Constitutional jurisprudence: reviving praxis in public administration.

While the meaning of constitutional guarantees never varies, the scope of their application must expand or contract to meet the new and different conditions which are constantly coming within the field of their operation.

In his early textbook on public administration, White (1926) asserted as a major premise that "the study of administration should start from the base of management rather than the foundation of law" (p. ix). This premise was indicative of an extensive transformation in thought and practice that endures to the present day. White was calling attention to the increasing role of science and specialization in management and distinguishing the practice from that of courts and law generally. There was, in fact, a law/administration dichotomy in addition to a politics/administration dichotomy, and both persist.

It is interesting to note, however, that whereas the politics/administration dichotomy is now attacked with great enthusiasm, comparatively little attention is paid to, the law/administration dichotomy. This may raise immediate objections from those involved in teaching, researching, and practicing administrative law.' This is certainly an important area of public administration where law and administration intersect. Indeed, I believe it is central to public administration. But the glaring fact is that most teachers, scholars, and students of public administration still do not see it that way. I think the law./administration dichotomy has a lot to do with the situation.

Administrative Law is usually offered only as an elective, or not at all, in public administration programs. Most administrators and teachers think of it as a professional/technical specialty, and as a source of consternation toward which the legal staff must be directed. Lawyers are also trained to see it exclusively in terms of legal technique and due process and are taught from a strictly adversarial perspective. The lawyer sees clients and adversaries. This may be sufficient for private, civil law cases, but public law cases add important institutional, constitutional, and educational dimensions that transcend strictly adversarial proceedings. Ultimately, it is more harmful than beneficial to consider the government simply or exclusively as an adversary or client. In the long run, this degrades the institutions that support and help define the entire governing process. In the meantime, lawyers and administrators find it increasingly difficult to get along, much less understand one another.

This article argues that law and public administration should not remain as separate endeavors. Their fusion provides an opportunity to shift from a praxis based in empirical method to one based in constitutional jurisprudence. This shift involves a change of emphasis from knowledge production, which grounds public decisions in scientific method, to normative judgment grounded in "regime values" (Rohr, 1989). In this era of proliferating knowledge, wise judgment is often sadly lacking, due in large part to lack of attention to its prerequisites. Law can provide a structured milieu or ethos in which to nurture such attention. To do this, however, requires some rethinking of some basic presuppositions common to both law and public administration during this century.

SEPARATION OF LAW AND ADMINISTRATION

It turns out that in the progressive era, the rise of positivist science and philosophic pragmatism affected law as much as public administration. Law was subjected to rigorous empirical examination, with the general aim of culling out and dispensing with its baggage of traditions, mores, religious thought, political tenets, and so on. Legal positivists sought to distill law's empiric,,il essence and arrived at the formulation of law as commands backed by force. This definition undercut a much older conception of law as an "ordinance of reason." This older conception enabled the founding generation to distinguish between a "government of force" and "free government" (government by law). The positivist definition displaced reason in law and put force or power center stage for government. Willingly or ilot, this accommodated law to arbitrary rule and manipulation. As Friedman (1973) indicated, this change "meant that thc levers of power were fair game for anybody who could grab them and make them do his bidding" (p. 385). The tendency of many legal realists to view legal opinions as mere rationalizations of bias and of behavioralists to supplant reasons with "attitudes" and "fact patterns" moves us inevitably away from viewing law as a framework for making well reasoned decisions.(2)

The change to a positivist conception accompanied the rapid growth of law in the United States and contributed to its specialization and professionalization (Hall, 1989, pp. 211-225). Like public administrationists, legal theorists claimed a distinct scientific field of endeavor for themselves and their practitioners. Law and administration were divorced, though certainly following similar paths. Newland (I 984) pointed out that "in light of the strictures of the Analytical Jurisprudence which still dominated American law during public administration's founding years and what many thought to be the promise of positivist science, the attempted divorce is understandable" (p. 41).

These developments were not exclusive to law and public administration. The "promise of positivist science" infected almost every discipline, including politics, and contributed to an immense secularization of knowledge that is reflected in our educational institutions and professions today.

Positivism arose in the midst of a collage of political, philosophical, social, economic, and educational reforms. Their interplay defies any comprehensive understanding, at least in terms of cause and effect. Nevertheless, certain coherent patterns of development and broad themes have been identified as enduring well beyond the period commonly identified as "progressive." Positivism is certainly an important one because it formed both a new foundation for knowledge and justifications for several professional practices, including both law and public administration. An accompanying theme of perhaps even greater significance to positivist law, politics, and public administration was philosophic pragmatism. Many of its tenets are supportive of positivism and of subsequent refinements ranging from logical positivism to interpretivism as applied to these fields.

Jacobsohn (1977, 1987) evaluated the content and impact of philosophic pragmatism on legal thought relating to the Supreme Court. This article extends his analysis beyond …