NATIONAL LAW UNIVERSITY, ODISHA

Administrative Law

Administrative Law In Common Law And Civil Law Systems: A Comparison

UNDER THE SUPERVISION OF:

DR. Rishika Khare

ASSISTANT PROFESSOR OF LAW,

NATIONAL LAW UNIVERSITY ODISHA

NAME OF THE STUDENT:

Ayush Singh
ROLL
NO.:006(2023,
LL.M)
 INTRODUCTION

Civil law system and Common law system are the two classifications that are used to classify the
judicial systems that are utilized by nations all over the globe. Comparatively, there are
approximately 80 countries that follow a common law structure, whereas there are approximately
150 nations that primarily adhere to civil law.

Legal Precedents, which can be found in the manner of printed judicial decisions, is given
primary weight in jurisdictions that use the common law system. This is the primary difference
between the two legal systems. In contrast, formalized legislation is the norm in countries that
follow the civil law system; however, these differences are not as clear-cut as they might first
appear. In point of fact, the legal systems of many nations incorporate aspects of common law
and civil law.
 CHAPTER-1

ADMINISTRATIVE LAW & IT’S DEFINING PRINCIPLES

1.1 Understanding Administrative law

Administrative law is the body of legislation that establishes the parameters within which
governmental administration functions. It stems from the requirement to establish and cultivate a
framework for public administration that is governed by law, a notion that is analogous to the
much more established concept of justice that is governed by law. Administrative law is
significant not only from a legal perspective, but also from a constitutional and political
perspective, given that administration includes the use of authority by the executive branch of the
government.1

There is no one definition of administrative law that is accepted by everyone,2 but logically
speaking, it could be considered to include the following: the organization, abilities,
responsibilities, and operations of authorities of public of all kinds involved in administering;
their interactions with each other as well as with residents and non-governmental bodies; legal
methods for managing public institutions; and the obligations and rights of officials.3 The body
of law that governs public health, education, housing, and other public services could, rationally
speaking, be considered a component of administrative law; however, due to the enormous
volume of this body of law, it is typically regarded as an auxiliary body of law.

Defining Principle

Administrative law seeks, as one of its primary goals, to promote administration that is not only
effective but also parsimonious and equitable. Administrative law ensures government agencies

1
Legal Information Institute, 'Administrative Law' (Cornell Law School, 23 January 2017)
https://www.law.cornell.edu/wex/administrative_law accessed 15 March 2023.
2
Ibid.
3
- AT, “Administrative Law -Scope, Definition and Emergence” (iPleadersJanuary 3, 2022)
<https://blog.ipleaders.in/administrative-law-1/> accessed March 11, 2023
work fairly and openly and provides remedy for persons and groups harmed by government
actions.4

Administrative law's procedural fairness & openness compels government entities to follow
natural justice. This involves giving people enough notice of government choices that impact
them, letting them speak, and making decisions fairly and impartially. Government agencies
must also follow their own rules and processes and not make arbitrary, capricious, or
discriminatory judgments.

4
Aslam MA, “Various Concepts of Administrative Law and Judicial Review” (Legal Service India - Law, Lawyers
and Legal Resources) <https://www.legalserviceindia.com/legal/article-4265-various-concepts-of-administrative-
law-and-judicial-review.html> accessed March 15, 2023
 CHAPTER-2

Historical Origin of Civil law system and Common law system

2.1 Civil Law System

The origin of civil law in a number of countries like Europe can be traced back to a set of
regulations developed by the Roman Emperor Justinian around the year 600 C.E. Comparable
judicial systems with their own distinct bodies of legislation are the end product of the gradual
development, over the course of many centuries, of authoritative legal rules founded on these
laws in a variety of countries. In contrast to common law judges, administrative court judges in
administrative law are generally subject to fewer regulations.5

Countries often have a written Constitution which includes codes for different areas such as
civil, corporate, administrative, tax, and constitutional law, establishing fundamental rights and
responsibilities. The provisions of the government are considered obligatory around the world.
While judges in commercial, criminal, and civil courts have limited capacity to make new
legislation, in practice, they typically adhere to prior judicial decisions rather than creating their
own. Both administrative and constitutional tribunals have the authority to declare rules and
regulations unconstitutional, also their rulings are binding on all.6 Usually, separate civil,
administrative and constitutional judicial systems are present to determine the constitutionality
of laws and administrative actions, as well as to interpret fundamental legal principles.7

Countries following the civil law system

5
John W. Head. “Justinian’s Corpus Juris Civilis in Comparative Perspective: Illuminating Key Differences
between the Civil, Common, and Chinese Legal Traditions.” (2013) Mediterranean Studies, vol. 21, no. 2, pp. 91–
121. JSTOR, <https://doi.org/10.5325/mediterraneanstu.21.2.0091.> accessed 12 Mar. 2023.
6
Sneha Mahawar and others, “What Is Civil Law” (iPleadersJune 17, 2022) <https://blog.ipleaders.in/civil-
law/#:~:text=Civil%20law%20is%20a%20system,citizens%20and%20is%20generally%20codified.> accessed
March 15, 2023
7
Ibid.
Civil law systems are commonly found in former colonies or protectorates of European countries
like France, the Netherlands, Germany, Spain, and Portugal, and are prevalent in large parts of
South and Central America. Additionally, many nations in Central and Eastern Europe, as well
as East Asia, adopt the civil law system.

Common Law System

The bedrock of the common law framework originated from the customary practice of the
English monarch, who, whenever the need arose to administer justice, would release written
directives referred to as "writs." The legal precedents that have been established by judges and
the legislative laws that have been established by politicians are the two sources that are used to
establish the laws that regulate a case. In a judicial system known as confrontational, the judge's
role is that of an arbiter who is impartial between the disputing parties.12 A juror may decide the
facts, but a judge will decide how the law should be applied to those circumstances.

While prosecutors and defense attorneys are actively involved, victims typically only play a
supporting role as witnesses who may have access to certain information and limited
opportunities to participate.

8
Yin X, “NEC4 Supply and Supply Short Contracts | Practical Law” (Thomson reutersOctober 12, 2021)
<https://uk.practicallaw.thomsonreuters.com/w-009-6897?contextData=(sc.Default)> accessed March 13, 2023
9
WashULaw, “Major Differences between the Japanese and American Legal Systems” (WUFebruary 22, 2022)
<https://onlinelaw.wustl.edu/blog/major-differences-between-the-japanese-and-american-legal-systems/> accessed
March 11, 2023
10
Dr Jochen Lehmann, “Legal Systems in Germany: Overview | Practical Law” (Thomson ReutersDecember 1,
2022) <https://uk.practicallaw.thomsonreuters.com/w-007-7132?contextData=(sc.Default)> accessed March 15,
2023
11
Mukhpadhyaya S, “Dispensation of Justice under the French Legal System” (AcademikeFebruary 16, 2019)
<https://www.lawctopus.com/academike/dispensation-justice-french-legal-system/> accessed March 15, 2023
12
Vuleta B, “What Is Common Law?” (A Simple and Clear DefinitionSeptember 19, 2022)
<https://legaljobs.io/blog/what-is-common-law/> accessed March 15, 2023
Countries following the Common law system

Historically, nations that currently employ the common law system were either Great Britain
territories or protectorates in the past. For example, Common law is the foundation of the judicial
system in the United States, which heavily relies on past decisions and precedents.13 England's
common law system also relies on previous cases and the laws established by justices, dating
back to the reign of King Henry II.14 India inherited its common law system from British
imperial tradition and uses recorded court precedents in its judiciary system, which includes the
Supreme Court of India and lower tribunals. Canada's legal system encompasses both common
law and civil law, though the former prevails in public law matters across the entire country,
except for Quebec, where civil law governs all facets of private law.15

13
Toni M. Fine, “Introduction to the American Legal System” (LexisNexisNovember 7, 2021)
<https://www.lexisnexis.com/en-us/lawschool/pre-law/intro-to-american-legal-system.page> accessed March 15,
2023
14
Quinn B, “What Is Common Law and Why Is It Being Misinterpreted?” (The GuardianFebruary 12, 2022)
<https://www.theguardian.com/law/2022/feb/12/what-is-common-law-and-why-is-it-being-misinterpreted>
accessed March 11, 2023.
15
Cross FB, “Identifying the Virtues of the Common Law” (2007) 15 Supreme Court Economic Review 21
 CHAPTER-3

KEY FEATURES

3.1 Key features of Civil Law System

Countries that adhere to a civil law system generally include a large portion of Central and South
America as well as those that were formerly “French, Dutch, German, Spanish, or Portuguese
territories or protectorates.” The majority of countries in Central and Eastern Europe, as well as
those in East Asia, adhere to a framework known as civil law.16

The system of law known as civil law is a regulated legal structure. The Roman legal system is
where it all started. The characteristics of a civil law regime are as follows:

• There is usually a written constitution in systems of civil law that unifies the civil code,
business law, administrative law, tax law, and constitutional law, all of which provide
fundamental rights and obligations. In contrast, administrative law is typically less
codified and administrative court judges frequently behave more like common law
judges.

Courts are strictly guided by the underlying codes, resulting in the existence of separate
constitutional courts, administrative courts, and civil court systems. These courts
determine whether legislative and administrative acts comply with the particular code and
interpret the code accordingly.

• There are limitations to the freedom of contract, as many provisions are automatically
included in a contract by law, and parties cannot opt out of certain provisions through
contractual arrangements.

16
Maurya V, “A Comparison between Civil Law Countries and Common Law Countries” (iPleadersNovember 2,
2021) <https://blog.ipleaders.in/a-comparison-between-civil-law-countries-and-common-law-countries/> accessed
March 15, 2023
3.2 Key features of Common Law Countries

Countries that adhere to a system known as common law are generally those that were formerly
British territories or protectorates. This category includes the United States of America.

Some characteristics of a system of common law are as follows:

• A documented constitution or a collection of established rules are not always in place;

• Judiciary decisions are final and non-appealable; in most cases, the judgments of the
superior court can only be reversed by another decision of the same court or by a change
in the law;

• A significant degree of freedom to enter into contracts; the law imposes only a limited
number of implicit obligations on parties to a contract; however, obligations designed to
safeguard the interests of individual customers may be deemed implicit.

• In general, everything is allowed that is not specifically prohibited by legislation. There

are some exceptions to this rule.

Civil law has a tendency to be more prescriptive than the common law system. As a result, a
government may opt to pass laws that provide special protections for its inhabitants.17

Joseph Dainow, ‘The Civil Law and the Common Law: Some Points of Comparison’, The American Journal of
17

Comparative Law, (1966) Volume 15, Issue 3, Pages 419–435, https://doi.org/10.2307/838275

 CHAPTER-4

4.1 Administrative Law in Civil Law Countries

The unique corpus of administrative law known as "droit administrative," which has its roots in France,
has had a considerable influence on both common law and civil law countries' systems of administrative
law. France, Italy, and Germany are just a few of the European nations that have their own system of
administrative courts that only handle administrative issues. As a result, unlike in the Anglo-American
system, delegated legislation develops independently of traditional private law. In contrast, administrative
law is more closely related to private law in the United Kingdom and the United States. Administrative
law is a highly specialized area of law in France that is governed by a network of local tribunals,
experienced judges, and the judicial branch of the Conseil d'Etat.

The administrative law of the United Kingdom, which is the model for administrative law
throughout the English-speaking world, is characterized in notable ways that sets it apart in a
striking way from the administrative law of other European nations that have adopted a
continental legal system. One of the most distinguishing features of the Anglo-American legal
system is that cases concerning the legality of actions taken by the government are heard and
decided by regular courts rather than by specialized administrative tribunals. This can be
attributed to Dicey's definition of the rule of law principle, which places an emphasis, among
other things, on the settlement of conflicts between the government and the citizenry through the
conventional judicial system.

18
M. Adams & J. Bomhoff, ‘Practice and Theory in Comparative Law’, Cambridge: Cambridge University Press
(2012), p. 279-301.
19
Banerji O, “Droit Administratif ” (iPleadersJanuary 3, 2022) <https://blog.ipleaders.in/droit-administratif/>
accessed March 11, 2023
20
Supra note 15.
21
Joseph Dainow, ‘The Civil Law and the Common Law: Some Points of Comparison’, The American Journal of
Comparative Law, (1966) Volume 15, Issue 3, Pages 419–435, https://doi.org/10.2307/838275
The administrative law of the United Kingdom, which is the model for administrative law
throughout the English-speaking world, is characterized in notable ways that sets it apart in a
striking way from the administrative law of other European nations that have adopted a
continental legal system. One of the most distinguishing features of the Anglo-American legal
system is that cases concerning the legality of actions taken by the government are heard and
decided by regular courts rather than by specialized administrative tribunals. This can be
attributed to Dicey's definition of the rule of law principle, which places an emphasis, among
other things, on the settlement of conflicts between the government and the citizenry through the
conventional judicial system.

When compared to its equivalent in common law, the continental system's administrative law has
a more expansive purview than its predecessor in common law. In civil law systems,
administrative law addresses questions like who has authority over what, what that authority is
allowed to do, and what consequences there are for violating the rules, as well as what recourse
there is for those who have been harmed by that authority.22 Furthermore, the subject matter of
administrative law encompasses various areas, including the structure and composition of diverse
administrative bodies, regulations governing the civil service, management and allocation of
properties by administrative agencies, construction of public infrastructure, as well as the legal
implications of contractual and non-contractual liabilities of both government officials and
organizational agencies.

4.2 Administrative Law in Common Law Countries

Br0adly speaking, in c0untries that adhere t0 c0mm0n law, there are set pr0cedures f0r
reviewing judicial decisi0ns that imp0se limits 0n h0w much administrative agencies' rulings can
be challenged in c0urt. These pr0cedures are frequently c0mbined with legislati0n 0r 0ther
c0mm0n law principles that establish standards f0r appr0priate rulemaking. This is d0ne in 0rder
t0 ensure that pr0per rulemaking 0ccurs. Administrative law may als0 c0ver the examinati0n 0f
rulings made by semi-public 0rganizati0ns such as disciplinary panels, n0n-pr0fit c0rp0rati0ns,
and 0ther b0dies that influence the lawful privileges 0f a specific gr0up 0r 0rganizati0n. This can
include the applicati0n 0f administrative law t0 the review 0f such decisi0ns24.
Despite the fact that larger g0vernmental units frequently exercise c0ntr0l 0ver administrative
decisi0n-making b0dies, the decisi0ns th0se b0dies make may be subject t0 judicial review by a
c0urt with general jurisdicti0n under s0me principle 0f judicial review based up0n due pr0cess
(in the United States) 0r fundamental justice (Canada).25 It is imp0rtant t0 remember that
appealing a decisi0n is n0t the same as having that decisi0n subjected t0 judicial scrutiny. When
the c0urt is sitting in review 0f a decisi0n, it 0nly examines the pr0cess by which the decisi0n
has been arrived at, whereas when it is sitting in appeal 0f a decisi0n, it questi0ns the c0rrectness
0f the decisi0n itself. Understanding administrative law in c0untries that f0ll0w c0mm0n law
requires a fundamental grasp 0f this distincti0n.

Judicial review's extent may be limited t0 particular inquiries regarding fairness 0r determining
whether the administrative acti0n exceeded the agency's jurisdicti0n. When dealing with ultra
vires, which includes acti0ns in a c0mprehensive sense, a c0urt with review p0wer may nullify
an administrative ruling if it is evidently irrati0nal (as per Canadian law), Wednesbury irrati0nal
(as per British law), 0r arbitrary and caprici0us (acc0rding t0 the U.S. Administrative Pr0cedure

Act and New Y0rk State statute). The Indian Supreme C0urt has als0 rec0gnized tw0 m0re
gr0unds f0r judicial review in Indian administrative law.26 These are reas0nable anticipati0n and
pr0p0rti0nality, b0th 0f which were ackn0wledged by English c0urts but were n0t implemented
in their decisi0ns.

24
All Answers ltd, 'Administrative Law in Common Law Countries' (Lawteacher.net, March 2023)
<https://www.lawteacher.net/free-law-essays/constitutional-law/administrative-law-in-common-law-countries-
constitutional-law-essay.php?vref1> accessed 15 March 2023
25
Supra note 1
 CONCLUSION

In conclusion, administrative law plays a crucial role in both the common and civil systems.
Despite their differences in origins and approaches, both systems recognize the need for
administrative law to regulate the relationship between the state and individuals or organizations.
While civil law systems tend to have more codified administrative law, common law systems
rely more on judicial precedents and principles developed through case law.

Both systems have evolved over time to adapt to changing social, economic, and political
circumstances. In recent years, the rise of globalization and the increasing importance of
administrative law in regulating transnational activities have led to further convergence between
the two systems.

overall, the comparison of administrative law in civil law and common law systems highlights
the importance of understanding legal systems in their cultural, historical, and political contexts.
Such knowledge is crucial for legal practitioners, policymakers, and scholars to navigate the
complex landscape of administrative law and to promote good governance and the protection of
individual rights.