Exploring the Foundations of Administrative Law

Posted on Nov 19, 2024 in Law & Jurisprudence

Special Study of the Rational Sources of Administrative Law

Sound Sources

  • Custom
  • Jurisprudence (Court decisions are not legislation and not mandatory)
  • Scientific Doctrine

A. Administrative Court

Two Accepted Perspectives:

  1. Legal science
  2. Legal interpretation

Ulpian: He equated administrative law with justice itself.

Kelsen: He discussed administrative law within the context of sociological jurisprudence.

Planiol: He focused on how courts interpret laws.

Solar Light: He highlighted the habit of consistent judgment and its outcomes.

Beyond court interpretations, various administrative authorities also apply and interpret the law.

Posada: Administrative court is primarily the interpretation of administrative legal rules in individual cases by courts or authorities.

Jurisprudence, while not binding, is an undeniable source of law.

Iribarren’s Three Scenarios:

  1. Clarifies ambiguous legal precepts.
  2. Adapts written law to administrative situations.
  3. Contributes to the systematization of administrative law.

Administrative law, being a more modern and evolving field, is more significant in public administration than in private industry.

Key Elaborations of Administrative Court:

  • Theory of State Responsibility
  • General Theory of Administrative Act
  • Notion of Public Agents and their legitimacy

In Chile, the importance of administrative courts is recognized, though not yet fully materialized in legislation. Other administrative agencies hold significant value.

Rating

  1. Contentious Administrative Jurisprudence
    It has a dual role: systematizing and complementing written law.
    1. Emanating from Ordinary Courts with Administrative Jurisdiction
      In Chile, lacking dedicated administrative courts, ordinary courts handle administrative matters unless a statute explicitly grants jurisdiction to another body or prohibits judicial interference.
      Examples:
      1. Interpretation of certain administrative contracts (e.g., Public Works)
      2. Resolution of certain claims
      3. Trial removal of mayors
    2. Emanating from Special Courts within the Administration
      These tribunals address specific matters within the administration.
      Examples:
      1. Customs court rulings
      2. Appraisal court rulings
      3. Patent Grader Board
      4. CGR Accounts Tribunal
    3. Emanating from Certain Public Services
      Decisions of bodies or departments with specific jurisdiction.
      Examples:
      1. National Director of Internal Revenue
      2. Director of Industry and Trade
      3. General Library Director
      4. Vice President of the Housing Corporation
  2. Decisions by Administrative or Non-Contentious Bodies
    Generated by how they interpret the law to make decisions. Emanates from various organs:
    1. President, exercising custodial powers (e.g., pardons, granting legal personality)
    2. CGR, providing legal advice on administrative matters
    3. National Internal Revenue Directorate, interpreting tax laws
    4. State Defense Council
    5. General Labor Directorate
    6. Social Security Superintendence, interpreting pension law
Value of Jurisprudence as a Source of Administrative Law

Administrative (litigation) jurisprudence is not binding, but its value depends on the legal hierarchy and prestige of the issuing authority. Its applicability is specific to the case at hand, but can be generalized through other acts.

Revealing Sources of Jurisprudence
  • Newsletters, reports, magazines
  • Law and Jurisprudence Reviews
  • CGP Opinions Bulletin
  • Defense Council and State Council reports
  • Customs Bulletin

B. Custom Management

Concept and Generalities

Kelsen: Law-making arises not only from positive rules but also from customary practices within the legal community.

Sauer: Custom comprises unwritten legal propositions beyond mere popular will.

Custom as a Rule of Law: Not an expression of will, but a consistently practiced behavior perceived as a legal obligation.

Elements of Custom:

  1. Material: Repetition of certain facts
  2. Juridical/Moral: Legal or moral value

Posada: Custom spontaneously reveals legal consciousness.

Bielsa: Customary law, unapproved by legislation, comprises traditional rules rooted in public consciousness.

Villegas: Custom is a complex social phenomenon, defined as a community’s legally binding practices.

Iribarren: Repetition of acts with legal sanction, based on uniform precedents.

Doctrine’s View: Custom has two elements:

  1. Material/Objective: Repetition of acts
  2. Subjective/Moral/Legal: Legal value or intention

Custom Defined: Practices generally observed in a region for an indefinite period, acquiring legal force.

Value of Tradition

Two Doctrinal Trends:

  1. First Position: Custom is a secondary source, justified only in less-legislated areas.
  2. Second Position: Customary legal practice has undeniable value derived from popular convictions (Posada). It inspires written law (Longo). It has shaped French public law (Hauriou).

While valuable, custom’s legal force does not match written law.

Two Basic Forms of Custom’s Value:

  1. Direct Source: Fills legal gaps, requiring legislative acceptance.
  2. Factor in Law’s Effectiveness: Influences law’s effectiveness and amendments. Ineffective laws require modification or repeal.

Iribarren’s View on Custom in Chilean Administrative Law:

  1. Complements and ensures law’s efficacy
  2. Addresses legal gaps
  3. Obstructs unjust or harmful legal compliance
  4. Contributes to public services and administrative action

Bielsa’s Criteria for Custom as a Source:

  1. Relates to state institutions
  2. Subordinated to the state’s will

Neither contrary use, non-use, nor tolerance can repeal law.

Evolution and Transformation of Custom

In primitive societies, law was largely customary. Customary legal rules within communities needed no recognition.

Posada: Customary law should have preferred value when authority is delegated.

In public law, custom can prevail in non-legislated areas. However, written law limits discretionary powers based on custom.

Two Aspects of Custom’s Transformation:

  1. In current legal regimes, custom requires recognition by legitimate authority.
  2. In non-legislated areas, custom can become law without recognition, acting as a complement until a positive rule exists.

Classification and Relationship of Custom to Positive Rule

Otto Mayer’s Classification:

  1. Historical Custom: From former state police regimes, regulating treasury and community relations.
  2. Historical Customary Law: Unwritten legal rules still in effect.
  3. Observance: Custom within a collective to regulate legal relations.

These are different stages of the same customary rule.

Longo’s Classification:

  1. Introductory Custom: Creates legal norms, inspiring law and administrative requirements, filling legal gaps, influencing administrative evolution, and limiting administrative discretion.
  2. Derogatory Custom: Prevents law’s effectiveness when it doesn’t meet real needs.

Traditional Distinction:

  1. Custom by law
  2. Custom filling legal silence
  3. Custom contrary to law (repealing)

Bureaucratic Tradition and Practice

Bielsa: Custom rooted in legal consciousness is a source of administrative law. Bureaucratic practices, often rigid and illogical, cannot be a source.

Value of Custom in Chilean Public Law

Customary law is not binding unless explicitly stated in law. However, in both private and public law, custom fills legal gaps and omissions.

Jara Christ: Custom can influence legal change.

Iribarren’s View on Custom’s Function:

  • Complements and ensures law’s efficacy
  • Addresses legal gaps
  • Obstructs unjust or harmful legal compliance
  • Supports public services and administrative action

Chilean law lacks explicit recognition of custom’s force, but it’s accepted when complementing law or filling gaps. Administrative practice prevails in decrees and order processing.

Custom’s Acceptance in Chilean Law:

  1. Complementing and ensuring law’s effectiveness
  2. Addressing lawlessness

Custom has no legal value when contrary to law or reflecting political/bureaucratic abuses. However, rationally justified practices can lead to law’s repeal.

C. Science Doctrine

Doctrine’s status as a source of law is debated. It comprises views and theories of administrative law scholars and practitioners.

Villegas: Doctrine provides solutions for legal issues not covered by statute or common law.

Value of the Doctrine

Doctrine is not binding unless specified by law, but its importance is undeniable. Its moral value stems from the prestige of supporting authors. It aids legal interpretation and inspires legislation.

Doctrine is particularly important in administrative law due to its recent development and lack of codification.

Villegas: Doctrine indirectly influences legislature, judges, and general legal principles. It guides legislative work.

Doctrine in Chilean Administrative Law

Its limited development is attributed to the absence of a comprehensive administrative court.

Other Possible Sources of Administrative Law

  1. State of Necessity

    The imperative for an authority to act to prevent greater harm. Justifies certain legal norms but is a legal basis rather than a source.

  2. Analogy

    Applying a legal proposition to a case where it’s not directly applicable, based on similar cases. Not a source but a means of interpretation and integration.

    Villegas: Analogy is an improper legal standard, creating mandatory rules for doubtful cases.

    In public law, analogy is limited by pertinent law. It’s a matter of legal interpretation, not a source.

  3. General Principles of Law

    Heterogeneous principles including political (e.g., proportionality, solidarity), structural (e.g., legality, hierarchy), and ethical (e.g., good faith).

    Conceptions on General Principles

    1. Classic/Roman: Principles found in Roman law.
    2. Naturalist (Del Vecchio): Principles found in natural law.
    3. Positivist: Principles derived from positive law through induction.
    4. Design Philosophy: Principles based on the rule of law and cultural norms.

    Role of General Principles

    1. Interpretative: Clarifies legal rules.
    2. Integrative: Fills legal gaps.
    3. Constructive: Classifies administrative law principles.

    While important, general principles are legal bases rather than sources.

    Chilean administrative law shows instances of decisions inspired by equity and good faith.

  4. Administrative and Legislative Precedent

    Invoking past decisions in similar cases. Not binding but can address legislative gaps.

  5. Autonomous Statute Sources

    Regulations governing autonomous bodies. In Chile, these are limited, with statutes requiring presidential approval.

    Statutes replace regulatory decrees, have broader scope, and are subject to formal enabling.

    Their formation involves both the autonomous body and the president.

Priority of Administrative Law Sources

According to Legal Value

  1. Constitution
  2. Laws (ODL, ODFL, Basic Laws)
  3. Ordinances
  4. Regulations
  5. Decrees
  6. Instructions
  7. Custom
  8. Jurisprudence
  9. Scientific Doctrine

According to Effectiveness

Depends on the prevailing customary law within each country’s legal-administrative system.