Administrative law

The administrative law is consisted of the whole of the rules defining the rights and the obligations of the administration. It constitutes the greatest part of the public Droit.

It is the right of imbalance because it governs primarily the relationship between the public people and managed. This shift between the general interest and the private interests explains the existence of a specific right, exorbitant of the common right.

This right was formed to control the relations between the right and the State. Historically several answers were brought, and today still one can distinguish several models which cumulate in various proportions these answers.

The administrative law covers moreover, the whole of the rules which govern the organization and the operation of the public agencies not raising of the Legislative power or the judicial Power, as those which control the relationship between managed and the public agencies.

Models of right of the administration

State of arbitrary

The expression State of arbitrary (or State of police force) without pejorative connotation qualifies the States acting according to their free will, not subjected to the right but only to limits of order morals or nuns. That is justified by the fact that the Head of the State (the King in the Ancien Mode in France for example) has the monopoly of the constraint: he only can enact constraining rules, which it does not have to follow. Moreover the King being the chief of justice, it cannot in no case to be submitted to judges who are his subordinates.

Finally when an independent legal authority is recognized, the State refuses that the judges involve themselves in the administrative activity. A control can nevertheless be exerted but inside even administration by equitable relief.

Administrative rule of law

This answer corresponds essentially to the contemporary France. The State of arbitrary was tolerable only with the existence of a strong capacity (during the Ancien Mode) or of crisis (at the time of the French revolution). One thus wishes to subject the administration to the right, but without subordinating it to the legal one. Thus institutions resembling the legal jurisdiction will even develop inside the administration. In France for example, one assists with the appearance of the councils of prefectures (created by the law of the 28 pluviose year VIII, and whose jurisdictions ratione materiae were very precise) then administrative courts, to lead to a true administrative jurisdiction under the authority of the Council of State (France).

Common rule of law

This solution was adopted in countries having had a different history and corresponds to the English model. The State considered to be dangerous is justiciable like an unspecified person. There is thus no duality of jurisdiction as in France. But as there remain basically differences with the private law, he develops nevertheless special rules (to requisition, to perceive the tax…) but which seeks to stick to more close with the common right. Finally equitable relief inside the administration appear with the existence of the “administrative courts” (which do not belong to a jurisdiction but to the administration).

There thus exists always in the Rules of law, an administrative law, without there being for as much always a duality of jurisdiction as in France with the administrative judge placed under the control of the Exécutif. In addition to the Anglo-Saxon system of jurisdiction monist appeared with the revolution of 1688 where the jurisdictions of exception are removed, it is necessary to note the analog and digital system enough running (Germany, Italy, Belgium, Holland…). The administrative jurisdiction exists but is specialized with the center even of the legal organization of common right, placed under the authority of the same Supreme court.

Finally these models should be moderated, indeed in France also certain litigations administrative are judged by the legal judge and with the the United States or in England, of the jurisdictions of administrative attributions multiplied.

See too

Principal authors

National administrative laws

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