ADMINISTRATIVE LAW/ DROIT ADMINISTRATIF- FRANCE

Droit administratif refers to the body of law governing the administrative actions of the
government. Unlike common law countries where laws are primarily developed by
precedents set by judicial decisions, droit administratif is characterised by statutes,
administrative regulations and decisions made by administrative courts. This branch of law
covers various aspects, including public service, management of public property and the
organisation of public institutions.

The principle of droit administratif is a fundamental concept in French administrative law

that governs the relationship between the government and its citizens. This principle
emphasises the importance of protecting individual rights and interests from abuses of
power by government authorities.

French administrative law or “Droit Administratif,” comprises a specialised body of rules that
define the organisation, powers and duties of public administration while regulating the
interactions between the administration and the country’s citizens. Unlike other branches of
law that are predominantly shaped by parliamentary legislation, Droit Administratif is chiefly
constructed through the rulings of administrative courts. This distinctive feature underscores
its role in adapting legal standards directly to the complexities of governmental functions.

Rules of Droit Administratif

Droit Administratif is a depiction of regulations set by judges and approved by juries, not of
laws passed by the French Parliament. The following are the regulations that, when put
together, form the Droit Administratif:

1. Rules that cover administrative officers and those who work for them.

2. Regulations that address how public services are provided to meet the demands of the
public.

3. Administrative adjudication regulations.

Key Principles of Droit Administratif

Several core principles define droit administratif and differentiate it from other branches of
law:

 Principle of Special Jurisdiction: Administrative courts exclusively hear disputes

between individuals and public authorities. This separation from ordinary courts is
based on the belief that specialised knowledge is required to adjudicate complex
administrative matters.
  Principle of Administrative Discretion: Public administrators are granted discretion
to make decisions within the bounds of the law. This flexibility is important for
effective public management but comes with checks to prevent misuse.

 Principle of Judicial Review: Despite the autonomy of administrative bodies, their

decisions are subject to review by administrative courts. This ensures that actions
and decisions comply with the law and respect individual rights.

 Principle of Service Public: This principle is central to droit administratif, emphasising

that the primary role of administrative action is to serve the public interest. It reflects
the idea that the government should work for the benefit of the community.

Characteristics of Droit Administratif

Droit Administratif, the cornerstone of administrative law in France, possesses several

distinctive characteristics that differentiate it from the legal systems found in common law
countries. This framework governs how the state interacts with its citizens and oversees
public administration. Below are the primary features that define Droit Administratif:

1. Specialised Judicial System: The administrative matters related to the state and its
functions are adjudicated by specialised administrative courts rather than ordinary
civil or criminal courts. This separation ensures that disputes involving public
administration are handled by judges with specific expertise in administrative law.

2. Judge-Made Rules: Unlike common law systems where jurisprudence heavily

influences law, the rules applied in administrative litigation in France are developed
by the courts themselves, specifically the administrative courts. This approach allows
for a dynamic and adaptive legal system that can respond more effectively to the
complexities of governing.

3. Tribunal des Conflicts: This specialised tribunal resolves jurisdictional conflicts

between administrative and ordinary courts. Its existence underscores the unique
parallel systems of justice in France, ensuring clear lines of authority and preventing
legal conflicts between different branches of the judiciary.

4. Protection of Government Officials: Droit Administratif provides certain protections

for government officials from the jurisdiction of ordinary courts, recognising the
unique nature and responsibilities of public service. This protection is designed to
allow public servants to perform their duties without undue interference from the
ordinary judiciary.

5. Historical Development of Conseil d’État: Emerging from the transformative period

of the French Revolution, the Conseil d’État has grown to serve dual roles as both a
consulting body to the government and the highest administrative court. This
institution’s evolution reflects the gradual and considered integration of
administrative governance into the broader democratic framework of France.
 6. Absence of Natural Justice in Some Aspects: Notably, the principle of “Audi Alteram
Partem,” which requires a hearing from both sides before a decision is made, is not
always applicable in French administrative proceedings. This departure from what is
typical in common law jurisdictions highlights a fundamental difference in how rights
and responsibilities are balanced in administrative disputes.

7. State Liability and Tort: France diverges from English jurisprudence by not granting
immunity to the state from tort liability, meaning the state can be held liable in civil
law for damages caused by wrongful acts or negligence. This approach increases the
accountability of public administration.

8. Non-interference of Administrative and Ordinary Courts: In France, there is a strict

non-interference policy between administrative and ordinary courts, each operating
within its defined remit. This separation is designed to maintain the integrity and
independence of each branch of the judiciary.

9. Independence from Precedent: Unlike common law systems that rely heavily on
precedent, Droit Administratif is characterised by its reliance on judge-made law that
is not strictly bound by previous decisions. This allows administrative law to remain
flexible and responsive to new challenges and circumstances.

Conclusion

Droit administratif is more than just a legal doctrine; it is a crucial element that supports the
rule of law in public administration, ensuring that governmental actions are conducted
legally and ethically. As societies evolve and new challenges emerge, the principles of droit
administratif will continue to adapt, ensuring that they remain effective in balancing
government efficiency with the protection of individual rights.

JUDICIAL REVIEW- UNITED STATES OF AMERICA

The concept of Judicial Review is basically originated in USA in the historic landmark case
Marbury vs. Madison. The US Constitution doesn’t provide power of judicial review
expressly but Article III of the U.S. Constitution as "the judicial power of the United States
which includes original, appellate jurisdiction and also matter arising under law and equity
jurisdiction incorporates judicial power of Court. Art. VI of the Constitution provides” All
powers of government are exercisable.

Only by on the authority of the organ established by the Constitution. Thus Art VI
incorporates “Constitution of USA is the supreme law of the land”. Judicial review is not
expressly provided in the US Constitution, but it is the formulation by the Court. Supreme
Court of US has power to check the action of Congress and State Legislatures from
delegating the essential legislative function to the executive. The principle “due process of
law” creates a democratic balance in US by declaring the arbitrary and illegal laws.
Objects Of Judicial Review in USA:

The main objectives of Judicial Review in USA are as follows:

1. To declare the laws unconstitutional if they are contrary to the Constitution.
2. To defend the valid laws which are challenged to be unconstitutional.
3. To protect and uphold the Supremacy of the Constitution by interpreting its
provision.
4. To save the legislative function of Congress being encroached by other
departments of the Government.

Based on the principle of "due process of law" under the Fifth and Fourteenth Amendments.
he provision of Due Process of Law in the USA means that the Judiciary examines
laws/executive orders not only on substantive grounds of being unlawful but also on
procedural grounds of being unreasonable.

Due process of law include:

1) Procedural Judicial Review – This focuses on whether the correct legal processes and
procedures were followed in making a decision.

o Courts ensure that due process and fair trial principles are upheld.

2) Substantive Judicial Review – Courts evaluate the substance or content of laws and
decisions to determine their fairness, reasonableness, and adherence to principles of
justice.

o This review goes beyond procedural aspects to the merits of the case

Limitations: No provision for reconsideration by the legislature; judicial decisions can be

overridden only by constitutional amendment.