A comparative and historical analysis luc heuschling

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

What is the relationship between these areas of law? A historical and comparative assessment results in no less than four types of statements, which reflect the classic perspectives on this topic. (a) Constitutional law and administrative law are completely separate. (I call this view the ‘Two World Thesis’ and discuss it in more detail below). (b) The Constitution prohibits the existence of administrative law. This legal dogmatic conclusion, based on the analysis of a specific legal system (Great Britain), was famously defended by Albert Venn Dicey at the end of nineteenth century. It was, however, erroneous, as was shown later; no similar claim has ever been made in any other European legal system. (c) Administrative law is predetermined by constitutional law. According to the discourse that emerged already in nineteenth century, the Constitution fixes the ‘foundations’ (in French ‘les bases’) of administrative law. An even more extensive view of the Constitution’s impact (or empire) is conveyed by the famous phrase coined by Fritz Werner, the first president of the German Bundesverwaltungsgericht (Federal Administrative Court) after World War Two: ‘Administrative law is a concretization of constitutional law’ (konkretisiertes Verfassungsrecht).²¹ Since the 1990s, there has been much talk, in many (but not all), countries about the ‘constitutionalization’ of administrative law, which discourse has been promoted on the international level by, inter alia, the French professor of constitutional law, Louis Favoreu. Nevertheless, some scholars prefer to use a more neutral qualification (and, thus, less ‘imperialist’): the Constitution simply fixes the ‘framework’ (‘Rahmen’, ‘cadre’) upon which administrative law ‘depends’ (in German Verfassungsabhängigkeit des Verwaltungsrechts). The extent to which administrative law is shaped by the Constitution may give rise, indeed, to controversial discussions, which may even touch on the merits of this bond. (d) According to the fourth thesis, the content of constitutional law is predetermined by administrative law, a radical change of perspective that, in 1996, a famous French professor, Georges Vedel, provocatively called the administrativisation du droit constitutionnel (literally: the ‘administratization’ of constitutional law i.e., the permeation of constitutional law by principles, rules and habits of thought developed initially within administrative law).²² In Germany, in contrast to Fritz Werner’s thesis, a growing number of scholars are now looking at parts of constitutional law as abstrahiertes Verwaltungsrecht (abstracted administrative law).

These four points of view are successively analysed in the following pages. Given its radical nature, the ‘Two World Thesis’ will be my starting point.

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

1. An Elusive ‘Theory’

From today’s perspective, this thesis appears downright strange. How is it possible to even conceive of such a total disconnection between both areas of law? Yet, the idea of such a ‘separation’ still haunts the thoughts of some lawyers, especially those who are used to thinking in terms of antitheses. The Two World Thesis appears to be the logical counterpart to the theory of administrative law’s dependency on constitutional law. To even fix the exact content of this thesis, or even to identify its original author(s), is quite difficult. As far as I know, this thesis has never been systematically and thoughtfully exposed. Thus, to call it a ‘theory’—a term that requires a modicum of coherence and substance—would be a misnomer. A researcher attempting to track it down must often be content with some famous, misunderstood, and often misleading quotations, which are presented as ‘winged words’.²³ At best, she/he will discover some theoretical attempts or beginnings, but not a full-fledged theory.

The following statement is an attempt to systematically reconstruct this thesis: constitutional law and administrative law are two hermetically-sealed spheres of law sitting next to one another. Figuratively speaking, they are parallel, or perhaps divergent, branches on the vigorous tree of law.²⁴ Such a perfect separation could only exist if the two branches of law: (a) governed completely different matters; (b) arose from different legal sources; and (c) used different values, categories, and standards. If that were the case, it would mean that judges or academic scholars assigned to each particular area of law could totally ignore the other area. At the root of this thesis, one usually encounters a concrete, even empirically verifiable, statement relating to one particular aspect of this multifaceted issue. The corresponding grain of truth is extrapolated and condensed into a catchy, often polemic formula. What frequently happens thereafter is that said extrapolation is perpetuated by a hurried reader who is likely to have simply skimmed the rest of the text, even though in those remaining pages, the catchy formula is often strongly relativized, either explicitly or implicitly, by its original author. The result of this interaction between the author’s sweeping statement and the reader’s hastiness is a ‘theory’ that, if looked at it closely, does not appear to be particularly well-founded. In a constitutional State, sealing off administrative law from the Constitution is unthinkable. Therefore, it is not very surprising that the Two World Thesis is rarely represented. It appears to have been debated only in Germany and France; even in Spain, where professors of administrative law and professors of constitutional law tended to ignore each other before the political and intellectual caesura of 1978, no such thesis has ever been affirmed.²⁵ It should also be noted that, from a historical perspective, the Two World Thesis emerged relatively late, only over the course of the twentieth century. The adverse theory of administrative law being linked to constitutional law is much older and goes back to the start of the nineteenth century. Today, no one defends the Two World Thesis, which silence is not particularly surprising. In retrospect, it is the mere past existence of this thesis that puzzles and raises questions about its function.