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Administrative Law and the Rule of Law
Introduction to Administrative Law
If man invented the state, he had to define its rules of behavior towards individuals and vice versa, applicable to every community.
Administrative law is extraordinarily important as it addresses these issues. It aims to serve human well-being, its primary duty.
Organizational structures, relationships, competitions, procedures, etc., serve this purpose.
In a democratic state, the relationship between the state and citizen should be a partnership.
The state and legislature should not be guided by partisan rationales.
Constitutional law regulates basic principles, criminal law covers pathological behavior, and civil law generally doesn't address state-citizen relations.
Administrative law addresses state-citizen relations entirely.
Effective functioning of the state and proper relations between the state and the individual are regulated by administrative law.
Public Administration
Public administration is the subject of regulation in administrative law.
It is exercised by the state or entities acting under state authority.
It implements the common good to benefit the public or cares for individual entities while representing societal interests.
The separation of powers and differing organizational structures fragments authority, unlike in the private sector.
Legal restrictions affect private management but don't fragment authority to the same extent.
Administration can be defined subjectively and objectively.
Subjective (organizational, static) sense: administration is the existing organizational shape of the executive power, a structure of administrative authorities and units.
Objective sense (functional, dynamic): visible administrative activity performed by the state or its designated entities.
Characteristics of Public Administration
Public administration acts in the name of and on behalf of the state.
Its primary objective is to act for the public good and pursue public interest.
It possesses administrative power.
Each organ operates on the basis of law and within its limits.
Public administration is executive in nature.
It is run by professional personnel.
It organizes social life to meet social needs, using legal means within legal limits.
Specific nature of its activities.
Characteristics of Administrative Law
Administrative law is part of public law.
It includes organizational, substantive, and procedural legal norms.
It authorizes administrative authorities, defining their scope and application.
It defines the status of a citizen in the state.
It covers various fields (construction, water, postal, social assistance, health, education, etc.).
Citizen behavior is established in two ways:
Ex lege (directly) in statutes (e.g., school duties, tax duties, obligatory military service).
In an administrative decision (e.g., license, permission).
Administrative law changes frequently.
Administrative Law and Other Branches of Law
Administrative law supplements constitutional law by regulating the administrative organization of the government and determining the rules of law for administrative authorities.
Administrative law concerns relations between the state and external entities while criminal law applies only to pathological phenomena and violations defined as punishable.
Administrative law guides public administration officers, while international law governs state relations.
Administrative Law Relationship
This relationship is regulated by administrative law norms and created by factual prerequisites or legal facts, involving:
Object: relates to the public sphere and is normalized by competent public administration bodies through administrative acts.
Subject: includes a public administration body or entity performing its functions, as well as individuals, groups, legal persons, etc., with administrative law personality.
Relations: characterized by inequality, where the public administration body unilaterally decides on rights or obligations.
Legal Subjects
Legal subjects are those recognized by the legal system as having legal capacity (ability to hold rights and obligations), subject to restrictions.
We distinguish between natural persons and legal entities (corporations, associations, foundations, the State, public local bodies).
Non-incorporated associations with legal capacity are also legal entities.
Entities with legal personality express their capacity through their organs, which are natural persons whose actions are directly attributed to the entity.
The organ is an office for imputation of acts and effects to the legal person.
Legal systems distinguish between private and public entities, the latter established for societal interests, including the State, regions, local public bodies, and other public bodies.
New public bodies can typically only be established by law.
Subjective Legal Situations
These are positions attributed to subjects, divided into active and passive.
Active: subjective right, power (of public administration), legitimate interest.
Passive: obligation, duty, subjection.
Subjective right: guarantees a subject's possibility to satisfy their interest.
Absolute rights obligate all subjects to refrain from conduct (e.g., property right).
Relative rights depend on cooperation of determined subjects (e.g., rights of credit).
Subjective right originates from objective right (rules regulating social relations).
Obligation: a subject's duty to perform or refrain to satisfy a right of others.
Duty: passive position not correlated to others' rights (e.g., good faith and fairness).
Power: possibility of a subject to modify a juridical situation, expression of capacity to act.
Subjection: legal situation of the person against whom a power is exercised.
Legitimate Interest
In civil law countries, especially those influenced by France, legitimate interest is the subjective legal situation of someone subject to public administration power.
Unlike subjective right, it is not absolutely protected.
Subjects can demand legality of Public Administration action:
In accordance with the law.
Issued by a competent body.
Not vitiated by excess of power.
Those with legitimate interest can participate in administrative proceedings and access documents.
Subjective Legal Situation, Public Power, and the Rule of Law
The legal system determines boundaries between subjective legal situations and resolves interest conflicts.
Objective law defines the "relationship" between private and public interest determining the boundaries between rights and powers.
Violations occur when administrative activity exceeds these limits.
Subjects with a subjective right can turn to the Court, whether the failure to observe derives from private or public bodies.
The Public Administration is obliged to observe subjective rights.
Powers of the Public Administration
Public Administration is defined as the legal entity with the right to exercise a function aimed at pursuing an interest of others and can use normal or legal tools provided for.
Through its powers, it modifies, constitutes, or extinguishes legal situations.
The legal subject is in a legal situation of subjection but can demand proper exercise of power via jurisdictional protection.
Combining administrative action and judicial review gave birth to the legitimate interest, aimed at claiming legitimacy of administrative action.
Rules for public power exercise are rules governing the action of the public administration: the rules aimed at defining the correct administrative procedure that the public administration has to comply with by exercising its power.
Legitimate interest claims the correct application of those rules of action.
Non-observance of the rules governing the action of the public administration determines the illegitimacy of the act.
Must be exercised by the competent public body.
Comply with the prescriptions that regulate the manner of exercise.
Be exercised by pursuing the public interest as defined by law.
Public Administration in a Subjective Sense
Communities have organizations aimed at caring for their interests and public interests the organized whole of goods and persons is “Public Administration”.
This term refers to the organizational complex, to the set of the administrative structures of the community.
The task of Public Administration is to manage the community and to take care of the various public interests identified.
Public Administration in an Objective Sense
The notion of "administration" in a subjective sense is used as a synonym for Public Administration. In an objective sense it refers instead to the activity of administering, i.e. the set of acts put in place by the Public Administration for the pursuit of public purposes,
Public Administration could also somehow at least in certain Countries as "pluralistic", in the sense that there are various bodies to which the care of collective interests is delegated.
There is a central state administration (ministries) and a peripheral state administration: the so-called agencies and independent authorities; public bodies and local authorities, etc…
Administrative law governs the organization of these bodies and regulates the relations among them.
Administrative law governs the organization of these bodies and regulates the relations among them.
The Public Administration exercises a series of activities aimed at the care of public interests, which are carried out through administrative acts and measures that are characterized by being "typical" and "named" because the power to issue them is provided by law (so-called public law activities).
The care of the interests of the community takes place not only through the exercise of the powers thus constituted, but also through the adoption of instruments of private law (so-called administrative activity of private law).
The administrative activity is also realized by the performance of material acts (so-called material activity).
The Public Administration, through its organs, possesses a common legal capacity, that is, it has the power to perform any act of private law, when this is necessary for the achievement of its institutional purposes, e.g. by entering into contracts or establishing companies or foundations.
Instead the power of the Public Administration to act through decisions is typical, as proper only of the Public Administration, i.e. exercising an authoritative power addressed to the care of public interests and preordained to the production of legal effects on third parties.
In order to attribute this power to the administration, it is necessary to have a devoted law assigning it the power to provide for the purpose of pursuing a specific public interest, identifying its essential elements (competent subjective authority, object, content, purpose, form) and the typical effects which are produced (to constitute, modify or extinguish subjective legal situations).
In the absence of this normative attribution, the administrative act adopted is radically null and void for lack of power. In this consists the principle of typicality of administrative decisions, that directly expresses the principle of legality.
It is not necessary that the law circumscribes every single element of the final decision, being sufficient that the same provides for the purposes, the public interest to be pursued, the procedure aimed at the adoption of the act, the object and the effects of the same.
Outside these elements, the law can leave a margin of choice to the Public Administration in balancing the conflicting interests and determine the content of the decision.
The basic aim of exercising - by deciding - an administrative power on a concrete basis is to pursue at the best the public interests. Summing up: the legislator determines the purpose for which the power is intended, the Public Administration chooses the most suitable means of achieving it. The discretion may concern one or more of the following elements: if, what, when, how.
The Activity of Public Administration
The administrative activity does not consist in the simple execution of a preformed normative datum; it is rather the research of the most suitable choice to the concrete pursuit of the aim foreseen by the law.
The power with which the Public Administration exercises this choice is always regulated by law, but it could be discretionary. That is, it must take account of the public interests involved and must be respectful of the canons of proper administration (the principle of good administration and the principle of legality), as well as the general principles of the order.
An exception to this rule could be the so-called "binding acts" whose conditions of adoption are rigidly determined by law and the activity of the administration is configured as a mere assessment of the existence of such conditions.
The acts carried out by the Public Administration can be distinguished in unilateral or bilateral. There is therefore a unilateral activity (or imperative) of the Public Administration and a bilateral (or consensual) activity. With the first, the effects of the exercise of a public power (the constitution, modification or extinction of subjective legal situations) are imposed on third parties (i.e. the whole society or certain groups or categories) regardless of their consent. With the second one, these effects derive from the meeting of wills of several subjects (i.e.: contracts, agreements).
The boundary between private law activities and public law activities appears today more blurred, in the light of the increasing use by the legislators of mixed instruments for the pursuit of public interests.
Constitution and Public Administration
"Constitution" comes from the Latin constituere, meaning to arrange. It describes how the state is organized.
It's the basic law of a state with special legal force.
Constitutionalism:
Initially, it was a system limiting the monarch's power with a constitution.
Now, it’s a political system based on a constitution as a written document with superior legal force, binding on all.
Has a material meaning: the constitution's content should align with democratic standards, like separation of powers and protection of individual rights.
Constitutional states differ by structure, government form, and political regime.
Until the 18th century, "Constitution" was descriptive, not prescriptive. Constitutions regulate:
The organization and exercise of public authority.
Local government's constitutional basis and independence guarantees.
The system of sources of law.
Individual freedoms, rights, obligations, and their protection.
Basic principles of public administration control.
Detailed matters (e.g., states of emergency).
Separation of Powers in the US Constitution
The principle of separation of powers assumes that legislative, executive and judicial functions are separated from each other and entrusted to independent bodies.
The American Constitution ascribes the legislative power to Congress (Article I), the executive power to the President (Article II), and the judicial power to the courts (Article III).
Administrative Agencies and Executive Functions
Agencies implement and enforce law by passing, making decisions and monitor of compliance via inspections and disclosure schemes.
Federal Agencies and the Legislative Branch
Three types of rules agencies make:
Legislative rules: have the same effect as statutes.
Interpretative rules and general statements of policy: bind agency employees but not the public.
Non-delegation doctrine: Congress cannot delegate its legislative powers to other entities.
Examples when the US Supreme Court struck down provisions using the non-delegation doctrine:
Panama Refining Co. v. Ryan (1935).
A.L.A. Schechter Poultry Corp. v. United States.
Agencies and Judicial Functions
The Administrative Procedure Act regulates the adjudicatory (formal) process.
Administrative agencies impose sanctions.
The agency charges a person with a violation of law and then sits as judges to decide whether the defendant committed the violation.
Political Question Doctrine
The political question doctrine asserts that some issues to be brought before the judiciary shall be exempt from judicial review and the scrutiny of the courts due to their political nature and constitutional affiliation to other branches of the government.
PQD in the USA: The Court had no power to review Executive actions that did not implicate individual rights.
To determine political questions, the Supreme Court asks not whether the question has political repercussions, but whether the Constitution has committed the question's resolution to one or both of the political branches instead of committing its resolution to the judicial branch (Pellegrino v. O'Neill, 480 A.2d 476, 482 (Conn. 1984).
PQD in the UK Miller/Cherry, [2019] UKSC 41
The Rule of Law
The rule of law is a powerful notion, repeated constantly by lawyers, politicians, and ordinary citizens but most of us have little idea of what the Rule of Law is.
The Rule of Law is a central component of the most Western countries.
However, there are many disputes among scholars about what constitutes the Rule of Law and it is very hard to present an exhausted definition of this notion.
One reason for that might be that the Rule of Law can only be understood contextually, through the interpretation of a context formed from the materials, values, experiences, and conflicts of a particular culture over time and history[1].
What is the ideal Rule of Law? At its core the Rule of Law means that the government and citizens are bound by and act consistent with the law.
This demands that law must be set forth in advance, must be made public, be general, be clear, be stable and certain, and be applied to everyone according to its terms.[2]
This is the so-called “thin” (formal) definition of the rule of law. Other definitions add democracy and human rights components to the Rule of Law (“thick” definition).
Evolution of the Rule of Law
The phenomenon that the monarch should be abide by law was noticed long before the movement of individual rights emerged. At the beginning it was about the opposition to tyranny.
The Justinian Code states: “What has pleased the prince has the force of law” and although another provision claims that: “The prince is not bound by the laws” it was understood that Prince is bound by the law of the land which he could change as he desired.[2]
In the Middle Ages one way to limit the Kings’s power was to swear an oath he would abide to the law. Very often acting according to law was a matter of custom and conduct and different practices evolved over time.[3]
The concept of the Rule of Law and its counterparts Rechtsstaat, État de droit, Estado del Derecho, Stato di diritto which is a determinant of contemporary constitutional and civilizational standards, do not have precise definitions. Even in Western, liberal democracies they have different meanings, which reflect different conditions of political culture.
What all these traditions have in common is that in the 19th century the rulers were obliged to make concessions and accept certain limitations of their absolute power.
The immediate predecessor of the rule of law was the police state. The concept of a police state arose during the period of an absolute monarchy. The idea of the rule of law was built in opposition to the state.
The police state provided the basis for the formal aspect of the rule of law, but it was still a state in which the monarch played the most important role. The peaceful transformation of the arbitrary power of the monarch into a monarchy limited by law, and then into a state whose law constitutes the nation, was to take place through creation of a proper legal system.
A “revolution in law” instead of a revolution in the streets: the legal system was to create the political foundations of the state and guarantee the common good and the good of the individual.[4]
As the holder of political power, the absolute state was free from any external limit, then the rule of law is a juridical-organizational response to the historical parenthesis of absolutism, aimed at neutralizing the negative effects on social dynamism by introducing guarantees in favour of the freedom of individuals (producers).[5]
The concept of the rule of law was expressed primarily in the Anglo-Saxon formula of the rule of law and the formula of the Rechtsstaat characteristic of German-speaking countries. The Anglo-Saxon formula refers exclusively to law, while the German formula emphasizes the relationship between law and the state.
Both formulas are based on different theoretical concepts, which, however, are based on common assumptions. As a basis, they assume human freedom and a specific political order that should guarantee this freedom. The normative shape of the rule of law and Rechtsstaat is influenced by the historical development of constitutional ideas, doctrines, and practice.
The Anglo-Saxon and German traditions are different in this respect, but not contradictory. The Anglo-Saxon concepts of the rule of law refer primarily to the views of J. Lock, while the German ones – to the views of I. Kant. As Lon Fuller points out, despite these differences, the idea of the rule of law and Rechtsstaat is based on the same values attributed to law: universality, certainty, availability, and predictability. Regardless of the differences regarding the principle of separation of powers, government systems or the role of the law, these values are implemented in both of the above-mentioned approaches.
Different constitutional traditions do not affect the material aspect of the rule of law. It has always been based on the principle of justice, and now it is also based on the principle of human dignity and the need to protect one's natural rights.[6]
Rechtsstaat
The German conception of the positivistic Rechtsstaat emerged with the failure of the bourgeois revolution attempted in Germany in 1848. Frustrated in their efforts to establish a constitutional democracy, the German bourgeoisie settled for a guarantee of state rule through law as opposed to arbitrary or personal rule by the sovereign. In its positivistic embodiment, therefore, Rechtsstaat is better translated as “state rule through law” than as “rule of law. ”
By insisting that Germans be ruled through laws and that the adjudicative function be separate from the legislative, the positivistic Rechtsstaat comes very close to the ideal of law as separate from politics.[1]
However, the positivistic Rechtsstaat may have suited Germany's legal and political reality at the end of the nineteenth century, it no longer fit post-World War I Germany following the adoption of the Basic Law. Some contemporary German scholars have argued that Germany is better described today as a Verfassungsstaat, which is to say, “state rule through the constitution,” than as a Rechtsstaat. But because the Verfassungsstaat encompasses not only constitutional rules and standards but also constitutional values such as human dignity (explicitly enshrined in article I of the Basic Law) and because it prescribes not only subjective rights but also an objective order, the German Constitutional Court has assumed an expansive role that casts it, at least in part, as a positive legislator prone to dictating policy.[2]The concept of Rechtsstaat, which has been shaped for over 100 years in the German doctrine, legislation, and jurisprudence of the Federal Constitutional Court, is complex and multifaceted. It is difficult to reduce it to any definition or unambiguous definition. As part of the concept of the rule of law there is a formal rule of law which defines the principles of the law - based state. The statute become the basic source of law, and the legal order should be based on it. The statute is binding on all public authorities. Courts, including administrative courts, play a special role in guaranteeing the legality of the state's actions.[3]In the state of law understood in this way, there were also material elements, primarily principles expressing human rights. However, they were not binding. In the Weimar Constitution, constitutional rights had a programmatic character. Their normative content was decided by the ordinary legislator.
There was no guarantee of basic human rights and basic principles of the political system at the constitutional level. After World War II, this was considered a significant lack of the rule of law, enabling it to be transformed into a totalitarian state.
The substantive concept of the rule of law was unavoidable and meant the acceptance of the inviolable and inalienable human dignity as the source of constitutional freedoms and rights; recognition that these rights are binding on all public authorities; introduction of judicial review; implementation by the Constitution of the concept of a democracy capable of defending itself. The principle of constitutionalism has the greatest influence on the material shape of the rule of law. In a state ruled by law the Constitution is a fundamental law.
État de Droit
Although the French expression État de droit is the literal translation of the German expression Rechtsstaat the two are no synonymous[1]. Actually, what comes closest to the German Rechtsstaat is the French État legal. The main difference between the positivistic Rechtsstaat and the État legal is that whereas both refer to a system of laws made by legislators, only the État legal requires that the legislators in question be democratically elected. État legal can thus be translated as “state rule through democratically enacted laws. ”[2]
According to the constitutional vision launched by the French Revolution, law is the product of the legislative majority, while constitutional objectives and constraints are cast as exclusively political. Thus, a parliament enacts laws that are conceived as expressing the general will of the polit and constitutional imperatives, such as those enumerated in the 1789 Declaration of the Rights of Man and the Citizen, are supposed to constrain legislators with respect to the legislative choices they are called upon to make[4].
It was to remedy this deficiency that the État de droit was invoked to supplement the État legal. The precise task for the État de droit was to transform constitutional guarantees that theretofore had been political in nature into legal guarantees. In short, the État de droit was designed to juridify the constitution, by transforming “constitution as politics” into “constitution as law. ”
Thus, the combination of the État legal with the État de droit is closer to the Verfassungsstaat than to the Rechtsstaat. Unlike the Verfassungsstaat, however, the legal regime framed by the État de droit does not seek to constitutionalize politics; it merely subjects the realm of politics to constitutional constraints that have the force of law. In other words, whereas in the Verfassungsstaat, the constitution partially replaces politics as the source of lawmaking, in the État de droit, politics remains the exclusive source of lawmaking, though the legitimate bounds of political lawmaking are set by the constitution as law[5].
The British Model
The British see the source of the rule of law in the documents such as the Magna Carta (1215) and the Bill of Rights (1689).
However, the concept of Rule of Law became a legal term thanks to the work of A.V. Dicey under the title "Introduction to the Study of the Law and of the Constitution."
The US Model
The desire to establish “an empire of laws and not of men” was the founding commitment of the American Constitutional project, but it had deep and well-remembered foundations in the history of the common law and republican political ideology[1].
The distinction between a substantively just rule-of-law society, governed by laws and institutions dedicated to the general welfare, and an unjust society, whose laws and institutions serve private interests, was reiterated by the Preamble to the U.S. Constitution, which declared as its purposes to “establish Justice. . . promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity. ”[2]
The U.S. Constitution came into force on the 9th of March of 1789.
The supremacy of law was declared in the Constitution that states: “This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United
States, shall be the supreme Law of the Land; and the Judges of every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding. ”
The Constitution includes a number of specific prohibitions against violations of the rule of law.[1]
The Constitution forbids the United States to suspend the writ of habeas corpus (except in cases of rebellion or invasion), prohibits bills of attainder and ex post facto laws, and requires all public expenditures be pursuant to appropriations approved by law.[2]
Nor may any of the American states in their separate legislatures pass any bill of attainder, ex post facto law, or law impairing the obligation of contracts.[3]
The Constitution also requires the United States to guarantee a “republican form of government” to each state.[4]
Every judge of the United States holds office “during good behavior,”[5] which is to say, for life, unless impeached by the House of Representatives and convicted by the Senate of the United States.[6]
Other features of the US government is the separation of powers and the due process of law. The last means that “no person shall… be deprived of life, liberty, or property, without due process of law. ”
Judicial review is not included in the US Constitution. The landmark case which established the doctrine of judicial review is Marbury v. Madison ((1803) 1 Cranch 137 (2 Law Ed 60), 5 US 137 (1803)) in which the U.S. Supreme Court first declared an act of Congress unconstitutional.
The rule of law in the United States has both procedural and substantive components. On the one hand, there are the principles and fundamental rights without which there can be no liberty or justice. On the other, there are the forms and structures of government that protect the making, execution, and adjudication of the laws from being corrupted by our fallible humanity. The rule of law defines America's constitutional ideal.[1]
An example of formal reasoning: In Dred Scott v. Sanford (60 U.S. (19 How.) 393 (1857)) the court exercised formal legal reasoning, finding that no person of African ancestry could claim citizenship in the United States. Slaves could not bring suit in federal court as they did not have claim to freedom, were property and not citizens.