characteristic of American constitutionalism.
The perceived function of the American constitution provided another set of considerations for the importance of the constitutional text. The American Constitution was intended to limit governmental power, and to create a framework by which power is not centralized in any one body – the checks and balances, and separation of powers system. The rights set in the Constitution were conceived as another way of limiting government and setting the boundaries to its powers and therefore had to be relatively clear and set visibly and publicly, especially so if they were to be self-imposed by the political system (as they were thought to be before judicial review was recognized in the Marbury case). Hence the importance of there being a text setting rights, and of a relatively clear wording of that text.
When administrative law enters the scene in the US, the constitutional model of rights is already well established. The rise of American administrative law should be understood in the context of the rise of the administrative agencies and the administrative state during the New Deal era of the 1930’s. The dramatic rise in the power of these agencies created an urgent need for democratic accountability for their activities, and administrative law was developed for this purpose. It imposed transparency, participation, and responsiveness to the public by inspecting the procedures of these bodies and allowing citizens to contest them. Administrative law further developed around the Great Society of the 1960s and its contribution to the rise in the number of administrative agencies.
These developments show that administrative law did not participate substantially in the shaping of constitutional rights. Rights had already been developed and shaped through constitutional law, and administrative law covered the new territory of supervising administrative agencies, so that there existed a relatively clear separation between the two fields of law. The fact that administrative law in the US is not concerned primarily with basic rights is also a reason for its relative marginalization in comparison to American constitutional law. As Bob Ginsburg writes:
Administrative law is the poor relation of public law; the hardworking, unglamorous cousin laboring in the shadow of constitutional law. It is constitutional law, it is generally believed, that resolves the great issues of state and society; administrative law in its best moments merely refines those principles for dealing with the administrative state.
Europe (Germany in Particular)
A completely different picture arises when looking at the history of both constitutional and administrative law in Europe. Although modern constitutions appear on the European scene about the same time as the American Constitution – from the end of the 18th century – constitutions were conceived in Europe mainly as documents to be applied in the political realm rather than in the legal realm. Courts had a very limited role to play in imposing constitutions. In France, the birthplace of modern constitutionalism in many respects, this separation between the courts and the constitution was especially well kept, as courts were associated with reactionary forces. As Matias Kumm stresses, the idea was rather that it was the business of the political branches to protect rights and to realize the ideas of rights enshrined in the constitution.
The judicial protection of civil liberties vis-a-vis the government developed in Europe in administrative law rather than in constitutional law, and as a limitation on the executive rather than on the legislature, as administrative law starts much earlier than its counterpart in the US, while constitutional law starts much later.
The German model of administrative law, which will be in the center of our review, has been probably the most influential in Europe (it was incorporated, according to Francis Bignami, in Austria, Portugal, Sweden, Finland, Czech Republic, Poland, Spain, Switzerland, Hungary, Slovenia, Romania, and Estonia). It was first developed in Prussia. There, (even before the unification of Germany in 1870) the need for administrative courts arose in order to deal with the problem of democratic accountability of the executive. Parliament, which was subservient to the executive, did not provide a proper mechanism for accountability. Therefore the liberal powers in the polity looked for accountability through an alternative means – the judiciary. Unlike in France where the judiciary was associated with reactionary forces in society and served as the mouthpiece of the monarchy, in Prussia the judiciary was viewed as a liberal player in the polity, that is able to protect the interests of the citizens vis a vis the state.
As we note in another place, the Prussian Supreme Administrative Court (PSAC) has developed an impressive jurisprudence protecting the interests and rights of citizens from state power and its excesses. It used two interrelated concepts for that purpose: Rechtsstaat (rule of law), that required explicit legislative authorization for the use of police power that limited civil liberties, and proportionality, that allowed only those measures that were necessary for achieving government’s legitimate goals.
Between 1882 and 1914, the PSAC made intensive use of both these concepts to examine the legitimacy of government intervention in economic and social life protecting in effect rights that ranged from the right to property to the right of free assembly and free speech.
The upshot of this historical analysis is that an initial conception of rights was already well developed in German law in the context of administrative law, carrying administrative law characteristics, a long time before rights were constitutionally adjudicated in Germany, which happened only after WWII. This administrative conception of rights, we conjecture, must have informed the way courts addressed rights jurisprudence also in the constitutional faze, and thus can help explain some of the special features of the German-based rights conception and how they differ from the American conception of rights.
The following are ways in which we suggest the administrative origins of rights in Germany affected the German-based conception of rights: First, since rights were developed in administrative law, they developed with no textual grounding for them – no bill of rights to interpret and apply. Rather they were based on a general principle of liberty and autonomy, and on the realization that the state cannot restrict those unless it has the authorization to do so, and also the proper justification, i.e., in terms of proportionality. Text therefore, even when arriving in Germany after WWII, could have been conceived as redundant to rights adjudication, and as having a secondary rather than primary legitimating importance. Secondly, rights were developed through the doctrine of proportionality, which is a doctrine of justification (based in a culture of justification), rather than through a doctrine of interpretation that attempts to reenact a will behind the text. This can help explain the marginality of original intent modes of interpretation in Germany and also the willingness to read rights broadly and flexibly, as justification based review aims at a broad application. Finally, rights were developed vis. a vis. the executive and not vis. a vis. the legislative. Administrative law is concerned with checking the executive, and has no bearing on the legality of legislative products. This also follows from the antecedents of the French Revolution – the legislature reflected the will of the people and the preservation of democratic and human rights ideals. The executive (formerly the monarch) was the one suspected of human rights infringement and of excessive power. The judiciary, when protecting rights, was in fact imposing the will of the legislature on the executive. This may help explain the relative marginality of the counter-majoritarian difficulty in German constitutional law vis-à-vis American constitutional law.
Nietzsche once wrote that “all things which last for a long time become progressively so well imbued with reason that it becomes incredible that they might have originated in a way which was other than reasonable.” In this article we wished to show that some things which seem so natural that they become part of reason itself, can be the result of contingent historical circumstances.
Our claim is that the way rights are conceived in America and Europe respectively, and seem natural to each legal culture from an internal perspective, can be attributed partly to a contingent historical development – the precedence of constitutional law to administrative law in America, and vice versa in Europe. The American conception of rights, according to which rights owe their legitimacy to a constitutional text and rights adjudication consists of interpreting this text, should be attributed in part to the very early development of judicial review of rights in America based on a written bill of rights. In Europe, on the other hand, the conception of rights as broad and all-encompassing values, and of the adjudication of rights as focusing on justification rather than interpretation, can be attributed partly to the fact that much before they were incorporated into a bill of rights with judicial review, rights conceptions were formed in administrative law, through concepts of the rule of law and proportionality, and without reference to a written text.
Finally, we leave some important questions open for further discussion and research: where should we place the UK model between these two models? Since the German-based model of rights has been very influential on many other countries, can we, and if so, to what extent, use this historical account to provide an explanation for the conception of rights in other countries? One of us has tried to show that a similar explanation can be given to the character of rights in Israel, but the question remains whether it would provide also a good explanation to the nature of rights in other places, such as Canada or South Africa. And, lastly, can this explanation help account of the differences between administrative law in America and in other places.
Iddo Porat is an Associate Professor of Law at the College of Law and Business, Israel. He is currently a Senior Fellow and Visiting Professor at the Center for Comparative Constitutional Studies, Melbourne Law School. His research areas include comparative constitutional law, constitutional law and legal theory. His book, co-authored with Moshe Cohen-Eliya, is titled Proportionality and Constitutional Culture (2013 CUP)
Moshe Cohen-Eliya is the President of the College of Law and Business (Israel). His areas of research is global constitutionalism and human rights. His articles were published in journals such as American Journal of Comparative Law, Toronto Law Journal, ICON, and his book (co-authored with Iddo Porat) Proportionality and Constitutional Culture (2013) was published by Cambridge University Press. Moshe was the founding editor of Law and Ethics of Human Rights.