HISTORICAL ANALYSIS OF DROIT ADMINISTRATIF[1]

 

 AUTHORED BY - SARTHAK CHUGH

 

 

ABSTRACT

Administrative law is a niche derivative of law which primarily deals with the actions of the State through the actions of the agents and employees. The most novel innovation in the concept of Administrative Law was done in 18th Century France when the regular civil courts were debarred from adjudicating the matters involving, regardless of the remoteness or the severeness, State or any of its employees or any public-service institution. 

 

These matters were only to be heard and a decision was to be propounded by a specialised system of courts comprising of a hierarchical nature dealing with matters right from the Municipalities to the highest and most supreme authority of the land. The highest court was called as the Conseil d’ Etat and the prevalence of a dichotomy between the regular civil and criminal cases from the administrative ones gave rise to the system of Droit Administratif (or the law of the administration) 

Following decades of precedence and its insistence on following the procedural laws, Droit Adminsitratif finds itself in a unique territory which promotes the idea of an amalgamation of the two organs of the State— Judiciary and Executive but at the same time promises to uphold the Rule of Law and Principles of Natural Justice. 

 

Keywords: Administrative Law, actions, State, France, debarred, adjudicating, Conseil d’

Etat, dichotomy, Droit Administratif, procedural laws, Rule of Law.

 

 

 

1. INTRODUCTION

• EMERGENCE OF FRENCH ADMINISTRATIVE LAW 

The French legal system owes its existence to the duality of French historical movements- the nobility and the post-Revolution separation of powers. Under the faltering pinnacle of the French monarch, Louis the XIV, the Conseil du Roi (King’s Council) was the most supreme authority[2]in the land which not only served as the advisory panel to the monarchy, and the wider nobility, but also as the sole arbiter of civil suits concerning the State and its officials. This led to a lacuna in free and fair adjudication of administrative matters following the overthrow of the monarchy.

 

The matter of following the fundamental clauses of legality in the then-newly independent country’s administrative issues and not bring forth unto themselves a similar form of despotic and destructive administration became paramount. To ensure that the sentiments of separation of powers, as propounded by Montesquieu, was served in practicality as it was textually, Napoleon Bonaparte founded an independent court of law to serve as the premier courts of Administrative Law in the country. 

 

These set of courts were collectively called as the Conseil d’ Etat and comprised of a three-level hierarchical structure from district administrative bodies (Tribunax Administratifs) to the higher Court of Appeals (Cours Administratives d’ Appel) followed by the most supreme, Board of State (Conseil d’ Etat) the latter of which has both original and appellate jurisdictions.[3]

 

France has not been a stranger to juridical matters being solved by a body of people separate from the primary source of governance or monarchy, as far back as 1257, it was noted[4]that the inquests to be carried out on the State defence mechanism must be done by a high-ranking official of the same force and not an outside adjudicator. However, a few centuries down the line there were some glaring problems in the Conseil du Roi, the Court of the Nobility, with them acquiring power and jurisdiction to handle a wide array of cases or of those matters where the Government will be affected, even remotely. They had the supreme and unchallenged power to dispose of the cases or recuse themselves from being a party to it.

 

The faltering judiciary, the dethroned monarchy, a decapitated monarch and his Council and a Revolution later, France saw itself standing at across-roads. It could either develop the processes, procedures and eradicate the problems which affected the common people at the height of the monarchy or set up novel institutions to protect the rights and safeguard the laws of the people. On this, Napoleon, here working more as a law-reformer than as a guiding light of post-revolution France, had written in his own diary thus:[5] 

 

“... we are very ignorant of political and social science. We have not yet defined…

. . executive, legislative and judicial powers

... I see but one feature which we have defined clearly in 50 years-the sovereignty of the people; but we have done no more to settle what is constitutional than in the distribution of powers...

.. The legislature should no longer overwhelm us with a thousand laws, passed on the spur of the moment, nullifying one less nation another and leaving us, altho with 300 folios, a law.”

 

This led to the Constitution of 1791 denying any jurisdictional permission for the regular civil courts to call upon or adjudicate any administrative matter ("les tribunaux ne pervent entrepredre sur les fonctions administratives ou citer ... les administrateurs pour raison de leurs fonctions”)[6]

 

• ANCILLARY COMMENTARIES & ANALYSES OF DROIT ADMINISTRATIF

France is not a common law country, unlike Britain and its former dominions, rather it is a civil law country which places the statutes, provisions, clauses and procedural laws higher than the case laws and precedents. Therefore, the existence of a system of Droit Administratif in France which says that any legal suit between a private individual of the State and the government or one of its authorities must be dealt with by a separate court/s and not the regular civil law courts, is alien and foreign a concept to the common law jurisdictions.

 

Thereby, the existence in France of a system like the Droit Administratif separate and distinct from the civil law, dealing, in the main, with the competence of the administrative authorities and regulating their relations with one another and with private individuals, together with a separate and distinct body of tribunals charged with deciding controversies between the administration and private persons and of resolving conflicts of competence between the administrative and the civil courts, distinguishes fundamentally the administrative and legal system of France from that of Anglo-Saxon countries.[7]

 

A.V. Dicey, the legal scholar who was credited with developing Sir Edward Coke’s Rules of  Natural Justice and Law, coined the phrase “collectivism” in his 1931 lecture at Harvard University, explaining the framework of how the world in the late 19th and throughout the 20th centuries moved toward the model which demanded State intervention, one that we today know as Welfare State. It was also down to the excessive criticism afforded by Dicey to the prevalent system in French judiciary that the term Droit Administratif became the penchant with which this system was made both famous and infamous. The French, on the other hand, empowered with the aforementioned Constituion prohibiting the interference of the regular courts in the administrative matters, preferred to use the term regime administratif[8] to signify the two parallel systems of adjudication— the regular courts dealing with criminal and civil matters between two or more people and the Administrative courts dealing with matters where one of the parties is the State or its representatives. 

 

In re Compagnie générale d'éclairage de Bordeaux,[9] the plaintiff being a public company entrusted with the duty of providing electricity to the homes and street of Bordeaux, did so by enforcing a unilateral contract of a set number of Francs per month. However, upon the onset of the First World War, the coal mines in Northern France were affected by the German forces occupying the areas leading to a stark increase in the amount that had to be paid to the company.

 

Filing a petition in the Conseil d’ Etat, the petitioner sought permission to increase the amount and amend the contract so as to save themselves from liquidation and the city of Bordeaux from having unlit streets and homes. 

 

The Conseil applied the Theory of Unpredictability (ie of being caught off-guard by the onset of the Great War) and allowed the hike in prices for the greater good of the citizenry. 

 

1. EFFECT OF DROIT ADMINISTRATIF ON THE GLOBAL LEGAL WORLD

• EMERGENCE OF GLOBAL ADMINISTRATIVE LAW

Global Administrative Law is an off shoot of the change in the global governance model and requirements. As the 20th century drew to a close, so did the era of extreme nationalism, unnecessary wars and diplomatic miscreants. Buoyed by the emergence of multi-polarity world governments and a strong United Nations, the 21st century saw the rise of, among other things, neoliberalism. It was Friedman, Hayek and Foucault’s works on neoliberalism that brought it such a ubiquitous praise and acceptance. Governments, of those nations bereft of any ideological or political despotism, of today’s epoch are unabashedly capitalistic and adherent advocates of free-market enterprises but the chasm which grew to unbearable levels of poverty and healthcare crises in America and Western Europe in the ‘70s has now been countered with a system that celebrates capitalism and free-market economy but with a degree of governmental interference to maintain the Welfare State. 

 

Therefore, the modern judicial and administrative trend can be surmised by the famous quote of an American judge, Justice Frankfurter, “the history of liberty has largely been the history of the observance of procedural safeguards.”[10] This has been encouraged by the worldwide acceptance of the due process of law. The most fundamental tenets of that being that a) let both sides be heard and b) no one must be punished for a crime they did not commit and a punishment which exceeds the maximum severity as mentioned in the procedural laws. 

 

The emergence of global administrative law is not merely a consequence of the modern times, the glaring need to have a system of adjudication of public cases, one where one of the parties involved is the State itself, has been felt in the Anglo-Saxon world since the Tudor and Stuart times. The regular court system, across the globe, has seen such a tardy overburdening of cases, both public and private, and the inordinate delays in reaching to a decree that even the staunchest antagonist to the French Droit Administratif, A.V. Dicey, would later in his life have a change of heart and pronounce the efficacy of the French system. 

 

The then-Chief Justice of the Supreme Court of the United States, Justice Vanderbilt had opined, “Then, as now, the administration of the common law system led much to be desired. Then, as now, what was needed was more administration in the courts of justice and more of the fundamental principles of justice in the Tribunals.”[11]

 

 • LEGAL SYSTEMS WHICH ADOPTED THE DROIT ADMINISTRATIF PROCESS

As seen before, the system of Droit Administratif did not take kindly to the minds of the jurists and administrators in the common law countries, and consequently the former dominions of the common law countries. That remains the reason why India does not have a separate set of courts to handle the administrative cases. The generalist court model saw active and earnest adopters in Britain, USA, India, Ireland, Australia, and New Zealand. 

 

An outlier in the dichotomy created by the variables in the common and civil law jurisdictions, Germany has played a unique part in combining the best of both worlds. The German judicial system comprises the Federal Constitutional Court and five different judicial hierarchies— one for civil and criminal matters, one for labour disputes, one for tax disputes, one for social security reasons and one for the administrative matters.[12]

 

The latter three specialised courts function largely in the manner which the French Conseil does but it retains its similarity with the processes followed by the common law countries by not providing the Administrative matters’ appeals to reach mother independent adjudicator, rather a common supreme authority.

 

The former colonies of France, mostly of the Northern African territories, make up the large chunk of countries who follow the same model as does France. There are separate courts, administrative matters are dealt with by a specialised judiciary and autonomy is not restricted or hindered. Traditionally, the common law countries which did not favour the move toward having an administrative court were those who advocated for more emphasis to be provided to the procedural laws of judging the moral value of the administrative action and , on the other hand, administrative law of continental Europe was more inclined toward having substantive correctness to test the administrative decisions and adjudicating whether they should be allowed to stand. This broadens the division between the common law countries’ emphasis on Principles of Natural Justice and the administrative courts of continental Europe’s Rights of the Defence (droits de la défense)[13]

 

1. ANALYSIS OF DROIT ADMINISTRATIF THROUGH THE BLANCO CASE

• THE CASE ITSELF

The crux of the history and beginnings of Administrative Law can be understood by the premise and judgement of this case. It was said that the case formed the liaison of jurisdiction and substance, that is to say that the public service is under the authority of the judge of the administrative courts. For a branch of law that is devoid of any written governing Acts, procedures and stare decisis become the fundamentals of future adjudications. 

 

Therefore, the Blanco case of February 8,1873, is usually considered to be either the starting point or the rebirth of the French Administrative Law[14]

 

On November 3, 1871, Agnes Blanco[15] a 5-year daughter of Jean Blanco who was a distiller worker at a factory in Bordeaux, France, was overrun by a wagon full of Kentucky tobacco. The wagon was under the responsibility of four men who were employed by the State-run Bacalan tobacco factory. Once the wagon escapes them, it runs over Agnes and her left leg is amputated as a result of severe injuries. Her father, Jean, decides to file an action against the company whose employees were guilty of misfeasance and consequently against the State since the vicarious liability existed against the State-run company. What ensued was a great tussle between the plaintiffs (Blanco) and the defendants (State, the company and its employees). The former pleaded that the subject-matter jurisdiction of the case lies with the Conseil d’ Etat, which was then merely a three-year-old establishment, whilst the latter contended that the matter lay with the ordinary Civil Courts owing to the act being done not by the State itself rather the employees, indirectly.

 

• BEGETTING THE ADAGE OF BEING THE STARTING POINT OF FRENCH ADMINISTRATIVE LAW

To truly understand the gravity of the conflict that ensued between the two parties, it becomes pertinent to test whether the tobacco company was under the purview of the State. Of the epoch concerned for the aforementioned case, it was considered that a manufacturer, industry, factory or any place of trade or business or commerce shall be considered as a mechanism or corollary of the State should it be similar to activities placed under public authority and control. Tobacco, then as is now, comes under the stronghold of the public control and therefore also under the purview of the State.[16]

 

Upon the commencement of the conflict of jurisdictions presented by the respective parties, the matter was sent to the Conflicts Tribunal (Tribunal des Conflits) and the final hearing was done on the fateful day of Saturday, February 8, 1873. The Court noted the differences in the opinions of the parties and sufficiently heard the arguments of both the parties before concluding:[17]

 

“What is certain is that the acts complained of are directly connected with an administrative public service, a circumstance which is the very foundation upon which the demand against the state rests. This is all that is necessary to bring the complaint within the general rule that demands upon the state growing out of a public service belong to the jurisdiction of the administrative courts; a rule which is but the application in practice of the doctrine of the separation of powers."

 

The decision of the Conflicts Tribunal affirming the jurisdiction of the administrative courts emphasised especially that the responsibility of the state in circumstances such as those before it "is neither general nor absolute," but "is subject to special rules varying with the requirements of the different services and with the necessities of reconciling the interests of the state with private rights." The Tribunal held that these matters can be passed upon only by the administrative courts.[18]

 

• IMPACT OF THE BLANCO CASE ON FUTURE CASES AND THE SOLIDIFICATION OF THE JURISDICTIONAL SEPARATION

Today, France defines State much as the Indian Constitution does under Article 12. It includes not only the highest or the most supreme authority, rather all the various departments, municipalities, local governing bodies and all public-run institutions. Following the Blanco case, this broadening was inevitable and would then include all the components mentioned above. This led to the firm entrenchment of the rule that all the actions arising out of the functions of the State or any of its political subdivisions or from the actions of the employees of the State are solely under the jurisdiction of the administrative courts and no conflict can stand regardless of the remoteness of the cause of action. The Rule or Doctrine was stated to be thus:

 

1. The Judicial courts have no locus standi to decide on cases which are even remotely including the State or any of its subdivisions or employees.
2. However, if the question arises of the capacity in which the employee of the State has acted, whether in their professional or personal capacity, then the matter will not be taken on its face value rather depending on the type of act. If it is the former, then the jurisdiction solely lies with the Administrative Courts however if it is the former then the jurisdiction is of the regular judicial courts. 

Finally, to best understand the manner in which the solidification of the divisions in the jurisdictions of the two courts took place, the evolution of the concept of public policy must be considered. In Thérond v. Ville de Montpellier[19] the city of Montpellier had entered into a contract withThérond for the capture of stray dogs and the removal of dead animals in the city. A dispute arose over the agreement and action was brought in the Conseil d'État. Discharging the duty of determining its own jurisdiction, the Conseil found that the contract was intended for the performance of a public service, i. e., the protection of public health and safety, and that therefore the case was properly before it. 

 

The case also brought to the fore the concept of an Administrative and a personal contract wherein the former shall be those which create a lasting fiduciary relationship between private persons and the Government or Municipality whereas the latter is completely devoid of any interference or involvement of the State. The former, as has been the trend post-Blanco, shall be under the purview of the Administrative Courts whilst the latter shall be under the normal Civil courts.[20]

 

1. CONCLUSION

To trace the historical trajectory of Droit Adminsitratif and the Conseil d’ Etat, from its founding to the immortalisation of this unique system, it becomes crucial to understand its place in the global legal world today. Albeit France, and some of its former colonies and other neighbouring countries in Continental Europe, follow the process of having independent and autonomous administrative courts, it still remains a feature of a few countries and not something that has seen a wholehearted endeavour by the other, mostly common law, countries to initiate a transition toward the dichotomy structure. However, if we judge the efficacy of a particular system of adjudication purely through the number of adopters, it would be a largely myopic perspective to hold. The essence of the system does not only result from its separate systems but also from the fact that those who have the power to give decisions in the Administrative Courts are themselves civil servants, employees of the State. Such involvements of non-lawyers is unheard of in the common-law jurisdictions.[21]

 

Innovations in law and its many nuances are not uncommon, throughout the history of this world we have been witnesses to constant novelty in this sphere of society. From the Roman Tables to the Greek emphasis on Human Rights as portrayed through plays and dramas. From the German Chancellory to the English Rule of Law and from the American class-action lawsuits to the Indian single-integrated judiciary which is neither politicised nor partisan. These unique traits of the judiciaries around the world are a product of the development and evolution of the inter-connectedness and dependence on creating a better world. Just as those before and after it, the significance of Droit Administratif was best quoted by A.V. Dicey, the man who initially considered it to be nothing more than a means by which State protected its own to later understanding its true and deeper significance: “Droit administratif is, in its contents, utterly unlike any branch of modern English law. For the term droit administratif, English legal phraseology supplies no proper equivalent. In England and in countries which, like the United States, derive their civilisation from English sources, the system of administrative law, and the very principles upon which it rests, are in truth unknown."

 

BIBLIOGRAPHY

1. RESEARCH PAPERS

1. C. Sumner Lobingier, Administrative Law and Droit Adminsitratif: A Comparative Study with an Instructive Model, University of Pennsylvania, August 1942.  
2. Hugo Flavier & Charles Froger, Administrative Justice in France: Between Singularity and Classicism, III-2 BRICS Law Journal (2016)  
3. James W. Garner, The Droit Administratif in Modern French Law, 3. Yale Law Journal Quarterly Review (1901)
4. Bernard Schwartz, Administrative Law: The Third Century, 29-3. Administrative Law Review (1977)

  

2. BOOKS

1. John Bell & Francois Lichere, Contemporary French Administrative Law, Cambridge University Press (2022)  
2. L. Neville Brown & John S. Bell, French Administrative Law, Oxford University Press (1998)

 

 

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[1] Sarthak Chugh, 4th BLS, VES Law

[2] Cynthia A. Dent, The Council of State and the Clergy During the Reign of Louis XIV: An Aspect of the Growth of French Absolutism, 24 The Journal of Ecclesiastical History 245, 253 (1973).

[3] Tanya Bansal, Evolution of Administrative Courts in France and India: A Comparative Analysis, 3 Indraprastha Law Review, 12, 14-16 (2022).

[4] THOMPSOM JAMES WESTFALL, THE DECLINE OF THE MISSI DOMINICI IN FRANKISH GAUL, 12-15, Legare Street Press (2023)

[5] NAPOLEON BONAPARTE, THE CORSICAN: A DIARY OF NAPOLEON’S LIFE IN HIS OWN WORDS, 68-70 University Press of the Pacific (2003)

[6] French Constitution of 1791 Title iii, Chapter v, Article iii.

[7] James W Garner, The French Administrative Law, Yale L.J. 597, 597 (1924).

[8] Joseph Minattur, French Administrative Law, 16 Journal of the Indian Law Institute 364, 365 (1974).

[9] Council of State, of March 30, 1916, N° 59928.

[10] McNabb v United States, 318 U.S. 332, 347 (1943).

[11] Vanderbilt, The Place of the Administrative Tribunals in our Legal System, 24 A.B.A.J. 267, 273 (1938).

[12] Matthias Schrader et al, Introduction to the German Civil Procedure 1: How the German Court System Works, Willkie Farr                 &            Gallagher              LLP        (Sept.     20,          2023,      3:10        PM)

https://www.willkie.com/-/media/files/publications/2023/german-law-series----february-2023-g.pdf

[13] Francis Bignami, Comparative Administrative Law 154-157 (Mauro Bussani and Ugo Mattei eds., 2012).

[14] Charles Bosvieux-Onyekwelu, Revenir sur une légende en sociologue : l'arrêt Blanco et le mythe de la « naissance » du droit administratif français, 101 Dans Droit Et Societe 159, 159 (2019).

[15] D.1873, III, 20 Case Blanco.

[16] Michel Margairaz, Experts and Practitioners. Public Economic Services among Experts, Practitioners, and Governments in the Early 20th Century: From One Historical Setting to Another, 52-3 Revue D'histoire Moderne & Contemporaine 132, 132 (2005).

[17] D.1873, III, 20 Case Blanco at 21-22.

[18] ARMIN UHLER, REVIEW OF THE ADMINISTRATIVE ACTS ON THE MERIT- A COMPARATIVE STUDY OF THE DOCTRINE OF SEPARATION OF POWERS AND JUDICIAL REVIEW IN FRANCE AND THE UNITED STATES 45-46, Ann Arbor The University of Michigan Press (1942)

[19] S. 1911.3.17

[20] Supra 51-53

[21] George A. Bermann, The Scope of Judicial Review in French Administrative Law, 16. Colum. J. Transnat’l. L. 195, 251-253 (1977)