A Comprehensive Guide to Administrative Law and its Sources
ITEM 1: Administrative Law
Administrative law centers on the principle of legality, which dictates that any action taken by the state must be lawful. This principle is intertwined with the principle of separation of powers and the principle of the integrity of individual rights. The foundation of the administrative legal system can be traced back to the law of August 16-24, 1790, which proposed a clear separation between judicial and administrative functions.
Defining administrative law can be complex, as interpretations vary depending on the author or school of thought:
- Originally, it encompassed all laws related to the organization and functions of the administration.
- The French school in Bordeaux, also known as the “public services” school, defined it as a set of rules governing public services.
- A broader understanding defines it as the branch of public law encompassing positive law rules, jurisprudence principles, and doctrines applicable to the structure and operation of the administration.
Public Administration
Public administration encompasses all public or private activities aimed at achieving societal goals, whether economic or not, and the entities that carry them out. In contemporary understanding, it is primarily associated with the state and its affiliated entities.
From an objective perspective, public administration focuses on the tasks and functions performed. From a subjective standpoint, it refers to the state as an entity or the various organs, bodies, or groups responsible for executing these tasks and functions, ultimately enforcing the laws.
The principle of legality underscores that any action taken by the state must have a legal basis. This principle is intrinsically linked to the principle of separation of powers and the principle of the integrity of individual rights. The genesis of the administrative legal system can be traced back to the law of August 16-24, 1790, which advocated for a distinct separation between judicial and administrative functions.
Defining administrative law can be challenging due to varying interpretations across different authors and schools of thought:
- Initially, it was broadly understood to encompass all laws pertaining to the organization and operations of the administration.
- The French school in Bordeaux, often referred to as the “public services” school, defined it as a set of regulations governing public services.
- A more comprehensive definition positions it as the branch of public law that encompasses rules of positive law, principles of jurisprudence, and doctrines applicable to the structure and functioning of the administration.
Public administration encompasses all activities, whether public or private, that are undertaken to achieve societal objectives, be they economic or otherwise, as well as the entities responsible for their execution. In modern usage, it is predominantly associated with the state and its related entities.
From an objective standpoint, public administration centers on the tasks and functions being performed. Subjectively, it refers to the state as an entity, or the various organs, bodies, or groups tasked with carrying out these tasks and functions, ultimately responsible for upholding the laws.
ITEM 2: Sources of Administrative Law
Sources of administrative law are the mechanisms through which rules of positive law are established. These rules form the legal framework that governs the lives of people within a specific time and place. These sources can be categorized as follows:
Written Sources
- Constitution: The supreme law of a state, outlining the organization of government branches and guaranteeing fundamental rights. It holds the highest legal authority within a country (Article 7).
- Law: A rule of general and abstract application. Formally, it refers to any decision made by the legislature following procedures established by the Constitution, regardless of its content.
- Organic Laws: As defined by Article 163 of the Constitution, these laws are designated as such by the Constitution itself or by a majority vote in each house of the legislature.
- Special Laws: Article 14 of the Civil Code states that special national codes and laws take precedence over the Civil Code in matters within their specific domain, upholding the principle of “lex specialis derogat legi generali” (special law prevails over general law). For instance, the Civil Code covers various legal institutions, including contracts and warranties, but special laws may govern specific types of contracts or warranties.
- Treaties: Broadly defined as any agreement between members of the international community, regardless of form or the significance of the commitments. In a narrower sense, it refers to a solemn agreement addressing complex issues of considerable importance.
- Regulations: Written, unilateral statements issued by administrative authorities, establishing generally applicable rules of law, subordinate to primary legislation.
- Decree-Law: Acts with the force of law issued by the Executive Branch (National Assembly) in the exercise of powers granted by the Constitution. Notably, Article 190, Section 8, allows the President, in conjunction with the Council of Ministers, to issue decree-laws on economic or financial matters following a formal enabling law, granting them the same legal standing as formal law.
Unwritten Sources
- Customary Law: In Roman law, customs were considered akin to law if they were consistently observed with the conviction of legal obligation. In modern times, it remains a source of law, established through the consistent and uniform repetition of a particular conduct, observed with the belief that it is legally binding.
Hierarchy of Laws
- Primary: Govern matters not regulated by higher-ranking rules.
- Subsidiary: Apply in the absence of primary rules.