Administrative Law Week 1 Definitions PDF

**GENERAL DEFINITIONS** 1\. Introduction If man invented the state, he then had to come up with rules and ways in which that state functions and find entities to act on its behalf. The same is true of any community, such as a local government community, although it may not act for itself or on beh...

**GENERAL DEFINITIONS** 1\. Introduction If man invented the state, he then had to come up with rules and ways in which that state functions and find entities to act on its behalf. The same is true of any community, such as a local government community, although it may not act for itself or on behalf of the state. If man invented the state, he had to define the rules of behavior of this state towards the individual and the individual towards the state. Symmetrically, as above, this applies to every community. These are self-evident statements, but they point to the extraordinary importance of administrative law, since it is administrative law, much more than any other field of law, that deals with the issues mentioned above. Administrative law is intended to serve the well-being of human beings, which can be considered its primary, indeed its only duty and the meaning of its existence. Everything else - organizational structures, the relationship between these structures, competitions, forms of action, procedures, any rationing, etc. - serve this one purpose. Particularly in a democratic state under the rule of law the relationship between the state and the citizen, which is dealt with in administrative law, should be arranged according to the rule of partnership. The state and its legislature cannot be guided by the partisan rationale of those in power in the state. Constitutional law regulates only the basic principles of the relationship between the state and the citizen, criminal law covers only pathological behavior on the scale of the whole, civil law, as a rule, does not address these relations at all. It is administrative law that goes to the heart of them, and it addresses them to the very end, completely and entirely. When it comes to the functioning of the state and the proper relations between the state and the individual, what is not regulated by it does not actually exist.  2\. Public administration The subject of regulation of administrative law is public administration.  As the subject of consideration, we only consider public administration, which is distinguished by the fact that it is exercised by the state (or by separate entities acting under the authority of the state) and implements the common good in order to bring some benefit to the public (community, state), or cares for individual entities, however, representing the interests of the entire society or community, or acting for the sake of commonly held values. The separation of powers and depending on the organizational structure of a particular state (unitary state, confederation, federalism) results in a fragmentation of authority that is generally not seen in the private sector. Legal restrictions and requirements affect private management, but they do not fragment authority over it in the same way or to the same extent, nor do they provide so many parties with a legal right to observe and participate in private firms' decisions, organizational designs, and other concerns.[\[1\]](applewebdata://7C684F7F-012B-4789-8BEA-1956D5E9A88D#_ftn1) We can define administration from a subjective and objective point of view[ (see also an explanation included in another content of the module).]  Administration in the subjective (organizational, static) sense: administration is the existing organizational shape of the executive power at a given moment. It is a structure consisting of administrative authorities and other administrative units. Administration in the objective sense (functional, dynamic). In this approach, action is visible. This is an administrative activity performed by the state or an entity designated by the state. There are different definitions of public administration and different approaches to that definition. This is because "public administration" as a category is so abstract and varied that it can be described only in vague, general, and somewhat competing terms[\[1\]](applewebdata://88CE3B9F-6D42-4B2F-A5E9-1D9E7D9287F7#_ftn1). **3. Characteristics of public administration** a\) Public administration acts in the name of and on behalf of the state.  b\) The primary objective of public administration is to act for the public good, to pursue the public interest. c\) Administrative power. d\) Public administration, each of its organs, operates on the basis of the law and within the limits set by it, and is bound by it.  e)  Public administration is executive in nature.  f\) Public administration is run by professional personnel. g\) Public administration organizes social life in its area. Its purpose is to meet social needs, and the law provides it with the means and constitutes a limit that it cannot cross. h\) Another important feature of public administration is the specific nature of its activities. 4\. Characteristics of Administrative Law a) Administrative law is part of public law. b\) There are different types of administrative legal norms: organizational, substantive, and procedural administrative law. c) Administrative law is the base for administrative authority, its norms authorize specific entities (administrative authorities) to rule and regulate its scope and application. d) Administrative law defines the status of a citizen in the state. e) There are many of fields belonging to this law (construction law, water law, postal law, social assistance law, health law, education law, etc.). f\) In administrative law the citizen's behavior can be established in two ways: (1) *ex lege*, (directly) in the statutes, e.g., school duties, tax duties, and obligatory military service (2) in an administrative decision, when the activity of an administrative authority is needed, e.g. license, permission etc. g\) Administrative law changes very often. 5. Administrative law and other branches of law a\) Administrative law and constitutional law. Administrative law is the necessary supplement to constitutional law. But administrative law not only supplements constitutional law, in so far as it regulates the administrative organization of the government; it also complements constitutional law, in so far as it determines the rules of law relative to the activity of the administrative authorities.  b) Administrative law and criminal law. Administrative law concerns various relations between the state (public administration) and entities outside it, resulting from changing circumstances and events in social life. Criminal law applies only to pathological phenomena, situations in which an entity external to the state breaks the rules established by the state, and only those rules whose violation has been defined as punishable by the state itself. c) Administrative law and international law. Administrative law lays down the rules which shall guide public administration officers who act as agents of the government, international law consists of rules that a state follows in its relations with other states **GENERAL DEFINITIONS PART 2** 1\. The legal subjects The legal subjects are those to whom the legal system recognizes the legal capacity, i.e. the ability to be holders of rights and obligations, a capacity that may be subject to restrictions (eg for the administrations the capacity of private law may be limited by law).  In the legal systems usually we can distinguish the natural person from the legal entities, which are corporations, associations, foundations, the State and other public local bodies, and all other entities to which the law expressly attributes legal personality.  Non-incorporated associations and other entities without legal personality, which are nevertheless attributed legal capacity, are also legal entities.  Entities with legal personality express the capacity to act through their organs, natural persons whose actions are directly attributed to the entity to which they belong.  The notion of organ does not respond to the problem of the organizational structure of the entity, but rather to the legal attribution.  The organ from the organizational point of view is an office, an instrument of attribution of acts and effects to the legal person.  Usually in the legal system a distinction should be made between private and public entities. The latter are established for the pursuit of the interests of the society and form as a whole what is called the public administration.  They are: the State, the regions or other territorial departments, the local public bodies (ie: Provinces, Municipalities, Cities), and other public bodies (economic and non-economic), public owned companies, etc.).  Usually a new public body can be established only by law. 2\. Subjective legal situations: subjective right, obligation, power and legitimate interest. The \"subjective legal situations\" are the positions that the legal system attributes to subjects and could be divided into active and passive.  The active ones are: the subjective right, the power (i.e.: the power of the public administration), in certain Countries the legitimate interest (i.e. France). The passive ones are: obligation, duty and subjection.  The subjective right is that full and unconditional position that guarantees to a subject the possibility to satisfy her/his interest. Subjective rights could be considered absolute when their satisfaction obliges all the subjects of the system to refrain from conduct (e.g. right of property); they could be considered relative when their satisfaction depends on the cooperation of one or more determined subjects (e.g. rights of credit). The subjective right is optional, that is, its exercise is at the disposal of the owner. Each legal system, according to the purposes it proposes, recognizes subjective rights. The subjective right, i.e. the sphere of attributions granted to a subject to satisfy her/his needs, originates from the objective right, i.e. the set of rules regulating social relations within a community.  The specular position to the subjective right is the obligation and it indicates the duty of a subject to perform or refrain from performing a certain legal act to satisfy a subjective right of others.  The passive position not correlated to a subjective right of others is defined as duty (i.e.: the duty of good faith and fairness which concerns all subjects of the legal system).  Power indicates the possibility of a subject to modify a juridical situation. It constitutes an expression of the capacity to act. The person against whom a power is exercised is in a legal situation of subjection. The existence of a power can abstractly coexist with a subjective right, but when the power is exercised, the legal situation of the subject holder of the subjective right is transformed into subjection, so that power and right are presented as irreconcilable terms.  In certain civil law Countries, especially those who were influenced by the French legal system, the legitimate interest is the subjective legal situation of the person who is subject to the exercise of a power by the Public Administration, an interest which, unlike the subjective right, is not absolutely protected by the legal system. If a power is recognized to the Public Administration - and usually it happens by law - the subject in whose sphere that power is intended to affect is in a qualified position. He can demand the legality of the action of the Public Administration, that is, that the public power exercised by it is: a\) in accordance with the law,  b\) issued by a competent body and c\) not vitiated by excess of power. Those entitled of a legitimate interest can also exercise the power to participate in administrative proceedings and access to documents 3\. Subjective legal situation, public power and the rule of law The legal system has the task of determining the boundaries between subjective legal situations and resolving intersubjective conflicts of interest.  The rules of objective law that determine the boundaries between subjective rights and powers, recognizing the prevalence of public or private interests, could considered as rules aimed at defining a precise \"relationship\" between the private interest and the public interest, that is between the legal situation of the individuals and the powers attributed to the Public Administration.  Where the administrative activity affects the interests of the private individual by exceeding the limits set by the rules that are defining such \"relationship\" and the subsequent boundaries, a violation of the subjective right is configured. The subject to whom a rule has attributed a subjective right can always turn to the Court to assert his right, when the same is not spontaneously observed, both when the failure to observe derives from the behaviour of a private legal subject, and when it derives from a public body. Therefore, where the subject has a subjective right with regard to the Public Administration, the latter is obliged to observe it like any other subject in the system and the individuals can obtain protection by turning to the judge, who has jurisdiction in matters of subjective rights. 4\. The powers of the Public Administration and the legitimate interest Public Administration could be defined as the legal entity that has the right to exercise a function, that is, an activity aimed at pursuing an interest of others.  For the above purpose the Public Administration may have recourse both to the ordinary tools offered by the law (i.e.: private law contracts) and to legal tools properly provided for the exercise of the public powers. Through the exercise of these powers, the Public administration modifies, constitutes or extinguishes legal situations. The legal subject against whom a power is exercised is in a legal situation of subjection.  However, the exercise of power must comply with the legal rules governing its exercise (i.e. the rule of law). The subject against whom the power is exercised is not only in a position of subjection, but can also demand the proper exercise of that power by activating appropriate jurisdictional protection.  In certain western civil law legal traditions (i.e.: France) it required the invention of new and institutional legal guarantees, above all the administrative justice, and of a new regime of administrative acts. The combining of administrative action and its judicial review gave birth to a different subjective legal position qualified by law: the legitimate interest, aimed at claiming legitimacy of the administrative action by the person against whom the administrative act produces effects.  We could define the rules that set the prerequisites and modalities for the exercise of a public power as rules governing the action of the public administration: those are the rules aimed at defining the correct administrative procedure that the public administration has to comply with by exercising its power. The subject who has a legitimate interest can claim the correct application of those rules of action.  This claim is defined as legitimate interest. This particular legal situation is qualified and differentiated (differentiated from simple interests and qualified by a legal norm).  The non-observance of the rules governing the action of the public administration determines the illegitimacy of the act.  In this sense, the power must:  a\) be exercised by the competent public body;  b\) comply with the prescriptions that regulate the manner of exercise;  c\) be exercised by pursuing the public interest as defined by law. **PUBLIC ADMINISTRATION: ACTS AND ACTIVITIES** 1\. Public Administration in a subjective sense Every community of individuals possesses an organization aimed at taking care of the interests of the community.  The organized whole of goods and persons aimed at taking care of public interests is defined as \"Public Administration\". This term does not refer to a body or a specific organization, but rather to the organizational complex, to the set of the administrative structures of the community. The task of the Public Administration is to \"manage\" the community accordingly to the objectives set by the law and to take care of the various public interests identified by bodies that are entitled of regulatory powers. The notion of \"administration\" in a subjective sense is used as a synonym for Public Administration. In an objective sense it refers instead to the activity of administering, i.e. the set of acts put in place by the Public Administration for the pursuit of public purposes. The Public Administration could also somehow at least in certain Countries  as \"pluralistic\", in the sense that there are various bodies to which the care of collective interests is delegated. There is a central state administration (ministries) and a peripheral state administration: the so-called agencies and independent authorities; public bodies and local authorities, etc\... Administrative law governs the organization of these bodies and regulates the relations among them. The Public Administration exercises a series of activities aimed at the care of public interests, which are carried out through administrative acts and measures that are characterized by being \"typical\" and \"named\" because the power to issue them is provided by law (so-called public law activities). The care of the interests of the community takes place not only through the exercise of the powers thus constituted, but also through the adoption of instruments of private law (so-called administrative activity of private law). The administrative activity is also realized by the performance of material acts (so-called material activity). 2\. Public Administration in an objective sense The Public Administration, through its organs, possesses a common legal capacity, that is, it has the power to perform any act of private law, when this is necessary for the achievement of its institutional purposes, e.g. by entering into contracts or establishing companies or foundations. Instead the power of the Public Administration to act through decisions is typical, as proper only of the Public Administration, i.e. exercising an authoritative power addressed to the care of public interests and preordained to the production of legal effects on third parties. In order to attribute this power to the administration, it is necessary to have a devoted law assigning it the power to provide for the purpose of pursuing a specific public interest, identifying its essential elements (competent subjective authority, object, content, purpose, form) and the typical effects which are produced (to constitute, modify or extinguish subjective legal situations). In the absence of this normative attribution, the administrative act adopted is radically null and void for lack of power. In this consists the principle of typicality of administrative decisions, that directly expresses the principle of legality. It is not necessary that the law circumscribes every single element of the final decision, being sufficient that the same provides for the purposes, the public interest to be pursued, the procedure aimed at the adoption of the act, the object and the effects of the same. Outside these elements, the law can leave a margin of choice to the Public Administration in balancing the conflicting interests and determine the content of the decision.  The basic aim of exercising - by deciding - an administrative power on a concrete basis is to pursue at the best the public interests. Summing up: the legislator determines the purpose for which the power is intended, the Public Administration chooses the most suitable means of achieving it. The discretion may concern one or more of the following elements: if, what, when, how.   3\. The activity of the Public Administration The administrative activity does not consist in the simple execution of a preformed normative datum; it is rather the research of the most suitable choice to the concrete pursuit of the aim foreseen by the law. The power with which the Public Administration exercises this choice is always regulated by law, but it could be discretionary. That is, it must take account of the public interests involved and must be respectful of the canons of proper administration (the principle of good administration and the principle of legality), as well as the general principles of the order. An exception to this rule could be the so-called \"binding acts\" whose conditions of adoption are rigidly determined by law and the activity of the administration is configured as a mere assessment of the existence of such conditions. The acts carried out by the Public Administration can be distinguished in unilateral or bilateral. There is therefore a unilateral activity (or imperative) of the Public Administration and a bilateral (or consensual) activity. With the first, the effects of the exercise of a public power (the constitution, modification or extinction of subjective legal situations) are imposed on third parties (i.e. the whole society or certain groups or categories) regardless of their consent. With the second one, these effects derive from the meeting of wills of several subjects (i.e.: contracts, agreements). The boundary between private law activities and public law activities appears today more blurred, in the light of the increasing use by the legislators of mixed instruments for the pursuit of public interests.