A Contribution to the Study of Administrative Power in a Philosophical Perspective

摘要

This dissertation explores the challenges that administrative reasoning places on classical theories about the nature of law or adjudication, the structure of the legal process, and the separation of powers, particularly in its relationship with legality and the active role of the administrative power in modern governance. It describes how traditional theories about the nature of law and adjudication have explicitly addressed the philosophical foundations of judicial reasoning in hard cases, but they have been oblivious about how administrative decision-makers should decide them.;This dissertation argues for an eclectic model where administrative reasoning should ideally be informed by publicly validated expert knowledge that requires a moral and political compass oriented towards the fulfillment of the purposes and aspirations of a democratic polity that lives under the rule of law. To that end, it proposes that the administrative power ought to decide hard cases regardless of the empirical, theoretical or meta-interpretive nature of the disagreement they may elicit. It suggests that, unlike the judiciary, the administrative power is ideally endowed with original or delegated lawmaking authority, vested with democratic legitimacy, and equipped with specialized expertise and the procedural mechanisms to allow the active participation of the citizenry in the administrative process.;Furthermore, it proposes that these features entail that administrative decision-makers should reason from principle and policy in deciding hard cases about the planning and allocation of valuable resources in a community by construing the grounds of law or deciding meta-interpretive disagreements based on publicly validated expertise. Finally, this dissertation ventures to speculate that the existence of administrative novelty may challenge the truism embraced by traditional jurisprudence according to which the solution to the tension between law's certainty and its responsiveness is usually reserved to the interplay legislature-courts that regards the administrative power as a mere executor of legislation.