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Is administrative law unlawful? /

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內容簡介top Is Administrative Law Unlawful? 簡介 Today, administrative law is the usual means used by the federal government to create regulations. Most commentators usually trace the origins of administrative law to the 1930s, seeing it as a response to modern circumstances which could not have been anticipated by the Constitution. Philip Hamburger provocative book offers a revisionist account that shows administrative law to be, instead, more closely related to the much older tradition of royal prerogative. Rather than a novel power necessitated by modernized society, he shows administrative law to have its roots in an ancient and persistent sort of power, one which enabled rulers to exert their will through a mechanism other than the law. His massive historical account of absolute power, and the responses to it, spans the Middle Ages to the present. Medieval parliaments sporadically attempted to confine the Crown to governing through the law, but the most effective response was the development of constitutional law in the seventeenth century. Englishmen then put an end to binding prerogative powers by concluding that their constitution required their government to rule only through the law and the courts. Hamburger argues that the U.S. Constitution imposed such requirements even more vigorously, but that the prerogative power re-emerged here as the modern administrative state under FDR began to take shape. Since then, administrative law has transformed American government and society. For Hamburger, administrative law represents a kind of absolute power that our Constitution?and constitutions in general?were designed to prevent.

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