Administrative law
Administrative law is a division of law governing the activities of executive branch agencies of government. Administrative law includes executive branch rulemaking, adjudication, and the enforcement of laws. Administrative law is considered a branch of public law.
Administrative law deals with the decision-making of administrative units of government that are part of the executive branch in such areas as international trade, manufacturing, the environment, taxation, broadcasting, immigration, and transport.
Administrative law expanded greatly during the 20th century, as legislative bodies worldwide created more government agencies to regulate the social, economic and political spheres of human interaction.
Civil law countries often have specialized administrative courts that review these decisions.
In the last fifty years, administrative law, in many countries of the civil law tradition, has opened itself to the influence of rules posed by supranational legal orders, in which judicial principles have strong importance: it has led, for one, to changes in some traditional concepts of the administrative law model, as has happened with the public procurements or with judicial control of administrative activity and, for another, has built a supranational or international public administration, as in the environmental sector or with reference to education, for which, within the United Nations' system, it has been possible to assist to a further increase of administrative structure devoted to coordinate the States' activity in that sector.
In civil law countries
Unlike most common law jurisdictions, most civil law jurisdictions have specialized courts or sections to deal with administrative cases that as a rule apply procedural rules that are specifically designed for such cases and distinct from those applied in private law proceedings, such as contract or tort claims.Brazil
In Brazil, administrative cases are typically heard either by the Federal Courts or by the Public Treasury divisions of State Courts. In 1998 a constitutional reform led by the government of President Fernando Henrique Cardoso introduced regulatory agencies as a part of the executive branch. Since 1988, Brazilian administrative law has been strongly influenced by the judicial interpretations of the constitutional principles of public administration : legality, impersonality, publicity of administrative acts, morality and efficiency.Chile
In Chile, the President of the Republic exercises the administrative function, in collaboration with several ministries or other authorities with ministerial rank. Each ministry has one or more under-secretaries that act through public service to meet public needs. There is no single specialized court to deal with actions against the administrative entities, but there are several specialized courts and procedures of review.China
Administrative law in China was virtually non-existent before the economic reform era initiated by Deng Xiaoping. Since the 1980s China has constructed a new legal framework for administrative law, establishing control mechanisms for overseeing the bureaucracy, and disciplinary committees for the Chinese Communist Party.In 1989, China established its Administrative Litigation Law, which provides an avenue for people to challenge government action. In 2014, it was amended to lower the burdens on those challenging administrative actions.
In 1990, the Administrative Supervision Regulations and the Administrative Reconsideration Regulations were passed. The 1993 State Civil Servant Provisional Regulations changed the way government officials were selected and promoted, requiring that they pass exams and yearly appraisals, and introducing a rotation system. The three regulations have been amended and upgraded into laws. In 1994, the State Compensation Law was passed, followed by the Administrative Penalties Law in 1996. Administrative Compulsory Law was enforced in 2012. The General Administrative Procedure Law is underway.
France
In France, there is a dual jurisdictional system with the judiciary branch responsible for civil law and criminal law, and the administrative branch having jurisdiction when a government institution is involved.Most claims against the national or local governments as well as claims against private bodies providing public services are handled by administrative courts, which use the Conseil d'État as a court of last resort for both ordinary and special courts. The main administrative courts are the tribunaux administratifs and appeal courts are the cours administratives d'appel. Special administrative courts include the National Court of Asylum Right as well as military, medical and judicial disciplinary bodies. The French body of administrative law is called "droit administratif".
Over the course of their history, France's administrative courts have developed an extensive and coherent case law and legal doctrine, often before similar concepts were enshrined in constitutional and legal texts. These principes include:
- Right to fair trial, including for internal disciplinary bodies
- Right to challenge any administrative decision before an administrative court
- Equal treatment of public service users
- Equal access to government employment without regard for political opinions
- Freedom of association
- Right to entrepreneurship
- Right to legal certainty
Germany
In Germany, administrative law includes all law that specifically governs the legal relationships between public authorities and private persons, and that is not more precisely described as constitutional law. It sets out the tasks, aims and powers, as well as the organization and procedure, for all public authorities. As a field of legal study, administrative law has been differentiated from other branches of public law since the late 19th century in Germany; the precise delimitations of "administration" as a concept, however, are in contention. Administrative law defines all aspects of public administration in the modern German state, whose legal culture emphasizes private persons' subjective rights. The final say on the interpretation of the law lies with the courts of administrative jurisdiction, and the law usually permits close judicial scrutiny of public authorities' exercise of discretion.Constitutional context
Central legal principles of the Rechtsstaat that pervade administration ‒ mostly developed before the adoption of the modern 1949 Constitution, but strengthened and expanded after its advent by their new conceptual foundation ‒ include:- The principle of the lawfulness of the executive : administrative authorities are bound to act where a law prescribes it, and to not violate any laws. Where its actions may burden or comparatively disadvantage a person, they must rest on a grant of authority by the legislature: this concept is called the Vorbehalt des Gesetzes or Eingriffsvorbehalt, meaning that limiting interference with rights is a sphere of action that is reserved to statute.
- The principle of legal security, which includes a principle of legal certainty and the principle of non-retroactivity.
- The principle of proportionality, which means that an act of an authority has to be suitable, necessary and appropriate.
Scope of administrative law
German legal scholarship does not have an agreed-upon definition for public administration.In one sense, administration – more precisely, everything that is subject to administrative law – is conceptualized as being all state activity of a certain type. This approach leads to disputes about whether to treat acts of public authority as acts of administration even when they are performed by component parts of the state that the law formally classifies as a legislative or a judicial body: For instance, the parliament may impose a fine on one of its members for misbehavior, or a presiding judge may direct a disruptive member of the public to be removed from the viewing gallery.
The opposite approach – the formalist definition of public administration – begins its examination by considering all those public authorities intended to do the work of public administration, and equates their functioning with public administration. There is some danger of circular reasoning, since the formal categorization of the organizational unit may, in turn, derive from some material conception of its function. Some functions that might, in the material view, be seen as not of the executive type, and thus not as belonging to the field of administration, would then be held to the standards of administrative law, and not another field of law.
This discussion is of seen as being of particular importance when considering the role of administrative law in maintaining the division of government powers. For this purpose, a traditional approach tries negatively to define administration by subtracting those operations of the state which cannot be called administration, namely law-making and adjudication. Using this negative definition, though, requires law-making and adjudication to be defined first, and leaves some activities that are a poor fit for the term "administration", such as the cabinet government's political leadership decisions, within the bounds of the definition.
Positive definitions abound, but none has won out over the others, or been entirely convincing to scholars of German administrative law. Nevertheless, certain features may be seen as being characteristic of administration: According to Maurer and Waldhoff, administration is social engineering , oriented towards some conception of the public interest, that consists of taking action in the present, with a view to engineering the future, and that comprises concrete measures to regulate individual cases and to realize particular plans.
Scholarly treatises of German administrative law are almost always split into two parts: doctrines and rules that can be found across-the-board ; and doctrines and rules that exist only in certain parts of administrative law – e.g. police law, urban planning law, or local government law.