Can the constitutional state accommodate the administrative state? Rousseau versus Hegel

Abstract

ABSTRACT This essay inquires whether a constitutional state, understood as one ruled not by natural persons but by laws and legal decisions that free persons can endorse, can accommodate the administrative state, understood as one wherein executive agencies exercise law-making, statute-interpreting, and sanction-levying powers. Drawing from Rousseau and Hegel, it distinguishes between two stringent models of the constitutional state – a democratic-republican model and one ordered to an autonomous concept of Law – and compares their abilities to accommodate an executive with a robust law-making and statute-interpreting authority. The essay concludes that, whereas the democratic-republican model is hostile to the administrative state, the Law-centred model is at ease with it and allows it to flourish within bounds. The Law-centred model is thus the only one to reconcile a stringent concept of the constitutional state with the executive power that state needs to fulfil its positive obligations to its citizens.