Administrative Law I: Key Principles and Concepts

Posted on Dec 9, 2024 in Law & Jurisprudence

Features

1. Historicity: Administrative Law is determined by historical circumstances, mainly socio-economic-political. Every historical epoch corresponds to a model of Administrative Law.

  • In the Republic, early adaptations of a liberal system are seen.
  • From the late 19th century, and after 1930 until the 1970s, there is an interventionist State.
  • In the last 20 years, the approach has changed, viewed from the protection of the rights of the administered and not from the standpoint of the organization.

2. Obeys Historical Traditions: Since the Second World War, there has been a continental trend, which opposes the Anglo-Saxon, especially in France and the rest of Latin America.

3. Mutable: As a result, principles operate.

4. Numerous Special Positive Laws: These prevent the formation of an overall structure, but sometimes constants can be found.

5. Linking to a Technical-Functional Task: This creates little consistency, as regulatory standards should consider issues from other areas of knowledge. Besides, there is a clear relationship between Administrative Law and Administrative Sciences. According to Fayol, administrative activity takes place according to:

  • Planning
  • Discussion
  • Control
  • Evaluation

6. General and Special: Administrative Law is both general and specific, such as in the case of customs, waters, etc.

7. It Has Gaps: Its positive legislation does not cover all aspects. Hence, the importance of General Principles.

Etymology

Ad (of them), to Serve. Who administers is serving another. Ministers of State are servers.

Ad Manus Trahere: Bring on hand. Similar to Management, it means managing the affairs of others.

Therefore:

  1. The purpose of business administration is that it belongs to the whole community.
  2. Its work is the preservation of collective interests, assets, and opportunities for political, economic, and social development.

Administration: Set of bodies and institutions responsible for managing the affairs of the community.

Administrative Role in State Institutions

Before the separation of powers, functions blended in the person of the monarch. From a practical point of view, the division is not absolute, and there is a preponderance of one function over others.

The State is divided into 3 branches:

  • Legislative: Creates general rules.
  • Executive: Applies the rules to meet the objectives of social interest.
  • Judicial: Applies the rules to settle disputes.

The purpose of the administration is development, a role that requires continuous, permanent activity.

Administrative Functions of the Powers of the State

  • Legislative: Monitors, manages its resources, and has regulatory authority.
  • Judicial: Manages its resources and issues general rules.
  • Executive: Governs and administers, has regulatory power, and settles disputes in administrative headquarters. It is residual.

Executive activity is expressed in a legal manner through:

  • Issuing regulations
  • Execution acts
  • Entering into contracts

By material:

  • Concretion of legal activity, sometimes preceded by a law (payment of civil servants) or an administrative rule (mayoral demolition decree that precedes the work of machines).

Functions of Government and Administration

1. Classic Definition (Henry Puget):

To govern is to exercise essentially political functions, to guide the destiny of the State, managing issues affecting the general interests of the national community.

Management is conducting ongoing business, providing the normal satisfaction of public needs, according to government directives.

2. According to the Possibility of Control:

Origins of Administrative Law: The role of government (foreign affairs and international authorities) was not subject to revision or control of the contentious-administrative courts; everything else was subject to control.

Submission and Administrative Law

The submission of the State to Law is a historic achievement that continues to evolve as the demands of each era. According to Jellinek, it arises from the self-limitation of power, but in reality, it is a complex cultural problem.

Assumptions:

  1. Control: As security for liability to Law.
  2. Guarantee of Human Rights.
  3. Independence of the Judiciary.
  4. Separation of Powers.
  5. Government of the Law, considered in 2 aspects:
    • Government of Reason
    • Government of General Rules
  6. Liability

Stages:

I. Liberal State: Liberalism emerges as an ideology in the service of the destruction of the absolutist regime, driving the rise of the bourgeois class. It postulated limiting power to guarantee the rights of individuals.

II. Interventionist State: Due to socio-economic phenomena caused by industrialization since the late 19th century, people fall into poverty and homelessness, requiring the State to intervene in a number of areas to ensure the development of individuals.

III. Social State of Law: Emerges after the Second World War and reaches high levels of development in the old continent.

Principles in Administrative Law

Principle of Legality: Organize and act on a set of predetermined rules. For its respect, it is necessary to devise a separation of powers; for instance, within it, parliamentary control is transcendental, as is an independent judiciary.

Principle of Responsibility: The new proclamation of the modern State, as opposed to the absolutist and irresponsible regime that prevailed in earlier times. The incorrect behavior of people will result in liability, with the supervisory body in charge of verifying compliance with the Principle of Legality.

Principle of Rationality: Proclaims performance in a rational manner according to the law.

Principle of the Act: There must be a correspondence between the objective of the rule and what the act is seeking.

Prohibition of Arbitrariness: Arises as a consequence of the above.

Administrative Law Relations with Other Branches of Law

1. Constitutional Law: Is the foundation of Administrative Law. It forms the basis for organizing the State. Administrative Law regulates in detail a part of organizing the State, which is the administration, specifying the structure, establishment, operation, and termination of its organs.

2. Criminal Law: There are types of crimes that can only be committed by public officials:

  • Undue prolongation and anticipation of public functions
  • Illegal appointments
  • Usurpation of powers
  • Prevarication
  • Misappropriation of public funds
  • Fraud and extortion
  • Infidelity in the custody of documents
  • Violation of secrets
  • Bribery
  • Resistance and disobedience
  • Rejection of rescue and abandonment of office
  • Abuses against individuals

Also, most of the enforcement of sentences corresponds to the administration through the Prison Service.

3. Procedural Law: The classic principles are extended to the procedures of administration. Organization of administrative tribunals and the customs courts, judicial service organization, and regulation of trials has led to the Comptroller General.

4. Financial Law: A broken branch of Administrative Law, which contains a strong emphasis on economic aspects, such as fiscal revenue and expenditure.

5. Education Law: Some administrative staff serve as Administrative Staff.

6. Civil Law: Although Administrative Law proclaims its independence, there are certain areas in which Civil Law works, including the issue of contracts, the legal regime of national assets, legal persons, and the Treasury system as intestate heir.

Requirements for an Autonomous Administrative Law

1. An object of study that requires different regulation. Administrative Law studies the legal relations between managers and administrators.

2. Principles that inform it and protect its ends.

3. Specific aims consisting of regulating to protect the rights of those managed and tend to their development.

4. Capable of integration.

Historical Point

French Administrative Law had great influence. Revolutionaries understood the separation of powers in a very special way, designed to control the administration, which was administered. By the same token, this function was subtracted from judicial control. This had 2 consequences:

  1. Irresponsibility of the Administration
  2. Absence of external audit

The solution was to create an administrative body called the Council of State, which knew of arbitrary and unlawful administration of the governor to evacuate reports to correct the irregularities.

This system worked until 1870 as a retained jurisdiction. In the opinion of the Council of State, Administrative Law is structured. Its significance lies in the specialization of judges and the knowledge of these judges of the administrative work for belonging to the administration. Thus, we see that despite being a purely legalistic country, France’s Administrative Law was not founded on precedents.

Administrative Law Concepts

Silva Cimma: He who seeks the creation, organization, operation, removal of utilities, regulation of the legal activity of the Administration of the State, and determining the powers and duties of the Commission for its inhabitants.

Garrido Falla: Part of public law that determines the organization and conduct of the administration of the State, disciplining their legal relationships with those it manages.

Administrative Law Sources

1. Material Source: Socio-economic conditions within which the creation of standards occurs.

2. Formal Sources: Forms (documents) in which the rule has applied for the public to take effect.

Classification

I. According to Emanation:

  • Sources for the administration: Comes from another power.
  • Administration sources: Comes from the administration.

II. Exclusive or Typical Sources of the Administration:

Possible sources that are not purely administrative rules. E.g., The Law

III. Direct Sources: Written and unwritten. Ex. General Principles.

Indirect Sources: Case law

Specifics of the Sources

  1. Preponderance of the Constitution
  2. Great importance of General Principles
  3. Little importance of Custom
  4. Importance of Jurisprudence and Doctrine
  5. Typical Source: Decrees with Force of Law (DFL)
  6. Distinction between:
    • Enabling Sources: General rules of objective law. E.g., Municipal Income Act
    • Implementation Sources: A particular rule that creates individual rights. E.g., Mayoral Decree issued according to the law granting patents.

Sources of Positive Law

1. Constitution: In the Chilean case, when Administrative Law is related to a part of it, the Administration of the State.

It has a pronounced development in Human Rights and contains a declaration of constitutional supremacy as enshrined in Article 6 of the Constitution.

It contains General Principles of jurisprudence, matching positive law, to determine its scope. Its rules have been established to take immediate effect, having no power standards unlike the Constitution of 1925.

Its Principles contain an integrating force for all public law, which must be interpreted in accordance with their Principles and reporting values.

2. Law: There are matters that can only be governed by law concerning the rights of people because any limitation on the rights of individuals must originate from the same through the statement of the general will. This is called the Legal Reserve.

Requirements of the Law:

  • Formal: Organic criterion (what body produces it?) and procedural approach (what method is used to enact it?).
  • Material: Whether the law complies with the matters that are reserved by the reserve and whether it meets the characteristics of:
    • Generality: Intended for all or a group of society.
    • Abstraction: Have a hypothetical that may or may not exist in the future.
    • Innovation: Content creates a new rule, deletes, or changes a previous one.
    • Permanence

Concept

The Civil Code defines law as a declaration of sovereign will expressed in the form prescribed by the Constitution, which commands, forbids, or permits.

Planiol defines law as a compulsory social rule permanently established by public authority and sanctioned by force.

Problem of Legal Reserve

A. Constitution of 1925: Classic constitutionalism set fields within other organs, limiting the invasion regardless of the law. There was an independent statutory authority, just to execute, and Article 44 established a minimum legal domain (minimum legal reserve).

B. Constitution of 1980: Its Article 63 pinpoints what matters of law, therefore it has established a maximum legal reserve. However, the adoption of this system has raised a number of issues:

  • Article 63 No. 20: This provision opens the door to the law to extend its regulatory domain to materials that might belong to the regulatory powers. But, it was noted that the issue is not as important as it only refers to general rules, excluding basic rules for personal use, which are not considered in other sections of Article 60.
  • Transitory Provision No. 6: Materials that are specific to statutory authority but were matters of law in the Constitution of 1925 are still governed by the laws currently in force until expressly abolished by law.

Types of Laws

i. Interpretative Laws of the Constitution (LIC): Are those promulgated in accordance with procedures other than constitutional reform. They do not alter the Constitution but clarify and explain the meaning or scope of a standard. They require for approval, amendment, or repeal 3/5 of the deputies and senators. Moreover, the Constitutional Court must make a preventive control of constitutionality.

ii. Organic Constitutional Laws (LOC): Are those expressly provided for and designated as such in the Constitution. They need for approval, amendment, or repeal 4/7 of the deputies and senators.

According to Luz Bulnes, the LOCs have the same legal rank as an ordinary law. It is difficult for a collision between an ordinary law and an LOC due to the specialty of the matters dealt with by the latter.

iii. Qualified Quorum Laws (LQC): Refer to matters of high importance. They require for approval, amendment, or repeal the absolute majority of deputies and senators.

  • Establishing terrorist behavior
  • Rehabilitating those who lost citizenship due to terrorist crimes
  • Establishing the death penalty
  • Law on Advertising Abuse
  • Law on National Television
  • Law concerning the pursuit of social security
  • Law authorizing the State to conduct business activities

iv. Basic Laws: Obey the idea that certain subjects should have a policy essential for further development by ordinary law or statutory authority.

  • Basic matters concerning the legal system, labor, preventive, and social security.
  • Law granting general pardons and amnesties and laying down the general rules under which the President must exercise the power to pardon individuals and grant pensions.
  • Laws that set the foundation for the procedures governing the actions of public administration.
  • All other laws of general and compulsory adjudication by the essential foundations of the law.

3. Decree-Law: Legislative activity is the de facto government. The executive replaces legislative matters and issues rules of law. Its validity is recognized by the fact that it emanates from the only body that could dictate it, and it is not repeated or paid under them.

4. Decrees with Force of Law (DFL): Typical source of Administrative Law. The idea is to prevent Congress from a detailed and technical discussion of material best known by management. The DFL has pre-established arrangements in the Constitution of 1980.

  • Before 1970, they were a legal practice without a constitutional basis.
  • In the Constitution of 1980, they are regulated by the following rules: Article 32 No. 3 (Attributions of the President), Article 64 (approval of Congress to the President), Article 93 (Constitutional Court), Article 99 Inc. 2 and 3 (Functions of the Comptroller General).

5. International Treaties: Agreements concluded by the State with other subjects of Public International Law, governed by this branch of Law, in order to produce legal effects. Its passage concludes with the approval of Congress and is ratified by the President.

There are some treaties on administrative matters such as fishing, environment, flora and fauna, etc.

They have the force of a law and require approval for the quorum established in the Constitution. However, Human Rights treaties have constitutional status.

6. Ordinances: Appear as mixed texts; they are laws regarding their content and regulations regarding their origin. From a technical point of view, they are DFLs.

According to Silva Cimma, for these rules to be issued by the President, delegated powers and regulatory powers of enforcement are met.

There are now university and municipal ordinances.

7. Regulations: The exclusive powers of the President to exercise regulatory power in matters other than its own laws. There are 2 regulatory powers:

  • Autonomous: Exercised through regulations on matters outside the legal domain by direct mandate of the Constitution.
  • Of Enforcement: Exercised by regulations, orders, and instructions in order to enforce the law.

Regulations: Written decisions issued by the Head of State, which contain a system of generally applicable rules for the implementation of the Constitution and the law. They have a superior range and can only be repealed by a regulation.

Decrees: Written decisions of the Head of State, which contain an expression of will of specific individuals in a particular case and that dictates the implementation of the Constitution and the laws in individual cases.

Directions: Acts of authority in which directions or explanations are given about the form, content, or orientation that must be met in the implementation of the Constitution and the law.

Other Regulatory Powers: They work when the law says so.

  • Municipalities: To carry out their municipal functions
  • Comptroller General
  • Central Bank: Promulgation of rules on monetary, credit, financial, and exchange matters.
  • National Security Council
  • Regional Governments

8. Instructions: Orders that the administrative authority gives to public officials in order to correctly apply the law and operate your business efficiently.

According to its contents, 2 aspects must be distinguished:

  • Legal: The official is to illustrate how they should act in the correct application of the law.
  • Technical: Guides the staff in order to achieve efficient administration.

Importance

  • They must stick to the objective status of the law, applying the laws and regulations.
  • They are internal management rules.
  • In case of failure of a command, the officer incurs administrative responsibility.

Positive Sources

1. Principles of Law: They are the first ideas, the foundation of Administrative Law, preceding the Law, which was later developed by him. They are on 2 planes:

  • Legal: The sociological, historical, cultural, and ethical concepts emanating from a company’s securities.
  • Legal: The General Principles have interpretative and integrative skills so that the norms that reflect the Principles are based on the socio-political evolution of society.

Similarities between Principles and Legal Standards:

  • Coercibility
  • Exteriority
  • Heteronomy
  • Bilaterality
  • Generality

Differences

  • Lack of deeds
  • Imprecision
  • Greater density of Principles

The network of General Principles supports the rules, and their relationships constitute a closed system, acquiring an integrating function in the event of gaps or loopholes. This closed system is related to the social, political, and cultural conceptions of the society in which this system operates.

Importance

a) Administrative rules change rapidly, making the General Principles operate.

b) Notwithstanding the legalistic approach, since 1870, with the creation of delegated law, Administrative Law was born, cutting jurisprudential opinions based on the Council of State.

c) The positive law and Principles can still retain their density.

d) In Administrative Law, much of the materials are governed by General Principles.

2. Subsidiary Sources

A. Jurisprudence: Develops and completes administrative rules. Fixes inconsistencies and gaps. There are 2 types:

  • Jurisprudence of the Judiciary: Stems from the courts with limited binding to the particular case.
  • Administrative Jurisprudence: Created in administrative headquarters. Its importance is that the Comptroller General interprets the law, taking their opinions to have binding force beyond the individual case.

B. Doctrine: Activity of lawyers that were made from material concepts and theories. The doctrine is the element that allows the construction of Principles.

C. Custom: Low relevance. It involves repeated behavior that seeks to be Law.

Practice involves the constant application of a performance as it has always been used.

The modification of these practices brings disruption to the administrative work, so it should be made with little basis, publicity, and awareness of those affected.

It operates in silence of the law but is ruled by Principles.