The public power is a generic term used to indicate the means that a State is given to ensure the Sécurité of sound Territoire, the safety of its Citoyen S, as well as the application of the Loi S and payment S.

Inter alia the police force includes/understands: the Armed forces, the police force, the Gendarmerie, the Customs etc

In administrative law

The doctrines of the public power , developed by Maurice Hauriou (senior of Toulouse), seeks to found the exorbitance Administrative law.

Maurice Hauriou defines the public power in the legal direction in his Précis of administrative law and general public law. . It is “a will which exerts the administrative laws in the name of the public personality of the administrations. ”

For this school, the base of this specificity of the administrative law is that the administration has prerogatives of public power, means of constraint which the private individuals do not have between them in their social reports/ratios. The administration has the monopoly of the constraint thus.

The Civil law, which is the common right, is not applicable to such a “Leviathan” , and it thus needs necessarily specific legal rules. These legal provisions is necessary, at the same time to enable him to exert these prerogatives, but to as restrict it, in order to prevent as the Administration does not misuse its prerogatives to the damage of managed.

Later, these doctrines were called into question by the School of the Public service, proposed by Leon Duguit (senior of Bordeaux).

The concept of public power is a basic concept of the administrative law. On the one hand she east regards as the whole of the prerogatives and advantages available to the administration in order to make prevail the general interest which remains its main aim. In addition the public power is seen like the principal rival of the concept of public services.

Classical theory of the public power

Among the oldest designs of the public power, that which is based on the principle of “prerogatives of the public power”. In this design, the public power is regarded as an instrument of constraint held by the Administration, which exerts a sovereign power on the Population. According to “Jean Rivero” the public power is “the translation in the administrative plan of the political reality which is the capacity”. (Dictionary of Administrative law). This definition returns us to the legitimate capacity of coercion exerted by the State, and to the means of action available to the Administration to arrive at its ends.

The principal goal of the public power remains the satisfaction of the General interest, in front of which the private interest always yields. No private individual does not have the right to impose his wills on others against his liking. In order to establish this general interest the public power rests on the concept of “prerogatives of the public power” which is characterized by the double capacity of the administration unilaterally to impose obligations on managed, and to resort to the physical force legitimates to make them carry out.

This theory started to lose of its width at the 19th century with the appearance of the concept of “public services” and that of “responsibility for the public power” in addition to one unit of judgments delivered by the courts of conflicts.

“Responsibility for the public power” and “Public services”

Responsibility for the public power

Until the end of the 19th century, the principle of nonthe responsibility for the public power prohibited straight to repair, if a person suffered an injury on behalf of the State or on behalf of a public person, the victim had only to assume the consequences. The only possibility was the recourse by Ombudsman At the end from the XIX, at the beginning of XX century this design of nonthe responsibility for the public power started to be isolated. In France, on February 8th, 1873 the court of the conflicts, hands down a judgment known under the name of “the Arrêt Blanco”. This stop is regarded as the base of the Administrative law and of the notion of the responsibility for the public power, since it was one of the first case or the State was seen obliged to compensate the small “Agnes Blanco” (5 year old little girl who was reversed and seriously wounded by a tip truck pertaining to the tobacco factory governed by the State), after his/her father had carried felt sorry for within the legal jurisdiction which held the State civilly responsible for the made damages against the little girl. It should be noted that the principle of responsibility for the public power, repairs but does not sanction, unless it is about a personal fault within the Administration, made by a civil servant of the State (rape, murder, flight…). In the majority of the cases, the State compensates only materially its victims, since it cannot do it morally.

Concept of public services

The public service is a concept-key of the French Administrative law more, that the others.

One can approach the concept from a material point of view and another formal:

• With the material direction, the public service is very activity intended to satisfy a need for general interest and which as much as such, must and can be assured and controlled only by the administration and only the Administration.

• With the formal direction, the public service is the whole of average materials and human implemented by the State or another community, in order to be able to carry out its tasks.

This concept knew a great evolution through the centuries. The Middle Ages, the public services were ensured by the Lord who had the role to protect his serfs against the invasions enemies, in exchange of perceived taxes in kind.

At the time of what is called “the State Gendarme”, the public services consisted of some limited functions, named the kingly Fonctions which are:

• the Police force

• National defense
• Justice
• public finances (Treasure, Currency, Taxes)
• general and local Administration.

Currently the State is not limited any more to achieve the kingly Fonctions, it intervenes in sectors not-merchants, which are served the nonpaying one such as:

• public education (State education)
• health
• the social security
• the social security
• the culture (museum; theater; houses of young people…)

And of the commercial sectors: Services governed by an marketing activity but which can be under the control of the State or the private companies ex:

• Transport

• Energy
• Drinking water
• Postal services
• Telecommunications.

According to certain theorists (in favor of the concept of “Public services”), the public power only aims at achieving the public service since this last satisfies the general interest.

For “Maurice Hauriou”, the concept of public power is fundamental administrative law just like that of public services. According to him, the role of the administration is not reduced to the achievement public services and the administrative abuse the public power would be only of the “heresy of legal socialism”, and that is not conceivable in a Rule of law. For him these two concepts are not rival, but rather complementary, since the public power helps to achieve the public services, while the public service aims at the voluntary restraint of the public power.

See too

• Stop Blanco

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