A comparative and historical analysis luc heuschling

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

In such a complex area, attention must be paid to avoid falling prey to a distorted image of reality. A first taste thereof is the definition of the two terms: ‘administrative law’ and ‘constitutional law’. The demarcation of these areas of law varies depending on the country.

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

In almost all countries on the Continent, which, for our topic, includes Ireland, there is a general consensus amongst scholars that constitutional law is to be defined formally (i.e., with reference to a certain layer of norms inside the hierarchy of norms). Constitutional law comprehends all norms embedded in one or several written documents entitled ‘Constitution’, ‘Basic Law’, ‘Instrument of Government’, etc. that enjoy a higher rank than ordinary statutes. A minor problem results from the fact that a substantive definition of constitutional law is also still present in scholarly debate in these countries and contributes to the shaping of positive law.⁵ However, the greatest difficulty is that, on the basis of the hierarchical criterion, constitutional law is not distinguished from administrative law, but from ordinary law. The term ‘ordinary law’ (from the German ‘einfaches Recht’) means in this context ‘the mass of all sub-constitutional norms’. Thus, on the basis of the hierarchy of norms, the binomial ‘constitutional law and administrative law’, at first glance, makes no sense.

Understood as a strict distinction, the phrase ‘constitutional law and administrative law’ only makes sense if administrative law is also defined by its formal sources. Two hypotheses may be considered: (a) Administrative law consists only of sub-constitutional norms because the Constitution contains absolutely no norms with respect to public administration. This hypothesis does not reflect reality (more on that later); therefore, it may be neglected. (b) The Constitution includes standards regarding the structure, functions, powers, staff, and/or means of public administration; however, these norms are classified exclusively under the label ‘constitutional law’ and are not considered to also be part of ‘administrative law’. This reasoning currently prevails in Austria: the contemporary doctrinal definition of administrative law in Austria relies on the traditional distinction between Justizrecht (literally, the judiciary law, i.e., law applied by the civil courts of justice) and politisches Recht (literally, political law, which is law applied by administrative bodies, administrative law lato sensu).⁶ This first criterion is supplemented by a second: the hierarchy of norms. From the mass of administrative law lato sensu are excluded all norms of constitutional ranking. The result is administrative law stricto sensu, which is the usual meaning of Verwaltungsrecht (administrative law) amongst Austrian legal scholars and practitioners. Overall, according to this classification, three groups of legal norms arise, which are, at first glance, strictly separated, both hierarchically and analytically, without any overlap. This apparently clean separation of legal material allows a ‘clean’ division of the jurisdictions of the courts: at the top, there is constitutional justice, with parallel civil and administrative justice below.⁷
The Austrian approach, however, is rare. The criterion of legal source plays no role in other countries, if one considers the dominant definition of administrative law.⁸ Generally, administrative law is first defined either institutionally (i.e., the law applicable to administrative authorities) or functionally (i.e., the law applicable to administrative activities); in a second step, private law rules, which are applicable to administrative organs or actions, are typically sorted out. The result of this asymmetric definition of constitutional law and administrative law is the existence of an intersection that may be qualified, according to the Swiss scholar Pierre Moor either as droit constitutionnel administratif (administrative constitutional law) or as droit administratif constitutionnel (constitutional administrative law).⁹ In French literature, it is very common to speak, with regard to the various sources of administrative law, of the constitutional sources of administrative law (sources constitutionnelles du droit administratif). The overlap between constitutional law and administrative law can be relatively broad or very narrow depending on the extent of each area of law. Its existence, however, is very often lost in the heat of the discussion: the usual question about the influence of constitutional law on administrative law makes sense only if the two are not identical. With regard to this debate, the Austrian definition is the only consistent one.

b) The United Kingdom: A Fluid and Evolving Demarcation

The binomial ‘constitutional and administrative law’ also makes much more sense, analytically, if both areas of law are substantively defined. This results in the coexistence of two spheres: the sphere of policy (creation of law) and the subordinate sphere of administration (implementation of law). Constitutional law establishes the norms for the state’s highest organs, while administrative law establishes them for its lower organs (the administrative bodies, distinct from the cabinet). The principles of the State’s existence and its core policies are the focus of the first branch of law, while the second focuses on the execution of such policies. These substantive differences, however, may not generate a sharp distinction. The government is located at the hinge of politics and administration; like the Roman god Janus, it looks in both directions. The place of local government institutions is not always very easy to define. Moreover, the rights and principles established by the Constitution (human rights, rule of law, democracy, etc.) are addressed both to the political decision-making process and to the administrative decision-making process; they permeate administrative law.

This substantive approach is still used, although as a minority approach, in many parts of the European Continent.¹⁰ It prevails in two countries: the Netherlands and the United Kingdom. As the Dutch Constitution (Grondwet) is an entrenched (supra-legal) Constitution, one might have expected Dutch lawyers to observe the asymmetric approach. Yet, the lack of judicial review of the constitutionality of statutes, prohibited by article 120 of the Grondwet, may explain why Dutch scholars tend to delineate both administrative and constitutional law according to substantive criteria. The distinction is only presented didactically, without any practical relevance in law.¹¹
The result is the same in the United Kingdom, although in a rather different context. In England and Scotland,¹² a substantive definition traditionally prevails both in constitutional law scholarship and in the recently-recognized science of administrative law. A historical survey of textbooks in British public law shows that the emergence of administrative law as a separate area came about in four stages: First, Albert Venn Dicey rejected its existence within constitutional law doctrine; second, from the time of William Ivor Jennings, the existence of administrative law was gradually recognized in textbooks on ‘constitutional law’; third, from the 1960s, its official recognition was intensified through the new title ‘Constitutional and Administrative Law’ of most textbooks in constitutional law; and finally, textbooks devoted strictly to ‘administrative law’ had a great success. Traditionally, administrative law had been incorporated in constitutional law. ‘Administrative law is a part of constitutional law’ went the classic statement made even by authors such as Frederick John Port, William Wade and Stanley de Smith, who were pioneers of the scholarship specializing in administrative law.¹³ Today, administrative law is more often positioned outside constitutional law than within it. In the influential work by William Wade and Christopher Forsyth, constitutional law and administrative law are being addressed as two areas of law, even if they intermingle to a certain extent.¹⁴ The demarcation line is still blurry and evolving.¹⁵ It is a matter ‘of convenience’ or ‘choice’,¹⁶ as the criteria used to define it vary.¹⁷ Authors of textbooks on ‘Constitutional and Administrative Law’ often refrain from drawing any such line (why should they?). Moreover, some authors apply the newly-coined term ‘public law’ as an umbrella term for both areas of law.¹⁸ According to Peter Cane, the divisions of law should not bother ‘unduly’ an administrative lawyer, as the United Kingdom lacks a rigid Constitution.¹⁹ The fact is, however, as will be shown later, that British constitutional law is in transition, moving from a purely substantive definition to a formal, hierarchical one. This tectonic shift has not yet been noticed and theorized in most textbooks. The ultimate earthquake is still some ways off, but the pressure is gradually building.²⁰
In general, a comparative lawyer must keep in mind four complex definitional strands, as summarized in the following table:

	‘constitutional law’ definition	‘administrative law’ definition
‘Continent’ (including Ireland)	formal	substantive
Austria	formal	formal (and substantive)
The Netherlands	substantive (notwithstanding the existence of an entrenched Constitution)	substantive
The United Kingdom	substantive (in transition)	substantive