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Summary class notes- Administrative Law
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detailed class notes from administrative law.
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WEEK 1LECTURE 1
blanco case: the injury occured from a public service so the administrative court will
decide. if the bank is public authority then the administrative court decides???
● It is an evolving definition (just like the public interest and the organization of the public
administration) Blanco case (TC 8 February 1873 France): a child injured by a wagon which was
crossing the road between different parts of a state-owned tobacco company.
- Before which court should the claim for damages be brought?
- Civil or administrative court?
Answer: administrative court because the injury resulted from a Public service:
- Activity of a public authority
- Pursuit of public interest/need
Note: different solution nowadays because liability has been regulated
The case helps to understand the jurisdiction of administrative courts.
QUESTIONS:
What is administrative law?
Why is the definition of the public interest relative? And what does it depend on?
What is the relationship between constitutional law and administrative law?
What is bureaucracy?
Why do administrative law and bureaucracy have a complex relationship?
READINGS:
BOOK:
CASE: S Cassese, ‘New Paths for Administrative Law: A Manifesto’ (2012)10(3) International
Journal of Constitutional Law 603
Main point of the author:
“2 opposite trends”
Idea: end of administrative law
- French and Belgium origins
- Administrative law lost its peculiarities → destabilized
- Connects to the idea of state centralism: state is no longer key entity for administrative justice
for society
Loss of centrality of the state – why did we lose the centrality? Destruction of Administrative law is
the product of conflicting causes: as a result of the pressure of those trends, it loses its center: the state
● Globalization → transformed the way states function in society; different types of
development of society
, - Beyond the state
● Constitutionalization → development of it, rights are constitutionalised in national and
supranational (EU) sense and global sense of constitutional ideals
● Privatization → increasing privatization of certain public functionalities of the state: roles
considered public are privatized e.g. of water
- Beyond public bodies
● Decentralization
● Aspects of centralization transformed resulting in the destabilization of administrative law
1. Idea: new administrative law
- From Germany
- New role of the state central to economy and society
- Role of the state has changed and as a result
- New administrative law due to a process of change, modernisation and reform
= new dependence on other powers e.g. transnational powers (World Trade law, between states,
treaty commitments withholds the way in which a state functions → global level)
● German origins
- Changes due to modernization and reform
- Admin law focuses on steering rather than ordering it → it is more open than the
old administrative law
- The new administrative law is the product of the new role of the state as a
promotor, facilitator, risk regulator → serves new role in guiding economy and
needs an interdisciplinary approach
- Nature of state guiding economy and society
● top-down movement but also bottom-up change in which the local transformed the realization
of administrative law (public voice and opinion that certain aspects are realized)
Administrative law in transition (p.603-604):
Two opposite trends: “the end of administrative law,” vs “new administrative law.”:
- The end of administrative law (French and Belgian): administrative law has lost its
peculiarities (become a hybrid) > increasing difficulty in defining its status and scope. This is
the product of various, conflicting causes: globalization, constitutionalization, destatization,
privatization, decentralization. The result is that these pressures make ad. law loose its center
- New administrative law (German): a new administrative law is developing, due to a process
of change, modernization, and reform, more open than the old administrative law, and is
focused on “steering” rather than on ordering. It’s the product of the new role of the state as a
promoter, and requires a new, more interdisciplinary, approach
What prevails now: continuity and decline, or development and modernization?
Continuity and change (p. 604-605):
Administrative law was founded on timeless tenets or dogmas derived from private law. Continuity in
paradigms of study paralleled the idea of continuity in administrative institutions.
Over the last twenty years, both assumptions have become obsolete. Administrative institutions have
undergone impressive changes. Due to globalization, privatization, citizens’ participation, new global
fiscal responsibilities, the very idea that administrative law concepts could remain stable over time has
been abandoned.
,The fast-developing phenomena in administrative law have rendered the field’s cultural paradigms
inadequate. New concepts have penetrated the literature: new public management, governance,
accountability, expert bodies, steering. But, as continuity and change go hand in hand, it is difficult to
study this mosaic of contradictions using the old approaches.
Discontinuity in the realm of administrative institutions requires discontinuity in the approaches
adopted for studying the new administrative law. The scholarship examining this new administrative
law needs reorientation and a new framework, capable of explaining the changes that have taken
place.
Beyond the state (p. 605-606):
Administrative law originated as the product of the state, but has now become dependent on other
powers of:
- transnational,
- global, and
- local dimensions.
Many complex phenomena are currently unfolding:
- the growth of ultra-national and intra-national powers;
- increasing “dédoublement fonctionnel” (functional splitting), in which national governments
act both as sovereign powers and as “delegates” of ultra-national bodies;
- the development of certain basic principles of administrative law at global, national, and local
levels;
- open statehood and increased communication between national legal orders, thanks to which
principles may circulate (proportionality);
- development of principles that are shared by several legal orders, at the global, national, and
local levels, which therefore become universal, and thus provide increased opportunities for
popular participation, but also produce increasing conflicts;
- rights are not recognized only by national constitutions, but also by global rules and imposed
by these on national legal orders; national governments are subject to a contradictory trend:
> on one hand, their sovereignty is diminished;
> on the other, they acquire new tasks that they could not possibly have gained in previous
times, but that they are now obliged to share with other states.
The most important of these developments is the growth of a global space and a global polity (sets of
organizations claiming over functions).
Thus far, nationalism has been the prevailing mode through which administrative law scholarship has
been conducted. But, as common core principles have developed at the national, transnational, and
global levels, administrative law scholarship must give up this traditional nation-based approach.
Beyond democracy (p. 606-607):
In all countries, and globally, public powers and civil societies are in search of new sources of
legitimacy, and accountability.
● Developments:
- National governments respond to other national governments and to supranational
institutions, and independent regulatory agencies balance ministerial bodies.
- Power has shifted to “technocrat–guardians” who are shielded from political
influence;
- Delegation of power through elections is now flanked by participation in the
decision-making process, popular participation and deliberative democracy
complement representative democracy.
, ● These constitutional developments also affect administrative law.
- At the global level, administrative networking and shared administration are made
necessary by increased political cooperation in intergovernmental global institutions
and in hybrid global regulatory bodies.
- At the national level, collaboration and horizontal accountability are products of the
increased fragmentation of national executives into many different agencies > To
enable participation, detailed procedural regulations are necessary; therefore,
administrative regulation increasingly consists of regulation of procedures (freedom
grows in the interstices of procedure).
The proceduralization of administrative law makes a new approach necessary, because administrative
decisions no longer take center stage and have been replaced by procedure.
Private vs public (p. 607):
Administrative law was initially established as a “special” law, separate from private law.
Globalization, overburdened governments, privatization, and new public management techniques
have all de-emphasized and blurred the public–private divide.
- In the global polity, hybrid and private bodies are as numerous as public bodies.
- National governments make increasing use of private law. Consequently, the state becomes
dependent upon collaboration with civil society.
● With the emergence of the enabling state, the focus of public activity has shifted toward
measures aimed at financing benefits through the market.
- Outsourcing and public–private partnerships increase efficiency and sectionalism,
which in turn contribute to the fragmentation of the state.
● On the contrary, private institutions increasingly apply administrative law rules. As public
bodies are not necessarily subject to administrative law, so too private bodies are not
necessarily subject to private law.
These developments make it necessary to abandon the public law regime paradigm, to de-publicize
the approach adopted by administrative law scholarship and to study the ambiguities and the richness
of the interconnections between public and private law.
The “administrative machine” (p. 608):
Administrative law has evolved from a linear, hierarchical model to a more complex and collaborative
one where negotiation and consultation are common:
- there is no longer a clear dividing line between administration and society;
- negotiation runs side by side with command and control;
- as soon as new services require new structures, these new structures establish links with their
institutional clients and attract new clients (both internally and externally);
- decision-making processes are replaced or accompanied by consultation, mediation,
Parliament-like procedures, or, simply, muddling through
The author suggests that administrative law scholarship needs to adapt to this new reality by viewing
administrative law as a market where many negotiations take place, and by paying attention to the
rules of change and a different conception of administrative law as a dynamic system.
The executive branch, between politics and society (p. 608-609):
The executive branch has become society's largest artifact and is embedded in society, no longer
extraneous to it.
The emergence of the administrative state has made regulation pervasive.
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