Administrative Justice

Abstract This chapter turns to where the law itself is the engine of revolutionary change. In negotiated political transitions, the transformation often depends on the force of law. Politicized public law can effect radical change when it distributes power explicitly on the basis of the new ideology. Sweeping politicized administrative measures have been pervasive in periods of political change worldwide: after the American Civil War, in the shift from slave to free state; in postwar Europe, in the shift from fascism to democracy; in post communist Europe, in the shift from totalitarian to freer market economies; in postmilitary Latin America, in the shift to civilian rule. The asserted purpose of the politicized exercise of administrative law is always the noble one of guarding the transition; nevertheless, this use of the law, grounded as it is in categorical judgment, resembles the political justice of totalitarian regimes. Such measures raise the question, What is the relation of illiberal means to liberal ends? Where an illiberal ideology has permeated society, what is the hope for moving that society toward a more liberal political system? What is the potential for revolution by law? To what extent do transitional societies rely on past political behavior as the basis for transformation? What if any are the normative parameters? What justifies the overtly political measures? How can the successor regime’s interest be reconciled with concerns for individual rights? The inevitable dilemma is one of means and ends.