IN many continental countries, and notably in France, there exists a scheme of

administrative law 3 —known to Frenchmen as droit administratif—which rests on ideas

foreign to the fundamental assumptions of our English common law, and especially to
what we have termed the rule of law. This opposition is specially apparent in the
protection given in foreign countries to servants of the State, or, as we say in England, of
the Crown, who, whilst acting in pursuance of official orders, or in the bona fide attempt
to discharge official duties, are guilty of acts which in themselves are wrongful or
unlawful. The extent of this protection has in France—with which country we are for the
most part concerned—varied from time to time. It was once all but complete; it is now far
less extensive than it was thirty-six years ago.

History of Droit Administratif

Droit Administratif refers to the existence of parallel courts to deal with matters of
administration. In the 16th Century, the Consul du Roi(King’s Court) gained
predominance with its growing jurisdiction taking cognisance of all cases where
the government or its servants were involved. The jurisdiction of this tribunal
gave rise to some challenges with the jurisdiction of the civil courts. In the 17th
century the Consul du Roi came to be the Conseil Prive’ (along the lines of the Privy
Council in Britain), which, as opposed to the civil courts (the Conseil Commun),
had jurisdiction over appeals in administrative matters. In this regard, the Conseil
du Roi, the administrative court saw growing importance in the French legal system,
even more so than the two other tribunals, the Court of Finance and the Judicial Court.
After the Revolution, in 1799, Napoleon revived the Consul du Roi as the Conseil d’ Etat.
The Conseil d’Etat, in concurrence with the provision in the 1791 Constitution,
excluding from ordinary courts the jurisdiction to INTERNATIONAL JOURNAL
FOR LEGAL DEVELOPMENTS AND ALLIED ISSUES VOLUME 1 ISSUE 3 [ISSN –
2454-1273] 172exercise administrative functions, was vested with the jurisdiction to
adjudicate administrative disputes and required its authorization for proceeding against
government agents370.The concept of Droit Administratif is in contradistinction to
Dicey’s ‘Rule of Law’, where everybody in a State everybody shall be subjected to
some common law and no official irrespective of his status and authority shall be kept
outside the purview of Rule of Law.

Law of France
French law can be divided into two main categories: private law ("droit privé") and
public law ("droit public").

Judicial law includes, in particular:

* civil law ("droit civil"); and

* criminal law ("droit pénal").

Public law includes, in particular:

* administrative law ("droit administratif"); and

* constitutional law ("droit constitutionnel").

Meaning of Droit administratif

French administrative law is known asDroitAdministratif which means a body of
rules which determine the organization,powers andduties of public administration
and regulate the relation of the administration with the citizen of the country. Droit
Administrativedoes not represent the rules and principles enacted by Parliament. It
contains the rules developed by administrative courts.
Napoleon Bonaparte was the founder of theDroit administrative. It was hewho
established the Conseil d’Etat.
He passed an ordinance depriving the law courts of their jurisdiction on administrative
matters and another ordinance that such matters could be determined only by the
Conseil d’Etat.Waline, the French jurist, propounds three basic principles of
Droit administrative:

1.the power of administration to act suo motuand impose directly on the subject the duty
to obey its decision;
2.the power of theadministration to take decisions and to execute them suo motumay be
exercised only within the ambit of law which protects individual liberties
against administrative arbitrariness;
3.the existence of a specialized administrative jurisdiction.One good result of this
is that an independent body reviews every administrative action.

Definitions

Austin has defined administrative Law. As the law, which determines theends and
modes to which the sovereign power shall be exercised. In his view, the sovereign
power shall be exercised either directly by the monarch or directly by the
subordinate political superiors to whom portions of those are delegated or
committed in trust.

Holland regards Administrative Law “one of six” divisions of public law.In his famous
book “Introduction to American Administrative Law 1958”,

Bernard Schawartz hasdefined Administrative Law as “the law applicable tothose

administrative agencies which possess of delegated legislation and ad judicatory
authority.”

Jennings has defined Administrative Law as “the law relating to

theadministration. It determines the organization, powers and duties of
administrative authorities.”

Dicey in 19thcentury defines it as.

Firstly, portion of a nation’s legal system which determines the legal statuesand liabilities
of all State officials.
Secondly, defines the right and liabilities of private individuals in theirdealings with
public officials.
Thirdly, specifies the procedure by which those rights and liabilities areenforced.

Maincharacteristicfeaturesofdroitadministratif.
Thefollowingcharacteristic features are of the Droit Administratifin France:-

1.Those mattersconcerning the State and administrative litigation falls within the
jurisdiction of administrative courts and cannot be decided by the land of the ordinary
courts.
2.Those deciding matters concerning the State and administrative litigation, rules as
developed by the administrative courts are applied.
3.If there is any conflict of jurisdiction between ordinary courts and administrative court,
it is decided by the tribunal des conflicts.4.Conseil d’Etat is the highest administrative
court.

Tribunal administratif
The Administrative Court is the administrative court of first instance. It is the common
law judge in administrative litigation, meaning that all administrative disputes falling
under its jurisdiction, except when special provision departs from that principle by
conferring jurisdiction on another court.

The administrative courts have jurisdiction in any dispute with a government (state, local
authorities, public administrative institutions, etc..). They are also responsible for all
matters related to municipal and cantonal elections. Exceptions where the Council of
State is responsible first and last resort, for example, involved disputes with consulates,
appeals against regulatory acts adopted by the ministers or against administrative whose
scope extends beyond the purview of a single tribunal.

Cour administrative d'appel

They are seized of appeals against decisions of administrative tribunals of their
jurisdiction, as well as appeals against decisions of commissions for indemnification of
returnees.

Remain the responsibility of the State Council:

* Calls of judgments relating to local elections

* Those on appeal questions of legality

Appeals against judgments on appeals against orders prefectural deportation are the
jurisdiction of the courts, not the Council of State in respect of calls recorded from 1
January 2005. Their skills are introduced gradually: in 1989, for example, they were
unaware of the litigation abuse of power.

Conseil d'État
The State Council is, in France, a public institution charged with two main tasks: it is the
government adviser and the highest courts of the administrative order. The French
judicial system knows, in fact, the duality of orders of court (judicial and administrative).
(The supreme judge in the judiciary is the Court of Cassation, the conflicts of jurisdiction
between the two orders is decided by the Disputes Tribunal.)

The main advantage of Conseil d'État is that being an independent body. It reviews every
administrative action. This council of the state comprises of eminent civil servants.

This council deals with a variety of matters like:

Income Tax,

Claims for damages for wrongful acts of Government servants.

Personal claims of Civil Servants against:

Wrongful dismissal or

Suspension.

Disputed elections, etc.

The Conseil d'État can interfere in administrative order if there is:

Lack of jurisdiction.

The error of law.

Misapplication of power

The irregularity of procedure.

RULE OF LAW

Absolute predominance or supremacy of ordinary law of the land over all citizens, no
matter how powerful. First expounded by the UK law Professor A. V. Dicey in his 1885
book 'Introduction To The Study Of Law Of The Constitution,' it is based on three
principles that
(1) legal duties, and liability to punishment, of all citizens, is determined by the ordinary
(regular) law and not by any arbitrary official fiat, government decree, or wide
discretionary-powers,
(2) disputes between citizens and government officials are to be determined by the
ordinary courts applying ordinary law, and the
(3) fundamental rights of the citizens (freedom of the person, freedom of association,
freedom of speech) are rooted in the natural law, and are not dependent on any abstract
constitutional concept, declaration, or guaranty.

No One Is ‘Above' The Law

This implies that every one is bound by the law. The law applies to ministers and public
officials as well as other members of society.

1. Many of the powers of the prime minister and other ministers are based on the Royal
prerogative, which is not subject to judicial oversight.
2. As parliament is sovereign, it can make, unmake and amend any law it whishes and
son on, in that sense, it is ‘above ‘the law.

3. The principle of parliamentary privilege means the MPs and peers are not subject to
legal restrictions on what they can say in parliament

4. The Queen, as head of the legal system, is not properly subject to the law.

All these aspects can undermine ‘No one is ‘above' the law .moreover they are not illegal
actions and can not be prosecuted as an illegal action.

2) Equality Before The Law

The law is meant to treat all citizens alike; it is no respecter of persons .

However, concerns have been expressed about the extent to which this principle applies
in the UK:

Legal disputes may be prohibitively costly, for many, and only the wealthy can afford to
be represented by top lawyers.

Access to legal aid is not always easy and may exclude people from middle-income
groups

Judges may be biased against ,for instance .women, ethnic minorities and the poor
because they tend to come from narrow and privileged social and educational
background

3. The Law Is Always Applied.

Disputes must be resolved by the application of the law rather than by other means. This
means that there must be a certainty of punishment for breaches of law

However, concerns have been expressed about the extent to which this principle applies
in the UK;

Not all crimes are reported and therefore legally addressed ( this applies, for instance, in
the case of most rapes)

As polices resources are limited many crimes are not detected ( for example , speeding
offences)

‘Trial by the media ‘means that people may be punished without legal proceeding having
taken, or, perhaps, despite being acquitted.

COMPARISON
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.

State Liability. In Gencril. "Immunity of the Sovereign from all legal action,in reslcct of Ix.
h contract and tort, is well established" in England,N rote Port," and "this immunity
extends to servants of the Crown assuch". The doctrine was brought to the American
colonies as part oftheir common law inheritance and prevails in both state and federal
114governments except where the immunity has been removed by stat-ute."15 "A
comparatively modern development" of the doctrine is"the immunity of the judge"
which "originated, somewhat mysteri-ously, in the sanctity of the record of a court . ..It
was not until* .the 17th century that ...Coke interpreted the immunity• .in terms of
public policy." 1116 Moreover, in the United Statesthe Prcsident, and probably most
governors are immune from writs ofandamus, prohibition, injunction, etc."17 Old
French law seems tohave emlxxtied the maxim los torts du soz'erahi ne se reparent pas