The Executive Department of Government and the Rule of Law

For a long time, people have been talking about the executive department of government and the Rule of Law. Indeed, the suggestion of Aristotle that government should be by law, and not by men, represented a protest directed to the earlier Grecian systems of despotically controlled administrative law. It is my privilege this afternoon to carry forward the discussion of a problem that has been talked about for some two thousand years: how to apply the Rule of Law to the executive agencies of the government. They are commonly called “independent agencies” within the executive branch. I suggest that the name is well chosen, for they have assumed a degree of independence that puts them beyond the effective control of the legislatures and the courts. This, I make bold to suggest, should not be so, if we are to preserve the Rule of Law to which as lawyers we have all dedicated our lives; for the very concept of the Rule of Law “means in the last resort the right of the judges to control the executive government …. ” These are the words of the venerable A. V. Dicey, barrister-at-law of the Inner Temple and Vinerian Professor at Oxford. He wrote them seventy-four years ago.