BOOK REVIEWS
| Published date | 01 June 1959 |
| Date | 01 June 1959 |
| DOI | http://doi.org/10.1111/j.1467-9299.1959.tb01536.x |
BOOK
REVIEWS
An Introduction to American Administrative Law
By BERNARD SCHWARTZ. Pitman (London) and Oceana Publications (New York), 1958.
Pp. xvS.260.
50s.
COMPARATIVE law as an enterprise seems
to suffer very little from the sort of
scepticism which afflicts comparative
politics and which is expressed by the
suggestion that it is, if not impossible, at
least only possible as a branch of sociology
or in the light shed by some general
system or framework of concepts. Perhaps
the lawyer’s ease of conscience stems in
part from the fact that the comparisons
involved are less of legal institutions than
of bodies of rules.
It
may well be true
that within these bodies of rules there
occur strictly comparable problems which
can profitably be set alongside each other
without bothering overmuch about the
social framework. In public law this
assumption is strained to its limits. If
very general forms are imposed on the
questions asked-How is the administra-
tion controlled
?
;
What forms of judicial
review exist? and
so
on-then it is true
almost by definition that the same prob-
lems exist in similar societies. But since
“
the administration
”
means something
Merent under different constitutional
systems, there is practically
no
question
which can be considered
in
isolation from
those differences.
So
a work on Anglo-
American administrative problems might be
expected to be either very long or very
misleading. Professor Bernard Schwartz,
Director of the Institute of Comparative
Law, of New York University, has
struggled valiantly against these limitations
for some time. He resembles, if one may
say
so
without disrespect,
a
kind of
administrative John Gunther. After
Law
and the Executive
in
Britain
and
French
Administrative Law and the Common Law
World
he has now taken
us
Inside America.
The result is a useful and informative
textbook arranged in the order and under
the headings with which British students
are familiar.
In a sense, perhaps these similarities of
terminology are unfortunate. Faced with,
say, Scandinavian administrative institu-
tions we are saved by the mere gutteral
tintinnabulation of vocabulary from false
echoes and associations with familiar
institutions. But in America, English
history is always turning up. One such
titular echo, for example, is
to
be
dis-
cerned in the office of Commissioner.
Commissioners (like sheriffs and grand
juries) no longer stand where they did in
this country. They survive as it were in
an air of semi-retirement in such respect-
able administrative suburbs as Excise,
Forestry and Lunacy. But in America
they are still
in
the thick of things. The
Interstate Commerce Commission having
been given a title and status similar to
that of the British Railway and Canal
Commissioners of the nineteenth century,
comparable agencies are now the reposi-
tories of important regulatory power in
aeronautics, communications, finance and
trade. The existence of these bodies is
one factor which makes direct comparison
between British and American solutions to
the problem of administrative decision
difficult. A number of parallels
on
the
face of
it
suggest themselves-administra-
tive hearings
with
public inquiries in
Britain; examiners and hearing officers
with
ministry inspectors; due process
with the rules of natural justice. But
Commissions and agencies are not Depart-
ments. For that matter American govern-
mental Departments are not Departments
either, in the familiar sense of being civil
servants
with
a political head accountable
to the legislature for their activities. The
regulatory Commissions which share
administrative powers with the Depart-
ments are, unlike the latter, not in a
straightforward sense accountable to any-
body. Their heads are appointed for a
fixed term and under the doctrine laid
down by the Supreme Court
in
Humphrey’s
Executor
v.
United States
in
1935
their
office is
an
independent quasi-judicial one
187
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