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Thread: Is Administrative Law Lawful? (Video - Philip Hamburger)

  1. #1

    Is Administrative Law Lawful? (Video - Philip Hamburger)



    [Note: The global secular humanist movement has been notable for promoting rule by unelected officials. Could there be a connection with administrative law? Is that to promote rule by administrative law? (Would you contracting with a private, foreign organization pretending to be a public, government organizations?)]

    The Interstate Commerce Commission (ICC) was a regulatory agency in the United States created by the Interstate Commerce Act of 1887. The agency's original purpose was to regulate railroads (and later trucking) to ensure fair rates, to eliminate rate discrimination, and to regulate other aspects of common carriers, including interstate bus lines and telephone companies. Congress expanded ICC authority to regulate other modes of commerce beginning in 1906. The agency was abolished in 1995, and its remaining functions were transferred to the Surface Transportation Board.
    Regulations are not laws. So-called "administrative law" deals with regulations not laws. Regulations can be passed off as laws--if you allow it or fall for it.

    Related:
    Last edited by allodial; 05-04-15 at 08:01 PM.
    All rights reserved. Without prejudice. No liability assumed. No value assured.

    "The object in life is not to be on the side of the majority, but to escape finding oneself in the ranks of the insane." -- Marcus Aurelius
    "It is the glory of God to conceal a thing: but the honour of kings is to search out a matter." Proverbs 25:2
    Prove all things; hold fast that which is good. Thess. 5:21.

  2. #2
    Apparently this guy has a book on titled "Is Administrative Law Unlawful?" Didn't know that. FYI.

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    http://www.amazon.com/Administrative...dp/022611659X/
    All rights reserved. Without prejudice. No liability assumed. No value assured.

    "The object in life is not to be on the side of the majority, but to escape finding oneself in the ranks of the insane." -- Marcus Aurelius
    "It is the glory of God to conceal a thing: but the honour of kings is to search out a matter." Proverbs 25:2
    Prove all things; hold fast that which is good. Thess. 5:21.

  3. #3
    A contrary review (for balance). http://papers.ssrn.com/sol3/Delivery...488724&mirid=1 (PDF via SSRN).
    All rights reserved. Without prejudice. No liability assumed. No value assured.

    "The object in life is not to be on the side of the majority, but to escape finding oneself in the ranks of the insane." -- Marcus Aurelius
    "It is the glory of God to conceal a thing: but the honour of kings is to search out a matter." Proverbs 25:2
    Prove all things; hold fast that which is good. Thess. 5:21.

  4. #4
    Wow. The comments from the book are amazing, I just bought the book, thanks allodial.
    "And if I could I surely would Stand on the rock that Moses stood"

  5. #5
    Senior Member Brian's Avatar
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    Quote Originally Posted by allodial View Post
    A contrary review (for balance). http://papers.ssrn.com/sol3/Delivery...488724&mirid=1 (PDF via SSRN).
    I noticed after clicking the link to look at the SSRN review it had this on the right side
    "People who downloaded this paper also downloaded:
    1. Libertarian Administrative Law
    By Cass Sunstein and Adrian Vermeule

    2. There Is Nothing that Interpretation Just Is
    By Cass Sunstein

    Cass the communist Sunstein? No further reading necessary. Of course he and his buddy Adrian would like the administrative state.

    Edit a vid on the book itself: https://www.youtube.com/watch?v=Llh4LHFBO8E
    Last edited by Brian; 05-12-15 at 07:39 PM.

  6. #6
    Interesting take on the contrary review, Brian. Good pointing that out. Sometimes, looking at the contrary perspectives can help strengthen one's comprehension of the subject matter when it comes to topics such as this. I suspect "administrative law" goes hand-in-hand with "legal positivism".

    Also, administrative law seems to be in opposition to the idea of natural law.

    Legal positivism was the "ruling paradigm" prior to the Second World War, and remained strong in the Soviet Union and Mao's China. Legal scholars in the post-Soviet world seem generally unaware that this supposedly "scientific" conception of law was rejected in the West half a century ago, especially in the United States. This rejection had much to do with the evident incapacity of "German legal science" — essentially, legal positivism — to provide any corrective to Nazi, Communist, and similar totalitarian ideologies and practices. See The Theory of State and Law. Popularized by Hans Kelsen, legal positivism defined law as essentially the "authoritative command" of that power which has the capacity to force compliance. The lawyer's job was to be a scientist who focused on what the law "is" without reference to what it ought to be. In some fundamental sense, legal positivism showed little interest in how law came to be that "is"; legal positivism did not focus on how law and civilization coevolve. See Note on Coevolution. See Evolution and Coevolution.

    The only "ought" of legal positivism was that the law's commands must be consistent and knowable. Interestingly, places like Hitler's Germany and Stalin's USSR claimed adherence to legal positivism (to the extent that their shifting intellectual grounds claimed adherence to any jurisprudence whatsoever) yet much of their "law" was secret and — especially in the USSR — contradictory. The resulting fact that nobody could "follow the law" served the State inasmuch as everyone was subject to "legitimate arrest" (in a manner of speaking) for violations of something somewhere called "law"; this condition persists throughout most of the former Soviet Union.

    Legal positivism is generally contrasted with two other schools of jurisprudence:

    The older, "natural law", has long taught that law must have a moral and rational component in order to deserve that name. In the late 1930s, Professor Lon L. Fuller (1902-1978) asserted that "natural law" thinking supplies a necessary corrective to legal positivism. For Fuller, the law that "is" must be grounded in fundamentals reflecting the "ought" — else the law becomes mere "description" of the commands of those who monopolize coercive power rather than prescription and proscription rooted in fundamental ethical and intellectual values. Fuller's general thesis is summarized in my essay, Rule of Law: Ten Principles Governing Law and Law-Making. I supplement Fuller's "nine principles" with an important one that was central to his thinking yet is not "listed" in his seminal book on this subject, The Morality of Law (1964-1969). That tenth principle, the first in my list, is that the sources of law must be hierarchicalized.
    Legal positivism appears to be the interpretative paradigm for treating "international law", "UN/international customary law" as if it were law by (administrative) interpretation of custom, tradition and habit. In the same sense that the Federal Territory of the U.S. is said to not have "common law", might the same be said for "international territories"--law of the sea?

    Related:
    The Enterprise of Integrative Jurisprudence
    Terra Nulls (no man's land)
    International Sea
    Last edited by allodial; 05-12-15 at 08:21 PM.
    All rights reserved. Without prejudice. No liability assumed. No value assured.

    "The object in life is not to be on the side of the majority, but to escape finding oneself in the ranks of the insane." -- Marcus Aurelius
    "It is the glory of God to conceal a thing: but the honour of kings is to search out a matter." Proverbs 25:2
    Prove all things; hold fast that which is good. Thess. 5:21.

  7. #7
    IMO, administrative law is not unlawful. Law is simply a set of rules. The main question with any law is applicability. Corporations are certainly subject to administrative law. The people however are not. If you are an employee of a corporation, not only can your actions within that capacity be subject to administrative law, it will also be subject to the corporate law (rules) put into place by the corporation itself.

  8. #8
    allodial, I've attempted to message you privately. It appears that you have exceeded the amount of storage space for PM. Could you be so kind as to make more space or PM with another method of contact?

  9. #9
    I suspect that administrative law is in the "right to contract" or "obligations of contract" realm. However, Philip Hamburger is making a good point in that it might actually be unlawful for Congress to make certain delegations in that to delegate judicial power to agencies might not even be lawful or constitutional. Also Congress cannot delegate more power than it has.

    P.S. Lurking between the lines or on the sidelines or ..something ... somewhere... might be yet another term "operational law".
    Last edited by allodial; 05-15-15 at 12:18 AM.
    All rights reserved. Without prejudice. No liability assumed. No value assured.

    "The object in life is not to be on the side of the majority, but to escape finding oneself in the ranks of the insane." -- Marcus Aurelius
    "It is the glory of God to conceal a thing: but the honour of kings is to search out a matter." Proverbs 25:2
    Prove all things; hold fast that which is good. Thess. 5:21.

  10. #10
    Is not administrative law private law?

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