The actual working of the French and other European administrative courts has disproved Dicey’s criticism of the Administrative Law and refuted the charges against Administrative Courts as wide of the mark. Some of the merits of this system are as follows:
This system promotes efficiency in the administration because it frees the administrative authorities from the jurisdiction and control of the judiciary. This is due to the reason that the judges of the administrative courts, possessing experience of the administrative service, can properly understand the circumstances under which the public servants have to act in a particular matter. Their judgments are bound to be expert decisions, while the judgments of the judges of the ordinary courts are those of laymen, and may be wrong judgments, for these judges have no experience of the administrative services. They are chosen for their legal proficiency, not for administrative experience.
French experience has shown that the system of administrative courts and administrative law does not threaten individual liberty. On the contrary, French people consider them as a cornerstone of their liberty. The French Council of State, the highest administrative court, has earned the respect and admiration of the Frenchmen for its impartiality. In actual working, the administrative courts are not biased in favour of public servants or against private citizens. The French jurist, Duguit, has rightly affirmed that the Council of State affords the individual “almost perfect protection against arbitrary administrative action.”
One of the chief merits of the system of administrative courts is that they dispense justice in an easy, inexpensive and speedy manner. Access to the Council of State is more simple and less expensive than in the case of the ordinary courts, while the decisions of the administrative courts are based on the considerations of equity. The procedure is simple and the decisions are speedy. Above all, when they are convinced, the administrative courts give effective remedy to the injuries suffered by private citizens due to administrative acts. They award damages to them against the State which are fully realised because the State can easily pay them. This is not possible under the system of the Rule of Law, where the public officials are prosecuted in their personal capacity. Even if damages are awarded against them they may be incapable of paying them, while the State bears no responsibility to compensate the injured citizen. Hence there is no real redress under the Rule of Law. An American writer, W.L. Godshall, pointed out that the American citizens suffer from police tyranny as they have no protection from governmental abuses. “When American citizens,” he writes, “suffer abusive language or actual physical injury at the hands of police officers, they have but little redress as is well known by all who have been harangued by traffic police. It is legally possible, of course, to bring suit against a traffic officer for slander, false arrest, or assault and battery; but in such cases our courts are reluctant both to impair the morale of police force and to award damages. Similar suits brought, for example, by French citizens usually result in material as well as moral satisfaction for them in which instance government squarely faces its responsibility for its acts and makes reparation as a regular feature of administrative law.” This merit made Garner to remark that there is no other country in which the rights of private individuals are so well protected against administrative abuses and the people so sure of receiving reparation for injuries sustained from such abuses as in France.
Dicey’s criticism that the Administrative Law is based on the principle of inequality of officials and citizens is not very sound. Even under the Rule of Law the officials and private citizens cannot be treated as equal, for the former must necessarily enjoy certain privileges and immunities due to the nature of their work. The Administrative Law frankly recognises this difference and imposes liabilities on the public officials, while the Rule of Law glosses over the difference and prevents their responsibility for the injuries inflicted by the over-zeal or negligent behaviour or arbitrary performance of duties by the officials. Even in England and America the principle that the State is not legally liable to damages for the wrongful acts of its agents, i.e., its officials, is now renounced.
Dicey made yet another mistake in properly understanding the jurisdiction of the administrative courts. It does not extend to all breaches of official duties and docs not cover the entire field of relations between the officers of the State and private citizens. Ordinary courts have jurisdiction in matters of expropriation, the exercise of the right of eminent domain and to some extent in commercial contracts between the governmental departments and private citizens or companies. Moreover, the arrests made by the administration are under the control of the ordinary courts which alone can inflict punishment. Furthermore, the ordinary courts possess the right of passing judgments upon the legality of regulations and ordinances issued by the executive authorities. Lastly, a clear distinction is made between “a fault of service” and a “personal fault” of the public servants.
The Administrative Laws is not codified but mostly consists of precedents. It is primarily a case-law and, therefore, possesses the merit of elasticity and can be adjusted to changing circumstances. If it were based on statutes, it would not have covered the wide range of administrative cases.
Conclusion
In the end, a question may be asked: which system is better the- Rule of Law or the Administrative Law? Americans and Englishmen, conditioned as they are to their system of the Rule of Law, laud it to the skies. But facts clearly show that the Administrative Law is superior to the Rule of Law, so far as the liberty, protection of the rights and interests of the individuals, the speed and efficiency of justice and effective remedy for injuries suffered by private citizens are concerned. Moreover, its superiority
is indicated by the growth of a kind of administrative law and administrative courts even in Britain and America. This evolution is but necessary in the modern conditions of a complex industrial society. Indeed, wherever there is administration and law there is administrative law, which is the legal ordering of the relationship between the administrating State and its subjects.