1
IE University
Segovia Campus L.L.B. & B.I.R. Second Year
Course: Administrative Law
Academic Year 23/24
IE University. Administrative Law.
Fernando Martina
ADMINISTRATIVE LAW.
Final Notes.
Concepts Names Work Legislation Moreover Body
, 2
ADMINISTRATIVE LAW
Administrative law is a branch of law characterised by a balance between privileges and
guarantees.
Meaning of Administrative Law
What is Administrative Law
Separation of Powers
Executive Power and Public Administration
Administrative Law
Forms of Administrative Action
Administrative Justice
EU Administrative Law
Principles of Administrative Law
____________
SESSION I — THE SEPARATION OF POWERS
SEPARATION OF POWERS — CONCEPT
Administrative law is the body of law that deals with the executive branch of government.
The Concept of Separation of Powers refers to the division of a State’s government (power) into
branches, each with separate and independent powers and responsibilities, so that the powers of one
branch are not in conflict with those of the other branches.
SEPARATION OF POWERS — HISTORY
Ancient Age Plato and Aristotle (classic Greece) mentioned “Politeia” as a mixed
government as an ideal government. They pointed out that in all states there
are three deliberative, executive and judicial elements, although it is not
mentioned in a material theory like Montesquieu.
Middle Ages Bracton made a classic distinction of the King’s activity in:
➢ Gubernaculum: matters in which the King had full royal prerogative.
➢ Iurisdictio: in which the King acted as supreme judge and was
obliged by oath to refer to conflicts to the Courts
Marsilio de Padua, in his work “Defensor Pacis”, speaks of legislative power
corresponding to the people and the remaining power to a regular supremacy.
Modern Age Like Maquiavelo Bodino
Not like Bolingbroke’s “Equilibrium of Powers”
Concepts Names Work Legislation Moreover Body
, 3
Contemporary Age Locke (XVII), in order to defend freedom, defends a State divided into
several powers (legislative, executive, prerogative, and federative). The
federative power is in charge of external functions such as declaring war,
making peace and making alliances. The prerogative power, which must act
attentively to the common good, freely dissociated from the Law and even
against it, and which coincides with the residual power retained by the
English Crown.
Montesquieu (XVIII), considered “the most English of the Frenchmen”,
analysed the British Constitution.
➢ Cause: “The worst enemy of freedom is power”, because “it is an
eternal experience that every man who has power tends to abuse. But
since power is necessary, there is only one way to guarantee freedom:
to find a disposition of things in which “power stops power” and this
by means of its division”.
SEPARATION OF POWERS — BRANCHES OR POWERS
EXECUTIVE POWER LEGISLATIVE POWER JUDICIAL POWER
According to Montesquieu, the According to Montesquieu, it According to the classic
executive is in charge of “the was “the power by which the definition of Carré de Malberg,
execution of the decisions”, prince or magistrate gives or “it consists of applying to the
that is, “it is the one that makes repeals laws”. concrete cases submitted to
peace or war, prevents the courts the abstract rules
invasions, sends or receives Modernly, according to formulated in the laws”.
embassies”. Loewenstein, the Assembly or
Parliament is the holder of the
Modernly, according to Carl legislative power.
Schmitt, “it is the one whose
functions are the
determination, the direction
and the execution of the
general policy of the state”.
SEPARATION OF POWERS — EVOLUTION
ANGLO-SAXON CONTINENTAL
Feudal dismemberment Feudal dismemberment
Parliament vs King Parliament vs King
Parliament King
UK: Parliamentarism Absolutism
USA: Presidentialism French Revolution
Parliamentarian
Concepts Names Work Legislation Moreover Body
, 4
Parliamentarianism Presidentalism Hybrid
Government depends on the The government does NOT depend on France
Parliament Parl.
Hence, the PM is elected by the Hence, the PM is elected directly by Switzerland
Parliament the population
The PM can be expelled by a VoNC The PM cannot be expelled by the Ireland
in the Parliament Parliament
The PM can dissolve Parliament The PM cannot dissolve Parliament Others
PM is not the same as the Head of PM is the same as the Head of State
State
Germany, UK, Italy, Spain USA
Concepts Names Work Legislation Moreover Body
IE University
Segovia Campus L.L.B. & B.I.R. Second Year
Course: Administrative Law
Academic Year 23/24
IE University. Administrative Law.
Fernando Martina
ADMINISTRATIVE LAW.
Final Notes.
Concepts Names Work Legislation Moreover Body
, 2
ADMINISTRATIVE LAW
Administrative law is a branch of law characterised by a balance between privileges and
guarantees.
Meaning of Administrative Law
What is Administrative Law
Separation of Powers
Executive Power and Public Administration
Administrative Law
Forms of Administrative Action
Administrative Justice
EU Administrative Law
Principles of Administrative Law
____________
SESSION I — THE SEPARATION OF POWERS
SEPARATION OF POWERS — CONCEPT
Administrative law is the body of law that deals with the executive branch of government.
The Concept of Separation of Powers refers to the division of a State’s government (power) into
branches, each with separate and independent powers and responsibilities, so that the powers of one
branch are not in conflict with those of the other branches.
SEPARATION OF POWERS — HISTORY
Ancient Age Plato and Aristotle (classic Greece) mentioned “Politeia” as a mixed
government as an ideal government. They pointed out that in all states there
are three deliberative, executive and judicial elements, although it is not
mentioned in a material theory like Montesquieu.
Middle Ages Bracton made a classic distinction of the King’s activity in:
➢ Gubernaculum: matters in which the King had full royal prerogative.
➢ Iurisdictio: in which the King acted as supreme judge and was
obliged by oath to refer to conflicts to the Courts
Marsilio de Padua, in his work “Defensor Pacis”, speaks of legislative power
corresponding to the people and the remaining power to a regular supremacy.
Modern Age Like Maquiavelo Bodino
Not like Bolingbroke’s “Equilibrium of Powers”
Concepts Names Work Legislation Moreover Body
, 3
Contemporary Age Locke (XVII), in order to defend freedom, defends a State divided into
several powers (legislative, executive, prerogative, and federative). The
federative power is in charge of external functions such as declaring war,
making peace and making alliances. The prerogative power, which must act
attentively to the common good, freely dissociated from the Law and even
against it, and which coincides with the residual power retained by the
English Crown.
Montesquieu (XVIII), considered “the most English of the Frenchmen”,
analysed the British Constitution.
➢ Cause: “The worst enemy of freedom is power”, because “it is an
eternal experience that every man who has power tends to abuse. But
since power is necessary, there is only one way to guarantee freedom:
to find a disposition of things in which “power stops power” and this
by means of its division”.
SEPARATION OF POWERS — BRANCHES OR POWERS
EXECUTIVE POWER LEGISLATIVE POWER JUDICIAL POWER
According to Montesquieu, the According to Montesquieu, it According to the classic
executive is in charge of “the was “the power by which the definition of Carré de Malberg,
execution of the decisions”, prince or magistrate gives or “it consists of applying to the
that is, “it is the one that makes repeals laws”. concrete cases submitted to
peace or war, prevents the courts the abstract rules
invasions, sends or receives Modernly, according to formulated in the laws”.
embassies”. Loewenstein, the Assembly or
Parliament is the holder of the
Modernly, according to Carl legislative power.
Schmitt, “it is the one whose
functions are the
determination, the direction
and the execution of the
general policy of the state”.
SEPARATION OF POWERS — EVOLUTION
ANGLO-SAXON CONTINENTAL
Feudal dismemberment Feudal dismemberment
Parliament vs King Parliament vs King
Parliament King
UK: Parliamentarism Absolutism
USA: Presidentialism French Revolution
Parliamentarian
Concepts Names Work Legislation Moreover Body
, 4
Parliamentarianism Presidentalism Hybrid
Government depends on the The government does NOT depend on France
Parliament Parl.
Hence, the PM is elected by the Hence, the PM is elected directly by Switzerland
Parliament the population
The PM can be expelled by a VoNC The PM cannot be expelled by the Ireland
in the Parliament Parliament
The PM can dissolve Parliament The PM cannot dissolve Parliament Others
PM is not the same as the Head of PM is the same as the Head of State
State
Germany, UK, Italy, Spain USA
Concepts Names Work Legislation Moreover Body
