“Administrative law is nothing but study relating to pathology of the government powers.” Illustrate & Explain
Introduction
Law: according to Holland, Law is “a rule of external human action enforced by the sovereign political authority”. From this definition, it follows that there are three essential characteristics of law:
· Law is a rule relating to the actions of human beings
· Law attempts to regulate the external actions of human beings
· Law is enforced by the state
Another definition of law, put forward by Salmond is “Law is the body of principles recognized and applied by the State in the administration of justice”
Simply put, from the above stated definitions of law, we can state that law is a set of rules and regulations, backed up by a set of punishment which is enforced by the higher authority. Here, the authority is usually meant to be the ultimate or sovereign authority – the state.
Administrative Law: administrative law is the study of governance. While Congress creates authority, the President enforces that authority, and courts confine or discipline the exercise of that authority; usually it is the agencies that govern. That said, the starting point for many administrative law cases is an act of Congress that allows the agency to work. “It is axiomatic that administrative agencies may issue regulations only pursuant to authority delegated to them by Congress.” The starting point for judicial review of and, where appropriate, deference to agency action is an assessment of the “congressional delegation of administrative authority.” Courts assessing agency action are obliged first to determine “whether the will of Congress has been obeyed.” Simply put, this means that the court is just responsible for seeing if the rules and regulations set are being properly followed by the people.
Administrative law has become very necessary in the developed society, the relationship of the administrative authorities and the people have become very complex. In order to regulate these complex relations, some law is necessary, which may bring about regularity and certainty and may also check at the same time the misuse of powers in the administration. With the growth of the society, its complexity increased and thereby presenting new challenges to the administration. In the ancient society the functions of the state were very few; among them were protection from foreign invasion, levying of Taxes and maintenance of internal peace and order. It does not mean, however that there was no administrative law before 20th century. But in the modern society, the functions of the state are diverse. “In fact, the modern state is regarded as the custodian of social welfare and consequently, there is not a single field of activity which is free from direct or indirect interference by the state.” Along with duties, and powers the state has to take new responsibilities.
The development of Administrative law is an inevitable necessity of the modern times; a study of administrative law acquaints us with those rules according to which the administration is to be carried on. Administrative Law has been characterized as the most outstanding legal development of the 20th-century.
Definition of Administrative Law (Narrowed):
· Administrative Law is that branch of the law, which is concerned, with the composition of powers, duties, rights and liabilities of the various organs of the Government.
· Austin has defined administrative Law. As the law which determines the ends and modes to which the sovereign power shall be exercised. In his view, the sovereign power shall be exercised either directly by the monarch or directly by the subordinate political superiors to whom portions of those are delegated or committed in trust.
· Holland regards Administrative Law “one of six” divisions of public law. In his famous book “Introduction to American Administrative Law 1958”
· Bernard Schawartz has defined Administrative Law as “the law applicable to those administrative agencies which possess of delegated legislation and ad judicatory authority.”
· Jennings has defined Administrative Law as “the law relating to the administration. It determines the organization, powers and duties of administrative authorities.”
Need of Administrative Law relating to the Government Power: The emergence of the social welfare has affected the democracies very intensely. “It has led to state activism.”[1] There has occurred a phenomenal increase in the area of government operations; it has taken over a number of functions, which were previously left to private enterprise. The government today persuades every aspect of human life. The functions of a modern state government may broadly be placed into five categories:
· Protector
· Provider
· Entrepreneur
· Economic controller and
· Arbiter.
In short, the government performs the following which are considered as part of maintaining the administrative law:
· It makes policies
· It provides leadership to the legislature
· It executes and administers the law
· It takes manifold decisions.
Administration has become a highly complicated job needing a good deal of technical knowledge, expertise and know-how. Continuous experimentation and adjustment of detail has become an essential requisite of modern administration. If a certain rule is found to be unsuitable in practice, a new rule incorporating the lessons learned from experience has to be supplied and this is done by the government. The Administration can change an unsuitable rule without much delay. “It does not suffice to say that an administrative body is one, which administers, for the administration does not only put the law into effect, but does much more; it legislates and adjudicates.”
The Key Concepts:
Regardless of the field in which one practices, administrative agency action is likely to play a central role. This is true in criminal law, where much of the parole and post-conviction practice is administrative. It is also true in corporate law, where agency actors play a decisive role on issues such as taxes, employment, and securities regulation.[2]
Environmental law, international law, healthcare law, energy regulation, telecommunications, public interest practice, and virtually all the specializations require an understanding of the way administrative agenciesfunction.
Opinion
Administrative Law is concerned with the powers and functions of the executive branch of the government, its organisations, their inter-relations with each other, citizens and the non-governmental entities. The intention of administrative law is to provide a legal framework for regulating the powers, procedures and acts of public administration. Constitutional law essentially deals with who has the ability to make laws. However, Administrative law deals with the government officials who have been empowered by these laws to act.
The line of distinction between constitutional and administrative law is not very clear. This is why some jurists regard administrative law as part of, and complementary to, constitutional law. In the Bangladesh context also it is seen that the distinction between administrative law and constitutional law is not very clear. In fact these involve overlapping jurisdiction of courts such as the Administrative Tribunal and the High Court Division. An administrative tribunal has exclusive jurisdiction to hear and determine an application made by a person in the service of the republic in respect of terms and conditions of his service including pension rights.
Administrative law is essentially Judge made law. It is a branch of public law as compared to private law-relations inter-se. Administrative law is an ever-expanding subject in developing society and is bound to grow in size as well as quality in coming the decades. Administrative law relates to individual rights as well as public needs and ensures transparent, open and honest governance, which is more people-friendly. Hence, all these findings are suggesting to the conclusion that the administrative law is the field of law talking about the powers of the government.
Broadly speaking, there are four types of regulatory frameworks under administrative law. The first of these is the rule that makes power. In this type, powers are delegated to issue general rules and regulations which have the force of law. The second type has to do with the licensing powers, under which certain organisations are vested with the authority to issue, renew, or revoke licenses which are required by the act to carry out certain forms of business. Driving license, license for commodities, and gun license etc fall in this category. The third type has to do with the investigatory power under which inquiry or investigation is carried out under well-defined procedures requiring witnesses to appear in person, cite evidence, produce documents etc. The fourth and final type has to do with the directing powers requiring a person, either public or private, to do or refrain from doing certain acts. For private persons there are also laws such as the Acquisition of Properties Act which requires private persons to surrender their properties in the public interest. Laws relating to traffic control, health, education and building construction, etc also fall in this category.
Conclusion
The Indian Institution of Law has defined Administrative Law in the following words; “Administrative Law deals with the structure, powers and functions of organs of administration, the method and procedures followed by them in exercising their powers and functions, the method by which they are controlled and the remedies which are available to a person against them when his rights are infringed by their operation.”
The location and nature of administrative power in the UK are increasingly diverse. Such power is today wielded by central and local government, by government agencies and devolved administrations, and by resort to novel contractual arrangements. These changes pose considerable challenges to administrative law, as it seeks to ensure that the enormous today are exercised lawfully and fairly.
The goal of administrative law is to redress the inequality to ensure that, so far as possible, the individual and the state are placed on a plane of equality before the bar of justice. In reality there is no antithesis between a strong government and controlling the exercise of administrative powers. Administrative powers are exercised by thousands of officials and affect millions of people. Administrative efficiency cannot be the end-all of administrative powers. There is also the questions of protecting individual’s rights against bad administration will lead to good administration. The Expression “Rule of Law” plays an important role in the administrative law. It provides protection to the people against the arbitrary action of the administrative authorities. However, once again all the activities are confined within the boundary of the government power mostly.
References
1. Books and Articles
Adams Fruit Co. v. Barrett, 494 U.S. 638, 649 (1990)
Allan, ‘Constitutional Dialogue and the Justifi cation of Judicial Review (2003) 23 OJLS 563
Bailey and Elliott
Am. Library Ass’n v. FCC, 406 F.3d 689, 691 (D.C. Cir. 2005)
Bernard Schawartz, Jurisprudence
Craig, ‘The Common Law, Shared Power and Judicial Review’ (2004) 24 OJLS 237
Holland, Jurisprudence
Jennings, Jurisprudence
Mah, C.L., (2007) Administrative Law: The Basics: LawNow magazine The Indian Institution
of Law
Popper, A. An Introduction to Administrative Law
Salmond, Jurisprudence
Sen, A.K. (2010) Commercial Law Including Company Law and Industrial Law (Prof. S.
Mukherjee, Ed. Kolkata: The World Press Private Limited)
Skinner v. Mid-America Pipeline Co., 490 U.S. 212, 218 (1989) (citing Yakus v. United
States, 321 U.S. 414, 426 (1944)
The Ascent of the Administrative State and the Demise of Mercy, 121 Harv. L. Rev. 1332,
1334-35 (2008)
The Government Crisis, Legal Theory, and Political Ideology, 41 Duke L.J. 561, 562 (1991)
Two Sides of the Same Coin: Judicial Review of Administrative Agency Action and Inaction,
26 Va. Envtl. L.J. 461 (2008)
Zalpuri, S. Training Package on Administrative Law. Jammu: IMPA
[1] Zalpuri, S. Training Package on Administrative Law. Jammu: IMPA
[2] Two Sides of the Same Coin: Judicial Review of Administrative Agency Action and Inaction, 26 Va. Envtl. L.J. 461 (2008)