Introduction to Administrative Law PDF Lecture Week 10 2024

12/11/2024 Sandra Nobrega Introduction to Administrative Law Week 10 What is Administrative Law? 3 4 The role of the State throughout history 19th century: States focused on maintaining the law and order within the country and protecting the territory against invasions...

12/11/2024 Sandra Nobrega Introduction to Administrative Law Week 10 What is Administrative Law? 3 4 The role of the State throughout history 19th century: States focused on maintaining the law and order within the country and protecting the territory against invasions Post-industrial revolution: the State had also the tasks of providing community services and distributing wealth among its citizens Nowadays, States provide public goods and services Police Welfare State State 5 Topics of Administrative Law Administrative authorities and their servants Powers of administrative authorities Procedural rules applicable to public powers Substantive requirements public authorities must follow Judicial protection against administrative action 6 Instruments and Powers at the disposal of Public Administration The administration serves the public interest Juridical Acts: general and The legislator empowers the administrative body specific acts How the administration can effective its policies? Juridical acts Factual acts Factual acts: concrete acts to achieve policy goals Competences Public Law Private Law 7 Public Law v Private Law Context in Liberal Orders: The state holds a dual role, acting as both a facilitator and a potential limiter of freedom. Concept: Co-originality of freedom and authority (Habermas) Public Law: Focus: Manages political power, its structural organization, and interactions with citizens. 4.2 The Co-Originality Thesis Finlayson, James Gordon and Dafydd Huw Rees, "Jürgen Habermas", The Stanford Encyclopedia of Philosophy (Winter 2023 Edition), Edward N. Zalta & Private Law: Uri Nodelman (eds.), URL =. covering areas like contracts, property, and family matters. Who Is Jürgen Habermas and What Is He Saying 8 Public law: constitutional and administrative law Constitutional Law: Defines the state's structure, fundamental rights, and core values. Significance: Expanded beyond traditional public law during the 20th century. Administrative Law: Purpose: Implements and enforces constitutional frameworks and principles. Continuous Evolution: Adapts and redefines administrative processes to meet societal needs (Sabino Cassese, New paths for administrative law: A manifesto, International Journal of Constitutional Law, Volume 10, Issue 3, July 2012, Pages 603–613, https://doi.org/10.1093/icon/mos038). 9  2 Admnistration Within the Trias Politica 10 Democratic and aristocratic states are not in their own nature free. Political liberty is to be found only in moderate governments; and even in these it is not always found. It is there only when there is no abuse of power. But constant experience shows us that every man invested with power is apt to abuse it, and to carry his authority as far as it will go. Is it not strange, though true, to say that virtue itself has need of limits? To prevent this abuse, it is necessary from the very nature of things that power should be a check to power. A government may be so constituted, as no man shall be compelled to do things to which the law does not oblige him, nor forced to abstain from things which the law permits. Montesquieu, Spirit of Laws, BK. 11, CHS. 1--7, 20  2 Administration Within the Trias Politica The construction of a new power plant in an industrial area Requirements for environmental and construction permission – Environmental Law Legislator Application of the prescribed procedure by law (decision- making) If the permit is issued, the administration will also monitor the operation of the power plant Administration The courts can check whether the executive remains within the limits imposed by law. Judiciary 12 Public Administration Civil servant employment Legal guarantees of civil service employment: Life tenure absent grave misconduct Merit-based recruitment Why? Promotion based on a mixture of seniority and merit ? Pay scales and benefits that are more standardized than in private enterprise Public Management reforms: terms of public sector employment more flexible and closer to performance indicators Privatization 13 Administrative Law beyond the state border (?) Administrative Law has been seen as Designed to a unique administrative system A body of law on its own Therefore, there would be no need to look outside ( no comparison or What transplant) changed? Today Comparative Administrative Law is recognized in legal scholarship and practice ? Elgar Encyclopedia of Reasons for change (Hanns Pter Nehl – Administrative Law, p. 19): Comparative Law (Elgar Original Reference) Globalization (more in slide 16) Enhanced international diffusion of information Internet Cross-border health, safety and environmental issues (need for common or parallel responses) 14 European Administrative Law Multilevel Governance: there are several levels of administrative decision- making. Several layers of administrative authorities within a national State. Jointly by European and national authorities Food Safety Traffic safety Designation of nature reserve 15 European Administrative Law Direct Administration Indirect Administration EU law is adopted and EU law is executed through executed at EU level the national administrations 16 Jänicke, Martin. (2015). Horizontal and Vertical Reinforcement in Global Climate Governance. Energies. 8. 5782-5799, 5789 Jänicke, Martin. (2015). Horizontal and Vertical Reinforcement in Global Climate Governance. Energies. 8. 5782-5799, 5789 Global Administrative Law Globalization “Can We Sustain Globalisation?” report claims to have come across more than 5,000 of them. SustainAbility's favourite is one provided by two Economist journalists. Globalisation, they wrote, “is the freer movement of goods, services, ideas and people around the world”. 18  Global Administrative Law Why Global Administrative law? Address the consequences of globalized interdependence Transgovernmental regulation and administration Which areas needs this type of regulation? Environmental protection Law enforcement Trade in product and services Intellectual Property Labour Standards 19  Global Administrative Law Accountability Deficit “The notion of an accountability deficit is particularly associated Types of response with the absence of political control by democratically extension of domestic administrative elected political representatives the development of new mechanisms of (where it is linked with a democracy deficit).” administrative law at the global level to Richard Mulgan, Accountability Deficits | The Oxford Handbook of Public Accountability | Oxford Academic (oup.com) address decisions and rules made within the intergovernmental regimes. 20 GAL comprises “the mechanisms, principles, practices, and supporting social understandings that promote or otherwise affect the accountability of global administrative bodies, in particular by ensuring they meet adequate standards of transparency, participation, reasoned decision, and legality, and by providing effective review of the rules and decisions they make.” Global Administrative Law B. Kingsbury, N. Krisch, R.B. Stewart, The Emergence of Global Administrative Law, 68 Law and Contemporary Problems 15–61 (2005), p. 17.