The Public's Law : Origins and Architecture of Progressive Democracy

Présentation de l'éditeur : "The Public's Law is a theory and history of democracy in the American administrative state. The book describes how American Progressive thinkers - such as John Dewey, W.E.B. Du Bois, and Woodrow Wilson - developed a democratic understanding of the state from their study of Hegelian political thought. G.W.F. Hegel understood the state as an institution that regulated society in the interest of freedom. This normative account of the state distinguished his view from later German theorists, such as Max Weber, who adopted a technocratic conception of bureaucracy, and others, such as Carl Schmitt, who prioritized the will of the chief executive. The Progressives embraced Hegel's view of the connection between bureaucracy and freedom, but sought to democratize his concept of the state. They agreed that welfare services, economic regulation, and official discretion were needed to guarantee conditions for self-determination. But they stressed that the people should participate deeply in administrative policymaking. This Progressive ideal influenced administrative programs during the New Deal. It also sheds light on interventions in the War on Poverty and the Second Reconstruction, as well as on the Administrative Procedure Act of 1946. The book develops a normative theory of the state on the basis of this intellectual and institutional history, with implications for deliberative democratic theory, constitutional theory, and administrative law. On this view, the administrative state should provide regulation and social services through deliberative procedures, rather than hinge its legitimacy on presidential authority or economistic reasoning." Cover 1 The Public’s Law 4 Copyright 5 Dedication 6 Contents 8 Acknowledgments 10 Introduction 14 I. The Specter of Bureaucratic Domination in Modern Political Theory 17 II. Reconstructive Political Theory 24 III. The Public’s Law, Constitutionalism, and Administrative Legitimacy 25 IV. Plan of the Book 31 1. Origins of Progressivism: German Theories of the State from Hegel to Habermas 36 I. Introduction 36 II. Administration in Hegel’s Philosophy of Law 38 III. Hegel and German Administrative History 46 IV. The Survival of Hegelian Public Law in the Wake of Revolutionary Failure 50 V. From the Substantive to the Formal Rechtsstaat 55 VI. Max Weber’s Theory of Bureaucracy in Context 57 VII. The Rechtsstaat in Crisis 60 VIII. Administrative Law in the Federal Republic 67 IX. Conclusion 71 2. The Hegelian Progressives: Democratic Spirit in the New American State 74 I. Introduction 74 II. W.E.B. Du Bois’s Bureau of Freedom 79 III. Woodrow Wilson’s Democratization of the Hegelian State 85 IV. John’s Dewey Communicative Constitution of the Administrative State 97 V. Mary Follett’s Theory of Creative Administration 108 VI. Frank Goodnow’s Democratic Rechtsstaat 115 VII. Conclusion 124 3. The Institutional Architecture of Progressive Democracy: From the New Deal to the Second Reconstruction 126 I. Introduction 126 II. Progressive Administration in the Agricultural New Deal 131 III. Progressive Administration in the Second Reconstruction 143 IV. Assessing the Administrative Legacies of the Second Reconstruction 155 V. Conclusion 159 4. The Normative Architecture of Progressive Democracy: Reconstructing the Administrative State 162 I. Introduction 162 II. Arguments from Efficiency 165 III. Arguments from Constitutional Norms 167 IV. Arguments from Republicanism 170 V. The Progressive Critique of the Market 174 VI. Public Deliberation 176 VII. The Public’s Law 178 VIII. Administrative Agencies at the Interface of Law and the Public 181 IX. Deepening Democratic Rule-​Making 185 X. Judicial Technocracy in the Review of Administrative Action 189 XI. Democratic Virtues and Authoritarian Dangers of Presidential Administration 194 XII. Conclusion 197 Conclusion: Progress in Times of Peril 198 I. The Cost-​Benefit State, or Market Mimesis 200 II. The Presidential State, or Weimar-​on-​Potomac 206 III. Outlook 216 Notes 218 Index 276 Présentation de l'éditeur : "The Public's Law is a theory and history of democracy in the American administrative state. The book describes how American Progressive thinkers - such as John Dewey, W.E.B. Du Bois, and Woodrow Wilson - developed a democratic understanding of the state from their study of Hegelian political thought. G.W.F. Hegel understood the state as an institution that regulated society in the interest of freedom. This normative account of the state distinguished his view from later German theorists, such as Max Weber, who adopted a technocratic conception of bureaucracy, and others, such as Carl Schmitt, who prioritized the will of the chief executive. The Progressives embraced Hegel's view of the connection between bureaucracy and freedom, but sought to democratize his concept of the state. They agreed that welfare services, economic regulation, and official discretion were needed to guarantee conditions for self-determination. But they stressed that the people should participate deeply in administrative policymaking. This Progressive ideal influenced administrative programs during the New Deal. It also sheds light on interventions in the War on Poverty and the Second Reconstruction, as well as on the Administrative Procedure Act of 1946. The book develops a normative theory of the state on the basis of this intellectual and institutional history, with implications for deliberative democratic theory, constitutional theory, and administrative law. On this view, the administrative state should provide regulation and social services through deliberative procedures, rather than hinge its legitimacy on presidential authority or economistic reasoning." The Public's Law is a theory and history of democracy in the American administrative state. The book describes how American Progressive thinkers - such as John Dewey, W.E.B. Du Bois, and Woodrow Wilson - developed a democratic understanding of the state from their study of Hegelian political thought. 0G.W.F. Hegel understood the state as an institution that regulated society in the interest of freedom. This normative account of the state distinguished his view from later German theorists, such as Max Weber, who adopted a technocratic conception of bureaucracy, and others, such as Carl Schmitt, who prioritized the will of the chief executive. The Progressives embraced Hegel's view of the connection between bureaucracy and freedom, but sought to democratize his concept of the state. They0agreed that welfare services, economic regulation, and official discretion were needed to guarantee conditions for self-determination. But they stressed that the people should participate deeply in administrative policymaking. This Progressive ideal influenced administrative programs during the New Deal.0It also sheds light on interventions in the War on Poverty and the Second Reconstruction, as well as on the Administrative Procedure Act of 1946. 0The book develops a normative theory of the state on the basis of this intellectual and institutional history, with implications for deliberative democratic theory, constitutional theory, and administrative law. On this view, the administrative state should provide regulation and social services through deliberative procedures, rather than hinge its legitimacy on presidential authority or economistic reasoning The Public's Law shows how bureaucracy can advance democracy. It develops a Progressive understanding of law and politics from American thinkers' transformation of German theories of the state, emphasizing that the state must provide the goods people need to participate in democratic politics. Using examples from the New Deal and the Civil Rights Era, the book develops a normative theory with implications for deliberative democratic theory, constitutional theory, and administrative law 'The Public's Law' is a theory and history of democracy in the American administrative state. The text describes how American Progressive thinkers - such as John Dewey, W.E.B. Du Bois, and Woodrow Wilson - developed a democratic understanding of the state from their study of Hegelian political thought. G.W.F. Hegel understood the state as an institution that regulated society in the interest of freedom