Transcript AdmInistrative Law (part I)

ADMINISTRATIVE LAW
(PART I)
Class: 1
INTRODUCTION TO ADM. LAW:
1. adm. law is being taught in many institutions of higher
education as well as in numeorus special institutes,
2. for a long time adm. law have been a subject of research
and it becomes more and more popular as a subject of
teaching,
3. the role of adm. law in contemporary states and society
is so great and obvious that it seems to be needless to
develop any further arguments to prove it,
4.
a modern state cannot function without adm. law and,
public administration cannot function without
administrative law,
5. adm. law involves the study of how those parts of our
system of government that are neither legislatures nor
courts make decisions. These entities, referred to as
administrative bodies, are normally located in the executive
branch of government and are usually charged with the
day–to–day details of governing,
6. according to Professor T. Rakoff from Harvard Law School
”Administrative law…[controls] how government
operates.”
ADM. LAW AND ITS POSITION IN THE LEGAL
SYSTEM
 Adm. law is the branch of legal system.
 Adm. law belongs to a broader category of public
law.
 Adm. law, especially together with constitutional
law, determines not only the existence and
organisation of public administration but also the
range, principles and forms of its activity.
ADMINISTRATIVE LAW
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is the most extensive and flexible body of law controlling the legal situation of
both individuals and almost all other subjects operating within the state
usually contains imperative norms (absolutely binding norms – ius cogens)
is usually supported by public power
has a broad scope
is difficult to codify
has rules which are inserted in acts of different rank, enacted by various
organs, in different periods of time
is not politically neutral (in the words of Ronald Dworkin it is a political
enterprise)
is difficult to interpret
includes local law binding on the territory of the organ issuing it.
Internal division
of administrative law
Administrative law
Structural a.l.
(who is acting?)
Substantive a.l.
(what is the object
of the action?)
Procedural a.l.
(how are
they acting?)
MAJOR FIELDS OF ADMINISTRATIVE LAW:
1.
Organizational administrative law, concerning the organization
of administrative authorities, institutions and agencies, as well as
rules regulating the distribution of tasks and competences, and
is linked with civil service law;
2.
Substantive administrative law, concerning the competences
of specific entities of administration involving the rights of
citizens, as well as rights and obligations of citizens;
3.
Formal administrative law, called administrative procedure,
is concerned with developing rules and procedures for
administrative agencies or administrative courts.
1. SUBSTANTIVE ADM. LAW:
the most extensive group of norms,
2. includes statutory rights and duties created either when the
authourity of law itself issues statutes, orders or acts of local
law; or when the appropriate organ of the public governmental
or self-governmental administration issues an administrative
act (e.g. administrative decisions),
3. is comprised of many and diverse norms, such as laws on
citizens, police, passports, foreigners, population evidence,
regulations regarding acts under martial status education and
many others.
1.
2. ORGANIZATIONAL ADM. LAW:
 Regulates a widely understood structure of public administration:
structures of public administration bodies,
forms of their internal interrelationships,
rules of appointing and dismissing the organs, including agents
and other authorized persons,
4. systems for dividing up the functional competences of the organs,
5. principles for organizing the offices as auxiliary units of organs.
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3. ADM. PROCEDURAL LAW
1. represents the form of proceedings in individual administrative
cases adjudicating on public laws and legal responsibilities in the
form of administrative decisions
2.Comprises so-called administrative procedural norms, regulates
the function of public administration organs, primarily including
the Polish Code of Administrative Proceedings and the function
of administrative courts (judicial administrative trail).
Litigious norms are regulated in the statute from 30th day of
August 2002 on proceedings before the Administrative courts.
THE NATURE OF ADM. LAW:
 adm. law in its modern form is a relatively young branch of law
 administrative law evolved into a modern branch of law at the
turn of 19th century
 the idea of creating this branch of law was to protect people
from arbitrary action of public authorities
 public law in the modern concept which offers an account in
governing authority in legal terms and is formed by reworking
the medieval idea of the sovereign state. The nature of the
concept is explain mainly through examination of the writing of
Bodin, Pufendorf and Rousseau
THE HISTORY OF ADM. LAW:
 the history of administrative law on Europe reflects the emergence and
evolution of administrative power within the nation state over the last and
two half centuries
 for the Continental European legal theory and tradition, administrative law
is founded on two principles, emanating from the era of the French
Revolution: on the one hand on the principle of autonomy and self-reliance,
meaning that public administration has its own, distinctive legal system; on
the other hand, administrative law in Continental Europe is based on the
principle of the rule of law, whereby also the public sector, the State have to
comply to the provisions of law
Administrative law
unification
deetatization
europeanization
international treaties
globalization
liberalization
privatization of public tasks
EU standards
EU integration
rule of law
ADM. LAW IN THE INTERNATIONAL, EU AND
NATIONAL PERSPECTIVE
Nowadays, adm. law operates in the international level at
a legal and institutional vacuum; the constitutional
framework, in which the domestic administrative law
operates, is missing. It appears, however, that
international law is elaborating mechanisms and
procedures for its ‘constitutionalisation’, mainly through
rules of a constitutional content and nature.
Differences between domestic and European administrative law:
a) domestic administrative law is founded on one, and single authority, the
Government. European administrative law, on the other hand, recognizes two
authorities, the Council and the Commission, which preside over the public
administration at the EU level; it has to be born in mind also that the composition of
the EU is complex, as it combines both European and national/domestic (i.e. of
member-states) administrative bodies.
b) domestic administrative law is characterized by a bi-polar relationship between
the citizen and the Administration. The European administrative law is
characterized by a tri-polar relationship, between citizens, the Commission and the
national governments.
c) domestic administrative law forms a special branch of law, and public
administration may impose it directly, while the enforcement of European
administrative law is guaranteed either through the jurisprudence of the ECJ
or with the assistance of member-states’ public administration.
d) domestic administrative law is based on the national/domestic
Constitution, and the legal order that it [the Constitution] describes. The
European administrative law, due to the lack of a Constitution, draws its
constitutional foundations from the Treaties, the general principles of law
and the common legal traditions of member-states in the area of
administrative law.
Apart from the differences and particularities that global adm. law
presents vis-à-vis traditional domestic adm. law, it also demonstrates
important similarities:
 it regulates the relations of an organization with regulatory
competences and powers, that issues decisions and acts (or
omissions) directed both to its members but also to third parties,
while there is also a – more or less developed- system of judicial
review and protection for resolving or mediating disputes arising
from the operation of the organization
 global adm. law distinguishes itself from domestic on yet another
crucial point, the lack of exclusive jurisdiction
Thank you for your attention!
1. Administrative law and Policy of the European Union, Hoffman
H.C.H. , Rowe G.C., Türk A., Oxford University Press 2012.
2. Duniewska Z., Administrative law, [in:] Introduction to Polish law,
Wyrozumska A., (ed.), Łódź 2005.
3. Metzler E.L., The Growth and Development of Administrative. Law,
avaiable at:
http://scholarship.law.marquette.edu/cgi/viewcontent.cgi?article=3
911&context=mulr
4. Możdzeń-Marcinkowski M., Introduction to Polish administrative
law, Second revised edition, C.H. Beck, Warszawa 2012.