TRANSLATION (2).doc

TRANSLATION1. Public administration is the use of managerial, political, and legal theories and process to fulfill legislative, executive, and judicial mandates for the provision of governmental regulatory and service functions2. Having developed a system of remedies from medieval times that ensured the economic liberty of commerce and contractual relationships in the eighteenth and nineteenth centuries, legislation has pushed the frontiers of public law to develop individual rights.3. As a result of both creative judicial activism and legislation, judges have developed a wide discretion as to when to uphold a judicial review. This flexibility allowing the courts the power to exclude unmeritorious cases at an early stage, saves time and creates a specialized jurisdiction for the administrative courts. Cases must be taken promptly within a three-month period. The courts have a discretion whether or not to grant any remedy4. Applied to the powers of government, this requires that every government authority which does some act which would otherwise be a wrong, or which infringes a mans liberty, must be able to justify its action as authorized by law- and in nearly every case this will mean authorized directly or indirectly by Act of Parliament. 5. Thus the Home Secretay has a nominall unlimited power to revoke any television license and a local planning authority may make planning permission subject to such conditions as it thinks fit, but the courts will not allow these powers to be used in ways which Parliament is not thought have intended6.The rule of law requires that the courts should prevent its abuse, and for this purpose they have performed many notable exploits, reading between the lines of the statutes and developing general doctrines for keeping executive power within proper guidelines, both as to substance and as to procedure.7. The right to carry a dispute with the government before the ordinary courts manned by judges of the highest independence is an important element in the Anglo-American concept of the rule of law.8. He regarded it as a prime virtue of the rule of law that all cases came before the ordinary courts, and that the same general rules applied to an action against a government official as applied to an action against a private individual. 9.Diceys denunciation of the French system was based on his mistaken conclusion that the administrative courts of France, culminating in the conseil d Etat, must exist for the purpose of giving to officials a whole body of special rights, privileges, or prerogatives as against private citizens, so as to make them a law unto themselves.10. The Conseil itself, forming a wing of an administrative college of great power and prestige, can develop its own principles of law and keep them in step with the prevailing philosophy of the respective rights of government and governed.11. Reference to what has been said with regard to the administrative organization of the national and state governments will show that, as a general thing, the power of direction, in the absence of statutory provision, is possessed only by the higher officers of the national administration.12. A common instance of such a power in the state administration systems is to be found in the appellate jurisdiction, which is given in the state of New York, as well as in some other states, to the state superintendent of public instruction or similar officer, through the exercise of which he has the right, upon appeal by any one interested, to quash or amend the determination of any inferior administrative authority.13.Finally, the officers of the government may be treated as private persons without regard to their official capacity, and their acts (done under color of office but not in accordance with the law may then be treated like the acts of private persons and subjected to the control of the ordinary courts.14. Many of the rules of adinistrative law may be put into the form of absolute unconditional commands for the persons in the obedience of the state to do or refrain from doing particular things, and the violation of such rules of law may be punishable criminally.15.The application of the penalties may be entrusted to the ordinary criminal courts which, before taking action, will have to decide as to the criminality of the act complained of by the administration, and will thus exercise a control over the action of the administration when it endeavors to impose penalties for the violation the law. 16. Thus, the wrongful use of governmental power by officials to the detriment of individuals will, in many cases, be prevented by the fear of incurring liability for damages or criminal punishments especially when this method of judicial control is sufficient in the case of all rules of administrative law (which are put into the form of absolute, unconditional commands.17. But in a large class of cases the action of the administration is not of such a character as to permit of it being brought under the control of the courts by the use of ordinary judicial institutions and by the application to the administration of the ordinary rules of private or criminal law. 18. In others, the rule as to the conclusiveness of administrative action in collateral proceedings makes it necessary to provide peculiar judicial remedies against such action.19.It has been shown that it is impossible in all instances to resort to the method of putting the rules of administrative law into the form of absolute unconditional commands, that in many cases it is absolutely necessary to have recourse to conditional, relative commands, commands in which the legislature simply lays down the general conditions of administrative action and leaves to the administration the expression of the will of the state in minor details, allowing it ,in its discretion to ascertain the existence of the condition necessary for its action in the execution of the law.20. Where the administration has, in order to execute these rules, to apply to the courtsthat is, where execution by judicial process is provided, no special judicial control is, in many cases, necessary, for the courts, as in the case of the imposition of penalties. When the administration applies to them for the power to act, the courts may refuse to grant the power on the ground that the case is not one of those provided for in the law.21. But for all cases where summary administrative proceedings are provided, or where the action of the administration is not reviewable collaterally by the courts, some method must be devised which will insure that the administration will act only in the case and only in the way in which the law has said that it may act.22. In the first place, it is exercised by the civil courts, first, in the power which is (almost everywhere given to them to entertain suits of a private legal character against or by the government or some one of the public corporations of the government; second, in the power to refuse to issue an order or warrant applied for by administrative officers; and, third in the power to entertai