Administrative law

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The administrative law is the law of the executive , so that the Administrative and Gubernative . In particular, it regulates the relationship between a state and its citizens , but also the functioning of the various administrative institutions and their relationship to one another, as well as the legal protection of the citizen against acts of the executive.

Individual representations

Definition and demarcation

The various national definitions of administrative law or its translations administrative law, droit administratif differ considerably. In the tradition of the continental legal system , it denotes the organization, powers and duties of the administration. In the countries of common law, however, administrative law is regularly to be found as a synonym for judicial review , i.e. the judicial review of administrative acts - in continental diction administrative jurisdiction or contentieux administrative. As part of comparative work, both levels are regularly examined, i.e. H. both the primary rules that guide administrative action and the secondary rules that are applied in the event of a possible violation by the courts.

Understood in this broad sense, administrative law forms the most important component of public law alongside constitutional law . In the continental tradition, the distinction between public and private law is of outstanding importance both for jurisdiction and as a dogmatic division. In common law , on the other hand , public law and private law are only used for pragmatic delimitation, without these terms having any deeper legal dogmatic effect.

To distinguish between public and private law, two standpoints can be contrasted using a comparative methodology: one ideological and one institutional. The ideological demarcation sees public law as the law that serves the common good (salus publica, common good, bien public) - a demarcation that refers to Ulpian . The definition of the common good can either be left to the political process, as the traditional view suggests, or it can have certain justiciable characteristics in order to safeguard basic rights standards. The result of the political process diverges considerably according to the different political traditions: According to the traditional French view, public transport, electricity and gas supply, for example, belong to the common good and empower the administration to make special interventions, while according to the Dutch understanding there is no particular reference to the common good. On an institutional basis, there are three main criteria for delimitation: specific functions, specific organizational structure and specific jurisdiction of the administration.

Administrative law and constitutional law

Rule of Law, état de droit and the rule of law

The different conceptions of the binding of the administration to law and order are called rule of law, état de droit and the rule of law . Characteristic of the rule of law by Dicey is that the administration enjoys no special rights, but the "ordinary law of the land" subject; Rather, he sees special administrative rights as the core of the French droit administratif. As a result of this, the administration is also subject to ordinary jurisdiction according to the understanding of common law .

The French état de droit is based on the understanding that the power of administration is limited by the law. The Anglo-Saxon idea - the law rules over the administration - is accordingly translated as règne du droit .

On the other hand, a legal reservation is drawn from the German principle of the rule of law : the administration only receives its powers of intervention through the law; the law is also the limit to administrative action. There are therefore no powers inherent in the administration as in the French droit administratif or in the British royal prerogatives .

Fundamental rights

Administrative Law and Public Administration

Administrative procedure

Historically, the law of administrative procedure was for a long time customary or judicial law. The codification of procedural law began in Austria with the federal law of July 21, 1925 on general administrative procedures ( General Administrative Procedure Act (AVG)). This was followed by the German Administrative Procedure Act of May 25, 1976, the Italian Act of August 7, 1990 n.241 (Nuove norme in materia di procedimento amministrativo e di diritto di accesso ai documenti amministrativi) and the Dutch Algemene Wet Bestuursrecht of 1994.

Protection against administrative acts and administrative jurisdiction

According to the classic view, three basic types of administrative jurisdiction can be distinguished:

  1. Legal systems with their own administrative jurisdiction,
  2. Legal systems with a judiciary specialized in administrative processes within the ordinary jurisdiction and
  3. Legal systems in which administrative disputes are settled in the ordinary courts, but there are some special courts, especially for taxes.

literature

  • John S. Bell: Comparative Administrative Law . In: Mathias Reimann , Reinhard Zimmermann (eds.): Oxford Handbook of Comparative Law . Oxford University Press, Oxford 2008, ISBN 978-0-19-953545-3 , pp. 1259-1286 .
  • Frank Johnson Goodnow : Comparative administrative law: an analysis of the administrative systems, national and local, of the United States, England, France, and Germany . GP Putnam's Sons, New York 1897 (New edition: 2005, ISBN 1-58477-622-6 ).
  • Hanns Peter Nehl : Administrative Law . In: Jan M. Smits (Ed.): Elgar Encyclopedia of Comparative Law . Edward Elgar, Cheltenham / Northampton, MA 2006, ISBN 1-84542-013-6 , pp. 18-32 .
  • Susan Rose-Ackerman, Peter L. Lindseth: Comparative Administrative Law . Edward Elgar, 2011, ISBN 978-1-84844-642-7 ( content , e-elgar.com - USA, continental Europe, British Commonwealth supplemented by Latin America, Africa, Asia).

Individual evidence

  1. ↑ John S. Bell: Comparative Administrative Law . In: Mathias Reimann and Reinhard Zimmermann (eds.): Oxford Handbook of Comparative Law . Oxford University Press, Oxford 2008, ISBN 978-0-19-953545-3 , pp. 1261 f .
  2. ↑ John S. Bell: Comparative Administrative Law . In: Mathias Reimann and Reinhard Zimmermann (eds.): Oxford Handbook of Comparative Law . Oxford University Press, Oxford 2008, ISBN 978-0-19-953545-3 , pp. 1262-1264 .
  3. ↑ John S. Bell: Comparative Administrative Law . In: Mathias Reimann and Reinhard Zimmermann (eds.): Oxford Handbook of Comparative Law . Oxford University Press, Oxford 2008, ISBN 978-0-19-953545-3 , pp. 1271 f .
  4. ↑ John S. Bell: Comparative Administrative Law . In: Mathias Reimann and Reinhard Zimmermann (eds.): Oxford Handbook of Comparative Law . Oxford University Press, Oxford 2008, ISBN 978-0-19-953545-3 , pp. 1271 f .
  5. ↑ John S. Bell: Comparative Administrative Law . In: Mathias Reimann and Reinhard Zimmermann (eds.): Oxford Handbook of Comparative Law . Oxford University Press, Oxford 2008, ISBN 978-0-19-953545-3 , pp. 1271 f .
  6. ↑ John S. Bell: Comparative Administrative Law . In: Mathias Reimann and Reinhard Zimmermann (eds.): Oxford Handbook of Comparative Law . Oxford University Press, Oxford 2008, ISBN 978-0-19-953545-3 , pp. 1277 f .
  7. ↑ John S. Bell: Comparative Administrative Law . In: Mathias Reimann , Reinhard Zimmermann (eds.): Oxford Handbook of Comparative Law . Oxford University Press, Oxford 2008, ISBN 978-0-19-953545-3 , pp. 1279 f .