FRENCH ADMINISTRATIVE LAW
Joseph Minattur+
I
THE VERY concept of administrative law in France is different from what
it is in the common law countries. In France administrative law includes, not
merely delegated legislation’ and adjudication, but also many other areas
which we would, in general, place under the rubric of public administration.
While administrative law in a common law jurisdiction confines itself to
dealing with delegation of legislative and judicial powers to the administra-
tion, the procedural aspects of the exercise of those powers and the judicial
control of administrative action, administrative law in a civil law country
includes these as well as various forms of administrative agencies, civil
service law, administrative acquisition and management of property, publi
works, obligations of the administration arising from contracts and quasi-
contracts and tort liability.
While administrative law is a very recent entrant inthe common law
world, it had found a local habitation and a name in the civil law countries
before the close of the last century, that is to say, during those days when
Dicey was emphatic that it was unknown to the common law
and very critical of it in France. Thus, during the thirties of this century
when administrative law was engaged in wriggling its way in and struggling
for recognition as a branch of law in Anglo-American jurisdictions, Ernst
Freund could say that it had “become on the continent of Europe a major
department of legal science, and has accordingly a status equal to that of
civil and criminal law."
What will probably strike a common law lawyer as very peculiar is
the fact that in the civil law countries, administrative disputes are decided
not by ordinary courts of law, but by special administrative courts. This
has given rise to the classical criticism, that in France the rule of law is in
Jeopardy because public officials are given the benefit of being judged by a
special court where their colleagues are judges. The French, however, claim
that their manner of organizing administrative adjudication is fairer to the
common citizen, as the public servant is brought before a tribunal whose
personnel know more about what they are adjudicating upon. Further,
* Licencié en Droit Comparé (Luxembourg), Docteuren Droit Comparé
(Strasbourg), Barrister-at-Law, Associate Research Professor, The Indian Law Institute,
New Delhi.
1. The term ‘delegated legislation’ is not used in France, because in theory,
legislative power cannot be delegated. See C.E. Freedmen, The Conseil d'Etat in Modern
France 173 (1958).
1a, Ernst Freund, Administrative Law, I Encyclopaedia of the Social Sciences
452 (1930),