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Droit Administratif

November 3, 2020

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This article has been written by Oishika Banerji, an undergraduate student of Amity Law School, Amity University Kolkata. This is an exhaustive article dealing with Droit Administratif.

Table of Contents

Introduction

Administrative law is an essential branch of law for it deals with the sociological application of statutory bodies. It can be categorized as the by-product of the exhaustive form of government. With the change in the roles of the government, the structure of the administrative law is also changing and adjusting to the circumstances surrounding it. Droit Administratif is simply the french synonym of administrative law which gained its importance during the 18th century. The difference which can be outlined between administrative law and any other branch of law is that the former is an explanation of the law in a realistic sense while the latter is more textbook-based.

The application of the available statute, working of the government bodies, administrative actions carried out by the government are some of the aspects that are covered by the administrative law. The application of administrative law in France is different from that of any other country for the ambit of administrative law in France is wider compared to any other country. Droit Administratif becomes a subject of discussion for it is the source of the evolution of administrative law in several countries all across the globe.

Droit Administratif

A body of public law as commonly referred to in many sources, Droit Administratif lays down the obligations of public administrative organs along with which it helps in regulating the administrative relations between the State and its citizens. The body which is structured with the rules brought in by the administrative courts is attached to the name of Napoleon Bonaparte. The atmosphere surrounding the French revolution of 1789 was mainly associated with the chaos between the traditionalist Bonapartists and the reformist Parliaments. While the former was in support of the supremacy of executive powers, the latter preferred the jurisdiction of ordinary courts only. The two bodies that overtook authority from one another during the pre and post-revolutionary France were then recognized as the Conseil du Roi and Conseil d’Etat respectively.

Conseil du Roi was the product of pre-revolutionary France. This body acted as an advisor in legal and administrative subjects for the King. Along with the executive function, Conseil du Roi also performed judicial activities which included settling disputes between the nobles of the nation. It was in the 16th century that the judiciary was slowly being overshadowed by the growing power of the executive in form of the Conseil du Roi. Autonomy on the part of Conseil du Roi proved to be detrimental for the ordinary courts. Such discriminatory excess of power in the hands of the executive was limited as the atmosphere slowly changed from pre to post-revolution in 1789.

The revolutionary change that was brought about during the post-revolution is the restriction of power confined in the hands of the executive. Such change was regulated by the concept of separation of power. This subsequently resulted in the abolition of the Conseil du Roi under the governance of Napoleon Bonaparte who was a supporter of reforms and freedom on part of administrative actions. It was this thought that gave birth to Conseil d’Etat in 1799 with an objective to eliminate difficulties in administrative courses. In the course of time, Conseil d’Etat started looking after judicial matters as well. Although the motive behind the formation of Conseil d’Etat was to remove suppression of the judiciary by the executive, the influence of the executive could not be totally done away with in this case also.

The appointment of the members was carried out by the decree issued by the executive which required the consent of the council of ministers. Therefore, the judiciary till then was unable to access its freedom and authority by itself. The jurisdiction of the Conseil d’Etat was decided to be final in all administrative matters by the Arrents Blanco which was the executive law during 1873. It was decided that if any conflict would have arisen between the ordinary courts and that of the administrative courts, the same was supposed to be settled by the Tribunal des Conflicts which was presided over by the Ministry of Justice and involved an equal number of judges from both courts. The development of Conseil d’Etat was on the basis of its own doctrines with the function of regulation of excessive amounts of administration against the citizens.

Rules of Droit Administratif

Droit Administratif is a representation of judge-made rules decided in a court of law and not of the rules carved out from the French Parliament. The series of rules that, if compiled together, will result in the Droit Administratif are as follows:

Rules that deal with administrative authorities and officials associated with the same.
Rules that deal with public service operations to fulfil citizens’ needs.
Rules that deal with administrative adjudication.

While the first rule applies to appointment, removal, allowances, obligations, the second rule was made to focus on the welfare of the public which was to be operated directly by the public officials or could have been delegated by them and carried out under their authority. Private agencies could also have been appointed to execute such rules. The third rule makes it clear that the highest administrative court in the land is Conseil d’Etat. Infringement of any rights or causing of injury associated with the private citizens of the land would directly be handled by the administrative courts.

Characteristics of Droit Administratif

From the above highlights about Droit Administratif, what can be inferred are some of the characteristic features that this administrative law possesses. They are listed below :

The matters that are associated with the State and administration oriented litigation are to be decided by the administrative courts and not by the ordinary courts of the land.
While deciding matters concerning litigation as mentioned above, the rules that are applied in the same are developed from the courts itself.
The deciding agency in matters of jurisdiction conflicts between the two courts, namely the administrative and ordinary, is known as Tribunal des Conflicts.
The Droit Administratif acts as a safeguard for the government officials from the authority of the ordinary courts.
The development of Conseil d’Etat is not a one day plan but the product of a long going process surrounding the French Revolution. It played the role of both a consulting and an adjudicating body.

The characteristics mentioned above give a summary as to the application of Droit Administratif. They separate the French administrative structure with that of other common law countries. French administrative law includes activities more than just delegation and adjudication that affects public administration. The separation of courts for two classes of people, as the Droit Administratif lays down, supports specificity in carrying out the adjudicating procedure. The explanation it provides is that the government officials carry with them the knowledge of the process in any administrative action hence, they are eligible to be ruled by administrative courts.

In the case of citizens, such things do not apply hence, they are subjected to ordinary courts. The French administrative system also lacks the usage or the principle of natural justice on aspects that there lies no application of the rule of Audi Alteram Partem for the French system believes that requirement of defending oneself is not required in the adjudicating procedure. France also abandoned the immunity of the State from tort liability as is there in English jurisprudence. The interference of the administrative courts with that of ordinary courts is also not permitted in the atmosphere of France. The burden of precedent laws does not apply in the case of the French administrative system for it is based on the judge-made laws only.

Rule of Law and Droit Administratif: A Comparison

Dicey’s concept of rule of law delivers the supremacy of law holding that no man is above law or can produce any judgement above the established law of the land. Droit Administratif evolved as a concept opposing the very formulation by Dicey. Dicey preferred the usage of the term regime administrator while explaining Droit Administratif. The formation of Conseil d’Etat was made to provide limits to the exercise of unrestricted power of the executive. But in doing the same, the judiciary was not able to gain recognition for the members who were elected to abide by the checks of the executive.

The Conseil d’Etat was merely an advisory body for the ministers who were the real judges. No public sessions were held and the power to deliver judgments was also absent from the body. What the body reflected was based on the government’s perspective only. This was what the Dicey concept of rule of law opposed. If this argument, as laid down by Dicey, is viewed, one cannot easily point out that Dicey is wrong on his grounds. The judiciary is supposed to be separated from the executive on several aspects. It is correct to say that these organs of the government are independently independent but not interdependently independent. The motive with which Napoleon Bonaparte formulated the adjudicating body was not transparent enough if it did not abide by the concept of rule of law which is universal in nature. According to Dicey, the Droit Administratif was based on two beliefs:

The government and its servants possess special and privileged rights as compared to any normal citizen of the nation. Thus, there lies no equality as to the rights available to government officials and the citizens of the same nation.
Government officials are not subjected to the jurisdiction of the courts in the nation.

What Dicey claims is that the essence of the establishment of the judiciary is lost if rule of law is opposed. The administrative law which fails to abide by the same and evolved on the basis of its own formulated rule, would play a significant role in suppressing the executive and therefore, the administrative set up in England is much more developed compared to that of France. The Droit Administratif established different rules for different levels of people in society. To go along with what Dicey suggested, this division in society was against equality. The perception of Dicey and that of the Droit Administratif were completely opposite to each other. While one promotes equality in every stratum of the society, the other wants an established administrative system providing specific power to some leaving behind the other. Both have their own merits and demerits as several scholars observed. The presence of administrative law was there in England and France. The idea behind the evolution of the branch of law is different for both.

Conclusion

In the present scenario, as the world is setting into complexities in terms of government, there are a huge number of changes brought into the administrative process. For any country, administration plays an important role because it is what helps in the functioning of any kind of activity in the nation. A lot of terms associated with the French administrative system have amounted to being misleading for the exercise of public administration. But the fact that there needs to be the presence of certain principles in order to be applicable in public administration is proven by the existence of Droit Administratif. It is on this ground that the establishment of Droit Administratif has proved to be beckoning in nature. Lacks in the system and absence of certain factors would not be enough to counter the concept of Droit Administratif for this alone can be a wheel to efficiently carry out public administration.