UPDATE [7/22/14]: Professor Hamburger has a further piece on distinguishing the rule of law from rule by law.

In the Star Chamber the council could inflict any punishment short of death, and frequently sentenced objects of its wrath to the pillory, to whipping and to the cutting off of ears.... With each embarrassment to arbitrary power the Star Chamber became emboldened to undertake further usurpation.... The Star Chamber finally summoned juries before it for verdicts disagreeable to the government, and fined and imprisoned them. It spread terrorism among those who were called to do constitutional acts. It imposed ruinous fines. It became the chief defence of [King] Charles [I] against assaults upon those usurpations which cost him his life....

-Edgar Lee Masters

In the above quotation, the American biographer and poet Edgar Lee Masters described the abuses of the Court of the Star Chamber, a prerogative court of medieval and early modern England.  Prerogative courts emerged in the Middle Ages as the means through which the discretionary powers, privileges, and legal immunities reserved to the sovereign were exercised. As the above quote demonstrates, they often became synonymous in the public mind with the abuse of power and individual liberties.

In a new work entitled Is Administrative Law Unlawful?, Philip Hamburger, Maurice and Hilda Friedman Professor of Law at the Columbia University School of Law, traces the history of modern administrative law and proceedings before administrative tribunals back to the prerogative courts of old Europe. On the Volokh Conspiracy blog on the Washington Post website, Hamburger writes:

The conventional account of administrative power emphasizes its modernity and necessity. It is said to be a pragmatic response to the complexity of modern society, and it thus seems necessary in contemporary America.

Sociologically, the message is that administrative law is a modern type of power and that it is quixotic to resist it. Constitutionally, the message is that administrative law developed after the adoption of the Constitution and that it therefore could not have been anticipated by the Constitution. Thus, even if the Constitution did not authorize this novel power, it did not prohibit it.

This conventional account is reassuring, but at the cost of omitting much of the history of administrative power. In fact, this standard account glosses over the profound danger of this sort of power and how it stimulated the development of constitutional law.

My book, Is Administrative Law Unlawful?, therefore attempts to trace the deeper history of administrative power. To this end, it begins not in the 19th century, but in the Middle Ages, and not in America, but in Europe. It thereby reveals the danger and the constitutional response.

Inasmuch as administrative law and the enforcement power of a myriad administrative agencies now touches on almost every facet of business and interpersonal commerce, an understanding of the origins and nature of administrative power is critical for businesspeople and attorneys alike.