The Lawfulness of Public Law in Germany and the United States

Susan Rose-Ackerman’s 1995 book Controlling Environmental Policy: The Limits of Public Law in Germany and the United States helped catalyze the revival of comparative administrative law in the United States. The book explores a single field of regulatory law in depth while tackling big questions about how administrative arrangements reflect core political commitments. Rose-Ackerman took Germany to task for regulatory processes that, in her view, fell short of democratic ideals. More recently, German administrative law was again the object of transatlantic attention, in a root-and-branch critique of American administrative law. In Is Administrative Law Unlawful? Philip Hamburger argues that administrative law is not really “law,” because it violates fundamental precepts of legality. Rose-Ackerman’s and Hamburger’s projects are strikingly different: Rose-Ackerman faults German administrative law for not being more American, and Hamburger faults American administrative law for being too German. This chapter takes stock of this transatlantic engagement. It surveys Rose-Ackerman’s argument in Controlling Environmental Policy and subsequent developments in German administrative law and in her perspective reflected in Democracy and Executive Power. As for Hamburger’s claim that administrative law is not really law, a closer look at contemporary German law demonstrates how administrative governance can be subordinated to law and conceptualized in terms of coherent legal categories.