Law and Leviathan:
Reforming the Administrative State
by Cass R. Sunstein and Adrian Vermeule
The Belknap Press of Harvard University Press, 2020, 188 pages
Size matters. In the case of a state, smaller is usually better. Plato specifies that a state informed by justice and moderation should have 5,040 citizens. Aristotle concurs that a relatively small state, with a maximum of about one thousand households, is more likely to be well governed. It is difficult, if not impossible, to run a state well in large political communities composed of diverse peoples with large class differences. Jean-Jacques Rousseau is famous for his radical defense of participatory democracy. But he emphasized that well-governed states need to be relatively small. In a large political community, the people have less civic pride, the cost of administration increases, and it is difficult to apply uniform laws in different regions with different kinds of peoples. Rousseau served as an adviser to the government of Poland. Ideally, he said, such large states should be broken up. But this prescription may not be realistic. So Rousseau’s recommendations were relatively conservative: the king should be the supreme administrator of laws, senators should have lifetime tenure, and administrators should be promoted according to a rigorous meritocratic process. Rousseau said nothing at all about direct democracy in the case of Poland, and liberty in this context refers to national liberty or freedom from foreign (Russian) interference.
Democratic citizenship is particularly difficult to establish in large, modern political communities. As states increase in size, the challenges of effective governance mount. The need for hierarchical decision-making and clear lines of authority grows, placing some constraints on democratic equality and political participation. In practice, in large well-governed states, where rulers have the motivation and the ability to implement policies for the good of the citizens, and where a degree of trust obtains between rulers and citizens, there is a need for large and complex bureaucracies. The larger the state, the larger the bureaucracy led by experts, and the less room for political participation by ordinary citizens. In modern states, the need for expert rule grows as societies become even more diverse and complex. Like it or not, there is a trade-off between effective governance and the ideal of democratic participation in large states.
Cass Sunstein and Adrian Vermeule, both law professors at Harvard, seek to address the problems of large-scale bureaucratic governance in their new work Law and Leviathan: Redeeming the Administrative State. While their arguments are directed mostly at the American political context, where the administrative state is often contested, the questions they raise are worthy of careful comparison to another large, bureaucratic state: China. In what follows, I first consider the long history of Chinese experience with governing a large state. I then examine defenses of the administrative state in light of the contribution of one of China’s original legal theorists—Han Feizi.
The Need for Bureaucracy in Large States
For some reason, most political thinkers in the West have lost sight of the fact that different standards should inform the governance of small and large states. In Political Order and Political Decay (2014), for example, Francis Fukuyama argues that “Denmark”—an idealized form of the actual country—should be the political ideal for the rest of the world. Denmark is prosperous, democratic, secure, and well governed, with low levels of corruption. But it also has only 5.8 million people, and a relatively homogenous population at that. What works in Denmark is highly unlikely to work in a highly diverse country with 1.4 billion people such as China. Denmark can perhaps serve as an ideal inspiring political reform for, say, the richest parts of Shanghai. But it’s absurd to hold up Denmark as the ideal for China. In huge states, dysfunction and chaos will inevitably arise in the absence of large and complex bureaucracies that impartially implement policies designed to benefit the people. In such states, citizens are bound to have less say than in smaller communities.
In China, political thinkers have almost always agreed on the need for a large and unified political community. The Warring States Period (475–221 BCE) was characterized by the “Hundred Schools of Thought,” meaning that different kinds of political thinkers espoused widely different ideals. But they all converged on the ideal of political unification in the form of a large political community (a point made by Yuri Pines in his 2012 book The Everlasting Empire). The unification was implemented by the state of Qin and the self-proclaimed first emperor of China, Qin Shi Huang, in 221 BCE.
The emperor was influenced by the Legalist school of thought. Legalist thinkers such as Han Feizi argued that social control can only be established by means of harsh and uniform laws that control all spheres of social life. Han Feizi criticized Confucians on the grounds that rule by morality only works in small political communities with few people and abundant resources. In large states with limited resources, there is a need for harsh laws and bureaucratic rule. In line with Legalist thinking, Emperor Qin Shi Huang established what Bai Tongtong terms the world’s first modern bureaucracy (China: The Political Philosophy of the Middle Kingdom, 2012). The first emperor unified the Chinese script, built an extensive network of roads and canals, began work on the Great Wall, and established an impartial system of administrators selected and promoted according to strict meritocratic criteria.
But the Qin dynasty was short-lived because its bureaucratic rule was not meant to benefit the people. The whole point was to establish a powerful state primed for success in times of war. Soldiers were promoted based on the number of enemy soldiers they decapitated; farmers were encouraged to grow crops; and other social groups—“the five vermin”—were ruthlessly crushed, including Confucian scholars who were buried alive with their books. It was a relatively objective bureaucracy, but one that allowed for gross cruelty and served immoral purposes. The next dynasty, the Han (202 BCE–220 CE), retained much of the form of Legalist bureaucracy but specified, in accordance with the Confucian ideal, that public officials are supposed to serve the people. Zhao Dingxin argues that the Confucian-Legalist State set the pattern for dynastic rule for the next two thousand years (The Confucian-Legalist State, 2015). Of course, there was always a gap between the ideal and the reality, and many political debates over the next two thousand years centered on the question of which meritocratic practices would best ensure that public officials actually served the people. Such institutions as the civil examination system, invented in the Sui dynasty (581–618), were criticized and revised when they proved to be deficient.
The need for bureaucracy and rule by experts becomes even more pressing as countries become economically complex and socially diverse. So it’s not surprising that China has reestablished a strong form of bureaucratic rule since the period of economic reform in the late 1970s, with administrators increasingly selected according to level of education and by means of ultracompetitive examinations. The true surprise would have been the adoption of electoral democracy and more political participation by the people. As David Stasavage explains in his recent book The Decline and Rise of Democracy (2020), China’s long history of political meritocracy and complex bureaucracy reduces the likelihood of a transition to democracy. What we might call natural selection in politics favors more bureaucracy and less democracy in large states—even more so as states modernize. Conversely, more democracy would likely come at the cost of less effective governance.
The United States is another huge political community. But it is founded on the ideals of democratic equality and individual freedom, not rule by bureaucrats. The founding fathers designed a constitution meant to protect basic civil and political rights. In Federalist no. 10, James Madison worried mainly about class-based factions that might threaten individual liberty and the property of the wealthy minority. In a small democracy, it’s easier for majority factions to unite and oppress the minority. In large republics with rule by elected representatives, factions are more diffuse, and the variety of interests makes it more difficult for a faction to unite and oppress the rest. Elected delegates are less likely to be corrupt compared to small democracies because it’s harder to bribe voters in large constituencies. So, in Madison’s view, large republics are better than small democracies—an apparent exception to the “smaller is better” rule favored by earlier theorists of equal democratic citizenship in the West.
But the founding fathers, including Madison, did not foresee the rise of the administrative state—rule by bureaucrats and experts—and the threat it might pose to freedom and democracy. Over the last several decades, there has been an explosion of government in the United States. In retrospect, it doesn’t seem so surprising. With the rapid expansion of industrial capitalism and new technologies, there is a need to regulate the way we eat, drink, consume, work, and travel to ensure that these technologies benefit rather than harm citizens. The government needs to secure our health and safety against the threat of unregulated technology and greedy capitalists who might peddle dangerous products and endanger the environment—not to mention the need to regulate nuclear weapons and other existential threats. Elected representatives can’t do all, or even most, of the work themselves. They need the help of professional administrators who have the expertise to implement their decisions. But how much authority should be delegated to the experts? And how should we limit abuses of power by the “administrative state”?
Limiting the Power of the Administrative State
There are good reasons to worry about excesses of the administrative state. In the United States, a large bureaucracy can pose fundamental threats to the interests of the citizens it is supposed to help. First, the rise of the military-industrial complex threatens to divert public funds away from social welfare and can lead to unwanted and unjust wars abroad. Second, the administrative state often seems to implement policies and regulations designed to benefit wealthy plutocrats rather than the majority of the people. Third, the administrative state has become so powerful that it can go against the will of elected representatives and implement regulations that threaten business activity and individual liberty. In the American context, the third concern is raised mainly by libertarians committed to the overriding value of individual freedom and constitutional “originalists” who favor sticking to strict interpretations of the founding fathers.
Cass Sunstein and Adrian Vermeule primarily address the concerns of the third group of critics of the modern-day “Leviathan.” The authors do not say so explicitly, but they try to respond to this group of critics because the U.S. Supreme Court now has a majority composed of relatively conservative justices who take the concerns of the third group seriously. There is a serious risk that the Supreme Court will seek to overturn many of the regulations of the administrative state, including regulations that serve the common good.
There is also a political dimension to this debate. Self-styled conservative political actors, including former president Donald Trump, worry about the “deep state”—a cabal of unelected bureaucrats who work behind the scenes to sabotage the work of elected officials. But the federal bureaucracy—with 2.79 million civilian employees spread across two hundred and fifty agencies—is diverse, compartmentalized, and spread throughout the country. There is little evidence that they can organize against the elected government, even if they wanted to. Still, some bureaucrats can resist the decisions of elected political leaders and regulate beyond their mandate. It’s a myth that bureaucrats simply implement decisions handed down to them by elected leaders. They influence decisions and often have wide discretion to do what they want. So how to ensure that bureaucrats stick to the will of elected leaders?
In the United States, the Supreme Court has the supreme authority to interpret the Constitution. In principle, it can limit the power of administrative agencies if they violate the Constitution. At the most basic level, the question is whether the Constitution allows for administrative agencies. Does Congress have the power to allow agencies such as the Federal Reserve Board to operate independently of the president? Can Congress delegate wide discretion to administrative agencies such as the Environmental Protection Agency and other “alphabet soup” agencies? More broadly, should democratically elected leaders be allowed to empower relatively independent agencies composed of bureaucrats with life tenure to decide things unconstrained by meaningful checks on what they do? Perhaps unelected judges can and should force elected representatives to do their job of deciding on the key policy issues affecting the country, including detailed regulations that affect the ordinary lives of citizens.
Sunstein and Vermeule seek to respond to “libertarian-originalist” judges, legal scholars, and think-tank commentators who argue that federal courts should strictly limit, if not abolish, administrative agencies because they are fundamentally illegitimate in a constitutional democratic state. In chapter one, they respond to the “originalists” who argue that the administrative state conflicts with the intentions of the founding fathers. While the founding fathers sought to prevent executive abuses, they also wanted an effective government. Sunstein and Vermeule argue that “members of the founding generation wanted a strong national government, not a weak one” (23). They did not favor a powerless executive branch, and they realized that administrative agencies would be required. It may be true that the founding fathers did not foresee the development of a vast administrative state with wide discretionary authority to decide matters that affect many areas of our ordinary lives. But they may well have allowed for its development, so long as its power was limited.
Given the existence of the administrative state, the question is how to limit its power. Sunstein and Vermeule argue that there is a principled answer to this question: the authority of administrators should be limited by the rule of law. And what is meant by the rule of law? Sunstein and Vermeule turn to the legal philosopher Lon Fuller, who specified the minimal conditions necessary for the very existence of law. Law is absent when any of the following conditions obtain:
(1) a failure to make rules in the first place, ensuring that all issues are decided on a case-by-case basis; (2) a failure of transparency, in the sense that affected parties are not made aware of the rules with which they must comply; (3) an abuse of retroactivity, in the sense that people cannot rely on current rules, and are under the threat of change; (4) a failure to make rules understandable; (5) issuance of rules that contradict each other; (6) rules that require people to do things that they lack the power to do; (7) frequent changes in rules, so that people cannot orient their action in accordance with them; and (8) a mismatch between rules as announced and rules as administered. (40)
When administrative agencies, empowered by Congress to do their work, implement policies and regulations that do not violate the minimal conditions for the rule of law, those agencies can and should be allowed to implement rules and regulations for the benefit of citizens. But when they violate these conditions, federal courts can and should limit their power.
Fuller’s conditions offer a neat, principled answer to the question of how to limit the power of administrative agencies. More surprisingly, perhaps, this “internal morality” of law has informed recent decisions of the U.S. Supreme Court. Sunstein and Vermeule show that recent cases of the Roberts court allowed the decisions of administrative agencies to stand if they adhered to Fullerian conditions for the rule of law, and struck them down if they didn’t. Now, it does seem odd that U.S. Supreme Court justices would draw on “inarticulate intuitions” (81) without being consciously aware of the source of their judgments. Why didn’t the justices make more explicit the “administrative law’s implicit procedural logic” (18)? But perhaps it’s easier for thinkers to make sense of things after the fact. Like the owl of Minerva, Sunstein and Vermeule uncover and make explicit the inner logic of the decisions of the Roberts-led Supreme Court. They endorse the decisions and seek to make explicit the fact that judges are “responding to a kind of intuition about administrative law’s inner morality” (159).
But Sunstein and Vermuele are not complacent defenders of the status quo. With the addition of Amy Coney Barrett as an associate justice, the balance of the majority may tilt in favor of those who seek to revive the “nondelegation doctrine,” which would forbid Congress from granting excessively broad discretion to administrative agencies. Last fall, the authors penned a New York Times op-ed titled “The Very Structure of Modern Government Is under Legal Assault,” making more explicit their worry for the future. It may soon become harder for agencies to regulate in favor of environmental protection and occupational safety. That’s why Sunstein and Vermeule seek to make explicit the underlying logic of morally and legally justifiable decision-making by administrative authorities: If the administrative state makes regulations that are informed and limited by the minimal conditions for the rule of law, they should be allowed to stand. If not, they should be struck down. Supreme Court justices, regardless of ideological orientation, should agree to stick to those principles as long as they are committed to the rule of law.
The Internal Morality of Law: A Chinese Invention?
Sunstein and Vermeule’s solution to the question of how to limit the power of administrative agencies is an elegant one, but it is worth asking whether it will satisfy libertarian critics of the administrative state who worry about encroachments on civil and political liberties. If the administrative state is constrained by Fuller’s eight minimal conditions for the rule of law, do we need to stop worrying about the state’s curtailment of freedom? Here’s an important reason for a negative answer: Fuller’s minimal conditions for the rule of law are compatible with nondemocratic rule, and maybe even with totalitarianism. Indeed, Sunstein and Vermeule recognize that “a nondemocratic nation might comply with the morality of law” (41). And as it turns out, Fuller had an intellectual forefather in Chinese political thinking: the Fullerian account of the minimal conditions for the rule of law is strikingly similar to those put forward by the Legalist thinker Han Feizi.
Two thousand years before Lon Fuller, Han Feizi articulated the “internal morality of law.” Kenneth Winston, in an article on “The Internal Morality of Chinese Legalism,” notes the the eight conditions Han Feizi gave as necessary for the rule of law: generality, publicity, clarity, prospectivity, noncontradiction, conformability, stability, and congruence. On the point of publicity, for example, Han Feizi says that “law wants nothing more than publicity . . . when the enlightened sovereign speaks on law, high and low within the boundaries will hear and know it.” Clarity matters, as well: “In administering your rule and dealing with the people, if you do not speak in terms that any man and woman can plainly understand, but long to apply the doctrines of the wise men [i.e., Confucian scholar-officials], then you will defeat your own efforts at rule.” And so on for the other conditions. Han Feizi, it is no exaggeration to say, is the world’s first defender of the rule of law.
Admittedly, the ideal of law as superior to the will of rulers, along with its institutional manifestation in the form of an independent judiciary, is foreign to traditional Chinese culture. Han Feizi was clear that the ruler, in principle, should have the unchecked power to change the law as he sees fit. In practice, however, the law should be dominant most of the time. The ruler of a large state should not change the law too often: “if, when governing a big country, you alter laws and decrees too often, the people will suffer hardships. Therefore, the ruler who follows the proper course of government . . . takes the alteration of law seriously.”
Han Feizi was influenced by the Daoist idea of nonaction (wu wei): power can best be exercised when it is rarely exercised. The ruler should proclaim the laws, then put in place a vast bureaucratic system that strictly enforces the laws regardless of circumstance. Moreover, the ruler should not change the laws too frequently because, in doing so, he would show his desires and open himself to manipulation by ministers and bureaucrats. The ruler accumulates power by building up mystique, only rarely making an appearance to change the laws.
A good example of this approach came after the chaos of the Cultural Revolution, when Deng Xiaoping rebuilt a strong bureaucratic state and then exercised power behind the scenes in the last few years of his life without holding any formal political posts. When he did make a public appearance—as in 1992, visiting Shenzhen and praising the model of market reform—he could literally transform the whole country with the use of a few words (in this case, relaunching the economy). In contrast, Han Feizi would be critical of the constant tweets by former president Trump because they lead to a situation where no one takes the leader seriously and undermine the effective exercise of power.
The similarity of Han Feizi’s thought to Lon Fuller’s, then, suggests that minimal rule of law concepts may be too easily compatible with near totalitarian states and harsh laws that prioritize social order over individual or common benefits. On the other hand, Randall Peerenboom, in his work China’s Long March toward the Rule of Law (2002), argues that such “thin rule of law” concepts are compatible with diverse forms of “thick conceptions of law.” One can certainly find the minimal conditions of law met in the liberal democratic version of the rule of law, with its protections for free market capitalism and civil and political rights. But one can also find them met in the statist socialist version—a socialist form of economy in which public ownership plays an important role and “a nondemocratic system in which the Party plays a leading role and an interpretation of rights that emphasizes stability, collective rights over individual rights, and subsistence as the basic right rather than civil and political rights.”
In effect, the U.S. Supreme Court has also been invoking Han Feizi’s theory of the minimal conditions of the rule of law. Of course, quoting Han Feizi is not likely to persuade originalists, but perhaps libertarians need not worry too much. The U.S. Constitution protects civil and political rights, so federal judges are not likely to rule in a way that endangers those basic rights, even if they invoke the Han-Fuller theory of the minimal conditions of the rule of law when thinking about how to limit (and empower) the administrative state. Nor is size always a problem: history shows that large states can and do protect the individual freedoms cherished by libertarians. As historian James Hankins has put it, “individual liberty: ‘negative’ liberty under law, protection of civil rights, can easily be done by large states—this kind of liberty was effectively invented by the Roman Empire.”
In China, there may be good reason to worry about gross abuses of power by the administrative state, but less so in the United States with its a thick liberal democratic conception of the rule of law and a long history of protecting “negative” freedoms. If the thin rule of law is combined with thick liberal democratic institutions, then administrative agencies—given some independence by elected representatives—should have the power to regulate aspects of our lives, so long as they respect the internal morality of the thin rule of law. Libertarians may still be upset by regulations of business activity that curtail property rights, but they should recognize that, in a democratic system, nobody gets everything they want.
The Divided States of America?
The main problem facing the administrative state may come from the opposite direction: that bureaucrats in the United States have too little power, not too much. A large state needs a strong and effective bureaucracy to effectively govern in the interests of citizens, and such needs increase as societies modernize and become more diverse and complex.
To strengthen the case in defense of their preferred version of the administrative state, Sunstein and Vermeule would need to make an empirically detailed argument showing that an administrative state adhering to the internal morality of law is more likely to implement regulations that promote the common good and human well-being compared to other administrative arrangements. But they do not make such a case.
Consider China’s response to Covid-19, in comparison to the disastrous American response, led by a political leader who resisted the scientific advice of his own bureaucracy. To be sure, terrible mistakes were made at the start of the crisis in Wuhan, including the cover-up of whistleblowers by paranoid local officials. But once the central government got on board in late January, the Legalist-style, top-down mobilization of massive state power managed to contain the pandemic in a few weeks. It could be argued that less draconian measures, such as those employed in Taiwan, could have been successful in mainland China. But it’s much easier to contain a pandemic in a small island than in a huge and diverse political community. It could also be argued that public officials were given too much discretion to control the virus, thus violating the condition for the internal morality of law that rules must remain relatively stable over time. But it’s difficult to abide by stable rules in the face of a fast-changing pandemic that cannot be contained with old methods. Sometimes, our interest in life matters more than adherence to the rule of law.
In the United States, the current trend of dismantling the bureaucracy should be a major source of concern. To deal with new, increasingly complex challenges such as pandemics that threaten to undermine social order and general welfare, there is a clear need to rebuild a competent and public‑spirited bureaucracy driven by scientific considerations with wide discretion to regulate in the people’s interests. Libertarians and conservatives may not like it, but further undermining the administrative state under these conditions could well lead to more social polarization, in addition to health and environmental disasters plus less protection for workers and consumers. To attract more talent in the bureaucracy, civil servants should be given higher salaries and more job security, and they should have more social respect.
Because of its constraints on freedom and democracy, China may be too politically distasteful to be considered a model for the United States. Plus, it may be difficult for the United States, with its libertarian tendencies and anti–big government political culture, to learn from the Chinese case. Can the case for bureaucracy be made in a society where “bureaucrat” is a dirty word?
It’s worth keeping in mind that there is not necessarily a conflict between an effective bureaucracy and democratic citizenship. Some liberal democratic countries better strike the balance between the commitment to freedom and democracy and the need for an effective state run by competent and public-spirited officials. Compared to the United States, for example, Nordic countries give wide discretion to civil servants. Public agencies are independent of the government in conducting their ordinary activities, thus ensuring that decisions are made based on knowledge and expertise. It’s no coincidence that Nordic countries regularly top the scales of global indices that measure human well-being.
Of course, it’s easier for small countries to strike the right balance between democracy and expertise. But unless the United States were to be broken up into smaller, independent states, the country will likely remain as Sunstein and Vermeule describe it: a large democratic state whose constitution allows for a minimal rule of law approach that results in defensible regulations—yet with a dire need for a more capable bureaucracy empowered to make decisions for the long-term common good.