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Editorial Committee of the Cambridge Law Journal

Droit Administratif
Author(s): Achille Mestre
Source: The Cambridge Law Journal, Vol. 3, No. 3 (1929), pp. 355-364
Published by: Cambridge University Press on behalf of Editorial Committee of the
Cambridge Law Journal
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( 855 )

THE

CAMBRIDGE LAW JOU


Vol.

I-No.

3.

1929

DROIT ADMINISTRATIF.1
ACHILLE MESTRE.

A FRENCH jurist who seeks to explain to the English public


the principles governiiig administrative law as they

are uinderstood in Franice, is beset at the same moment by


conflicting feelings of uneasiness and confidence. He recollects
at the outset that, according to a classical doctrine which has
been true for a considerable timiie and which is expressed in
Dicev's works in the miost brilliant formula, England does not
possess to any extent in its legal organization a system of ideas
which could have any elaim to he compared to the French

droit admini'stratif or incdeed coould be regarded as parallel to


it with any exactness. Is it not therefore presumptuous for a

Frenchman to attempt to explain to English lawyers the leading


characteristics of an institution which might certainly appear
to them unusual, if nlot grotesque? And yet when a traveller
has sta.yed a short timne in Great Britain, has talked with the

recognized authorities of that country, has asked questions, has


made notes, has dipped inito the recent works on English law,
has glanced with an unprejudiced eye at the whole trend of
legal institutions at the present day, he cannot help being struck
by a certa.in lack of harmony between the official doctrine, which

for such a long, time has had good reason to say that there is
no administrative law in England, and the judicial practice

1 The summary of a lecture on ' Unc vue d'ensemble sur le droit admj
tratif franqais ' delivered to the University of Cambridge on October 26,

Translated by the Editor C. L. J.

C.L.J.

24

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356 The Cambridge Law Journal.


which, owing to the creation of new jurisdictions, to the introduction of new formns of procedure, and to the needs originating
in the obvious iniadequacyv of inherited views, seenis to pave
the way for the introduction into Eng,land of a droit adminis-

tratif and the recognition of principles (lerogatory to the


commnon law-principles which are adapted to playing in
English law the part which droit administratif played in the
F'rench common law duiring the nineteenth century, and still
plays. I am convinced that this far-reachinig movement which
is intilmately connected with the development of institutions
and social life in England, aud which has been quickened by
events following on the war, is only in its infancy. It will

certainly meet with oppositioni, buit I believe that studv of


French droit adnzinistratif may reassure our neighbouirs. In

France, too, palp )able hostility has arisen in the namiie of the
colimmon law against an autonomnous system which has borrowed

from the civil law nieither its methods nor its texts. It has
been decried as arbitrary. And indeed the danger with us

wvas very great, because liberty was, in this matter, inadequ


protected and the coming of the new law coincided with
the destruction of the old traditional system and the establish-

inent of the Napoleonic instituitions. Pl;nted roughly by the


hanid of a dictator on a soil ploughed by revolution anid barely

smoothed bv the heavv roller of the imperial re6gime, it miglht


reasonably have been feared that the tree of droit administratif

would stifle all libertY unider its shadow. Experience has shownI
hiow empty these feairs were. ro-day droit admninistratif has no

longer any enemiies ill Fralice. It is thoroughly acclimatized,


anid what was once apprehended as a peril to liberty has now
by a remarkable turin of fortunle become the most reliable safeguard of libertv in our country. We shall see in the course
of this article lhow this extraordinary change of view has come
about. It is interesting to note that while France of the nineteenth century, mucie.h shakeni by her Revolution, feared that
the establishmenit of droit ad-ninistratij might he the death-blow
of individual liberty, England of the twentieth century, fenced
by her age-long institutions, by her traditional wisdom, by her
powerful judicial system, can watch untroubled the coming of
a new body of law.

What is droit admvinistratif? It conisists of all the legal


rules governing the relation of public administrative bodies
to one another or to individuals. In England, according to

traditioni, it does not exist, because the agents of the


are not, in theory, subject to any laws other than those which

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I)roit Administratif. 357

govern private persons. In France, on the other hand, our


starting-poinlt is the duial natture of rights emphasized so strong
by the Itoman jurists, and we recognize that public interests
are not, as such, regulated by the legal system dealing with
private matters. While private law is essentiallv a law of
equality where all persons find themselves on the same level,
subject to the same laws and the same judges, droit administratif
figures as a law of inequality which recognizes and deals with
two distinct classes-on the one hand, officials invested with

exceptional prerogatives, nay with real privileges; on the other


hand, private individuals compelled to submit to this official
dominance.

An example will clearly show this distinction between


ordinary law, or the law of equality, and droit administratif,
or the law of inequality. A fundamental rule of everv legal
system is that no one is allowed to take the law into his own

hands: A creditor has no right to recoup himself by opening


his debtor's safe and takinjg sufficient from it to clear the
amount which the debtor refuses to pav. What ought he to
do? He must go to the proper judge, get a judgment from

hinm backed by a decree of execution, and applv to public


officials who, actinig on the j udgment, will see that he gets
paymient of what is due. This elementary, fundamental rule
has no application to public administrative offices. They can
take the law into their own hands, and have no need to apply
to a judge in order to entorce their rights. From the very first

they can confer ulpotl themselves modes of execution which a


private person muLst seek from the Court or from a niotary.

Taxes are recoverable by forms of process made effective by


the pr6fets. Ministers can recover officially all the debts of the
State and the claims of the departments by similar proceedings.

If the State and its deputies are thus released from the compulsory intervention of a judge, it is because of a notable
;privilege which presumes it to be invariably right. Of course
its infallibility is not absolute and is capable of being negatived
by proof to the contrary; but any one who opposes an official
is always compelled to assume the invidious and difficult position

,of a claimant. On him, therefore, falls the burden of proof.


He will not succeed in freeing himself from the administrative
grip, unless he can satisfy the proper judge that the official
'whom he accuses has overstepped the limits of his powers.
Of course the claimant will get justice done to him, but only
if he has made out his case before the special judges recognized

by droit administratif. Their jurisdiction is organized

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358 T'he Cambridge Lauw Journal.


in a peculiar fashion totally distinct frolm that of the
ordinary Courts, and it is this which has given to ouir droit

ad'ministratif its uniique character. It is inevitable that the


creationi of such an autonomou s body of miien should produce
a certain attitude of mind. In a. grroup of menl of miuch the
same antecedenits, who have been chosen becautise of their fitness

for filling hig,h positions and -who have beeni clothed with
peculiar authoritv, there will always grow up witlh the realization of their joint responsibility for the public welfare what
is commonly knowni as esprit de corps. In matters of juris-

diction, this esprit de corps (lisplays itself in a special nmode


of approaching such problems as arise and, as a consequence,

in the process of solving them. What has been responsible for


the development of droit administratif is not so much the la.w
it;self as the a(dministrative jurisdiction organized in the year
VIII (1799--1800), which has been constantly growing and

gaining strength. Administrative jurisdiction has beeii com-

pletely severed from the ordinary tribunals (which are all under
the control of the Cour de Caissation) aind formns a (listinct
svstem of judicature answerable only to the Consecii d'Etat.
This was set up as a supremne Court and has worked without
interruption for more than a century. It has thus buiilt up,

by means of a lpurely praetorian system, an autonomous b

of law comprising special rules. We may niow note its leading


characteristics.

Let us observe at the ouitset that it is a new sor-t of law,


anid this feature sel)arates it mnarkedly from our civil law,

whose roots penetrate very deeply into our earliest history.


While the Code civil is a gradual product of our development
and embodies elements traceable to Roman law, Germanic law

and canion law, droit administratif appears as the fruit of


very recent political evolutioni. While it is absolutely impos-

sible to fix the date of the birth of our civil lawv, it is quiite
easy to allot the founidation of droit administratif to the period
following the outbreak of the French Revolution (1189) and
the re-establishment of order bv Bonaparte in the vear VIII.
It is entirely implicated with the revolutionary reaction
against the abuse of judicial power during the eighteenth
century. The old customary constitution of France ha(l recognized the right of Parliaments to control the exercise of royal
legislative power by laving down. the rule that royal edicts
would apply within their sphere onlv if they had been registered
by them. In this way they could raise protests against the royal

power which the king could override onlv by the process known

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J)roit Administratif. 859


as lit de justice. By this he was compelled to come to Parliament in person and enforce his wish there. On the eve of the

French Revolution, Louis XJI felt the necessity of completelv


altering the traditional Freinch constitution, and approached
the great reformer, Turgot, for this purpose; but the propo.sed
reforms had to be abandoned owing to overwhelming opposition
organized by the Parliamnent of Paris. It may be said that
in France, at the end of the eighteenth century, the spirit of
conservatism anid routine prevailed much more among officials
than at the roval Court.
MIembers of the Constituent Assembly had witnessed this
IParliamentary struggle against the spirit of reform, and, being
for the most part lawyers, they realized what tough opposition
could be raised against the best established legislative or adminis-

trative measures by the hostility of judges. It was to a


thorough appreciation of this danger that the doctrine of the

separation of powers owed its birth-a doctrinie which the


Constituent Assemblv embodied in these terms: 'The Courts are
forbidden to interfere with administrative functions.'
An impassable barrier was set up between the region of
administration and that of tribunals. The judges appointed by
the new power neither had, nior could have, any right to
scrutinize administrative authoritv.

This preliminary point having been settled, the next question

which the Frenchl -onstituants had to solve was this: Ought


administrative action to be entirely free from judicial control,

and would it be wise to allow it unfettered discretioniary power?


If yes, then a real tvranny would have beeni introduced into our
administrative system. This question was deliberately shelved,

principally becauise men riecollected the old regime, which


recognized, besides the ordinary justice of the Parliaments, a
purelv administrative justice belonging to the in-tendants and,

on appeal, to the Conseil du Roi. All these institutions had


disappeared in the revolutioilary whirlpool, and it would have

been very difficullt for the constitucants to impose upoII the


administration a judicial control other thani that of the ordinary
tmibunals. At first, in 1790, a stop-gap plan was adopted which
could not last for long. Local bodies called directoires were

en trusted with the cognizance of administrative disputes. This


system confused. two essentially different things-discussion and
jurisdictioni; and it handed over to persons wlho, because they

had been elected, were fatally preijudiced, cognizance of the


mnost delicate qutestions. This yielded uinsatisfactory resuilts,

and one of the first reforms of Bon4aparte and the legislators of

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360 The Cambridge Law Journal.


the year VIII was to organize, under the name of administrative
justice, a schenme of jurisdictions which were independent of
the judicature and free from the control of the Cour de Cassation.
They were composed of magistrates, busied with administration
and full of administrative zeal. The scheme therefore would
seem to offer the most reliable guarantees for both technical
ability and complete impartiality. It embodied two grades of
jurisdiction. In each department was a Conseil de Prefecture
(the number of these has been reduced by the decrees of Poincare
in 1926), and, on appeal, a Conseil d'Etat. At the outset, these

Conseils possessed only consultative functions; the Conseil d'Etat


in particular appeared theoretically as a kind of judicial commission whose duty it was to assist the chief of State who alone
lhad the right of decision. It was not until the law of May,
1872, that the Conseil d'Etat acquired supreme jurisdiction
and ceased to be the technical assistant of the chief of State.
Thenceforth, just like the civil Courts, the Conseil d'Etat
discharged the functions of ' delegated justice ' quite independently of governmental functions and of actual administration.
It is indeed since 1872 that the principles laid down by the
French Revolution and organized by the Consulate in the year
VIII have been consolidated as specialized institutions. The
law of 1872 and the growth of legal principle which it has
fostered have given to this new rule of droit administratif a
character of its own1.

A second characteristic of our droit administratif which

contrasts it sharplyv with civil law is that it is not codified. T


codification of private law and of penal law which occurred

under the Consulate anid the Emnpire has had considerable

influence oni legal ideas prevalent throughout the nineteenth

centurv. Codification means an inevitable pause in the growth

of the law. The authors of a code are naturallv inclined to


consider their work as a monument of legal literature which
almost completely stabilizes the law at a given moment. It

is said that when the first comnmentary on the code appear


Napoleon cried out with a gesture of annoyance, 'The fools!

They are goinig to spoil my code! ' So strongly were he and


his contemilporaries convinced that in the mere fact of codification
was a kind of muaysteriotus virtue capable of satisfying every need
of the spirit of the law!1 In fact, a great deal of the nineteenth
centurv was taken up entirely with interpretation of this 'sacred
book,' and it is onily in the last generation that we have realized
the imnipossibility of stopping or crystallizing the growth of the
law by a written document, however complete it may be.

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Droit Administratif. 361


Droit administratif most fortunatelv escaped the fever of
codification that characterized the Napoleonic era. Indeed,
extremely numerous laws-almost as intricate as English lawshave resulted in a meticulous control of the administrative

system. But thev have no roots in the past or in tradition, and


have not in any way (like civil laws) set uip any general principles for the guidance of the commentator or the judge. What
they have given us is a fragmentary collection of solutions to
problems. The upshot is that these texts, incomplete and
empirical, have left great gaps in which case law and legal
literature have complete freedom to develop, unhampered either
by legislative rules, which do not exist, or by legal principles
that have been elaborated long ago. In less than a century a
complete legal system has sprung up and developed, which has
bridged the gaps of uneven legislation. It is destitute of
historical background, but is possessed of an astonishing freed
of movement. It has a wealth of sources, but a poverty of
legal principles. So statute law, which in France is usually
the first thing in legal thought, is in this point completely

thrust into the background. In droit administratif it does not

in any sense play the part of a creator of rights, but merely


marks the limits beyond which neither judge nor commentator
may venture.

Finally, French droit admi.nistratif is, compared with the


common law, autoniomous in clharacter. We have already
noticed the two essential things which have been responsible for
this autonomy-the existence of separate Courts, and the
recognition of a legal inequality set uip in the interests of the
administration to enable it to execute as effectually as possible
the public services. rhanks to these two causes-the first a
matter of external order, the second a question of organizing
juridical relations-French droit administratif exhibits, in fact,
a peculiar feature as a consequence of what we have said.

Unquestioniably the meni of the vear VIII would have bee

greatly surprised if any one had foretold to them the unexpecte

forms which daroit adrninistratif was destined to take; but i


must be confessed that these developments, though caused by

the slow and steady iniflutence of our CGnseil d'Etat, were


iunplicit in the originial ideas of the separation of powers and
administrative supremiiacy. These conceptions which might have

assumed a brutal anid tyrannical shatpe have, as a matter of


fact, been softened and, as it were, humanized owing to the

patient control which the Conseil d'Etat lhas exercised over


administrative action from the legal point of view.

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362 The Cambridae Law Journal.


In order to give foreign readers somne idea of this system
of law I will select two of its leading principles; first, the
responsibility of public administrative offices; secondly, the
avoidance of irregular administrative acts.
For a long time the idea that public administrative responsibility should manifest itself in stifling the complaints of injured

persons by indemnifving them, appeared merely fanciful. Of


course the ordinary Courts, which are competent to take

cognizance of purely private acts affecting the welfare of


inzdividuals through the ag,enicy of the State, the departments,
or the communes, have on various occasions condemned these

official persons by applying the rules of private law. But that


redress was strictly limited. The normal action of the State
anid its deputies, which is concerned with the operation of the
varlious public services, was beyond the ken of the law and
its general rules relating to resionsibility. We canniiot possibly
trace in detail the growth of this legal theory which, at first
tentatively and then with increasing assuirance, has substituted
a completely different rule for the old dogma of the irresponsibility of public power. Nowadays the rule is-though it has
no foundation in any legal enactment--that administrative
offices are liable to individuals for damages caused bv defective

working of the public services. The idea of faute de service


has replaced the idea of irresponsibility.

This gradual change could be attained only by the steady


iinfluenice of a Contseil d'Etat, itself an organ of administration,
absorbed in admninistrative work and imbued witlh the administrative spirit. Such a change could never have been effected

by any external ju.dicial body working outside the province of


admninistration. It was only a well-recognized magistracy,
which was free from any sutspicion of partiality in the exercise

of its power, that could have sufficient weight to makce public


aLuthorities accept the principle of responsibility. Thutls, in
France at the present day, we can lay it downi as a general
rule that every one who is injured in his person or property
by any wrong-doing on the part of the public services cani recover
compensation adequate to his loss, provided that he can prove

to the satisfaction of the Conseil d'Etat the damage and wvrong


doing. The annual collections of the judgments of the Conseil

contain many decisionis vhich illustrate this solution of tlhe


problem.

Three points should be nioticed with regard to this


responsibility:
(1) Wlhat the Conseil d'Etat applies is not the rules of the

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Droit Administratif. 363


common law, of private law, but simply the priniciples of justice
by whichl these are inspired. The Conseil, an administrative
organ, has been at pains to declare repeatedly that the responsibility of the State and its deputies is niot to be regarded as in
;ony wav comparable with that of a private individual, but

that it has peculiar rules adapted to the requirements of each


service and capable of modification by the Conseil accordinglv.
(2) Some acts of puiblic authorities are not amnenalble to

litigation in connexion with responsibility. They are styled

actes de ,9ouvernernent and cannot be made a matter of com-

pensation at the expense of the State. Such, in particular, are


diplomatic acts which assume the interference of a foreign
State. The list of these exceptional acts can be definitely
aiscertained bv mieans of the case-law of the (Conseil.

(3) Conversely, the operation of some of the public services

enitails a somewhat wider responsibilitv. The victims of injuries


caused by these services are released from the necessitv of

provinig mwong-doing oni their part, anid it is enough if


merely establish the inj'uries. Such especiatlly are the claims
brought against various public administrative bodies by those

vho mnav have been injured in person or propertv by reason


of public works. The theo-ry is that such operations are quite
likely by their imiere extent to uipset a whole district, and that
those who lhave caused them otiaght to be liable independentlv of
-any question as to whether thev were at fault or not.
We must note in conclusion the method of redress which is
open, free of clharge, to all who mav consider themselves
aggrieved by anv act whatever of the public authorities, where
it takes the form of unjust prohibition of a procession by the

mayor of a village, or of a decree of the President of the


Repuiblic in connexion with the general police of the district.
This redress, modified by remedeies for excess of powers, enables
every one subject to the admninistration, wlho has been prejudiced in his lawful interests by reason of such an act, to

demand ami'tulment of the measure by the Con.seil d'Etat

more than a century the Conseil has worked unremittinglv to


'enlarge this remedy. And it still protects threatened interests

with as m-uch authority and capacity as, by virtue of its being

-an important factor in the administration, it has employed its

prestige in imbuiino, all administrators with respect for fundamnental leg,al principles. In fact, the Conseil welcomes the
claims -which, within the allotted two moiiths following the
publication or notification of the impeached order, are brought

before it alleging lack of competenice, irregularity of form,

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364 The Cambridge Law Journal.


breach of law, or abuse of power. Thus it represses the particularly insidious vice in administration of improper direction of

administrative energies; such are police measures applied in


the financial interests of the administration, or for the purpose
of unjust discrimination against special classes of citizens.
It need scarcely be said that I make no claim to have given
you even an outline of French droit administratij. My much

more modest wish has been to inivite you to a brief legal study
of a praetorian system born by force of circumstances when
codification was at its zenith.

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