Administrative Legal Procedure and Administrative Law

Abstract

by Georges Langrod « Maître de recherches », French National Centre for Scientific Research, Full Professor at the University of the Saar The legal aspect of administrative procedure is traditionally neglected by the Science of administrative Law. Considered as a technical problem, it is left to administrative scientists only. The whole legal operation preceding the administrative decision remains outside the sphere of scientific analysis, thereby impoverishing our knowledge of the administrative phenomenon. On the one hand the specialist in administrative law respects to a surprising degree the tradition that administrative law regulates the aims of administrative action, but leaves the ways leading to accomplishment of these aims solely to administrative technicians. On the other hand, the specialist in Public Administration sees only the essential contradiction between the strict bounds of restrictive legal precept and the necessary elasticity of administrative action. He defends the latter and is therefore prima facie opposed to the former. Although the Administration should be as unhampered as possible in order to be effective in everyday life, the « Rechtsstaat » — with its characteristic curtailment of « Le Roy le veult » — is founded also on the active participation of cujus res agitur in administrative disputes. This participation assures at the same time an important control of administrative action by the citizen. It constitutes one of the victories of political democracy over the unbridled licence of « royal pleasure ». Political expediency can no longer be considered as the only motivation of all administrative action. Nevertheless it should not be undervalued: a balance must be sought between the legal, technical and political aspects of this action, the political aspect being accepted in its widest sence. The process of « juridicalisation » of Administration through administrative Law — extended even to administrative procedure — must be constantly scrutinized with a view to controlling the effects of old mental habits and conservative approach to Public Administration and to administrative management. Professor Langrod examines, in all its aspects, the generally underestimated but important problem of « purely administrative » procedure, i.e. of non-contentious disputes within the frame of administrative action. He discusses the different approaches of the traditional doctrine to this problem and its frequent lack of comprehension in this field. Having weighed the consequences of the traditional application of procedural theory and process rules to justice alone, the author goes on to examine — by methods of comparison — the present-day solutions to the problem. These solutions are grouped under three principal headings: — administrative systems with well-developed administrative Law but without any « processual » approach, such as those existing in France and Germany. This approach is reserved only for the administrative courts («juridiction administrative», «Verwaltungsgerichtsbarkeit»). Everything which happens within the framework of « pure » Administration is left, almost entirely, to the discretion of internal rules, under the subsequent judicial control of legality; — « mixed » systems, or half-way solutions, i.e. mainly the Anglo-Saxon doctrine of « quasi-judicial » functions, presupposing the existence of a dispute between equal parties, before the Administration. The procedural rights of these parties, accorded by law or by practice, differentiate this type of procedure from the « purely » administrative activity. Thus appear in England the so-called « administrative tribunals » which are not judicial courts, but administrative authorities with a particular process, resulting from the fundamentals of fair play in administrative action. To this group belong also the administrative systems of Spain, Portugal, Latin America, Italy and Sweden, where — if not always the legislature and practice — at least the doctrine of administrative Law and the jurisprudence in administrative matters frequently accept a procedural point of view for the administrative action; — systems comprising a complete « processual » sector of administrative Law doctrine and a legislative codification of legal procedure of Public Administration. This is the case in Austria and three other countries of Central-Eastern Europe where in the years 1925-1930 « codes of administrative procedure » appeared, and are still obligatory. In spite of changes after 1945 in countries now under Communist regime, in Poland, Czechoslovakia, Yugoslavia, the great Austrian model remains unchanged. The United States of America, owing to the A.P.A. 1946, are found in the same group, because of their global approach to this problem of administrative dispute, based on the classical « due process » doctrine and on the application of the « audi alteram partem » formula (through adjudication, hearing, notice, examiners corps, etc.). Professor Langrod's study comprises administrative dispute considered as an integral part of a « general legal procedure », constituting in theory a « processual » uniformity, regardless of the sector of Law to which it applies. Thus procedural approach ceases to be a monopoly of justice as it was for centuries, and has to be extended to all official actions concerning parties’ interests or rights. The author endeavours finally to formulate some general principles of administrative legal procedure, based on empirical comparative experience. After having examined and summarized these principles, he concludes that the great process of « juridicalization » of Public Administration has generally desirable effects. It brings about more social outlook, the true democratization of Administration owing to the active and « organized » co-operation between authorities and parties) and the fact that — if well conceived and balanced — legal rules tend not to hamper, but rather to guide the processes of litigation, to the true interests of legal security and administrative efficiency.