Administrative Law in Civil Law and Common Law Countries

The comparative method is useful in many branches of law. It is particularly important in administrative law, because of the nature of the leading problems, related way of controlling government according to the interests of both state and citizen, which is common to all the developed nations of the west and in many developing countries of the third world. There is a clear difference with regards to the scope of and the approach to administrative law in these two legal systems.

France is the source of a distinct system of Administrative law known as ‘droit administrative’, which has a huge impact not only in civil law countries, but also on the system of administrative law of common law countries. In France, Italy, Germany and a number of other countries, there is a separate system of administrative court  that deals with administrative cases exclusively. As a natural consequence, administrative law develops on its own independent lines, and is not enmeshed with the ordinary private law as it is in the Anglo- American system. In France, droit administrative is a highly specialized science administered by the judicial wing of the conseil de etat, which is staffed by judges of great professional expertise, and by a network of local tribunals of first instance.

The British system of administrative law, which is followed through out the English-speaking world, has some salient characteristics, which distinguish it sharply from the administrative law of other European countries adopting continental legal system. The outstanding characteristic of the Anglo- American system is that the ordinary courts, and not special administrative courts, decide cases involving the validity of government action. This can be attributed to the conception of the principle of rule of law as developed by Dicey, which among other things emphasizes the resolution of disputes between government and the citizens through the ordinary courts.

The scope of Administrative law is also wider in scope in the continental system compared to its common law counterpart. Administrative law in civil law countries covers issues such as the organization, powers and duties of administrative authorities, the legal requirements governing their operation, and the remedies available to those adversely affected by administrative action. It also includes subjects like the structure and composition of the various administrative agencies, civil service law, the acquisition and management of property by the administrative authorities, public works, and contractual and non- contractual liability of administrative authorities and public officials.

In Anglo- American countries, administrative law is limited to delegation of rule- making powers, adjudication of administrative cases, manners and procedures of exercising these powers, the mechanisms of controlling and the available remedies. It mainly focuses on control through the courts or judicial review of administrative action by the ordinary courts. Hence the study of composition and structure of administrative power is not its primary concern. Wade & Forsyth, commenting on this point have said:

“ An exhaustive account of the structure and functions of government is not necessary in order to explain the rules of administrative law.”  Moreover, its domain extends only when public officials exercise powers and discharge duties, which are in the nature of public power and statutory duties. In other words, administrative actions which are a private law nature meaning relations arising out of contract by administrative authorities and their extra- contractual liability falls outside the scope of administrative law.

1.5.1 Administrative Law in Common Law Countries

(Source- wikipidia (http://en.wikipedia.org/wiki/Administrative_law)

Generally speaking, most countries that follow the principles of common law have developed procedures for judicial review that limit the reviewability of decisions made by administrative law bodies. Often, these procedures are coupled with legislation or other common law doctrines that establish standards for proper rulemaking. Administrative law may also apply to review of decisions of the so-called semi-public bodies such as non-profit corporations, disciplinary boards, and other decision-making bodies that affect the legal rights of the members of a particular group or entity.

While administrative decision-making bodies are often controlled by larger governmental units, their decisions could be reviewed by a court of general jurisdiction under some principle of judicial review based upon due process (United States) or fundamental justice (Canada). It must be noted that judicial review of administrative decision, is different from an appeal. When sitting in review of a decision, the court only looks at the method in which the decision has been arrived at, whereas in appeal, the correctness of the decision itself is under question. This difference is vital in appreciating the administrative law in common law countries.

The scope of judicial review may be limited to certain questions of fairness, or whether the administrative action is ultra vires. In terms of ultra vires, actions in the broad sense, a reviewing court may set aside an administrative decision if it is patently unreasonable (under Canadian law), Wednesbury unreasonable (under British law), or arbitrary and capricious (under U.S. Administrative Procedure Act and New York State law). Administrative law, as laid down by the Supreme Court of India, has also recognized two more grounds of judicial review which were recognized but not applied by English Courts viz. legitimate expectation and proportionality.

The powers to review administrative decisions are usually established by statute, but were originally developed from the royal prerogative writs of English law such as the writ of mandamus and the writ of certiorari. In certain Common Law jurisdictions such as India, or Pakistan, the power to pass such writs is a constitutionally guaranteed power. This power is seen as fundamental to the power of judicial review and an aspect of the independent judiciary.

1.5.2   Droit  Administratif

French administrative law is known as “droit administratiff”, which means a body of rules which determine the organization, powers and duties of public administration and regulate the relation of the administration with the citizens of the country. Administrative law in France does not represent the rules and principles enacted by the parliament. It contains the rules developed by administrative courts. Administrative law in France is a judge- made law. This seems strange for a country, representative of the civil law legal system, characterized by the statute law as the primary source of law.

France also has dual court structure: administrative courts and the ordinary courts existing and functioning in an independent line. The highest administrative court is known as Conseil d’etat, which is composed of eminent civil servants, and deals with a variety of matters like claim of damages for wrongful acts of government servants, income tax, pension, disputed elections, personal claims of civil servants against the state for wrongful dismissal or suspension and so on.

Napoleon Bonaparte was the founder of the droit Administratiff who established the Conseil d’etat. He passed an ordinance depriving the law courts of their jurisdiction on administrative matters and other ordinance matters that could be determined only by the consei d’etat. In pre- revolutionary France, a body known as Conseil du roi advised the king in legal and administrative matters, and also discharged judicial functions such as deciding disputes between great nobles. This created tension between those who supported the executive power over judicial powers (Bonapartists) and those who supported the jurisdiction of the ordinary courts (reformists). In August 1790 a law that abolished the Coneil d’ roi and the power of the executive was passed based on the justification of the principle of powers. This law also curtailed the king’s powers. However, in 1799, Napoleon, who greatly favoured the freedom of the administration, established the   Consei d’etat . However, its function was limited to an advisory role. It had no power to pronounce judgments. In 1872, its formal power to give judgment was established and in the subsequent year in 1873, a law that make the jurisdiction of the Conseil de etat final, was issued respect to all matters involving the administration. In 1889, it started receiving direct complaints from the citizens and not through the ministers. In case of conflicts between the ordinary courts and the administrative courts, regarding Jurisdiction, the matter was decided by the Tribunal des conflicts. This tribunal consisted of an equal number of ordinary and administrative judges and was presided over by the minister of Justice. Droit Administratif does not represent principles and rules laid down by the French parliament; it consists of rules developed by the judges of the administrative courts. Droit administratif therefore, includes three series of rules:

1. Rules dealing with administrative authorities and officials; for example, appointment, dismissal, salary and duties, etc.

1. Rules dealing with the operation of public services to meet the needs of the   citizens; for example, public utility like electricity, water etc…

1. Rules dealing with administrative adjudication; for example, private and public liability of public officials.

The following are the main characteristics of the conseil de etat

• Those matters concerning the state and administrative litigation fall within the jurisdiction of administrative courts and cannot be decided by the ordinary of courts of the land.
• In deciding matters concerning the state, and administrative litigation, special rules  developed by the administrative courts are applied
• Conflict of jurisdiction between ordinary courts and administrative courts are decided by the agency known as Tribunal des conflicts.
• It protects government officials from control of the ordinary courts.
• Conseil de etat is the highest administrative court.

Brown and Garner have attributed to a combination of following factors as responsible for the success of Conseil de etat.

• The composition and functions of the  consei d’etat
• The flexibility of its case- law,
• The simplicity of the remedies available before the administrative courts
• The special procedure evolved by those courts, and
• The character of the substantive law, which they apply.