ADMINISTRATIVE LAW

Jalandoni.Koga.Laidan.Lazaro

I. The Law Nobody Knows

1. Administrative Law
Origin : Droit administratif (French)
- it is a literal translation
- the rule making power of the executive
- Administrative law is not exhausted in executive function since judges are also ‘executive officials.
They help execute laws and most important props of executive power
- Judicial Administration is a form of general administration and is apart from classical judicial function
of umpiring litigations.
- Judges also exercises Non-Contentious Jurisdiction
>term to disguise that judges have discharged administrative functions
> examples: registering deeds and wills, performing marriage ceremonies, issuing
licenses, liquidating receiverships business receiverships
(these functions have not traditionally been regarded as instances of administrative law)

2. Administrative Agency
A. Administrative agencies judge as well as execute decrees.
-Vested with power to dispose controversies and to issue orders but quasi- judicial only.
- Controversy is either between administrative agency and private citizen or
agency may judge between the claims of two private citizens

Distinctions:

Ordinary Law Administrative Law

Jay walker run over by a car Mechanic while working on a car gets injured
and sues owner appeals to Workmen’s Compensation Board

Court abates a public nuisance by injunction at Board of Health abates a public nuisance by
the suit of attorney general order after investigation by one of its agents

Court (Judicial) Administrative Agency (Quasi-Judicial)

Procedure :
highly complex and refined relatively informal and free from technicalities

Trial Hearing

Method of Enforcement:
Judgment award or order
Spasmodic and intermittent and depended Preventive measures, process of continuous
primarily upon threats or penalties supervision

B. Administrative agencies also legislate.

* Quasi-legislative - rule making NOT law making.

Key Points:
1. Administrative Law is amorphous
-it is concerned with executive power outside the traditional executive departments
-legislative power outside traditional legislative organs
-judicial power outside ordinary courts

2. Administrative Agency
-will be perceived to be a body that legislates as well as adjudicates by an express rather than an
implied delegation of power

II. DROIT ADMINISTRATIF

 From its very birth, administrative law has been regarded by lawyers as an illegitimate child
 Albert Venn Dicey (February 4, 1835-April 7, 1922)
o Facts
 British jurist
 Leading constitutional theorist/scholar
 Graduate of Balliol College, Oxford
 Became a lawyer in 1863
 Appointed to the Vinerian
 Chair of English Law at Oxford in 1882
o Administrative Law
 a law of special status and special executive privilege which had the result of
withdrawing all executive officers from responsibility to the ordinary law of the
land.
 Administrative law of the common-law countries vs. Droit adminstratif of
Continental countries.
 Divergency of political conceptions
 Law administered by SPECIAL ADMINISTRATIVE COURTS which executive
acts are brought into question.
 Between private individuals = ORDINARY COURTS public official =
ADMINISTRATIVE COURTS
 An Introduction to the Study of the Law of the Constitution (1885)
o was under attack by modern incursions against the Rule of Law
o depend on the sovereignty of the Parliament
o impartiality of courts free from government interference
o supremacy of common law
 England
1. Executive Supremacy
a. Governed by the Rule of Law
b. This system is usually adopted by the common-law countries
c. Common law refers to the body of those principles and rules of action which
derive their authority solely from usages and customs
d. Official action could be controlled through writs of injunction, mandamus, and
certiorari issued against subordinate officers and tribunals
e. KING COULD DO NO WRONG
f. Personal suits against officials = no other way of making effective claim
g. Officials entirely immune from suit = JUDGES, POLICE OFFICERS, etc.
2. History
a. Parliament and courts of common law emerged triumphant
b. Jurisdiction of king’s council curbed
c. Common law courts = ultimate interpreters of the law of the land
d. Administrative duties vested in judicial officers
3. Canon Rule of the Law
a. All officers of the state should be responsible for acts in excess of power
even if honestly committed.
b. Always amenable to the jurisdiction of the ordinary courts of common law.

4. Administrative Law
a. Legislation was enacted making them the final judges of the nature and
extent of their own powers = courts have no power to determine if acts are
ultra vires.
b. Appeal → Government departments = highest executive & judiciary
authorities
c. Administrative finality: no appeal to the ordinary courts (droit administratif with
a vengeance!) = highest English courts bow out
 France
1. Droit administrative
 The law (usually found in Continental countries) administered by special
administrative courts having jurisdiction of all controversies in which
executive acts are brought into question
2. Before French Revolution
 King had triumphed towards the end of the 17th century
 However, he had to contend with parlements - bodies that had exercised
both ordinary judicial functions and administrative duties, hold office by
purchase, oppose royal pretensions and administrative reforms.
 SOLUTION: King ousted their jurisdiction by transferring it to the agents
of the King’s council, Intendants.
 CONSEIL DU ROI
 A special administrative jurisdiction was developed under this
council
 All litigation arising from royal decrees should be dealt with by
king’s council or its intendants in provinces.
3. After French Revolution
 CONSTITUTION OF YEAR VIII created the Council State: power of
“settling such difficulties as arise in administrative matters”
 CONSTITUTION OF 1971 “separation of powers”: courts should not
interfere with administrative action
 ARTICLE 75 Government agencies other than ministers cannot be
prosecuted for acts related to their duties except by resolution of the
Council of state.
 Commission du Contentieux: power to submit reports on pending
complaints but such were not binding on the Council, such justice was a
matter of grace.
 French administrative services grew in number, variety and complexity
→ regular form of judicial review →
 Council of State reorganized as a supreme administrative tribunal →
minister ≠ judge
 Injured citizens can seek damages not only for abuse of power but also
for simple annulment pour exces de pouvoir.
 Confidence of the French people: Council of State = Court of Cassation
(highest of the French ordinary courts)
 Council of the State combined protection of private rights with public
interest.
 JUDGES: no security of tenure, not participants in the active
administration.
4. France & Administrative law
 Imperfections of the French system of administrative supremacy:
a)Court of Conflicts
b)Actes d’ autorite’ and Actes de gestion
c)Exception d’illegalite’
d)Fautes personalles and fautes de service
5. United States & Administrative Law
 Administrative agencies had been established almost as rapidly as in
England and elsewhere.
 Constitution was held to embody the separation of powers.
 Jurisdiction of courts as only “quasi-judicial” and “quasi-legislative”.
 Tendency was to sustain all delegations of legislative powers and review
the work of administrative agencies of QUESTIONS OF LAW only.
 Theory of Jurisdictional Fact fact upon which the very jurisdiction of
administrative agencies depended, enabled the courts to intervene.
 Rule of law and absolute reign of law √ few administrative services so
that few courts could supervise
 STATE CAN DO NO WRONG → distinction between corporate ( actes d’
autorite) and governmental (actes degestion) functions.
  Court of Claims established by the federal government giving citizens an
opportunity for suit in matters of contract.

III. New Equity

a. Administrative Law
•Conflict between the Administrative Agencies and the Ordinary Courts.
•Unclear and Incoherent Jurisdiction of Administrative Agencies
•Breakdown of Traditional Legal systems
•The Final Maturity of Law
•Executive is the Primary State Power
•Original function of government was to protect the people from external aggression and keep
the peace
•Need for a Strong Executive
b. Archaic Law
•Officials are Judges, Legislators and Executives
•Little Separation of Powers
•Administrative Law represents a return to Archaic Law
c. English Administrative Law
•“Dreaded” Star Chamber
–A court derived from the King’s Power
–To proceed against crime with little attention to procedure
•Court of Chancery
–“Equity”
–Undermined the Common-Law courts
–Did not proceed according with the course of Law
d. Administrative Law as a modern phenomenon
•Legislatures and Courts have been ill fitted to cope with contemporary social and economic
problems.
•Lack of Knowledge or Expertise
•A response to Complex Modern Problems
–Efficiency
–Expertise
–Experimentation
e. Conclusion
•The very Idea of Administration is the antithesis of Law.
•Law implies fixed dooms while administration involves constant adaptation of means to ends
•Final maturity of Law
•New Equity – to cope with development, there must constantly be new rules or laws, which
should be forward looking

IV. Administrative and Supremacy of Law

 Background
o The growth of administrative law, was generally viewed with alarm
o “Where interest, ingrained habits, traditions and ideals reinforce one another,
there are bound to be loud lamentations that the supremacy of law is being
threatened”
o Administrative Law had been familiar to the Continental Countries, but was still in
its formative stages in the US
o World War I:
o –Much dissatisfaction with the existing system
o –People demanded reform
 In England
o Appointment of a Royal Commission
–Administrative procedure should be regularized
–Administrative decisions and regulations should be published
Results:
 They could find no solution for all the alleged ills of administrative law
 Did not recommend that “administrative finality” be ended forever
  Merely proposed regulations on administrative procedure, and the
requirement of periodical publication of such procedures
o Two reforms that curb administrative action:
–Restore the reviewing powers of the ordinary courts or to create a special
administrative court in some form
–To require, before making any administrative regulation effective, that it receive
either the express or the tacit approval of the Parliament
•These are mutually exclusive
–Only one or the other
–Consent of the Parliamentary bars any review of acts ultra vires.
 In the US
o •Administrative law became a political issue
-The attacks were not so much against administrative law but NEW DEAL
administrative law
o Emergence of New Deal
–quasi-administrative law
–Judicial branch of the Federal Government was undermined
–Courts invoked the Constitution to save themselves
–Result: almost all early New Deal administrative agencies were invalidated
o •American Bar Association: “the existing state of affairs was more or less
inevitable or permanent”
 Elihu Root
–One of the most brilliant administrators in American history
–Some contributions
•Reorganization of the administrative system of the War Department
•Establishment of new procedures for promotion
–“The old doctrine prohibiting the delegation of legislative power has virtually
retired from the field, and given up the fight.”
-- … Americans realized that they cannot escape the reality in the legal system
 Key Figures
 A.V. Dicey
–“The rule of law had been compromised so gradually that public indignation was
never mobilized.”
 Chief Justice Gordon Hewart
–The New Despotism (1929)
claims that the rule of law is being undermined by the legislature, and that the rapidly
developing functions of commissions and ministries would soon result in the end of
English Democracy
 Carleton Kemp Allen
–Bureaucracy Triumphant (1931)
A “little brochure” that talked of the changing role and structure of the British
government brought about by the rising influence of administrators, and how such a
structure is contrary to the traditional form of government

Remember:

•“The judicial function does not cease to be judicial because it is exercised by an official called an
administrator, nor does the administrative function become judicial because it is entrusted to a judge.”
•Even the courts that are against administrative law are beginning to exercise administrative methods
in handling their businesses.
•Hence, taking into consideration the reality that the world changes fast and things get more
complicated; it seems inevitable that we will accept administrative law as the “ordinary law”.
•Difference between early and modern administrative law
–Early: imposed from above by the dominant power
–Modern: the administrative agency often represents the thrust from below in an effort to secure a
share in the stakes of government
 “The administrative law of today is the ordinary law of tomorrow.”