A comparative and historical analysis luc heuschling

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

Today, the logically compelling notion of a bond between constitutional and administrative law is commonly accepted in all European legal systems. It is at the core of the growing role of constitutional review throughout the second half of the twentieth century, and it is also at the forefront of the most recent evolutions in administrative law such as the emergence of the new field of ‘Global Administrative Law’.¹⁰⁶ Unsurprisingly, the idea of the link between the two branches of law is also very old. It goes back to the very beginning of the coexistence of both branches. Thus, France’s first written Constitution of 1791 contained a large number of principles and rules related to public administration. In France, the ‘first’ professor of administrative law, Joseph Marie de Gérando, and the ‘first’ professor of constitutional law, Pellegrino Rossi,¹⁰⁷ both highlighted the constitutional foundations (‘les bases constitutionnelles’) of administrative law.¹⁰⁸ The same was true for Germany: the old masters in public law, such as Robert von Mohl, Ludwig von Rönne and Lorenz von Stein,¹⁰⁹ acknowledged the constitutional basis of administrative law, with the latter coining the famous explanation of administration as ‘tätig werdende Verfassung’ (‘the Constitution put into action’).¹¹⁰ In Belgium, the most famous administrative law scholar of the nineteenth century, Alfred Giron (1832–1910), retained a similar definition: ‘The aim of administrative law is to develop and apply the principles established by the Constitution. It regulates the action and fixes the competencies of central and local administrations. Administrative law is far from being as permanent and stable as private law. It is saturated with political principles that change at the same time as the Instrument of Government.’¹¹¹ In Spain, in 1843, one of the founding fathers of administrative law scholarship, Pedro Gómez de la Serna (1806–1871), stated: ‘Derecho administrativo tiene por base al derecho public [constitutional law], con el que está íntimamente ligado, y del que puede considerarse como consecuencia.’¹¹² Thereafter, Manuel Colmeiro y Penido (1818–1894), the most famous administrative law academic in late nineteenth century Spain, did not hesitate to claim that ‘el derecho político es el fundamento de todo el derecho, asi publico como privado’¹¹³ (constitutional law is the foundation of all law, public as well as private). This discourse on the ‘bases constitucionales’ of administrative law was common to all Spanish nineteenth century scholars¹¹⁴ and even, as far as I know, to all public law scholars on the European Continent during that period.

Yet, as demonstrated by the critical analysis of Alberto Gallego Anabitarte with regard to Spain before 1978, this discourse may, in reality, hide a lack of communication between the two disciplines, especially if, for ideological and/or epistemological reasons, constitutional law scholarship is unable or unwilling to develop a strictly juristic (that is, legally dogmatic) discourse on the Constitution that may be used by administrative lawyers. Thus, the relationship may be complex, which observation was already made, albeit from a different perspective, by Frank Johnson Goodnow in 1897. In his comparative survey of four major jurisdictions (the USA, England, France, and Germany), Goodnow stressed the idea of a multifaceted and, thus, complex entanglement. According to him, the subject matter of both areas of law is largely the same (public authority and liberties). ‘While constitutional law gives the general plan of governmental organization, administrative law carries out this plan in its minutest details.’¹¹⁵ However, in the eyes of Goodnow, administrative law is not just normalized; it also plays a creative role by filling out the constitutional framework (e.g., it ‘supplements’ or ‘complements’). Certain parts of constitutional law are irrelevant to administrative law, while others (the so-called ‘constitutional foundations’¹¹⁶ of administrative law) are the cornerstone of administrative law. Each area of law looks at the issue of public power from a different perspective: ‘Constitutional law, it has been said (by a French administrative lawyer), lays stress upon rights; administrative law emphasizes duties.’¹¹⁷
The bond between administrative law and constitutional law is indeed complex. It is not a one-sided, but two-sided relationship. (1) Ordinary (i.e., sub-constitutional) administrative law is informed, through various channels, by the normative standards (principles and/or rules) set by the higher Constitution, an aspect that stands out most clearly in the debate. However, the extent of this predetermination or, to put it differently, of ordinary administrative law’s autonomy must be assessed very carefully, as it may greatly vary. (2) In other ways, the Constitution also (a) depends on or (b) is inspired by, ordinary administrative law. (2a) Without the infrastructure of administrative legislation, regulations, case law, contracts, and decisions, the constitutional superstructure would literally hang in mid-air. The Constitution would be just a piece of paper, perhaps beautifully written, fair, and normative, but ineffective.¹¹⁸ (2b) The content of constitutional law may also stem from solutions established long ago by (ordinary) administrative law, which have proven valuable and adaptable. This phenomenon of legal transfer or ‘learning process’ (Jens Kersten) has been designated, in France, by George Vedel’s provocative phrase ‘administratization of constitutional law’ or, in Germany, inter alia by the qualification of constitutional law as ‘abstracted administrative law’ (Christoph Möllers). The coexistence of these two perspectives (1) and (2) and the internal complexity of each of them explain the diversity of national solutions. That ordinary administrative law depends on constitutional law, and vice versa, is a common European paradigm; yet, the actual form of this complex relationship may, and does, vary, depending on the specific context of each country and era. There are differences in substance as well as terms. Even if the terminology used is the same (e.g., the older term: ‘constitutional foundations’ or the current ‘constitutionalization’ of administrative law), one must be careful not to hastily conclude it has the same meaning in each jurisdiction. The following pages will be devoted, first, to a brief outline of the scale of variations, before looking at precise parameters that might explain such diversity.