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Administrative law

Administrative law is the body of law that governs the activities of administrative agencies of government. Government agency action can include rulemaking, adjudication, or the enforcement of a specific regulatory agenda. Administrative law is considered a branch of public law. As a body of law, administrative law deals with the decision-making of administrative units of government (e.g., tribunals, boards or commissions) that are part of a national regulatory scheme in such areas as police law, international trade, manufacturing, the environment, taxation, broadcasting, immigration and transport. Administrative law expanded greatly during the twentieth century, as legislative bodies worldwide created more government agencies to regulate the increasingly complex social, economic and political spheres of human interaction.

Administrative law in common law countries

Generally speaking, most countries that follow the principles of common law have developed procedures for judicial review that limit the reviewability of decisions made by administrative law bodies. Often these procedures are coupled with legislation or other common law doctrines that establish standards for proper rulemaking. Administrative law may also apply to review of decisions of so-called semi-public bodies, such as non-profit corporations, disciplinary boards, and other decision-making bodies that affect the legal rights of members of a particular group or entity.

While administrative decision-making bodies are often controlled by larger governmental units, their decisions could be reviewed by a court of general jurisdiction under some principle of judicial review based upon due process (United States) or fundamental justice (Canada). Judicial review of administrative decision, it must be noted, is different from an appeal. When sitting in review of a decision, the Court will only look at the method in which the decision was arrived at, whereas in appeal the correctness of the decision itself will be under question. This difference is vital in appreciating administrative law in common law countries.

The scope of judicial review may be limited to certain questions of fairness, or whether the administrative action is ultra vires. In terms of ultra vires actions in the broad sense, a reviewing court may set aside an administrative decision if it is patently unreasonable (under Canadian law), Wednesbury unreasonable (under British law), or arbitrary and capricious (under U.S. Administrative Procedure Act and New York State law). Administrative law, as laid down by the Supreme Court of India, has also recognized two more grounds of judicial review which were recognized but not applied by English Courts viz. legitimate expectation and proportionality.

The powers to review administrative decisions are usually established by statute, but were originally developed from the royal prerogative writs of English law, such as the writ of mandamus and the writ of certiorari. In certain Common Law jurisdictions, such as India or Pakistan, the power to pass such writs is a Constitutionally guaranteed power. This power is seen as fundamental to the power of judicial review and an aspect of the independent judiciary.

United States

In the United States legal system, many government agencies are organized under the executive branch of government, rather than the judicial or legislative branches. The departments under the control of the executive branch, and their sub-units, are often referred to as executive agencies. The so-called executive agencies can be distinguished from the many important and powerful independent agencies, that are created by statutes enacted by the U.S. Congress. Congress has also created Article I judicial tribunals to handle some areas of administrative law.

The actions of executive agencies and independent agencies are the main focus of American administrative law. In response to the rapid creation of new independent agencies in the early twentieth century (see discussion below), Congress enacted the Administrative Procedure Act (APA) in 1946. Many of the independent agencies operate as miniature versions of the tripartite federal government, with the authority to "legislate" (through rulemaking; see Federal Register and Code of Federal Regulations), "adjudicate" (through administrative hearings), and to "execute" administrative goals (through agency enforcement personnel). Because the United States Constitution sets no limits on this tripartite authority of administrative agencies, Congress enacted the APA to establish fair administrative law procedures to comply with the requirements of Constitutional due process.

The dominant U.S. Supreme Court case in the field of American administrative law is Chevron U.S.A. Inc. v. Natural Resources Defense Council, .

The American Bar Association's official journal concerning administrative law is Administrative Law Review.

Historical development

In his book, Administrative Law & Regulatory Policy (3d Ed., 1992) (Admin. Law & Reg. Policy ), U.S. Supreme Court Justice Stephen Breyer divides the history of administrative law in the United States into six discrete periods:

  • English antecedents & the American experience to 1875
  • 1875 - 1930: the rise of regulation & the traditional model of administrative law
  • The New Deal
  • 1945 - 1965: the Administrative Procedure Act & the maturation of the traditional model of administrative law
  • 1965 - 1985: critique and transformation of the administrative process
  • 1985 - ?: retreat or consolidation

Administrative law in civil law countries

Unlike most Common-law jurisdictions, the majority of civil law jurisdictions have specialized courts or sections to deal with administrative cases which, as a rule, will apply procedural rules specifically designed for such cases and different from that applied in private-law proceedings, such as contract or tort claims.

France

In France, most claims against the national or local governments are handled by administrative courts, which use the Conseil d'État as a court of last resort.

Germany

In Germany, the highest administrative court for most matters is the federal administrative court Bundesverwaltungsgericht. There are federal courts with special jurisdiction in the fields of social security law (Bundessozialgericht) and tax law (Bundesfinanzhof).

The Netherlands

In The Netherlands, administrative law provisions are usually contained in separate laws. There is however a single General Administrative Law Act ("Algemene wet bestuursrecht" or Awb) that applies both to the making of administrative decisions and the judicial review of these decisions in courts. On the basis of the Awb, citizens can oppose a decision ('besluit') made by a public body ('bestuursorgaan') within the administration and apply for judicial review in courts if unsuccessful.

Unlike France or Germany, there are no special administrative courts of first instance in the Netherlands, but regular courts have an administrative "chamber" which specializes in administrative appeals. The courts of appeal in administrative cases however are specialized depending on the case, but most administrative appeals end up in the judicial section of the Council of State (Raad van State).

In addition to the system described above there is another part of administrative law which is called "administratief beroep" (administrative appeal). This procedure is available only if the law on which the primary decision is based specifically provides for it and involves an appeal to a higher ranking administrative body. If administrative appeal is available, no appeal to the judicial system may be made.

Brazil

In Brazil, unlike most Civil-law jurisdictions, there is no specialized court or section to deal with administrative cases.

Chile

The President of the Republic exercises the administrative function, in collaboration with several Ministries or other authorities with ministerial rank. Each Ministry has one or more sub secretaries which perform through public services the actual satisfaction of public needs.

All Ministries and public services have a body of workers or administrative personnel (funcionarios públicos), but with different contractual statutes.

Public entities act through administrative procedures, that is, processes with formal stages where opportunities to deliver evidence and exercise appeals are granted to the citizens. The recent basic law of administrative procedures deals with most of the general matters pertaining the administrative procedures of all public entities.

There is no specialized court to deal with actions against the Administrative entities, but the civil courts have jurisdiction over all matter that are not in the scope of other court, such as public liability and the overturn of single administrative acts.

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