1. Introduction and Character of Administrative Law
Character of Admin Law
⇒ mechanisms of government - brand of national public law characterised by the involvement of the
government (so imbalance of powers) with public legal authority (interventionist and active) to decide
on public interest matters, and override private interests. [legal (laws and decisions) and non-legal acts]
● Objectives: → Downsides: allows for the creation of dual states [see Schotel 2021a]
○ Enable effective public policy: unilateral decision of one’s legal position
→ allows for lots of things (of the welfare state) to happen
■ Immediate compliance required!
■ With powers that criminal law does not have → no need of court permission
⇒ shaping lives of citizens for diff purposes
○ Ensure effective individual legal protection
● Instruments of Admin Law:
○ Nodality: organisation, collecting and communication of information, data
○ Authority: legal authority to make legal binding decisions
○ Treasure: competence to collect, distribute and reallocate money
○ Organisation: through civil servants and infrastructure to maintain order [Oakeshott]
■ POTENTIA: → modern state, to be able to enforce laws, physical power
● Characteristics / structure of admin law:
○ Forward looking: instructing behaviour of individuals
■ About improving current social state → permissive and instructive law
○ Dynamic and expansive: changes a lot and constantly expanding (through legislation
in Parliament) + because it follows political agenda
○ Detailed and technical: compared to other systems → very very detailed
○ Categorisation of people: technique of categorisation based on ascriptive
characteristics, instead of behaviour as in criminal law
■ Migration law: admin law allowing for anti-migration policies
⇒ limited protection in alien detention, humanitarian visas, free legal aid,
etc.
● Administrative decisions: done through Administrative Acts = legal, determine rights and
obligations, no consent needed, individual decisions ≠ general rules
○ Unilateral: can change legal position of subjects
○ Discretion: freedom to choose between reasonable alternatives
■ Legal, policy and factual discretion → legitimised by “technical expertise”
, ○ Presumption of legality: admin acts deemed lawful and have immediate legal effect
(only when admin withdrawing the decision or court annulling it that it looses its
legal effect)
○ Privilege of direct and forced execution: don’t need court permission (individuals can
appeal but not a practical reality)
● Effective individual legal protection:
○ Administrative review: same administration that reviews → cheaper and faster than
going through other courts, more expertise and better remedies than judicial
review
⇒ to higher hierarchies in the admin
○ Special administrative courts:
■ Admin court: not civil nor criminal court → tailored to state and admin
logic but also concerned with interests of the state
○ Judicial deference: referring back to the factual assessment and judgement of the
administration → more expertise as admin with whole overview of cases, not only
the ones presented in court
Difference between legal and non-legal acts
→ administration does both legal and non-legal acts
● Legal acts:
○ Administrative law, rules: legislation, decrees, rules and regulations → general
⇒ Parliament and administration (forward looking, etc.)
○ Administrative decisions: orders, permits, fines, etc. → individual level
→ determines legal position of a specific legal subject
■ Possible reactions: disobey and ignore
■ Remedies: judge invalidation
● Non-legal acts: physical execution of admin decisions, providing services, enforcement
→ cannot just ignore because it is physically happening, and remedy is compensation
○ Non-legal acts preceded by legal acts most times
→ puissance publique ≠ service publique
(1) publique authority, power → need it to execute these services
(2) services and tasks executed by the government → public tasks
Character of Admin Law
⇒ mechanisms of government - brand of national public law characterised by the involvement of the
government (so imbalance of powers) with public legal authority (interventionist and active) to decide
on public interest matters, and override private interests. [legal (laws and decisions) and non-legal acts]
● Objectives: → Downsides: allows for the creation of dual states [see Schotel 2021a]
○ Enable effective public policy: unilateral decision of one’s legal position
→ allows for lots of things (of the welfare state) to happen
■ Immediate compliance required!
■ With powers that criminal law does not have → no need of court permission
⇒ shaping lives of citizens for diff purposes
○ Ensure effective individual legal protection
● Instruments of Admin Law:
○ Nodality: organisation, collecting and communication of information, data
○ Authority: legal authority to make legal binding decisions
○ Treasure: competence to collect, distribute and reallocate money
○ Organisation: through civil servants and infrastructure to maintain order [Oakeshott]
■ POTENTIA: → modern state, to be able to enforce laws, physical power
● Characteristics / structure of admin law:
○ Forward looking: instructing behaviour of individuals
■ About improving current social state → permissive and instructive law
○ Dynamic and expansive: changes a lot and constantly expanding (through legislation
in Parliament) + because it follows political agenda
○ Detailed and technical: compared to other systems → very very detailed
○ Categorisation of people: technique of categorisation based on ascriptive
characteristics, instead of behaviour as in criminal law
■ Migration law: admin law allowing for anti-migration policies
⇒ limited protection in alien detention, humanitarian visas, free legal aid,
etc.
● Administrative decisions: done through Administrative Acts = legal, determine rights and
obligations, no consent needed, individual decisions ≠ general rules
○ Unilateral: can change legal position of subjects
○ Discretion: freedom to choose between reasonable alternatives
■ Legal, policy and factual discretion → legitimised by “technical expertise”
, ○ Presumption of legality: admin acts deemed lawful and have immediate legal effect
(only when admin withdrawing the decision or court annulling it that it looses its
legal effect)
○ Privilege of direct and forced execution: don’t need court permission (individuals can
appeal but not a practical reality)
● Effective individual legal protection:
○ Administrative review: same administration that reviews → cheaper and faster than
going through other courts, more expertise and better remedies than judicial
review
⇒ to higher hierarchies in the admin
○ Special administrative courts:
■ Admin court: not civil nor criminal court → tailored to state and admin
logic but also concerned with interests of the state
○ Judicial deference: referring back to the factual assessment and judgement of the
administration → more expertise as admin with whole overview of cases, not only
the ones presented in court
Difference between legal and non-legal acts
→ administration does both legal and non-legal acts
● Legal acts:
○ Administrative law, rules: legislation, decrees, rules and regulations → general
⇒ Parliament and administration (forward looking, etc.)
○ Administrative decisions: orders, permits, fines, etc. → individual level
→ determines legal position of a specific legal subject
■ Possible reactions: disobey and ignore
■ Remedies: judge invalidation
● Non-legal acts: physical execution of admin decisions, providing services, enforcement
→ cannot just ignore because it is physically happening, and remedy is compensation
○ Non-legal acts preceded by legal acts most times
→ puissance publique ≠ service publique
(1) publique authority, power → need it to execute these services
(2) services and tasks executed by the government → public tasks
