Drawing a Line between the Law and the Social Sciences: The Exercise of Sovereign Powers on an Uncertain Factual Base

Eventually, all law is about sovereign intervention. But public law is distinct from private law in that intervention is not only subsidiary. And it is distinct from criminal law in that intervention is undertaken with the intention to govern. This explains that taming sovereign powers features prominently in public law theory. In the second half of the 19th century, the founding father of German administrative law, Otto Mayer, has developed the control of sovereignty to perfection. In his system, administrative law is all about form. Purpose is legally irrelevant. The dynastic sovereign of his days was free to choose whatever purposes he deemed fit, provided he strictly respected legal form, and provided he got parliamentary approval whenever he intruded into freedom or property. In the meantime, all the preconditions for this definition of the discipline have disappeared. In Germany, Parliament is no longer the natural opponent of government. The constitution has reacted by material provisions that bind the legislator. The key topic of administrative law is purpose, not form. Administrative reality largely escapes legal formality. The legislator strives for social betterment, very broadly speaking, not just for providing citizens with an institutional framework for their dealings. Against this backdrop, the distinction between form and substance may no longer serve as the borderline between (administrative) law and the social sciences. This article offers an alternative demarcation. As in Otto Mayer's days, all law still is about the exercise of sovereign powers. But it also is about good governance. Both elements must be combined. Due to the first element, administrative law treats the second element in a way that differs from the approach in the social sciences. Specifically, administrative law is unable to precisely define the situation before it starts arguing about social betterment. It must permanently remain open to the unlikely features of the individual case.