England
In England, by and large, the existence of administrative law as a separate branch of law was not accepted until the advent of the 20th century. In 1885, Dicey rejected the concept altogether. In his famous thesis on the rule of law, he observed that there was no administrative law in England. He had pronounced to Robson, “In England, we know nothing of administrative law, and we wish to know nothing about it.” But while saying this, he ignored the existence of administrative discretion and administrative justice, which were current even in his days.
In a large number of statutes, discretionary powers were conferred on the executive authorities and administrative tribunals, which could not be called into question by the ordinary courts of law. But he disregarded them altogether. It appears that his contemporary Maitland was quite conscious of the true position, and he observed in 1887, “If you take up a modern volume of the reports of the Queen’s Bench Division, you will find that about half of the cases reported have to do with rules of administrative law.
In 1914, however, Dicey changed his views. In the last edition of his famous book, Law and the Constitution, published in 1915, he admitted that during the previous 30 years, due to the increase in duties and authority of English officials, some elements of droit had entered into the law of England. But even then, he did not concede that there was administrative law in England.
According to Friedmann, unfortunately, Dicey misunderstood the scope and ambit of administrative law. He thought administrative law to be inconsistent with the maintenance of the rule of law. Hence, while studying the rule of law, he excluded altogether administrative law and a special system of administrative courts. Even in 1935, Lord Hewart, Chief Justice of England, described the term ‘administrative law’ as ‘continental jargon’.
In 1947, the Crown Proceedings Act was passed by the British Parliament which made the government liable to pay damages in cases of tortious and contractual liability of the Crown. In 1958, the Tribunals and Inquiries Act was passed for the purpose of better control and supervision of administrative decisions, and the decisions of the administrative authorities and tribunals were made subject to appeal and supervisory jurisdiction of the regular courts of law.
In the 20th century, social and economic policies of the government had a significant impact on private rights, housing, employment, planning, education, health, and several other matters. Neither the Legislature could resolve those problems nor could the Crown’s courts provide effective remedies to aggrieved parties. That resulted in an increase in delegated legislation as well as tribunalization.
France
French administrative law of droit adminstratif is a branch of law that deals with the powers and duties of various administrative agencies and officials. According to Dicey, droit administrative is that portion of French law which determines —
- position and liabilities of state officials.
- rights and liabilities of private individuals in their dealings with officials as representatives of the State. And
- the procedure by which these rights and duties are enforced.
According to him, this system is based on two principles, namely:
- An individual in his dealings with the State does not, according to the French legal system, stand on the same footing as that on which he stands in dealing with his neighbor; and
- The government and its officials are independent of and free from the jurisdiction of the ordinary civil courts.
From the above two principles, the following consequences ensue:
- The relationship between the government and its officials towards private citizens must be regulated by a body of rules that may differ considerably from the laws that govern the relationship of one private person with another.
- The ordinary courts determine disputes between a private individual and the state, but they are determined by administrative courts.
- In case of a conflict of jurisdiction between two sets of courts, the said dispute will be decided by the administrative court.
- Droit Administratif has a tendency to protect from the supervision or control of the ordinary law courts any servant of the state who is guilty of an act, however illegal, whilst acting bona fide in obedience to the orders of his superiors and in the discharge of his official duties.
