proceso administrativo, Apuntes de Derecho Administrativo

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FRENCH ADMINISTRATIVE LAW Joseph Minattur+ I THE VERY concept of administrative law in France is different from what it is in the common law countries, In France administrative law includes, not merely delegated legislation? and adjudication, but also many other areas which we would, in general, place under the rubric of public administration. While administrative law in a common law jurisdiction confines itself to dealing with delegation of legislative and judicial powers to the administra- tion, the procedural aspects of the exercise of those powers and the judicial control of administrative action, administrative law in a civil law country includes these as well as various forms of administrative agencies, civil service law, administrative acquisition and management of property, public works, obligations of the administration arising from contracts and quasi- contracts and tort liability. While administrative law is a very recent entrant in the common law world, it had found a local habitation and a name in the civil law countries before the close of the last century, that is to say, during those days when Dicey was emphatic that it was unknown to the common law and very critical ofit in France. Thus, during the thirties of this century when administrative law was engaged in wriggling its way in and struggling for recognition as a branch of law in Anglo-American jurisdictions, Ernst Freund could say that it had “become on the continent of Europe a major department of legal science, and has accordingly a status equal to that of civil and criminal law.*1* What will probably strike a common law lawyer as very peculiar is the fact that in the civil law countries, administrative disputes are decided not by ordinary courts of law, but by special administrative courts. This has given rise to the classical criticism, that in France the rule of law is in jeopardy because public officials are given the benefit of being judged by a special court where their colleagues are judges. The French, however, claim that their manner of organizing administrative adjudication is fairer to the common citizen, as the public servant is brought before a tribunal whose personnel know more about what they are adjudicating upon. Further, * Licencié en Droit Comparé (Luxembourg), Docteur en Droit Comparé (Strasbourg), Barrister-at-Law, Associate Research Professor, The Indian Law Institute, New Delhi. 1. The term “delegated legislation” is not used in France, because in theory, legislative power cannot be delegated. See C.E. Freedmen, The Conseil d'Etat in Modern France 173 (1958). la, Ernst Freund, Administrative Law, 1 Encyclopaedia of the Social Sciences 452 (1950),