McGill Law Journal ~ Revue de droit de McGill
BOOK NOTE
Bogdan Iancu, Legislative Delegation: The Erosion of Normative
Limits in Modern Constitutionalism (Heidelberg: Springer, 2012),
pp 289. ISBN 978-3-642-22329-7.
It is rare to come across a work of comparative constitutional scholar-
ship that takes on a foundational concept across multiple boundaries
without giving in to any form of reductionism. This is such a work. Even
the most knowledgeable student of the history of constitutional ideas and
their practical instantiations across influential jurisdictions over time will
find much to learn from this erudite and richly layered study. The book
aims modestly to provide an account of attempts in several countries to
place constitutional limits on legislative delegation, but it does much
more. Its careful attention to the changing philosophical, social, political,
and economic context of those attempts, as well as its analysis of the con-
cept of legislation, should make it an important work of reference for some
time to come.
The text still bears some of the marks of the doctoral thesis that it
once was and tends accordingly to be very demanding of the reader. The
only way to approach the book, it seemed to me, was to shuffle constantly
back and forth between the chapters so as to make sense of where one had
come from and where one was going. But the reader is amply rewarded
for this effort. In this age of lowered editorial expectations, the copy is
good. Typographical errors are few, except for citations in French, which
should have been reviewed. Nothing here affects the overall quality of this
book, which is undeniable.
Methodology and Argument
The book derives its strength from the authors self-conscious ap-
proach to the subject, which rests on the conviction that normative ac-
counts, historical transformations, and positive law cannot be separated.1
This stance is ascribed to the school of integrative jurisprudence, accord-
ing to which the virtues of all these dimensions of law (legal philosophy,
legal history, legal practice) and of the three major schools of legal
1 Bogdan Iancu, Legislative Delegation: The Erosion of Normative Limits in Modern Con-
stitutionalism (Heidelberg: Springer, 2012) at 14.
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thought (natural law theory, positivism, the historical school) can be
welded into a more complex, single theory.2 The book thus takes a broad
view of constitutional law, treating it as a process in which rules, values,
and facts come together and are constantly actualized.
The books modest argument is that, since the concept of delegation is
a legal-philosophical corollary of substantive, systemic3 assumptions
about law and law-making, legal limits on delegation cease to be workable
where these assumptions no longer prevail.
The Issue
Limits on the delegation of legislative power may be explained in at
least three ways, which have a measure of overlap. One way appeals to
the rule of law: an impermissible delegation is one that negates agency or
dignity by making it impossible for one to adjust ones conduct to the law;
because the laws prescriptions are too vague, an inordinate measure of
discretion is created, which results in a government of men and not of
laws. Another way of explaining limitations on legislative delegation is to
appeal to the separation of powers. One may say that legislative delega-
tion increases the power of one branch of government and creates imbal-
ances that may jeopardize the ability of the system to check power
through power. From the perspective of the separation of functions, the
legislature could be said to be divesting itself of its constitutionally as-
signed function.4 Yet another way of explaining limits placed on the dele-
gation of legislative power is in terms of democratic theory: [W]e elect
representatives (as the Lockean phrase goes) only to make laws, and not
to make legislators, that is, they are elected to take the actual decisions
that govern our lives.5
These concepts and their interplay are all reflected differently in dif-
ferent constitutional orders and may produce different results in different
contexts. It could surely be opined, the author writes, that the nondele-
gation doctrine or constitutional provisions restricting delegation are
simply legal devices that functionally serve these various constitutional
values (rule of law, separation of powers, and representative democracy-
related concerns regarding the legitimacy and accountability of legislative
2 Ibid. See particularly Harold J Berman, Towards an Integrative Jurisprudence: Poli-
tics, Morality, History (1988) 76:4 Cal L Rev 779.
3 Iancu, supra note 1 at 14.
4 Ibid at 4.
5 Ibid at 5, citing John Locke, Two Treatises of Government (London, UK: Black Swan,
1690) book II at para 141.
BOOK NOTE 1085
enactments).6 But this would have things in the wrong order,7 or more
accurately perhaps, this would ignore the insight that the tentative for-
mulation of those constitutional values over time is also shaped by the
practices of limiting or allowing delegation in specific contexts.
Delegation became an issue for the practice and theory of constitu-
tionalism with the transformation of the state beginning in the late nine-
teenth and early twentieth centuries. The social and economic pressures
created by industrialization and advanced capitalism, as well as the
emergencies related to war and economic depression, combined to create
an unprecedented demand for state intervention. Such demand was met
through increased government action, often in previously unregulated
fields, based on legislative delegation or ex post facto validation of execu-
tive action. This elicited a swift reaction in England, where as early as
1915, Dicey worried about the growing discretionary powers of govern-
ment departments.8 The cause was taken up by Lord Hewart, then chief
justice of England, who called these arrangements the new despotism
and made delegation a matter of public debate.9 The matter was put to
rest, however, by an inquiry committee, which concluded that the practice
of delegation was essentially inevitable: The truth is that if Parliament
were not willing to delegate law-making power, Parliament would be un-
able to pass the kind and quantity of legislation which modern public
opinion requires.10
Yet events on the continent and elsewhere seemed to confirm and
vindicate the early English warnings.11 Hitler would ultimately come to
full power through executive legislation and broad parliamentary delega-
tions; France was increasingly ruled through dcrets-lois and ultimately
fell prey, in July 1940, to the legal means of a dcret-constituant, ena-
bling Marshall Ptain to change the constitution at will.12 In the United
States, the Supreme Court did strike down some elements of Roosevelts
New Deal in 1935 on nondelegation grounds13 but bowed to massive pres-
6 Ibid.
7 Ibid.
8 AV Dicey, The Development of Administrative Law in England (1915) 31:122 Law Q
Rev 148.
9 The Right Honourable Lord Hewart of Bury, The New Despotism (London, UK: Ernest
Benn, 1929) at 17.
10 UK, HC, Committee on Ministers Powers Report, Cmd 4060 in Sessional Papers, vol
12 (1931-32) 341 at 23.
11 Iancu, supra note 1 at 8.
12 Ibid.
13 See Panama Refining Co v Ryan, 293 US 388, 55 S Ct 241 (1935); ALA Schechter Poul-
try Corp v United States, 295 US 495, 55 S Ct 837 (1935).
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sures and effectively retreated two years later;14 the power of the execu-
tive branch then reached an extent that had never been witnessed before.
Treatment
These developments had a different impact on the post-war evolution
of constitutionalism in each of the jurisdictions under study. While in the
United Kingdom, the legal principle of parliamentary sovereignty kept
changes within the realm of pragmatic accommodations and judicial elab-
orations of judicial review concepts, antidelegation measures were consti-
tutionalized in both France and Germany.15 In the United States, debates
over nondelegation have remained surprisingly vigorous even if the doc-
trine has not resulted in a single law being struck down since the New
Deal era.
The groundwork leading to the core of the book is laid down in chapter
2, entitled The Genealogy of the Concept of Delegation: Constitutional
Presuppositions. This dense but captivating chapter traces the evolution
of the concept of legislation from antiquity to our era, with a view to teas-
ing out the theoretical assumptions that have informed the notion of dele-
gation. This is an interrogation of legislation as a means of law-making,
decanted through representation in legislative bodies, separation of pow-
ers, and rule of law, the three possible justifications for limiting delega-
tion. This section relies heavily on Lockes Second Treatise,16 and there
are two features of Lockes framework that are crucial to the books argu-
ment. The first is that the purpose of government is limited to securing
the natural right of life, liberty, and property. The second is that, alt-
hough power must always be exercised for the common good, there are is-
sues that cannot be subject to legal rules: [D]iscretionary exercises of
state authority are explicitly outside the range of the Lockean legal ra-
tionality.17 These points are taken as exemplary of the philosophical
presuppositions of classical constitutionalism.18
The core of the book, chapter 3, is a constitutional history of delega-
tion. This is a study of the attempts to operationalize constitutional limi-
tations on legislative delegation as workable legal criteria. The study fo-
cuses on the US experience, which gets twice as much attention (some
14 See National Labor Relations Board v Jones & Laughlin Steel Corp, 301 US 1, 57 S Ct
615 (1937).
15 See Iancu, supra note 1 at 9.
16 Supra note 5, book II.
17 Iancu, supra note 1 at 67.
18 Ibid at 69.
BOOK NOTE 1087
eighty pages) as the other jurisdictions takenand indeed here treated
together (some forty pages). In both cases, the description is attentive to
the relevant historical, political, and sociological factors, tracking the de-
velopments of constitutional law with an eye on the broadest possible ar-
ray of sources. The general conclusion is that all of these attempts have
ultimately failed.
Why have these attempts failed? This is the question that chapter 4
attempts to answer under the title Delegation and Contemporary Impli-
cations: The Erosion of Normative Limits. The starting point for the an-
swer is that [c]lassical liberal constitutionalism has straddled from the
onset the pre-modern belief and systemic presupposition in natural or
unquestionable boundaries to the operation of rationality and the newly
emerging faith in the power of human reason, now liberated from past
hindrances, to master and reshape the world.19 The natural boundaries
presupposed by classical constitutionalismbetween state and individual;
between the legal and the politicalhave now all but vanished and have
been replaced by an appreciation of the required degree of rationality.
The book uses the Canadian case of Baker v. Canada (Minister of Citizen-
ship and Immigration)20 as an exemplar of this: a vain denial of the dis-
tinction between discretion and law, and the false promise of the elimina-
tion of political space beyond the reach of legal rationality.21
Conclusion
This book will remain relevant for many decades. The only blind spot
in the argument, looking forward, is the current convergence of much con-
stitutional rationality on proportionality analysis.22 It is arguable that this
is today the most glaring and significant manifestation of the erosion of
normative limits to which the book refers. The connections between the
constitutional evolution so carefully traced here and the rise of propor-
tionality as a dominant feature of constitutionalism today are certainly
worth exploring. More generally, the book, though it refrains from offering
solutions,23 does make an implicit but powerful case for virtue ethics, and
19 Ibid at 200-201.
20 [1999] 2 SCR 817, 174 DLR (4th) 193.
21 Iancu, supra note 1 at 270-72.
22 See generally Vlad Perju, Proportionality and Freedom: An Essay on Method in Con-
stitutional Law (2012) 1:2 Global Constitutionalism 334.
23 See Iancu, supra note 1 at 272.
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against the current tendency to place undue reliance on rules-based ra-
tionality in the governance of human affairs.
Fabien Glinas
