Administrative law is the body of law Law is a system of rules, usually enforced through a set of institutions. Laws can shape or reflect politics, economics and society in numerous ways and serves as a primary social mediator of relations between people. Contract law regulates everything from buying a bus ticket to trading on derivatives markets. Property law defines rights and that governs the activities of administrative agencies A government agency is a permanent or semi-permanent organization in the machinery of government that is responsible for the oversight and administration of specific functions, such as an intelligence agency[citation needed]. There is a notable variety of types of agency. Although usage differs, a government agency is normally distinct both from a of government A government is the organization, or agency through which a political unit exercises its authority, controls and administers public policy, and directs and controls the actions of its members or subjects. Government agency A government agency is a permanent or semi-permanent organization in the machinery of government that is responsible for the oversight and administration of specific functions, such as an intelligence agency[citation needed]. There is a notable variety of types of agency. Although usage differs, a government agency is normally distinct both from a action can include rulemaking In administrative law, rulemaking refers to the process that executive and independent agencies use to create, or promulgate, regulations. In general, legislatures first set broad policy mandates by passing statutes, then agencies create more detailed regulations through rulemaking, adjudication Adjudication is the legal process by which an arbiter or judge reviews evidence and argumentation including legal reasoning set forth by opposing parties or litigants to come to a decision which determines rights and obligations between the parties involved. Three types of disputes are resolved through adjudication:, or the enforcement Coming into force refers to the process by which legislation, or part of legislation, and treaties come to have legal force and effect. The term is closely related to the date of this transition of a specific regulatory Regulation is "controlling human or societal behavior by rules or restrictions." Regulation can take many forms: legal restrictions promulgated by a government authority, self-regulation by an industry such as through a trade association, social regulation , co-regulation and market regulation. One can consider regulation as actions of agenda. Administrative law is considered a branch of public law Public law is a theory of law governing the relationship between individuals and the state. Under this theory, constitutional law, administrative law and criminal law are sub-divisions of public law. This theory is at odds with the concept of Constitutional law, which requires all laws to be specifically enabled, and thereby sub-divisions, of a. As a body of law, administrative law deals with the decision-making of administrative units of government (e.g., tribunals Tribunal in the general sense is any person or institution with the authority to judge, adjudicate on, or determine claims or disputes—whether or not it is called a tribunal in its title. For example, an advocate appearing before a Court on which a single Judge was sitting could describe that judge as 'their tribunal'. Many governmental bodies, boards A board of directors is a body of elected or appointed members who jointly oversee the activities of a company or organization. The body sometimes has a different name, such as board of trustees, board of governors, board of managers, or executive board. It is often simply referred to as "the board." or commissions A government agency is a permanent or semi-permanent organization in the machinery of government that is responsible for the oversight and administration of specific functions, such as an intelligence agency[citation needed]. There is a notable variety of types of agency. Although usage differs, a government agency is normally distinct both from a) that are part of a national regulatory scheme Regulation is "controlling human or societal behavior by rules or restrictions." Regulation can take many forms: legal restrictions promulgated by a government authority, self-regulation by an industry such as through a trade association, social regulation , co-regulation and market regulation. One can consider regulation as actions of in such areas as police law, international trade International trade is exchange of capital, goods, and services across international borders or territories.. In most countries, it represents a significant share of gross domestic product . While international trade has been present throughout much of history (see Silk Road, Amber Road), its economic, social, and political importance has been on, manufacturing Manufacturing is the use of machines, tools and labor to make things for use or sale. Also it can be used for selling things. The term may refer to a range of human activity, from handicraft to high tech, but is most commonly applied to industrial production, in which raw materials are transformed into finished goods on a large scale. Such, the environment The biophysical environment is the symbiosis between the physical environment and the biological life forms within the environment, and includes all variables that comprise the Earth's biosphere. The biophysical environment can be divided into two categories: the natural environment and the built environment, with some overlap between the two, taxation To tax is to impose a financial charge or other levy upon a taxpayer (an individual or legal entity) by a state or the functional equivalent of a state such that failure to pay is punishable by law, broadcasting Broadcasting is the distribution of audio and/or video signals which transmit programs to an audience. Receiving parties may include the general public or a relatively large subset of the whole, such as children or young adults, immigration Immigration is the introduction of new people into a habitat or population. It is a biological concept and is important in population ecology, differentiated from emigration and migration and transport Transport or transportation is the movement of people and goods from one location to another. Modes of transport include air, rail, road, water, cable, pipeline, and space. The field can be divided into infrastructure, vehicles, and operations. Administrative law expanded greatly during the twentieth century, as legislative bodies worldwide created more government agencies A government agency is a permanent or semi-permanent organization in the machinery of government that is responsible for the oversight and administration of specific functions, such as an intelligence agency[citation needed]. There is a notable variety of types of agency. Although usage differs, a government agency is normally distinct both from a to regulate the increasingly complex social, economic and political spheres of human interaction.

Civil law countries often have specialized courts, administrative courts An administrative court is a court specializing in administrative law, particularly disputes concerning the exercise of public power. Their role is to ascertain that official acts are consistent with the law. Such courts are found in some European countries with civil law and are considered separate from general courts, that review these decisions. The plurality of administrative decisions contested in administrative courts are related to taxation.^{[citation needed]}

Administrative law in common law countries

Generally speaking, most countries that follow the principles of common law Common law is law developed by judges through decisions of courts and similar tribunals , rather than through legislative statutes or executive branch action. A "common law system" is a legal system that gives great precedential weight to common law, on the principle that it is unfair to treat similar facts differently on different have developed procedures for judicial review Judicial review is the doctrine in democratic theory under which legislative and executive actions are subject to review, and possible invalidation, by the judiciary. Specific courts with judicial review power must annul the acts of the state when it finds them incompatible with a higher authority, such as the terms of a written constitution that limit the reviewability of decisions made by administrative law bodies. Often these procedures are coupled with legislation or other common law Common law is law developed by judges through decisions of courts and similar tribunals , rather than through legislative statutes or executive branch action. A "common law system" is a legal system that gives great precedential weight to common law, on the principle that it is unfair to treat similar facts differently on different doctrines that establish standards for proper rulemaking In administrative law, rulemaking refers to the process that executive and independent agencies use to create, or promulgate, regulations. In general, legislatures first set broad policy mandates by passing statutes, then agencies create more detailed regulations through rulemaking. Administrative law may also apply to review of decisions of so-called semi-public bodies, such as non-profit corporations A non-profit organization is an organization that does not distribute its surplus funds to owners or shareholders, but instead uses them to help pursue its goals. Examples of NPOs include charities (i.e. charitable organizations), trade unions, and public arts organizations. Most governments and government agencies meet this definition, but in, disciplinary boards, and other decision-making bodies that affect the legal rights of members of a particular group or entity.

While administrative decision-making bodies are often controlled by larger governmental units, their decisions could be reviewed by a court A court is a form of tribunal, often a governmental institution, with the authority to adjudicate legal disputes between parties and carry out the administration of justice in civil, criminal, and administrative matters in accordance with the rule of law. In both common law and civil law legal systems, courts are the central means for dispute of general jurisdiction A court of general jurisdiction is one that has the authority to hear cases of all kinds - criminal, civil, family, probate, and so forth under some principle of judicial review Judicial review is the doctrine in democratic theory under which legislative and executive actions are subject to review, and possible invalidation, by the judiciary. Specific courts with judicial review power must annul the acts of the state when it finds them incompatible with a higher authority, such as the terms of a written constitution based upon due process Due process is the principle that the government must respect all of the legal rights that are owed to a person according to the law. Due process holds the government subservient to the law of the land, protecting individual persons from the state (United States) or fundamental justice Fundamental justice is a legal term that signifies a dynamic concept of fairness underlying the administration of justice and its operation, whereas principles of fundamental justice are specific legal principles that command "significant societal consensus" as "fundamental to the way in which the legal system ought fairly to (Canada). Judicial review of administrative decisions, it must be noted, is different from an administrative appeal. When sitting in review of a decision, the Court will only look at the method in which the decision was arrived at, whereas in an administrative appeal the correctness of the decision itself will be examined, usually by a higher body in the agency.^{[citation needed]} This difference is vital in appreciating administrative law in common law countries.

The scope of judicial review Judicial review is the doctrine in democratic theory under which legislative and executive actions are subject to review, and possible invalidation, by the judiciary. Specific courts with judicial review power must annul the acts of the state when it finds them incompatible with a higher authority, such as the terms of a written constitution may be limited to certain questions of fairness, or whether the administrative action is ultra vires Ultra vires is a Latin phrase that literally means "beyond the powers". Its inverse is called intra vires, meaning "within the powers". It is used as a legal term in a number of common law contexts. In terms of ultra vires actions in the broad sense, a reviewing court may set aside an administrative decision if it is unreasonable (under Canadian law, following the rejection of the "Patently Unreasonable" standard by the Supreme Court in Dunsmuir v. New Brunswick), Wednesbury unreasonable Associated Provincial Picture Houses v Wednesbury Corporation 1 KB 223 is an English law case which set down the standard of unreasonableness of public body decisions which render them liable to be quashed on judicial review. This special sense is accordingly known as Wednesbury reasonableness (under British law), or arbitrary and capricious (under U.S. Administrative Procedure Act The Administrative Procedure Act (P.L. 79-404) is the United States federal law that governs the way in which administrative agencies of the federal government of the United States may propose and establish regulations. The APA also sets up a process for the United States federal courts to directly review agency decisions. It is one of the most and New York State law). Administrative law, as laid down by the Supreme Court of India The Supreme Court of India is the highest court of the land as established by Part V, Chapter IV of the Constitution of India. According to the Constitution of India, the role of the Supreme Court is that of a federal court, guardian of the Constitution and the highest court of appeal, has also recognized two more grounds of judicial review which were recognized but not applied by English Courts viz. legitimate expectation In English law, the concept of legitimate expectation arises from administrative law, a branch of public law. In proceedings for judicial review, it applies the principles of fairness and reasonableness to the situation where a person has an expectation or interest in a public body retaining a long-standing practice or keeping a promise and proportionality The principle of proportionality is a political maxim which states that no layer of government should take any action that exceeds that which is necessary to achieve the objective of government . It was initially developed in the German legal system.

The powers to review administrative decisions are usually established by statute, but were originally developed from the royal prerogative writs Prerogative writs are a class of writs which originate from English law. Originally they were available only to the Crown, but later they were made available to the king's subjects through the courts of English law English law is the legal system of England and Wales, and is the basis of common law legal systems used in most Commonwealth countriesand the United States . It was exported to Commonwealth countries while the British Empire was established and maintained, and it forms the basis of the jurisprudence of most of those countries. English law prior to, such as the writ of mandamus A writ of mandamus or mandamus , or sometimes mandate, is the name of one of the prerogative writs in the common law, and is "issued by a superior court to compel a lower court or a government officer to perform mandatory or purely ministerial duties correctly" and the writ of certiorari Certiorari (pronounced /ˌsɜrʃəˈrɛəri, -ˈrɛəraɪ, -ˈrɑri/) is a type of writ seeking judicial review, recognised in Roman, English, Philippine and American law . Certiorari ("to be more fully informed") is the present passive infinitive of the Latin certiorare ("to show, prove, or ascertain"). A writ of certiorari. In certain Common Law Common law is law developed by judges through decisions of courts and similar tribunals , rather than through legislative statutes or executive branch action. A "common law system" is a legal system that gives great precedential weight to common law, on the principle that it is unfair to treat similar facts differently on different jurisdictions, such as India India, officially the Republic of India , is a country in South Asia. It is the seventh-largest country by geographical area, the second-most populous country with 1.18 billion people, and the most populous democracy in the world. Mainland India is bounded by the Indian Ocean on the south, the Arabian Sea on the west, and the Bay of Bengal on the or Pakistan Pakistan (Urdu pronunciation: [paːkɪsˈtaːn] ( listen)), officially the Islamic Republic of Pakistan (Urdu: اسلامی جمہوریہ پاکِستان), is a country in South Asia. It has a 1,046-kilometre (650 mi) coastline along the Arabian Sea and Gulf of Oman in the south, is bordered by Afghanistan and Iran in the west, and India in the, the power to pass such writs is a Constitutionally guaranteed power. This power is seen as fundamental to the power of judicial review Judicial review is the doctrine in democratic theory under which legislative and executive actions are subject to review, and possible invalidation, by the judiciary. Specific courts with judicial review power must annul the acts of the state when it finds them incompatible with a higher authority, such as the terms of a written constitution and an aspect of the independent judiciary The judiciary is the system of courts which interprets and applies the law in the name of the sovereign or state. The judiciary also provides a mechanism for the resolution of disputes. Under the doctrine of the separation of powers, the judiciary generally does not make law (that is, in a plenary fashion, which is the responsibility of the.

Canada

England

United States

In the United States ^ b. English is the de facto language of American government and the sole language spoken at home by 80% of Americans age five and older. Spanish is the second most commonly spoken language, many government agencies are organized under the executive branch of government, although a few are part of the judicial or legislative branches.

In the federal government, the executive branch, led by the president, controls the federal executive departments, which are led by secretaries who are members of the United States Cabinet. The many important independent agencies of the United States government created by statutes enacted by Congress exist outside of the federal executive departments but are still part of the executive branch.

Congress has also created some special judicial bodies known as Article I tribunals to handle some areas of administrative law.

The actions of executive agencies and independent agencies are the main focus of American administrative law. In response to the rapid creation of new independent agencies in the early twentieth century (see discussion below), Congress enacted the Administrative Procedure Act (APA) in 1946. Many of the independent agencies operate as miniature versions^{[citation needed]} of the tripartite federal government, with the authority to "legislate" (through rulemaking; see Federal Register and Code of Federal Regulations), "adjudicate" (through administrative hearings), and to "execute" administrative goals (through agency enforcement personnel). Because the United States Constitution sets no limits on this tripartite authority of administrative agencies, Congress enacted the APA to establish fair administrative law procedures to comply with the constitutional requirements of due process.

The American Bar Association's official journal concerning administrative law is Administrative Law Review.

Historical development

Stephen Breyer, a U.S. Supreme Court Justice since 1994, divides the history of administrative law in the United States into six discrete periods, according to his book, Administrative Law & Regulatory Policy (3d Ed., 1992):

• English antecedents & the American experience to 1875
• 1875 - 1930: the rise of regulation & the traditional model of administrative law
• The New Deal
• 1945 - 1965: the Administrative Procedure Act & the maturation of the traditional model of administrative law
• 1965 - 1985: critique and transformation of the administrative process
• 1985 - ?: retreat or consolidation

Agriculture

The agricultural sector is one of the most heavily regulated sectors in the U.S. economy, as it is regulated in various ways at the international, federal, state, and local levels. Consequently, administrative law is a significant component of the discipline of Agricultural Law. The United States Department of Agriculture and its myriad agencies such as the Agricultural Marketing Service are the primary sources of regulatory activity, although other administrative bodies such as the Environmental Protection Agency play a significant regulatory role as well.

Administrative law in civil law countries

Unlike most Common-law jurisdictions, the majority of civil law jurisdictions have specialized courts or sections to deal with administrative cases which, as a rule, will apply procedural rules specifically designed for such cases and different from that applied in private-law proceedings, such as contract or tort claims.

France

In France, most claims against the national or local governments are handled by administrative courts, which use the Conseil d'État (State Council) as a court of last resort. The main administrative courts are the "Tribunaux Administratifs" and appeal courts are the "Cours Administratives d'Appel".

Germany

In Germany, the highest administrative court for most matters is the federal administrative court Bundesverwaltungsgericht. There are federal courts with special jurisdiction in the fields of social security law (Bundessozialgericht) and tax law (Bundesfinanzhof).

The Netherlands

In The Netherlands, administrative law provisions are usually contained in separate laws. There is however a single General Administrative Law Act ("Algemene wet bestuursrecht" or Awb) that applies both to the making of administrative decisions and the judicial review of these decisions in courts. On the basis of the Awb, citizens can oppose a decision ('besluit') made by a public body ('bestuursorgaan') within the administration and apply for judicial review in courts if unsuccessful.

Unlike France or Germany, there are no special administrative courts of first instance in the Netherlands, but regular courts have an administrative "chamber" which specializes in administrative appeals. The courts of appeal in administrative cases however are specialized depending on the case, but most administrative appeals end up in the judicial section of the Council of State (Raad van State).

In addition to the system described above there is another part of administrative law which is called "administratief beroep" (administrative appeal). This procedure is available only if the law on which the primary decision is based specifically provides for it and involves an appeal to a higher ranking administrative body. If administrative appeal is available, no appeal to the judicial system may be made.

Sweden

In Sweden, there is a system of administrative courts that considers only administrative law cases, and is completely separate from the system of general courts.^[1] This system has three tiers, with 23 county administrative courts (länsrätt) as the first tier, four administrative courts of appeal (kammarrätt) as the second tier, and the Supreme Administrative Court of Sweden (Regeringsrätten) as the third tier.

Migration cases are handled in a two-tier system, effectively within the system general administrative courts. Three of the county administrative courts serve as migration courts (migrationsdomstol) with the Administrative Court of Appeal in Stockholm serving as the Migration Court of Appeal (Migrationsöverdomstolen).

Brazil

In Brazil, unlike most Civil-law jurisdictions, there is no specialized court or section to deal with administrative cases. In 1998, a constitutional reform, lead by the government of the President Fernando Henrique Cardoso, introduced regulatory agencies as a part of the executive branch. Since 1988, Brazilian administrative law has been strongly influenced by the judicial interpretations of the constitutional principles of public administration (art. 37 of Federal Constitution): legality, impersonality, publicity of administrative acts, morality and efficiency...

Chile

The President of the Republic exercises the administrative function, in collaboration with several Ministries or other authorities with ministerial rank. Each Ministry has one or more under-secretary that performs through public services the actual satisfaction of public needs. There is not a single specialized court to deal with actions against the Administrative entities, but instead there are several specialized courts and procedures of review.

People's Republic of China

Administrative law in the People's Republic of China was virtually non-existent before the economic reform era initiated by Deng Xiaoping. Since the 1980s, the People's Republic of China has constructed a new legal framework for administrative law, establishing control mechanisms for overseeing the bureaucracy and disciplinary committees for the Communist Party of China. However, many have argued that the usefulness of these laws are vastly inferior in terms of controlling government actions, largely because of institutional and systemic obstacles like a weak judiciary, poorly trained judges and lawyers, and corruption.

In 1990, the Administrative Supervision Regulations (行政检查条例) and the Administrative Reconsideration Regulations (行政复议条例) were passed. Both regulations have since been amended and upgraded into laws. The 1993 State Civil Servant Provisional Regulations (国家公务员暂行条例) changed the way government officials were selected and promoted, requiring that they pass exams and yearly appraisals, and introduced a rotation system. In 1994, the State Compensation Law (国家赔偿法) was passed, followed by the Administrative Penalties Law (行政处罚法) in 1996.

See also

• Constitutional law

References

1. ^ , accessed on February 20, 2009

Further reading

• Davis, Kenneth Culp (1975). Administrative Law and Government. St. Paul, MN: West Publishing.

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