A comparative and historical analysis luc heuschling

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THE COMPLEX RELATIONSHIP BETWEEN ADMINISTRATIVE AND CONSTITUTIONAL LAW
A COMPARATIVE AND HISTORICAL ANALYSIS
LUC HEUSCHLING^*

A. Introduction 2

1. A Complex and Multifaceted Topic 2

2. A Tricky Preliminary Question: Defining ‘Administrative’ and ‘Constitutional’ Law 4

a) An Asymmetrical Demarcation on the Continent (Except Austria and the Netherlands) 4

b) The United Kingdom: A Fluid and Evolving Demarcation 6

3. Four Classic Theses Regarding the Relationship Between Both Areas of Law 8

B. The Two World Thesis: A rarity and conceptual absurdity 10

1. An Elusive ‘Theory’ 10

2. The German Debate over Otto Mayer’s Dictum 11

a) A Will-o’-the-wisp: Mayer’s Dictum as an Expression of the Two World Thesis 11

b) A Grain of Truth: The Problem of Constitutional Disruptions 13

3. The French Case: The Logical Impossibility of the Two World Thesis 14

a) France: The Home of the Two World Thesis? 14

b) The Two World Thesis in the Writings of René Chapus and Georges Vedel 16

c) A Grain of Truth: Rivalry between Courts and the Drifting Apart of the Two Legal Branches 18

4. A Last Rebuttal and an Outlook 20

a) The Bond between Constitutional and Administrative Justice 20

b) The Bond between Constitutional Law Scholarship and Administrative Law Scholarship 22

5. Interim Conclusions: A New Definition of the Problem 25

C. The United Kingdom: Still a Special Case? 25

1. Dicey and the Constitutional Freezing of Administrative Law 26

a) A False Generalization: The Existence of English Administrative Law 27

b) Dicey’s Profound Influence Indicates a Certain Primacy of Constitutional Principles 28

2. The Contemporary Constitutionalization of Administrative Law 29

a) The Debate over the Constitutional Foundations of Judicial Review 30

b) A Higher Rank for Parts of the Constitution Because of the Human Rights Act and the European Convention on Human Rights 31

D. The Common European Paradigm: A Two-Sided Relationship 33

1. A Broad Spectrum: Differences in Substance and Terminology 36

a) Outside the Mainstream: Sweden 36

b) The Mainstream’s Avant-garde: Germany 40

c) A Variant Within the Mainstream: France 42

2. The Causes of the Diversity: The Different Parameters of a Complex Phenomenon 45

a) The Number of Administratively-Relevant Constitutional Norms 45

b) Preconceptions: The Constitution as the Law’s World Egg or as a Framework? 48

c) Preconceptions: Abstractness and Normativity of Constitutional Principles 50

d) The Telos of the Constitution: Transformation or Consolidation of the Pre-Existing (Administrative) Ordinary Law? 52

e) The Primacy and Legitimacy of the Constitution 54

f) The Stability or Instability of the Constitution 55

g) The Guardianship of the Constitution: Are Administrative Authorities Entitled, Or Even Obliged, to Ignore Unconstitutional Norms? 56

h) Courts (Constitutional Courts and/or Administrative Courts) as Guardians of the Constitution 64

i) The Role of Scholars with Regard to Constitutionalization of Administrative Law 69

A. Introduction

1. A Complex and Multifaceted Topic

Law is a social construct, invented through a variety of conceptual tools. One classic tool is the subdivision of law into branches of law. To find their way through the virtually infinite number of legal norms, lawyers divide their kingdom into provinces. The lawyers’ intellectual horizon is split up, with boundaries and fences. His or her mental world is organized. When isolated from the rest of the legal world, each such province of law may develop its own ‘spirit’, having its own theory of legal sources, methods of interpretation, and/or fundamental principles. Such a process of insulation is encouraged by the creation of specific guardians or ‘gatekeepers’ (e.g., judges and scholars) for each legal area. However, it is also important to note that boundaries may be more or less open, allowing cross-border exchanges, interactions, and transfers, be they unilateral or bilateral. In the ancient, and rather obscure, metaphor of the tree of law, the various branches are connected to the trunk, whose roots plunge into a common ground. Far from being stopped, communication between legal branches might be organized and canalized. In some cases, the demarcation line may even be totally blurred, two provinces being intimately intertwined.

In light of this general issue it is of particular interest and importance for European public lawyers to analyse, from a comparative and historical perspective, the position of ‘administrative law’ vis-à-vis ‘constitutional law’, and vice versa. This broad topic raises a series of questions. (a) How are the two elements of the binomial ‘constitutional and administrative law’—the formulation in reverse order (administrative and constitutional law) being quite rare—differentiated from each other in the various legal systems in Europe? Are they totally distinct from one another, with no overlap, or are they closely intertwined, such that speaking of two areas of law is somewhat misleading? (b) What are the specific characteristics of each of the two areas of law, once they are separated into two distinct groups of norms?¹ (c) How are these groups of norms related: What significance do legislators, judges, lawyers, civil servants, and scholars attach, in their mind, to constitutional law when operating in the field of administrative law? How do constitutional lawyers look upon administrative law? (d) If each group of norms has its own ‘gardeners’ and ‘guardians’ (e.g., specialised courts and specialised scientific disciplines), how do they interact? (e) How important is that relationship to building the identity of administrative law and constitutional law in the various European countries: is it a central issue (if not a mass of problems?) or only a marginal issue, both in theory and practice? Is it, in particular, the key question (the ‘Gretchenfrage’) to identify the nature and content of administrative law, or are the rules of administrative law determined more by the external influences of politics and/or other areas of law (e.g., private law, international and European law, or some foreign legal models)?
Given the abundance of questions, the vastness of the research field in space² and time,³ and—this may already be said—a rather broad variety of individual responses, the aim of this chapter is simply to give a first outline of the relationship between both areas of law. Its cognitive goal is twofold: comparative (cartographic) and theoretical (ontological). Its first, and most important, aim is to get an exact view of how far the national legal systems in Europe converge, or diverge, with respect to the relationship between constitutional and administrative law. Pleading the thesis of an Ius commune Europaeum (i.e., the existence of a common legal view in Europe) is not as easy a task as it might seem at first sight. It requires an in-depth analysis of all European countries, without excluding (or even hiding) individual cases that do not fit into the mainstream (for the present issue, particularly the United Kingdom and Sweden). A comparative lawyer must prove herself/himself in relation to such ‘hard nuts’, to which she/he must pay special attention. Only then can any thesis of unity amongst diversity—a thesis which will, indeed, be proffered here—be truly persuasive. However, in this chapter, the use of legal comparison is not limited to legal mapping of the world (here: Europe). In contrast to a purely nationally minded academic, a specialist in comparative law and the history of law has at her/his disposal a far richer range of legal materials from which to draw some theoretical conclusions. These materials, especially if they include some extreme cases,⁴ allow her/him a much deeper insight into the matter. Thus, the second aim of this investigation is to get a better theoretical understanding of administrative law as such.