Since administrative law is law that governs, and is applied by, the executive branch of government, it is necessarily as old as that branch. As long as executive and judiciary were one and the same and the king at the head of both, all of the law was in fact "administrative" though the term was not used. When, however, out of the amorphous mass of the legal order a fixed body of law courts began to emerge with jurisdiction over the most important legal problems, the term "administrative law," had it been used, would have acquired a specific meaning. Property, torts, contracts, and crimes belonged to the courts, but the execution of law such as Henry VIII's Statute of Sewers, the care for the poor, the king's household and revenues, and like matters were left to what we now call the executive. Its province, moreover, included affairs that have often been understated as not falling within the province of lawmaking and applying at all, such as the conduct of foreign or military affairs, the carrying on of wars, etc. Certainly the reception or expulsion of a foreign ambassador by the chief of state is the application of that law, international and domestic, that sets forth in what manner foreign envoys are to be dealt with and by whom; to say that the king "can" make war and deal with his soldiers as he sees fit is another way of saying he may do so by virtue of whatever written or unwritten constitution the country in question has. But while we now recognize that anything the state does is the making and applying of law-regardless of whether it is called bad, tyrannical, dictatorial, progressive, totalitarian or democratic law, depending on the critic's Weltanschauung-there can be no doubt that, from a lawyer's point of view, there is a world of difference (gradual though it may be) between, say, a court deciding a dispute concerning title to real property and a king making one of his courtiers ambassador to a foreign country or commander-in-chief of the army. In the former instance, an intricate, detailed set of narrow rules and exceptions must be studied before the law-applier can reach a decision, which is therefore a typical lawyer's task. In the latter instance, however, the law that is to be applied is a simple, broad rule leaving so wide a discretion to the lawapplier that for his office he may need to have foresight, education and experience but not necessarily legal training. Bluntly speaking, the discretion here is so wide that its connection with law is barely recognizable. The conduct of foreign or military matters was thus easily separated, as a "royal prerogative, "from both the making of "law "- in the narrower sense of the word-which at least in English history was eventually left to Parliament alone, and its execution, which was done by the courts and only in relatively unimportant instances left to other organs. In other words, in advanced society there exists a division of labor between the various organs of state--king, legislature, courts, commissions-in that some make and apply rules of "law" in the popular, limited meaning of the term, whereas others, notably the king, are confined to problems whose solution allows a wide latitude of discretion-a type of action that in later years has often been denominated as "policy making." In the course of further events and of theoretical analyses, the relation between discretion and royal power gradually turned into a causal one: the king has certain powers because they are discretionary, because they "involve no law." This has been further simplified to the statement that power involving wide discretion, or "policy," is executive rather than judicial.
SEPARATION OF POWERS REVISITED,
Mich. L. Rev.
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