A comparative and historical analysis luc heuschling

4. A Last Rebuttal and an Outlook

Extreme theses stimulate the spirit, inciting a more profound comprehension of the issue. As Søren Kierkegaard once noted,⁶¹ it puts the subject matter in a different light. If the Two World Thesis were true, it would logically follow that the respective guardians of each of the legal areas could completely ignore the other. However, that is contradicted by the historical and comparative data that indicate a link between the courts and scholars of both fields. Extreme cases, in which the guardians of either administrative or constitutional law were absent, are particularly interesting in this context.

a) The Bond between Constitutional and Administrative Justice

A look at the history of law in Europe shows that, in many countries (though not all), constitutional and administrative courts did not come into existence at the same time. In most countries, judicial review of administrative actions first developed in the nineteenth century, be it through special administrative courts or ordinary courts. Special constitutional courts only saw the light of day much later, in the twentieth century. However, even before these special constitutional courts were established, a certain constitutional justice already existed inside civil justice and/or administrative justice. When rendering a decision in an administrative or private law dispute, a court was supposed to apply thereto the law. The Constitution was one potential source of law, to the extent that: (a) the constitutional norm was factually relevant and directly applicable, and (b) courts were allowed to invoke and use the Constitution.⁶² The scope of this kind of constitutional adjudication was either very broad (e.g., the courts were entitled to examine the constitutionality of statutes)⁶³ or much narrower (e.g., the courts could only apply the Constitution to the extent that no statute prevented it from doing so).⁶⁴ Its existence, even before the establishment of specialized constitutional courts, is not surprising, as the concepts of constitutional justice, on the one hand, and administrative justice, on the other, are delineated according to different criteria: whereas the criterion defining administrative justice is the subject matter (judicial review of administrative organs or administrative activities), the province of constitutional justice is determined according to the formal source of applicable law (constitutional justice is the judicial application and interpretation of the formal Constitution).⁶⁵ An intersection of the two is, ipso facto, given. Thus, a judge may pass from the area of administrative justice into the area of constitutional justice.

The reverse path—from constitutional justice to administrative justice—also exists, but was less frequently taken. A rare example is Switzerland. Traditionally, since the nineteenth century, Swiss administration had only been subject to internal oversight and to external political control by Parliament and citizens.⁶⁶ The ordinary (i.e., civil) courts had no competence to review administrative acts; special administrative courts did not exist (at the federal level, they were created only in 1917, 1925, and 2007, at the cantonal level only between 1959 and 1996). However, the Federal Court, which was established as a permanent court of justice in 1874, held, in addition to its main civil and criminal law jurisdiction, some powers of constitutional judicial review.⁶⁷ Since the end of the nineteenth century, the Federal Court has used this power, thereby developing a selective, though not all-encompassing, system of administrative justice, which partly, but only partly, filled the gap of the missing administrative courts.
Thus, in both theory and practice, there is a path from administrative justice to constitutional justice as well as from constitutional justice to administrative justice. Even though they overlap, they are not yet identical or interchangeable: as the Swiss example shows, it is not possible to build a complete system of administrative review solely out of a jurisdiction of constitutional justice. Conversely, even under the best conditions, administrative courts can never interpret their own powers to encompass all those that are currently entrusted to constitutional courts.⁶⁸

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

In many European countries (e.g., Germany, the United Kingdom, Switzerland, Austria, Hungary, Denmark, Sweden, Portugal, and the Netherlands), the academic study of administrative law became autonomous through a slow process of detachment from the pre-existing study of constitutional law.⁶⁹ As a logical consequence and conclusion of the enquiry into the constitutional structure of the state, professors of ‘state law’ (Staatsrecht), ‘constitutional law’ or ‘political law’ also analysed the legal framework of those state organs called ‘administration’.⁷⁰ Their view of public power expanded to include the State’s ‘upper’ levels as well its ‘lower’ levels, from the most abstract principles of the Constitution to the thicket of administrative law’s regulations and decisions. Older and even recent textbooks covering both subject areas bear witness to such a continuous broadening of constitutional lawyers’ horizons.⁷¹ Yet, a constitutional lawyer’s interest in administrative law was by definition of secondary importance. Administrative law risked being neglected, as was demonstrated in nineteenth century Germany by the attitude of the famous Staatsrechtler Carl Friedrich von Gerber or, during the same period, the primary focus of most Danish professors of Statsret (state law) for Statsforfatningsret (constitutional law) to the detriment of Statsforvaltningsret (administrative law).⁷² Just systematizing the sheer mass of administrative law rules and decisions required specialization. The creation of an autonomous scholarship in administrative law occurred, for some of these countries, by the middle or end of the nineteenth century (e.g., in Germany,⁷³ Austria, Hungary, Portugal), somewhat later in Switzerland (in the beginning of the twentieth century⁷⁴) and in Denmark (in the 1920s), and much later in the United Kingdom (in the last fifty years). Despite boundary disputes and excessive attempts at disentanglement, this historical development generally suggests the existence of a special relationship between the study of constitutional and administrative law.⁷⁵

This special relationship is also confirmed when looking at the issue from the opposite perspective, that is, the example of France.⁷⁶ From 1789 to 1870, despite the existence of several Constitutions, constitutional law was almost never taught in French universities. The chairs of the faculties of law were dedicated mainly to the study of civil and criminal law and, to a lesser extent—since 1819/1828—to the study of administrative law. In this peculiar context, it is worth noting that the introductions to textbooks on administrative law and, to a lesser extent, private law, at least made mention of the constitutional framework or sometimes even discussed it more extensively. One of the most striking examples of such a broad excursion into the province of constitutional law can be found in the third edition of the Cours de droit public et administratif (Lectures on public and administrative law) by Firmin Laferrière (1798–1861), professor of administrative law at the University of Rennes. That third edition was published in two volumes in 1850. In the first 376 pages of volume one, in Part I entitled ‘Public Law’, Laferrière successively discussed the philosophical background of public law (droit public philosophique), the positive Constitution of France (droit constitutionnel français), canon law, and international law. Thereafter, in Part II, entitled ‘Administrative law’ (‘Droit administratif’) comprising pages 377–508 of volume one and all of volume two, Laferrière focussed on its main topic (i.e., administrative law stricto sensu). Nomen est omen: it is not a mere accident that the title of many administrative law textbooks from that period used not only the term droit administratif, but also the term droit public.⁷⁷ Sometimes, the latter referred to the entire body of public law, but it very often only referred to the specific branch of constitutional law. In the peculiar context of the nineteenth century—in the absence of chairs dedicated to constitutional law, to political science and to empirical studies on administration—the administrative law scholarship succeeded in occupying a monopolistic or at least central position in the academic field of studies on the state. It succeeded in doing so from a marginal position (no one disputed that, logically, administrative law must follow, not precede, constitutional law). Whereas in most countries, the academic curriculum went from the ‘summits’ of constitutional law down into the ‘valleys’ of administrative law, the French approach in the nineteenth century was ‘bottom up’, moving up from administrative law (and, to a far lesser extent, from private law) into the higher sphere of constitutional law.⁷⁸ This shows that there is an overlap between those two fields of study and, further, that the said overlap may be overtaken from one side or the other.