Administrative law
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Administrative law is the body of law that governs the activities of administrative agencies of government. Government agency action can include rulemaking, adjudication, or the enforcement of a specific regulatory agenda. Administrative law is considered a branch of public law. As a body of law, administrative law deals with the decision-making of administrative units of government (e.g., tribunals, boards or commissions) that are part of a national regulatory scheme in such areas as police law, international trade, manufacturing, the environment, taxation, broadcasting, immigration and transport. Administrative law expanded greatly during the twentieth century, as legislative bodies worldwide created more government agencies to regulate the increasingly complex social, economic and political spheres of human interaction.
Taxation decisions are the decisions based on administrative law that are most often contested in courts. Civil law countries often have specialized courts, administrative courts, that review these decisions.
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[edit] Administrative law in common law countries
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 so-called semi-public bodies, such as non-profit corporations, disciplinary boards, and other decision-making bodies that affect the legal rights of 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). Judicial review of administrative decisions, it must be noted, is different from an appeal. When sitting in review of a decision, the Court will only look at the method in which the decision was arrived at, whereas in appeal the correctness of the decision itself will be under question. This difference is vital in appreciating 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 unreasonable (under Canadian law, following the rejection of the "Patently Unreasonable" standard by the Supreme Court in Dunsmuir v. New Brunswick), 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.
[edit] United States
In the United States, many government agencies are organized under the executive branch of government, although a few are part of the judicial or legislative branches.
In the federal government, the executive branch, led by the president, controls the federal executive departments, which are led by secretaries who are members of the United States Cabinet. The many important independent agencies of the United States government created by statutes enacted by the Congress that are exist outside of the federal executive departments but are still part of the executive branch.
Congress has also created some special judicial bodies known as Article I tribunals to handle some areas of administrative law.
The actions of executive agencies and independent agencies are the main focus of American administrative law. In response to the rapid creation of new independent agencies in the early twentieth century (see discussion below), Congress enacted the Administrative Procedure Act (APA) in 1946. Many of the independent agencies operate as miniature versions of the tripartite federal government, with the authority to "legislate" (through rulemaking; see Federal Register and Code of Federal Regulations), "adjudicate" (through administrative hearings), and to "execute" administrative goals (through agency enforcement personnel). Because the United States Constitution sets no limits on this tripartite authority of administrative agencies, Congress enacted the APA to establish fair administrative law procedures to comply with the constitutional requirements of due process.
The American Bar Association's official journal concerning administrative law is Administrative Law Review.
[edit] Historical development
Stephen Breyer, a U.S. Supreme Court Justice since 1994, divides the history of administrative law in the United States into six discrete periods, according to his book, Administrative Law & Regulatory Policy (3d Ed., 1992):
- English antecedents & the American experience to 1875
- 1875 - 1930: the rise of regulation & the traditional model of administrative law
- The New Deal
- 1945 - 1965: the Administrative Procedure Act & the maturation of the traditional model of administrative law
- 1965 - 1985: critique and transformation of the administrative process
- 1985 - ?: retreat or consolidation
[edit] Administrative law in civil law countries
Unlike most Common-law jurisdictions, the majority of civil law jurisdictions have specialized courts or sections to deal with administrative cases which, as a rule, will apply procedural rules specifically designed for such cases and different from that applied in private-law proceedings, such as contract or tort claims.
[edit] France
In France, most claims against the national or local governments are handled by administrative courts, which use the Conseil d'État (State Council) as a court of last resort. The main administrative courts are the "Tribunaux Administratifs" and appeal courts are the "Cours Administratives d'Appel".
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[edit] Germany
In Germany, the highest administrative court for most matters is the federal administrative court Bundesverwaltungsgericht. There are federal courts with special jurisdiction in the fields of social security law (Bundessozialgericht) and tax law (Bundesfinanzhof).
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[edit] The Netherlands
In The Netherlands, administrative law provisions are usually contained in separate laws. There is however a single General Administrative Law Act ("Algemene wet bestuursrecht" or Awb) that applies both to the making of administrative decisions and the judicial review of these decisions in courts. On the basis of the Awb, citizens can oppose a decision ('besluit') made by a public body ('bestuursorgaan') within the administration and apply for judicial review in courts if unsuccessful.
Unlike France or Germany, there are no special administrative courts of first instance in the Netherlands, but regular courts have an administrative "chamber" which specializes in administrative appeals. The courts of appeal in administrative cases however are specialized depending on the case, but most administrative appeals end up in the judicial section of the Council of State (Raad van State).
In addition to the system described above there is another part of administrative law which is called "administratief beroep" (administrative appeal). This procedure is available only if the law on which the primary decision is based specifically provides for it and involves an appeal to a higher ranking administrative body. If administrative appeal is available, no appeal to the judicial system may be made.
[edit] Sweden
In Sweden, there is a system of general administrative courts which only handles administrative law cases, and which is completely separate from the system of general courts.[1] This system has three tiers, with 23 county administrative courts (länsrätt) as the first tier, four administrative courts of appeal (kammarrätt) as the second tier, and the Supreme Administrative Court of Sweden (Regeringsrätten) as the third tier.
Migration cases are handled in a two-tier system, effectively within the system general administrative courts. Three of the county administrative courts serve as migration courts (migrationsdomstol) with the Administrative Court of Appeal in Stockholm serving as the Migration Court of Appeal (Migrationsöverdomstolen).
[edit] Brazil
In Brazil, unlike most Civil-law jurisdictions, there is no specialized court or section to deal with administrative cases. In 1998, a constitutional reform, lead by the government of the 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 (art. 37 of Federal Constitution): legality, impersonality, publicity of administrative acts, morality and efficiency.
[edit] 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 sub secretaries which perform through public services the actual satisfaction of public needs.
All Ministries and public services have a body of workers or administrative personnel (funcionarios públicos), but with different contractual statutes.
Public entities act through administrative procedures, that is, processes with formal stages where opportunities to deliver evidence and exercise appeals are granted to the citizens. The recent basic law of administrative procedures deals with most of the general matters pertaining the administrative procedures of all public entities.
There is no specialized court to deal with actions against the Administrative entities, but the civil courts have jurisdiction over all matter that are not in the scope of other court, such as public liability and the overturn of single administrative acts.
[edit] People's Republic of China
Administrative law in the People's Republic of China was virtually non-existent before the economic reform era initiated by Deng Xiaoping. Since the 1980s, the People's Republic of China has constructed a new legal framework for administrative law, establishing control mechanisms for overseeing the bureaucracy and disciplinary committees for the Communist Party of China. However, many have argued that the usefulness of these laws are vastly inferior in terms of controlling government actions, largely because of institutional and systemic obstacles like a weak judiciary, poorly trained judges and lawyers, and corruption.
In 1990, the Administrative Supervision Regulations (行政检查条例) and the Administrative Reconsideration Regulations (行政复议条例) were passed. Both regulations have since been amended and upgraded into laws. The 1993 State Civil Servant Provisional Regulations (国家公务员暂行条例) changed the way government officials were selected and promoted, requiring that they pass exams and yearly appraisals, and introduced a rotation system. In 1994, the State Compensation Law (国家赔偿法) was passed, followed by the Administrative Penalties Law (行政处罚法) in 1996.
[edit] References
- ^ The Swedish courts, accessed on February 20, 2009
[edit] See also
[edit] Further reading
- Davis, Kenneth Culp (1975). Administrative Law and Government. St. Paul, MN: West Publishing.
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