A theory of institutional separation for the administrative state

Abstract

In its efforts to elaborate an institutional theory of separation for the administrative state, this thesis employed a number of distinct methodologies. Its key methodological step was the development of evaluative criteria of institutional efficacy. This suggested that a theory could only be successful if it was instrumentally effective and internally coherent. For an institutional theory in a constitutional state, that instrumental function was to fulfil a normative-systemic role as a demonstrable example of social values in action. By this process, the unity of the constitutional polity would be strengthened. Having outlined this yardstick of institutional success, this thesis then applied it to the dominant contemporary model of the separation of powers. This section of the work was primarily descriptive in nature. It analysed the extent to which the courts’ treatment of the theory could be said to achieve liberty-optimal outcomes, or to support the prevailing social consensus. It concluded that the theory failed on both these grounds. Drawing on Unger’s discussion of counter-exceptions, the thesis then concentrated its attention on the areas in which the orthodox model of separation of powers encountered particular difficulties. Unger speculated that these exceptional issues indicate the existence, at a deeper level, of a conceptual conflict between the dominant traditional theory, and a more radical alternative which it seeks to subdue.