In today’s article in Abogados Cabo we explain what Administrative Law is, its principles, characteristics and branches. In addition, its sources and examples.
Administrative Law
Administrative law is the branch of law that studies the organization, duties and functions of the State and its institutions, especially the powers of the executive branch. Its name comes from the Latin ministrare (“to manage common affairs”).
Administrative law is linked to Public Administration as a field of study. It also has theoretical and practical links with disciplines such as sociology, economics, psychology, political science and other branches of law such as criminal, constitutional and international law.
In its observation of everything related to the management of the State, administrative law always has a double objective: to guarantee the effectiveness of public administration and the various processes involved, as well as the protection of the rights of individuals in their relations with it.
Origin of administrative law
The origins of administrative law date back to the 18th and 19th centuries, with the Liberal Revolutions that overthrew the ancien régime and opened the door to the republican world in the West.
Thus, it is a relatively young branch of law, born alongside the declaration of human rights and the equality of citizens before the law. In other words, it emerged alongside the Liberal State.
The first body in charge of exercising it was the French Council of State. It was in charge of supervising the power of the State, since at that time the judges coming from the feudal Ancien Régime were distrusted to serve as a unique counterweight to the State.
Characteristics of administrative law
Administrative law is characterized by being:
- Common. Because its principles are applied to various administrative matters and at all levels of the State.
- Autonomous. Because it obeys its own general principles.
- Local. Because it responds to the legal-political organization of each country.
- Exorbitant. Because its scope of action exceeds private law: wherever there is a State, there will also be an administrative law.
Principles of administrative law
The principle of due process guarantees the right to defense. There are four general principles of Administrative Law (although they are not the only ones that exist), known as principles of administrative procedure:
- Principle of objective legality. It establishes that any act emanating from a public authority must be in perfect accordance with the law in force and its jurisdiction, and not to the subjectivities involved, i.e., to the will of individuals.
- Principle of officiality. It establishes that the initiation, impulse and development of judicial and/or administrative processes must always depend on an organ of the public power, and not on the will of the individuals involved.
- Principle of informalism in favor of the administered. It establishes that citizens must be judged independently of the fulfillment of certain formal obligations, so that certain formal rigorousness does not hinder the search for a fair solution to their case.
- Principle of due process or guarantee of defense. It establishes that the State must respect all the rights enshrined in the law of a person, regardless of the seriousness of the crimes he or she is presumed or proven to have committed. This implies the possibility of a defense, a trial by law under objective conditions and a punishment proportional to the gravity of the crime committed, among other things.
Sources of administrative law
The main source of Administrative Law is the Constitution (or the corresponding Magna Carta), as is the case with other branches of law. Among its sources is also the legislation with its organic, ordinary and enabling laws.
Subsequently, Administrative Law is governed by the rules and regulations of each institution and/or state organization, and ultimately by the doctrines, social facts and customs of a nation (common law).
Branches of administrative law
- Organic administrative law. It studies all forms and principles of administration equally.
- Functional administrative law. Focuses on the study of the formal activity of the State, that is, its administrative procedures and acts.
- Administrative procedural law. It studies the rules governing the actions of the State.
- Environmental law. Focuses on the protection of the environment.
- Urban law. It studies the rules governing the construction and design of cities.
- Customs law. It studies the customs regime and control over the imports and exports of a country.
- Immigration law. It focuses on the state rules that regulate foreigners and settlement in a country.
- Road Law. It studies the rules governing the layout of roads, highways and traffic.
- Municipal law. It studies the way in which the State compartmentalizes itself into smaller, local sections (municipalities).
- Public procurement. Deals with the regulations governing the entry of new personnel into the work of the public administration.
Examples of administrative law
Examples of the application of Administrative Law are any process of regulation of actions carried out by public bodies, such as the trial and sentencing of an offender by the respective courts. Another example is the challenge of an election in which the fundamental principles contemplated in the Constitution were not guaranteed, or even the act of “impeachment” or removal of a public official on the grounds that he or she has disrespected fundamental administrative principles.
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