Rodgers, Richard W.

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ADMINISTRATIVE LAW -A Text. By Reginald Parker. Indianapolis: The Bobbs-Merrill Company, Inc., 1952.

University of Miami School of Law

University of Miami Law SchoolInstitutional RepositoryUniversity of Miami Law Review6-1-1952ADMINISTRATIVE LAW -A Text. By ReginaldParker. Indianapolis: The Bobbs-Merrill Company,Inc., 1952.Richard W. RodgersFollow this and additional works at: http://repository.law.miami.edu/umlrThis Book Review is brought to you for free and open access by Institutional Repository. It has been accepted for inclusion in University of Miami LawReview by an authorized administrator of Institutional Repository. For more information, please contact library@law.miami.edu.Recommended CitationRichard W. Rodgers, ADMINISTRATIVE LAW -A Text. By Reginald Parker. Indianapolis: The Bobbs-Merrill Company, Inc., 1952., 6 U.Miami L. Rev. 631 (1952)Available at: http://repository.law.miami.edu/umlr/vol6/iss4/21BOOK REVIEWSADnr'-IUSTR--IVE LAw-A Text. By Reginald Parker. Indianapolis: 'l'hcBobbs-Merrill Company, Inc., 1952. Pp. 343. $5.50.Purportedly the first concise treatise on the subject, and one which isintended to embody a public-law philosophy, this work fairly well achievesits purpose of being a guide to practicing lawyers and an aid to students.The organization is convenient enough for both reference and study. Com-paratively, at least, it is not over-burdened with argumentative discussionwearying to the reader. The citation of authority and secoindary materialsis discriminating as well as thorough. Students should hope that anotherclass of potential readers, their teachers, will be enlightened (as the authorkindly puts it), and possibly may even be inspired by its un-legalistic brevityand frequent realism.However, there is a question of whether Mr. Parker can expect to num-ber many legal scholars among those who gain-and retain-understandingfrom his work. Intentionally or not, his book shows for the half-truth it isthe tradition, not only of law and government but also of higher learning,that our government is one of law and not of men. The ideal of adminis-tration according to law may or may not be his: a prefatory remark as toone functioning "only through" law, and the tenor of the book, indicate thatit is. Nevertheless, the definitions, discussions and criticisms demonstrateactually how far we are from realizing that goal through a body of adminis-trative law.His definition of administrative law as that governing the functions ofexecutive administrative agencies is inadequate and tautological. It leavesunknown or open to individual notions the meaning of all the terms in-volved. This is given an undue importance by his attempted rationalizationof what one would have thought to be simply a matter of convenience andspace in expressly limiting the scope of the book to general administrativelaw. To do so, a distinction is drawn between general and special adminis-trative law and between substantive and procedural law. The meaning. ofone depends on the other, and both are vague: most substantive administra-tive law is special, i.e., pertains to a particular agency, while the general lawcommon to all "or most" agencies is "chiefly but not exclusively procedural."True it may be; understandable for a concise work; but satisfactory it is not. -Apparently deriving his thought and terminology from the Kelsen school offunctions and norms, Parker explicitly warns that lie does not supportSavigny's historical school in the idea of "ripeness" for codifying law. This,in connection with a well-reasoned critical evaluation of the Administrative631MIAMI LAW QUARTERLYProcedure Act which concludes that the statute neither codifies nor muchimproves pre-existing law, implicitly recognizes the present lack of law.There arc statutes, including the overrated Administrative ProcedureAct, regulations, interpretations, and cases. There is custom, which mayhave almost the effect or force of law, but which Parker seems to deem lessimportant than might be expected from his excellent short review of itshistorical background and concepts. But there is not much certain generaladministrative law. A study of this entire work, and comparison with asmall part of the mass of disputatious literature in the field, suggest anotherdefinition of administrative law: the judicial endeavor to subject the menadministering the power and laws of government to the laws of governing.At least the proffered definition reveals the fundamental antinomywhich is ambiguously expressed in the old maxim, "the King does no wrong."Maybe Parker, in common with others in his specialty, is too close to per-ceive the difference between the government and the governors, betweengovernment and governing. Perhaps he has seen it, but does not accept orcannot apply the idea in his thinking. To the extent that his own definitionof the subject would exclude judicial activities, while a chapter on constitu-tional fundamentals and three parts on judicial remedies are concerned withthe law of the courts, lie either is being inconsistent or is overlooking thatthe raison d'etre for the subject as a specialty was in the new prominence ofthe age-old perplexity, "Who watches over the guards?" In America it hascome to be the judiciary in the guise of constitutional interpreters. Yet,whatever the reason, in this book there is on one hand an attitude, impatientor sometimes petulant, of rivalry with the "constitutionalists" for an ac-cepted proprietary interest in and dominion over the subject-matter. Onthe other hand, there is a tendency to try to minimize or to exclude consti-tutional law as an important or a proper part of administrative law per se,even though the constitutional issues and standards are recognized as basicand are raised throughout.This equivocal, almost vacillating, approach has considerably lessenedthe utility and scholarly value of what could have been the best recent text.One result is that the chapters on the constitutional bases of adminisrativelaw and on judicial remedies are not much more than an outline of theproblems and a summary statement of their present solutions. There arepenetrating comments on changes in emphasis and doctrine. Yet, an attor-ney using those chapters would have little more than a timetable of routes,stations, and hours. And a classical scholar might find it ironic that thelegend of the book is, "We live under a constitution that is not copied fromthe laws of our neighbors. On the contrary, we arc a model to other na-tions rather than their imitators."Another consequence of the weakness in Parker's approach is the effecton his contribution to legal philosophy. Admittedly, a public-law theory,showing the limits upon the individual as well as upon the government,BOOK REVIEWSwould seem to be appropriate to an understanding of public administrativelaw. On the whole, however, the difference from a private-law philosophyappears to lie in a more detailed explanation and classification of general-administrative organization and operation as it affects the individual. Thisforms the central and most detailed.portion of the book. As a means ofplacing an individual's rights in a perspective of government in action, it iscommendable and highly desirable both practically and theoretically. Evenso a private attorney would usually be professionally concerned primarilywith learning and enforcing or protecting an individual client's interests asagainst those represented and personified by an administrator, and second-arily (as to a means of doing so) in whether the executive branch can func-tion adequately. Mr. Parker can quite correctly reverse that order of prior-ity, without necessarily going so far as to claim that the latter one is theconcern of administrative law, and without having thereby developed an-other legal philosophy.These strictures, although applicable to this book and its author, shouldalso be pertinent to others who are tilling the same rocky and stump-studdedfield. Continuing efforts in recent decades by a growing professorial band,and fertilizer spread in the form of a paternally beneficent government, havenot yet transformed the scattered seeds of an amorphous grouping of legalprinciples into a nature corpus of law. Texts, treatises, articles, courses,loose-leaf services, and hornbooks, now culminating in this concise guide,are not sufficient to create a unified body of knowledge. It might be thatthe crop is not yet ripe; more likely that phrase is an evasion of the diffi-culty. Most of the writers on administrative law have described, analyzed,classified, and debated. They have not thought profoundly enough, withrare exceptions. An illuminating principle, now obscured by polities, argu-ment, and legal confusion, must be conceived. Mr. Parker has done wellto succeed in making the main outlines of administrative law more intelli-gible to those whose need for comprehension he felt and has partly satisfied.RICHARD V. RODGERS M4EMBER DADE CouNTY BAR ASSOCIAT-1ONSEX AND TE LAW. By Morris Ploscowe. New York: Prentice-Hall Inc.,1951. Pp. 310. $3.95.Achieving progress has been one of the primary problems of mankindsince time began. We constantly seek advancement: technologically atleast, this has been true; insofar as the law is concerned, this has been toopainfully and acutely untrue. Whether viewed from the standpoint of mod-ern science or from its oldest psychological factors the law today does notfill modern social needs. This is sharply brought into focus by JudgePloscowe in his work on Sex and The Law. It not only points up theglaring lack of understanding shown in the statutes and in law enforcement

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ADMINISTRATIVE LAW -A Text. By Reginald Parker. Indianapolis: The Bobbs-Merrill Company, Inc., 1952.

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