RAJIV GANDHI NATIONAL UNIVERSITY OF LAW

Droit Administratiff and adoption and various contries

Submitted by – Aayushman Sharma Roll No. – 19006 (grp 2)

Submitted to – Dr. Jaswinder Kaur

 ACKNOWLEDGEMEDNT

I would like to take this opportunity to express my heartfelt gratitude and deep regard to Dr.
Jaswinder Kaur for her guidance and valuable feedback and constant support throughout the
duration of project. Her suggestions were of monumental help in the rough work of my project. I
would also like to express my gratitude to Rajiv Gandhi National University of Law, Patiala for
giving me the topic that enriched my knowledge. I would also like to thank the library staff for
constant support. Lastly, I am thankful to my parents and friends for their constant support and
coordination in the completion of research work
TABLE OF CONTENTS
Introduction ..................................................................................................................................... 4

Characterstics Of Droit Administratif ............................................................................................. 6

Adoption And Working Of Droit Administratif In Common Law Countries ................................ 7

ADOPTION AND WORKING OF DROIT ADMINISTRATIF IN FRANCE .................. 8

ADOPTION AND WORKING OF DROIT ADMINISTRATIF IN UK ........................... 11

ADOPTION AND WORKING OF DROIT ADMINISTRATIF IN USA ......................... 13

Australia: ................................................................................................................................. 13

Canada: .................................................................................................................................... 14

Germany: ................................................................................................................................. 14

Conclusion .................................................................................................................................... 15

References ..................................................................................................................................... 16
 INTRODUCTION

Administrative law (also known as regulatory law) is a body of law that originates from the activity
of government administrative agencies. which is distinct from the law of private individuals, this
is derived from the private sector's activities Individuals, corporations, and non-governmental
organizations are all involved. a government organization Rulemaking, adjudication, and other
forms of action are all possible. or the implementation of a specific regulatory requirement agenda.
Administrative law is a branch of law that deals with the administration of government. a type of
public law As a set of rules. Administrative law is concerned with the decision-making of
administrative units within a government, government (including courts, boards, and
commissions) commissions) that are a component of a national organization a regulatory regime
in sectors such as manufacturing, international trade Environment, taxation, and broadcasting are
all issues that need to be addressed. immigration, as well as transportation.1

As governments developed in size and power, a framework of rules governing public

administration became necessary to maintain order, assure efficiency, sustain the economy, and
maintain control over a growing bureaucracy. Administrative law grew significantly during the
twentieth century as legislative bodies around the world established more governmental agencies
to regulate the increasingly complex social, economic, and political spheres of human interaction
and to promote the development of individuals, families, and communities. The majority of
countries that follow common law principles have adopted judicial review procedures that limit
the reviewability of decisions made by administrative law agencies. These processes are frequently
used in conjunction with legislation or other common law principles that define standards for good
rulemaking. Administrative law can also be used to challenge decisions made by so-called quasi-
public authorities like non-profit corporations, disciplinary boards, and other decision-making
bodies that affect the legal rights of members of a specific group or institution.2

While administrative decision-making organisations are frequently governed by bigger

governmental institutions, their judgments may be subject to judicial review by a court of general

1
http://www.newworldencyclopedia.org/entry/Admi nistrative_law
2
http://www.newworldencyclopedia.org/entry/Admi nistrative_law
jurisdiction under some judicial review basis based on due process (United States) or fundamental
justice (United Kingdom) (canada). It is important to emphasise that judicial review of an
administrative decision is not the same as an appeal. In a review of a decision, the court will simply
consider the procedure by which the decision was reached, whereas in an appeal, the decision's
correctness will be called into question. In understanding administrative law in common law
countries, this distinction is critical. The scope of judicial review may be confined to
considerations of fairness or whether the administrative action was taken in violation of the law.

A reviewing court may set aside an administrative judgement if it is plainly irrational (under
Canadian law), Wednesbury unreasonable (under British law), or arbitrary and capricious (under
both laws) (under u. S. Administrative procedure act and new york state law). The supreme court
of India has acknowledged two more grounds of judicial review, namely legitimate expectation
and proportionality, which were recognised but not applied by English courts.

The royal prerogative writs of English law, such as the writ of mandamus and the writ of certiorari,
were initially developed from the royal prerogative writs of English law. The power to issue such
writs is constitutionally guaranteed in some common law jurisdictions, such as India and Pakistan.
The existence in France of a body of administrative law (le droit administratif), separate and
distinct from the civil law, dealing primarily with the competence of administrative authorities and
regulating their relations with one another and with private individuals, as well as a separate and
distinct body of tribunals charged with deciding disputes There are well-established rules of law
and practise in these countries regarding the administrative authorities' competence, their relations
with private individuals, and the state's and its agents' liability for injuries to private individuals,
but they do not constitute a separate and distinct body of law in their entirety, as the French droit
administratif does.

The main research questions which can be drawn from the paper are:

• What is administrative law?

• What is droit administratiff?
• How is droit administratiff adopted in UK?
• How is droit administratiff adopted in Canada?
• How is droit administratiff adopted in USA?
 CHARACTERSTICS OF DROIT ADMINISTRATIF

1. Matters concerning the state and administrative litigation are decided by the administrative
courts and not by the ordinary courts of the land.

2. In deciding matters concerning the State and administrative litigation, special rules as developed
by the administrative courts are applied.

3. Conflict of jurisdiction between ordinary courts and administrative courts are decides by the
agency known as Tribunal des Conflits.

4. It protects the government officials from the control of ordinary courts.

5. Counseil d’Etat which is the supreme administrative court is not a priori invention but is the
product of historical process with deep roots. It is not merely an adjudicatory body but is also a
consultative body. In 1979, it considered 147 draft laws which were placed before the Parliament
in 1980 and also considered 489 draft decrees.3

3
Benard Ducamin: Role of Counseil d’Etat in Drafting Legislation, translated by William Dale, International and
Comparative Law Quarterly, Vol. 30, Part 4, Oct. 1981, p.882
ADOPTION AND WORKING OF DROIT ADMINISTRATIF IN COMMON LAW
COUNTRIES

In general, most countries that follow common law principles have adopted judicial review
procedures that limit the reviewability of decisions made by administrative law agencies. These
processes are frequently used in conjunction with legislation or other common law principles that
define standards for good rulemaking. Administrative law can also be used to challenge decisions
made by so-called quasi-public authorities like non-profit corporations, disciplinary boards, and
other decision-making bodies that affect the legal rights of members of a specific group or
institution.

While administrative decision-making organisations are frequently governed by bigger

governmental institutions, their judgments may be subject to judicial review by a court of general
jurisdiction under some judicial review basis based on due process (United States) or fundamental
justice (United Kingdom) (canada). It is possible to seek judicial review of an administrative
decision. It should be highlighted that the role of the conseil detat in the formulation of legislation,
translated by William Dale, International and Comparative Law Quarterly, is not the same as an
appeal. In a review of a decision, the court will simply consider the procedure by which the
decision was reached, whereas in an appeal, the decision's correctness will be called into question.
In understanding administrative law in common law countries, this distinction is critical. The scope
of judicial review may be confined to considerations of fairness or whether the administrative
action was taken in violation of the law. A reviewing court may set aside an administrative
judgement if it is plainly irrational (under Canadian law), Wednesbury unreasonable (under British
law), or arbitrary and capricious (under both laws) (under u. S. Administrative procedure act and
new york state law). 4

4
Dr. J.J.R. Upadhyaya: Administrative Law, 7th ed. , 2011; Central Law Agency, (Allahabad) at
p.14
The supreme court of India has acknowledged two more grounds of judicial review, namely
legitimate expectation and proportionality, which were recognised but not applied by English
courts. The royal prerogative writs of English law, such as the writ of mandamus and the writ of
certiorari, were initially developed from the royal prerogative writs of English law. The authority
to issue such administrative law 325 writs is a constitutionally guaranteed prerogative in some
common law jurisdictions, such as India and Pakistan. This authority is regarded as essential to
judicial review and a feature of the independent judiciary.5

ADOPTION AND WORKING OF DROIT ADMINISTRATIF IN FRANCE

French administrative law or droit administrative is a branch of law which deals with the powers
and duties of various administrative agencies and officials. According to dicey , droit administratif
is that portion of french law which determines:

1. Position and liabilities of state officials

2. Rights and liabilities of private individuals in their dealings with the officials as
representatives of the state.

3. Procedure by which these rights and duties are enforced.

According to him, this system is based on two principles, namely:

1. An individual in his dealings with the State does not, according to the French legal
system, stand on the same footing as that on which he stands in dealing with his neighbour.

2. The government and its officials are independent of and free from jurisdiction of the
ordinary civil courts.

From the above two principles, the following consequences ensue:

5
Dr. J.J.R. Upadhyaya: Administrative Law, 7th ed. , 2011; Central Law Agency, (Allahabad) at
p.14
 1. The relation of the government and its officials towards private citizens must be
regulated by a body of rules which may differ considerably from the laws which govern
the relation of one private person to another.

2. The ordinary courts which determine disputes between private individuals have no
jurisdiction to decide disputes between private individuals have no jurisdiction to decide
disputes between private individual and the state but they are determined by administrative
courts.

3. In case of conflict of jurisdiction between the two sets of courts, the said dispute will be
decided by the said administrative court.

4. Droit administrative has a tendency to protect from the supervision or control of the
ordinary law courts any servant of the state who is guilty of an act, however illegal, whilst
acting bona fide in obedience to the orders of his superiors and in discharge of his official
duties.

Dicey did not favour droit administrative. According to him, the object of two sets of courts and
two types of laws is to protect the government officials from the consequences of their acts.
According to him, there was no rule of law in France. In view of that there was:

1. Supremacy of law,

2. Equality before the law,

There was much more effective control over administrative action in England than in France.
However, Dicey was not right in drawing certain inferences. As a matter of fact, Counseil d’Etat
afforded much more protection to the aggrieved parties in France than the regular courts could
afford to such persons in England.

The popular conception that in France, the state officials in their official dealings with private
citizens are above the law, or are a law unto them, is erroneous. The official transgressing the
bounds of law or acting contrary to the rules of natural justice in his dealings with the citizen is
subject to a greater and more effective control in France than in some Anglo-Saxon countries.
Again, the doctrine of sovereign immunity which shows the backwardness of AngloAmerican law
is absent in the French system. A close analysis suggests that sovereignty and responsibility are
mutually exclusive notions. Admission to full state liability to the subject in France is the
miraculous change in the law affected by the jurisprudence evolved by the Counseil d’Etat. No
statute stated it, only the judge did declare it in a series of decisions of Counseil d’Etat. No law in
France has yet decreed the liability of the French state. But the law is there in flesh and blood
flowing from the decision of Counseil d’Etat.6

6
.K. Takwani: Lectures on Administrative Law, 4th ed., 2008; Eastern Book Co
ADOPTION AND WORKING OF DROIT ADMINISTRATIF IN UK

Administrative law as a separate area of law was not widely recognised in England until the
beginning of the twentieth century. Dicey outright rejected the proposal in 1885. He noted that
there was no administrative law in England in his famous thesis on the rule of law. He had told
Robson that in England, we know nothing about administrative law and that we don't want to learn
anything about it. However, he did so while ignoring the existence of administrative discretion
and administrative justice, both of which were in use at the time. Discretionary powers were
bestowed on executive authorities and administrative tribunals in a huge number of statutes that
should not be challenged in ordinary courts of law. He, on the other hand, completely ignored
them.

In 1887, his contemporary Maitland observed: If you take up a present book of the reports of the
queens bench division, you will discover that almost half of the cases reported having to do with
administrative law principles. He went on to say, "We are becoming a heavily regulated nation,
ruled by a variety of councils, boards, and officers, both central and local, high and low, exercising
the powers delegated to them by modern statutes." However, as Taylor observed, before August
1914, a law-abiding Englishman could go about his business and rarely notice the state's existence
beyond the post office and the policeman in ridge v baldwin.0 Lord Reid also stated, "We don't
have an established system of administrative law—perhaps because we didn't need it until lately."
Dicey, on the other hand, changed his mind in 1914.

In the last edition of his famous work Law and the Constitution, published in 1915, he conceded
that some parts of droit had invaded England during the previous thirty years as a result of
increased duties and authority of english officials. Even then, he refused to acknowledge that
administrative law existed in England. However, following two House of Lords decisions in board
of education v rice31 and local government board v alridge, he observed in his article The
Development of Administrative Law in England that legislation had conferred a significant
amount of quasijudicial authority on the administration, which was a significant step towards the
introduction of administrative law in England. Unfortunately, dicey misread the scope and ambit
of administrative law, according to friedmann. Administrative law, he believed, was incompatible
with maintaining the rule of law. As a result, he excluded administrative law and an unique system
of administrative courts from his study of the rule of law. According to griffith and street, dicey's
conservative perspective had a significant impact on the study of administrative law. Of course,
scholars eventually made conscious efforts to learn the truth. Even yet, they were only interested
in two aspects of administrative law: delegated legislation and administrative adjudication. Even
in 1935, Lord Hewart, England's Chief Justice, referred to administrative law as "continental
jargon."

The British government appointed the committee on ministers powers, headed by Lord
Donoughmore, in 1929 to investigate the problems of delegated legislation and the judicial and
quasi-judicial powers exercised by officers appointed by ministers, and to recommend effective
steps and appropriate safeguards to ensure the supremacy of the rule of law. The Donoughmore
Committee submitted its findings in 1932, including recommendations for better publishing and
oversight of subordinate legislation, which parliament approved with the passing of the Statutory
Instruments Act of 1946.

The Crown Proceedings Act, passed by the British parliament in 1947, rendered the government
accountable for damages in circumstances of tortuous and contractual obligation. As a result of the
loss of the idea that the monarch can do no wrong, the scope of administrative law in England was
greatly broadened. For greater control and supervision of administrative decisions, the tribunals
and inquiries act was passed in 1958, and the decisions of administrative authorities and tribunals
were made subject to appeal and supervisory jurisdiction of normal courts of law.

Government social and economic policies had a considerable impact on private rights, housing,
employment, planning, education, health, and a variety of other issues in the twentieth century.
Neither the statute nor the crown courts were able to provide adequate remedies for the offended
parties. As a result, there has been an increase in delegated legislation as well as tribunalization.
Lord denning declared in Breen v amalgamated engg.

Union that "it may now truly be considered that we have evolved system of administrative law."
Lord Diplock went even farther, claiming that recent developments in England had resulted in a
system of administrative law that was virtually as broad in breadth as France's droit administratif.
Some British academics argued for the importation of the notion of droit administratif and the
counseil detat of the French legal system to England, while others opposed the idea.
ADOPTION AND WORKING OF DROIT ADMINISTRATIF IN USA
Administrative law existed in the United States in the 18th century, when the first federal
administrative law was codified in a statute in 1789, but it grew quickly with the passage of the
interstate commerce act in 1877. Frank Goodnow wrote a book on comparative administrative law
in 1893, and another book on United States administrative law concepts was released in 1905. The
casebook on administrative law by Ernst Friedrichs was released in 1911. Administrative law has
piqued the interest of both the bench and the lawyers.7

President Elihu Root cautioned the public in 1946 in his address to the American Bar Association,
saying, "There is one unique field of law, the expansion of which has obviously become
unavoidable." We are about to embark on the building of a body of administrative law that will be
substantially different from the old techniques of regulation by specific acts enforced by the courts
in terms of its mechanism, remedies, and required protections....

If we want to maintain a government with restricted powers, these regulatory institutions must be
regulated as well... Unfortunately, the bar's leaders disregarded this excellent counsel's guidance.
Administrative bodies' powers became stronger by the day, and they eventually formed a fourth
department of government.

It was thought important to take effective steps in this field following the new deal. In 1933, a
special committee was formed to advocate for more judicial oversight of administrative bodies.
After the roscoe pound committee's report in 1938 and the attorney general's committee's report in
1939, the Administrative Procedure Act of 1946 was enacted, which included numerous provisions
relating to judicial control over administrative operations.

AUSTRALIA:
Australia has well-developed ombudsman systems and freedom of information laws, both of which
have been influenced by similar developments elsewhere. Its notice and comment procedures for
enacting delegated legislation are similar to those in the United States. The evolution of Australia's

7
Principles of Administrative Law (1963)
parliamentary democracy, which loosely follows the Westminster system of responsibility and
accountability, continues to shape its borrowings from elsewhere.

CANADA:
The body of law in Canada that deals with the activities and operations of governments and
governmental agencies is known as administrative law. The legislation, in other words, governs
how courts can review judgments made by administrative decision-makers (adm) such as a board,
tribunal, commission, agency, or ministry. The body of law is largely concerned with substantive
review (the establishment and implementation of a standard of review) and procedural fairness
considerations (the enforcement of participatory rights).

GERMANY:
The federal administrative court bundesverwaltungsgericht is Germany's highest administrative
court for most subjects. In the disciplines of social security law (bundessozialgericht) and tax law
(bundessteuergericht), there are federal courts with unique authority (bundesfinanzhof). The
relationship between a citizen or private person and an official entity, or between two official
entities, is governed by public law (offentliches recht).

A law determining taxes, for example, is always part of public law, as are relations between a
federation's (bund) public power and a state's public authority (land). The so-called uber-
unterordnungs-verhaltnis is the foundation of most public law ("superiority inferiority
relationship"). That is, a public authority may determine what must be done without the citizen's
approval. (For example, if a government official instructs a citizen to pay taxes, the citizen must
comply, even though there is no agreement.) In exchange, the authority must follow the law and
may only issue orders if authorised by law.
 CONCLUSION

For the resolution of matters involving fiscal and labour rules, the Indian government is
considering establishing administrative courts modelled after the French model. In France,
administrative tribunals have formed as a separate system from conventional courts, which do not
have authority over administrative matters. The French administrative law is known as Droit
administratif. The judicial and administrative branches of government are maintained distinct in
this arrangement.8 An administrative court, not a regular court, is where a person seeking remedy
against the government must go. As a result of France's administrative law system, courts do not
interfere with administrative authorities' operations. The conseil detat has been described as both
a defender of civil freedoms and a watchdog over administrative morality. Individual rights have
evolved to be seen as being effectively protected by the system against government
authoritarianism.

However, administrative courts modelled after the French conseil detat are required to function as
a check on the administration's arbitrary actions. The establishment of a separate administrative
court hierarchy establishes a clear distinction between the civil and administrative law worlds. In
both branches of law, there are different legal reports. The public sector in India is growing, and
the government is gaining more control over community life. There is a push to create a society
that is more equitable. In this regard, India should build a well-organized administrative law
system capable of incorporating modern public relations into the legal system. While Indian
administrative law is primarily common law in nature because the government is subject to court
oversight, it has incorporated some aspects of droit administratif, as evidenced by the rising
tribunalization of decision-making. In light of the limitations of judicial review, there is a strong
need for an independent institution to support the system of judicial oversight over administrative
activity in order to lessen the public's sense of grievance.

8
Administrative Law in India (1961)
 REFERENCES

• Dr. J.J.R. Upadhyaya: Administrative Law, 7th ed. , 2011; Central Law Agency,
(Allahabad)
• M.P. Jain & SN Jain: Principles of Administrative Law, 6th ed. Reprint, 2010; Lexis Nexis
Butterworths Wadhwa, (Nagpur)
• AIR 1984 SC 873
• Administrative Law in India (1961)
• C.K. Takwani: Lectures on Administrative Law, 4th ed., 2008; Eastern Book Co.,
(Lucknow)
• IRC v National Federation of Self Employed, 1982 AC 167
• Principles of Administrative Law (1963)
• Robson, Administrative law in England
• Maitland, Constitutional history of England
• American Administrative law
• C.K. Takwani: Lectures on Administrative Law, 4th ed., 2008; Eastern Book Co
• http://www.lex-warrier.in/wp-content/uploads/2019/02/Droit-administratif-adoption-in-
India-UK-USA-France.pdf