'Administrative Law' as Opposed to Rule of Law – Discussed!

According to Dicey, administrative law rests on two basic assumptions namely,-

(1) That the Government and its servants possess special rights, privileges and prerogatives as against private citizens. An individual in his dealings with the State does not stand on the same footing as that on which he stands in dealings with his neighbour;

(2) That the government and its officials should be independent of and from the jurisdiction of ordinary courts.

From these two basic assumptions, he deduced the following four characteristic of administrative law:

(a) The relation of the government and its officials towards private citizens is regulated not by ordinary law but by a body or rules termed administrative law.

(b) Ordinary judicial tribunals do not deal with matters be­tween the State and private persons. These matters are dealt with by administrative Courts.

(c) The question regarding the limits of jurisdiction of the judicial courts and the administrative courts are determined not by judicial bodies but by administrative bodies.

(d) The servants of the State acting in discharge of their offi­cial duties and in bona fide obedience to superior orders are free from the supervision or control of ordinary law courts i.e., in matters of high policy (acte de government or Act of State) the administration has a discretionary authority which cannot be controlled by any court.

If administrative law implies wide discretionary authority on the part of the government, it is inconsistent with the existence of the Rule of Law.

Rule of Law means equal subjection of all classes to the ordinary law of the land as administered by ordinary law courts. Hence it is opposed to the administrative law which normally implies the existence of special tribunals dispensing, what has come to be known as, administrative justice,

The droit administratif as it obtains in France means, Dicey thought that every servant of the Government possesses as a repre­sentative of the nation, a whole body of special rights, privileges, or prerogatives as against private citizens, and that they are exempted from the operation of the ordinary law of the land with regard to their official conduct.

Dicey contended that such was not the case in England. He admitted that such “official law” existed in England as well but with a basic difference. Such law in England, by whatever name it may be termed, which regulates the privileges or disabilities of civil servants, is the law of a Class. Thus Military Law is law of a class, viz. the Army. Droit administratif on the other hand, is not the law of a class.

It is a body of law which may affect the right of any French citizen. Thus if an action is brought by X against Y in the or­dinary courts (tribunal judiciaries), and the rights of the parties are found to depend on an administrative act (cast administratif), it must be interpreted by an administrative tribunal.

In truth, Dicey argued, droit administratif is not the law of the Civil Service, but is the part of the French Public law which affects every Frenchman in relation to the acts of the administration.

The relation or droit administratif to the ordinary law of France might perhaps be compared not with such law as Military Law governing a particular class but with the relation of Equity to the Common Law of England.

Droit Administratif like Equity in England constitutes a distinct body of law which differs from the ordinary law of the land, and under certain circumstances modifies the ordinary civil rights of every citizen.

The analogy can­not, however, be taken any further because Equity in England benefits or applies to every one-an official or a private citizen, droit administratif in France exists for the benefit and protection of civil servants only.

In conclusion, Dicey observed that the basic feature of the droit administratif is so foreign to British nations that it is impos­sible to identify droit administratif with any branch of English law- since there is an inherent and irreconcilable difference or contradic­tion between the droit administratif and the Rule of Law.

Submitted by : Professor Akarsh, Category : Knowledge