1 Two Visions of Administrative Law

It is self-evident that administrative laws in Europe have changed over time and that they have gained importance regardless of the legal system in which they operate.⁴ Understanding the causes and nature of this transformation is more difficult, not only because some primary sources (for example, the archives of some judicial institutions) are not easily accessible, but also because there are various opinions about the very nature and purpose of administrative law.

Retrospectively, unlike private law, which has evolved in the Western world during the last two and half millennia, administrative law has a relatively recent history. However, while it is well known that the scientific study of administrative law began in the early decades of the nineteenth century with the first university chairs being set up in France, Italy, and elsewhere,⁵ precisely when administrative law – viewed as a branch of law – emerged was, and continues to be, controversial. For nineteenth-century writers such as Gneist and Bryce, administrative law relating to the conduct of State bodies in their handling of public affairs – and its origins – could be traced back to late mediaeval England, if not to the birth of the Holy Roman Empire.⁶ Others have emphasized the growth of administrative institutions that took place well before the end of the French Ancien Régime. This strand owes much to Tocqueville’s thesis that the French political constitution was transformed after 1789, while its administrative constitution remained fundamentally the same.⁷ Likewise, Craig has backdated the emergence of administrative law in England to the seventeenth century.⁸ Yet others have viewed administrative law as a product of the French Revolution. This opinion, found in early writers such as de Gérando, as well as by mid-twentieth century scholars such as Rivero, owes much to the thesis that the Revolution changed everything (hence the metaphor of the table rase)⁹ in two ways: destructively, because most ancient institutions were abolished, and constructively, because a new administrative law was built up and was subject to new judicial institutions, principally the Conseil d’État.¹⁰

This is an important debate, but it cannot be examined here. My intent is simply to observe that in this field of human conduct, as in many others, facts do not speak for themselves: they must be vested with meaning. In our case, we are concerned with legally relevant facts, contextualizing them and seeking to explain their meaning. But interpretations may differ greatly. They do so not only because there exist diverse institutional trajectories, but also because there are different schools of thought. In Europe, the development of the French, Austrian, and German systems of administrative law was firmly rooted in social structure. Not surprisingly, Weber argued that bureaucratic structure was one of the pillars of the modern State and that its highly formalized exercise of power pertained to a specific form of society, which differed from those based either on tradition or on charismatic leadership.¹¹ But such a framework could not easily be applied to the United States of America, where administration was fragmented and pluralistic. Nor could it be easily applied to the British Empire, which had a vast imperial bureaucracy in India, whereas the growth of administrative institutions at home was regarded with suspicion. The result is that if we look at the relationship between administration and administrative law at the turn of the last century, we can distinguish two opposing visions. In ‘continental’ countries, there was an increasingly sophisticated ‘science’ of administrative law, which demonstrated the evolution of national systems of administrative law together with national ‘schools’, but there was always an underlying assumption that they were an essential element of the State, of every State. On the contrary, in Britain not only the existence of a ‘system’ of administrative law – but even the existence of any type of administrative law – was vehemently denied by those associating themselves with Dicey, the Victorian constitutionalist.

Through an apparent paradox, at the roots of this divergence lies the philosophy of Tocqueville himself. In his study of American democracy, he adopted a contrastive approach to the comparative study of legal institutions, illustrating the differences between the French and the Anglo-American institutions. In a later essay, he argued that what was then called the French model of administrative law would sooner or later be adopted by all civilized nations. This may come as a surprise to some, but critical thinkers are not immune from contradictions.¹² Indeed, emerging facts may lead them to challenge their views. Arguments and theories must, therefore, be analyzed in context.

2 Public Administration without Administrative Law

In his essay on Democracy in America, Tocqueville made a comparison between the North American institutions with those of France. He observed that government in America was ‘prodigiously decentralized’, while in France, centralization had been on the rise since the time of Louis xiv.¹³ In America, the ordinary courts heard disputes between individuals and public authorities, whereas in France such cases were handled by special administrative bodies headed by the Conseil d’État, which, however, was ‘not a judicial body at all, in the ordinary sense of the word, … but an administrative body, whose members were dependent on the King’.¹⁴ This diversity produced another, even more unacceptable, one. In the US and England, government officers were subject to the ordinary law of the land as far as liability was concerned, while a separate legal regime had emerged in France. The Conseil d’État was entrusted with the power to authorize legal proceedings against the agents of government before the ordinary courts, which was used as a shield against ‘the just complaints of citizens’.¹⁵

With his strenuous critique of the arbitrary nature of the French administrative justice system, Tocqueville brought a new perspective to institutions that were all too often taken for granted. At the same time, he contributed to the genesis of the idea that there could be, and were, nations with a public administration that lacked an administrative law, an idea later fuelled by English thinkers. This idea was also influenced by the belief that law was inextricably linked to its social substratum. In L’esprit des lois Montesquieu pointed out the infinite diversity of laws and customs and observed that the institutions of government must conform to the spirit of a specific people.¹⁶ His claim that the ‘spirit’ of a people explains the choice of certain legal institutions is often cited as an acknowledgement of the irreducible differences between countries. Although he observed that such differences often depend on other factors, including climate and geography, this was perhaps the most commonly accepted idea in the nineteenth century. That there is a relationship between law and the spirit of the people was readily absorbed in the German-speaking world. This belief is sometimes associated with the philosophical tradition around Hegel, but it was in the works of lawyers such as Savigny and Puchta that it was explicitly stated. For them, the law was generally seen as a reflection of the spirit of the people from which it springs (Volksgeist) and not the will of the legislator.¹⁷ Laws therefore differ from people to people. Their diversity was most evident, a fortiori, in the field of public law. For Savigny, this was the consequence of different intellectual traditions. Only private law, based on the Roman legal tradition, was a ‘normative science’.¹⁸ Public law, on the contrary, was heavily ‘political’ and was thus a sort of national enclave.

As Watson observed, ‘the Volksgeist’ theory has been amply refuted by numerous jurists, but it lives on and will continue to do so because of its immediate emotional appeal’.¹⁹ Legal nationalism made a strong impact on administrative law.²⁰ In the early 1880s, the German public lawyer von Gneist observed that administrative law was taking shape in Victorian England, and brought ample evidence concerning three new areas; that is, the ‘poor laws’, health measures, and roads.²¹ However, Dicey rejected this view. Central to his argument was the assertion that there was absolutely no kind of administrative law in England. His dislike for the very term ‘administrative law’ emerged in the opening words of the chapter concerning the ‘rule of law compared with droit administratif’. His critique was threefold: firstly, it concerned the existence of a set of institutions and rules concerning public bodies distinct from those regulating the conduct of individuals; secondly, it was directed against the creation of special administrative courts as opposed to ordinary courts; lastly, he objected to the ‘protection given … to the servants of the State’.²² For Dicey, these differences reflected a deeper cultural and political divide. It was here that his description of reality metamorphosed into a normative claim, namely that the French system had grown into an instrument of despotism, while in England traditional liberal ideas meant that government power had to be reined in. The English constitutional framework was not, therefore, simply different from those of continental countries; it was superior, because it adhered to the rule of law.²³ His was a defence of the common law tradition,²⁴ which he deemed could be preserved only thanks the control placed in the hands of the ordinary courts.²⁵

Both the descriptive and normative foundations underlying the rejection of administrative law were, however, questionable. Dicey’s description did not correspond to the reality of the French institutions. The era of justice retenue formally came to an end in 1872 when the Conseil d’Etat was granted the power to decide on suits brought by individuals against public authorities.²⁶ The constitutional provision concerning liability, brought into question by Tocqueville, had been modified in 1875. A French colleague and friend of Dicey’s, Jèze, was thus ironic in highlighting the inaccuracy of Dicey’s description of French administrative law.²⁷ On the other side of the Atlantic, American scholars Goodnow and Freund also dissented from Dicey’s view. Goodnow criticized his claim that administrative law was equally unknown in England and the US.²⁸ Freund observed that administrative problems in France, England and the US were ‘in many respects similar’.²⁹ Dicey’s claim was equally dubious in normative terms. His remark on the rise of collectivism is indicative of his dislike not only of French legal institutions but of the growth of the administrative State. In a later essay, he observed that the period of liberalism in England had been followed by what he called an ‘age of collectivism’.³⁰ However, the belief that there could be an advanced public administration without administrative law proved persistent, as we shall see in Chapter 10.³¹

3 Administrative Law as a Defining Aspect of the New State of the World

We noted earlier that, in his later works, Tocqueville focused his attention on the development of public administrations and administrative law. He did so, in particular, through his opinion regarding Macarel’s treatise of administrative law. Macarel, who was both a professor and a member of the Conseil d’État, did not simply illustrate government functions in relation to public order, including the administration of the eminent domain, protection from fire and flooding, and the construction and maintenance of roads, canals and railways.³² He argued that the business of government included any issue which, due its nature or subject matter, could have repercussions on all citizens.³³ Hence, public administration was visible ‘always and everywhere’.³⁴

Tocqueville agreed with the emphasis on changing needs as expressed by social groups.³⁵ He pointed out that in order to satisfy such needs, new bodies and forms of administrative action were needed. The distance from the previous ones was notable, in the sense that the difference between the powers exercised by public authorities and those of previous ages was one of nature, not degree. A new law had thus emerged: administrative law. It was founded on general principles not laid down by the legislator and therefore not absolute (‘principes généraux et maximes absolues’). Although these new principles and institutions had emerged in France, they contained seeds that would burgeon elsewhere. Sooner or later, Tocqueville argued, those principles and institutions would be recognized by other European peoples. Interestingly, the underlying reason was neither the originality nor the importance of the French tradition but their conformity with the new state of the world – one that rejected the Marxist vision of socialism³⁶ but accepted the central role of public functions and services. It was in this sense that administrative law would, by a sort of ‘natural diffusion’, become a common feature of civilized nations.³⁷ Administrative law was thus a salient characteristic of the new state of the world.³⁸

In the decades to follow, Tocqueville’s prediction was confirmed by the prodigious development of administrative institutions in many corners of Europe, a topic we will return to in the next section. Meanwhile, there is another point of general interest deserving of comment, namely the connection between language and law. Of course, words are the essential tools of the law and, notoriously, a technical term may have no equivalent in another language. Just as often, comparative works point out that language is an obstacle to communication between different peoples, especially in Europe, where many languages from different families are spoken, unlike in Latin America, for example.³⁹ And it is in this respect that another of Tocqueville’s observations should be noted. In addition to emphasizing the driving force of interests, he was among the first, if not the first, to underline the change taking place in the language of public law.⁴⁰ It was a change that would have a vast influence on Europe as a whole. It has been convincingly argued that one of the more important consequences of the French Revolution was the gradual diffusion of the ‘language of rights’ across Europe.⁴¹ This line of reasoning provides a key to understanding why – although nineteenth-century law faculties came under the general tendency to ‘nationalize’ universities as agents of State policy – similar concerns about rights emerged in different contexts. In one form or another, these ideas about public law would fashion the cultural climate in other parts of Europe. Mayer was so convinced of their intrinsic quality that he used French theories as the intellectual infrastructure for building a general theory of administrative law in Germany. In Italy, Orlando found that this general theory constituted a conceptual framework into which scientific theories were required to fit.

4 The Transformation of Administrative Law

This section continues the discussion of the evolution of administrative law from the perspective of its relationship with the growth of government. To stop here would, however, give a misleading picture of contemporary administrative law, since many important government policy decisions are influenced by the rules and decisions that flow from global regulatory regimes, as well as from regional organizations, such as the European Union and the Council of Europe.

Until relatively recently, it was common to think of new government functions and powers being assigned to government departments and agencies in terms of a discontinuity between the nineteenth and twentieth centuries. There was a period, which many called liberal, when theorists believed the State’s role was to defend the national territory, ensure law and order, and administer justice, while everything else would come about through economic and social forces. However, the situation became more complex, especially in the wake of industrialization and democratization. In Britain, France, Germany, and elsewhere, the industrial revolution led to the considerable expansion of government functions. Between 1830 and 1870, increased regulation was imposed in areas such as factories, railways and telegraphs, housing, and public health.⁴² Factories, mines and other places of work came under increasing public scrutiny, especially in the wake of tragedies concerning workers, demanding changes to the law in response to intolerable situations. New technologies, too, required regulation, including international standards, as illustrated by the establishment of the International Telegraph Union (1865), one of the first administrative unions. Housing and public health gained greater importance as a consequence of demographic increase and urbanization. Thus, in the 1860’s, Aucoc, a French public lawyer who later became president of the Société de legislation comparée, observed that all governments were involved in education, at least at the lower levels, nationalizing new industries such as railways and telegraphs.⁴³

Meanwhile, pressure for greater democracy increased. In the first part of the nineteenth century, numerous politicians thought that granting limited political reforms was far preferable to the risk of revolution. This opinion became more widespread after the turmoil of 1848–9 in all corners of Europe, with the exception of Britain and Russia. For example, in France after 1848 the whole adult male population was given the vote,⁴⁴ while in Britain the 1884 Representation of the People (Franchise) Act extended the right to vote to almost all male workers. In other countries, where the proportion of electors was lower, what was later called conservative reformism was introduced: Bismarck and other European rulers took unprecedented measures to deliver certain goods and services to the people, often in an attempt to reduce the threat of socialism.⁴⁵ In brief, there would be far more government involvement in society than ever before by the end of the nineteenth century.⁴⁶ The years to follow saw greater public access to representative institutions in countries such as Germany and Italy as the right to vote was extended to social groups that had previously been barred from voting. These brought new ideas, and new legislation was adopted as politicians sought to secure votes.

This new legislation required more administration, and in more than one sense. New public bodies were established to discharge new functions, and there was a sharp rise in the number of civil servants. Moreover, there was an increase of what French legal scholarship called puissance publique;⁴⁷ that is, an ‘augmentation of administration’s powers’.⁴⁸ This change manifested itself both in terms of the administration’s ability to impose its will on individuals through adjudication (orders and penalties limiting economic freedom, expropriation and other limitations on private property) and to devise regulations with effects on various groups, if not on society as a whole. These powers were often characterized by a broad margin of discretion, raising concerns about arbitrariness. Many deemed existing legal procedures inadequate to counter misuse and abuse of power. It was not enough to simply introduce administrative mechanisms, including procedures, and judicial safeguards on a larger scale than before: a new law was necessary. Administrative law increasingly filled this gap, and Britain was no exception. Just as in France, Duguit, Jèze, and others argued that administrative law was increasingly about the discharge of functions and services to the citizenry,⁴⁹ so Robson promoted a functionalist approach in Britain. In his Justice and Administrative Law,⁵⁰ not only did he challenge the old dictum that Britain had no administrative law, but he also argued that the time was ripe for developing a rational system of administrative courts.⁵¹ Though his ideas were accepted neither by the majority of scholars nor by politicians, they are representative of a new awareness. Not only had administrative law acquired an intellectual framework, albeit with significant differences within the various legal cultures, but concepts such as ‘administrative discretionality’, and ‘administrative procedure’ gained greater acceptance.

A twofold change occurred after 1945, both within and outside national legal systems. What transpired after 1945 is much more than a cradle-to-grave administrative welfare State. In deciding on access to prenatal care, abortion in public hospitals and abortion pills, public administrators affect individual choices concerning births. Other decisions may determine whether and how it is possible to ‘rest in peace’, for example when cemeteries have to accommodate the building of infrastructures such as highways and railroads.⁵² Moreover, modern legal systems recognize interests such as the protection of the environment, bio-diversity, and, more recently food security,⁵³ which are not a matter for individuals but society as a whole. These interests are extremely important in modern polities. They receive protection from open-textured legislative provisions that require administrative action either in the traditional form of adjudication or in the guise of rulemaking or standard-setting. All these species of power are variably characterized by discretion.⁵⁴ If they are all regarded as falling within the scope of administrative law, then the ramifications are significant insofar as a modern comparative research should not focus only on one species or another.

Any comparative research should equally show awareness of the de-nationalization of administrative law that has characterized the last decades. The full ramifications of this process cannot, however, be examined here. The intent of this section is simply to point out the difficulty of reconciling the traditional conception of administrative law as a province of the State and national enclave within the new legal scenarios at both regional and global level. Since the early years of the European Communities, they have had their own apparatuses, with powers to regulate and adjudicate in some areas, often with binding effects not only on the member States but also on individual and commercial stakeholders. It is precisely the existence of pervasive and binding administrative powers that has made it necessary to provide legal standards and judicial remedies through the Treaties of Paris (1952) and Rome (1957), in order to limit and structure these powers, making them accountable.⁵⁵ Over the years, this had led to a conspicuous body of legal provisions, judicial doctrines, and learned writings; namely European administrative law.⁵⁶ This body of law has a twofold impact on national administrative laws. On the one hand, it regulates the conduct of national authorities when they implement the law of the EU, requesting them to respect a set of general principles, including loyal cooperation and partnership.⁵⁷ On the other hand, there is a sort of ‘spillover’ effect regarding the regulation of problems of administrative law of a purely domestic nature.⁵⁸ In this sense, it has become necessary to look at European administration from a comparative perspective.⁵⁹

More recently, there has been a shift of regulatory powers from the States to a variety of regional and global regulatory regimes and authorities whose action can be conceptualized in terms of ‘global administrative law’.⁶⁰ Through the intermediation of the new regulatory regimes, transnational scenarios have become more frequent, and processes of cross-fertilization and legal transplants have greater relevance and significance.

5 A New Comparative Inquiry

The main characteristics of the new comparative inquiry have already been outlined earlier, so there is no need to rehearse them again.⁶¹ A few words, however, may shed some light on three of its salient features: its purposes, subject, and methodology.

The purposes of the research can be explained by referring not to the traditional distinction between those which place emphasis on satisfying a ‘need for knowledge’⁶² and those who point out the persistent interest of both foreign law and comparative law in view of the reform of national legal institutions. There are good reasons for examining national legal institutions to define higher standards of administrative conduct, these being preferable to lower standards. There are, however, difficulties with this approach since the descriptive validity of a comparative study aiming to select an ‘optimal’ set of rules depends, in turn, on the ‘correctness’ of a number of questionable claims.⁶³ Space precludes a thorough discussion of this issue here, but suffice it to say that the research presented in this volume has a different goal, namely the advancement of knowledge, though it may well have some practical implications, such as for teaching administrative law.

As regards the subject, two opposing risks had to be avoided: over-and under-inclusiveness.⁶⁴ The topic addressed here is administrative procedure. Various reasons underpin this choice. Firstly, as a subject for comparative study, administrative procedure is thought to have both universality, as it is increasingly accepted that administrative procedure is ‘a concept at the heart of administrative law’,⁶⁵ and practical importance. Secondly, focusing on procedure allows us to understand what administrative authorities do and how they do it, including the interaction between the various units of government and citizen participation. Conversely, traditional emphasis on the judicial review of administration is subject to a distorted perspective as it implies a sort of indirect vision of the functioning of public authorities and emphasizes what might be called the negative part of administrative law, based on the remedies available against certain administrative acts.⁶⁶ The third reason is that several nations have adopted general procedural codes regulating the rights to a hearing across a variety of areas, thus partly modifying the traditional characterization of administrative law as judge made law.

Some methodological choices, too, should be explained. As indicated at the start, underlying the research is the hypothesis that there is a common core between European administrative laws that has evolved over time and that it relates not only to generic ideals that can be found in every civilized legal system in one way or another, such as justice, but also to some precise requirements of administrative fairness and propriety. These are regarded as empirically testable hypotheses, subject to verification which can be performed in two ways. One is to attempt a historical reconstruction focusing on the validity of empirical evidence in relation to specified hypotheses. Another is to rely on legal comparison, which can be viewed as a ‘substitute for the experimental method’ used in other scientific domains.⁶⁷ Accordingly, two types of comparison will be used: synchronic and diachronic. Conventional as these terms may be, they convey something of the nature of the work to be done, insofar as the former provides a retrospective view, while the latter focuses on the administrative systems of our times.

There are both general and specific reasons for choosing a diachronic comparison. From the general point of view, as Gorla observed rephrasing Maitland’s opinion that ‘history involves comparison’,⁶⁸ ‘comparison involves history’.⁶⁹ It is impossible, therefore, to understand the deeper structures of administrative law with ‘only the vaguest idea of how its subject matter has evolved’.⁷⁰ History has shown that legal principles and institutions originating in one nation have often been influential elsewhere. During the nineteenth century, French administrative courts and the underlying conception of separation of powers had a great influence in many areas of Europe.⁷¹ During the last century, Austrian ideas about administrative procedure spread to neighboring countries and subsequently elsewhere. A dynamic approach, which takes several decades into account, is thus much to be preferred to a static one, permitting a better understanding of the respective significance of commonality and diversity.⁷²

As for synchronic comparison, the growth of administrative procedure legislation suggests that studying it may provide interesting insights. However, this would not suffice to gain an understanding of the interplay between the commonality and diversity found in European laws. There are, again, both general and specific reasons why it would not do so. The main methodological innovation in Schlesinger’s study of the common core is precisely this: rather than seeking to describe national institutions, an attempt was made to understand how, within the legal systems selected, a certain set of problems would be solved. Thus, the problems ‘had to be stated in factual terms’.⁷³ In practice, this meant that, by using the materials concerning some legal systems, Schlesinger formulated hypothetical cases in order to see how they would be solved in each of the legal systems selected. It turned out that these cases were formulated in such a way as to make sense in all such legal systems. The suitability and fruitfulness of this methodology was subsequently confirmed in the framework of the Trento project on the common core of European law.⁷⁴

In the field of administrative law, this type of approach is particularly appealing for two reasons. Firstly, administrative law has emerged and developed with no legislative framework comparable to the solid and wide-ranging architecture provided by civil codes. As a result, its principles are largely jurisprudential, not only in Britain, but also in France and elsewhere. Secondly, in addition to legislation and judicial decisions, governmental practices play an important, sometimes decisive, role.⁷⁵ Not surprisingly, as early as in the 1940s, some of the few scholars who devoted their attention to the comparative study of European administrative laws were aware that for a better understanding of their common and distinctive traits it would be much better to build hypothetical cases and confront the solutions that would be given.⁷⁶ This innovative suggestion for tackling the problem that concerns us here was not used, however. In the following decade, when a new legal journal, the International and Comparative Law Quarterly, launched a comparative research concerning administrative law, it elaborated a well-structured questionnaire, but it was based on legislative design.⁷⁷ After Schlesinger’s research was published, it was found that the same methodology could be applied, among other things, to the control of the legality of administrative decisions.⁷⁸ However, there was no systematic use of such methodology. A factual analysis, however, can provide interesting insights.

A final point of general interest concerns the place of theory. Some public lawyers and historians of law engage in an intellectual history of administrative law,⁷⁹ with a strong emphasis on individual scholars and networks between them. The comparative inquiry that is presented here examines administrative law, instead. It thus devotes attention to the practical side of the law, including the powers that public authorities exercise and the procedure by which these powers are exercised. This does not imply, however, that legal theory is of scarce significance. To the contrary, it must be taken into due account, because it has greatly contributed to shaping not only the standards that are applicable to a wide range of governmental conduct, but more generally the culture within which these standards are elaborated, balanced and applied.⁸⁰

6 Limits to the Inquiry

Before describing the structure of this essay, we should remark on some limitations to our comparative inquiry. The first, as mentioned previously, is that it focuses on administrative procedure. It cannot be ruled out, therefore, that research focusing – let’s say – on local government will provide different results. The second limit concerns the choice of legal systems selected for comparison, while the third regards the factual approach mentioned above; these are two issues requiring discussion.

The choice of the legal systems to be considered is a crucial issue in any comparative research. While the decision to place Europe at the heart of the project was dictated by a variety of reasons including the historical relationships between its legal cultures and the establishment of regional organizations such as the Council of Europe and the EU,⁸¹ three further choices must be taken into consideration. The first was to focus not only on the traditional ‘major’ legal systems – Britain, France, and Germany – but also to include some others, commonly but unjustifiably regarded as ‘minor’ such as Belgium and Austria.⁸² As we shall see in Part 1, both have been involved in the processes of borrowing and legal transplants. The second choice is to consider not only the legal systems that are included within the EU, but also others, in order to ascertain whether similar standards of administrative conduct exist there. As a result, although no research project escapes the limits of budget and workforce, every effort has been made to cover a sufficiently large number of legal systems.

The third choice was to include the EU. On one side of the coin, the EU regulates – through its treaties and other sources – the conduct of public authorities in the member States. On the other is the law that applies to the institutions and agencies of the EU, ie, the European administration in the strict sense. Its existence is a powerful counterweight to the idea that nothing has changed since the advent of the positive State. It sheds doubt on the notion that administrative law is consubstantial with the State and shows the difficulties besetting the traditional idea that administrative law simply reflects national legal traditions. Including the EU is not without its problems, however, given the highly specific nature of European administration, considering that implementation is generally left to national authorities. It may nonetheless be interesting to discover to what extent the defined standards are similar to those followed by domestic legal systems.

The other limitation concerns the level of analysis. Opting for factual analysis raises the question of whether the conclusions can be generalized outside the specific cases examined. This is a something of a challenge. As De Smith put it, ‘to prophesy the view that a court will take of the powers or duties of an administrative authority in a particular case must inevitably remain a hazardous undertaking’.⁸³ Two answers can be suggested. The first is that what is being examined is also administrative procedure legislation. The second is that there are certain factors that can increase the added value of a factual analysis. All the hypothetical cases have been constructed referring to some factual circumstances. The underlying idea is that it is only by considering concrete circumstances that one can ‘bring to consciousness the assumptions secreted within the structures’ of each legal system.⁸⁴ Moreover, national experts have not only been asked to indicate the solution more likely to be provided by jurists and judges in their respective legal orders, but they have also been encouraged to reflect on the underlying institutional and cultural reasons, including the role played by legal formants, as theorized by Rodolfo Sacco. Sacco developed the concept of ‘legal formants’ to describe the many relevant elements in the living law, including legislative and regulatory provisions, judicial decisions, scholarly works and, in our case, government practice.⁸⁵ Even when legal requirements cannot be extrapolated from the cases or constitute unsafe guides, discussing background theories can be an aid to understanding how procedural values balance with other values.

7 Structure of the Inquiry

Having clarified the scope and methodology of this inquiry, it will now be easier to describe its structure. First, we present a diachronic comparison, which serves to ensure that the analysis of legal institutions is rooted in a strong historical awareness (Part 1). It includes the establishment of national systems of administrative justice, the judicial construction of the general principles of administrative law in the Belle Époque, and the adoption of administrative procedure legislation over the last century.

The synchronic comparison, which is illustrated in Part 2, has two related but distinct purposes. The first is to compare general legislation on administrative procedure in order to ascertain the common and distinctive traits between European legal systems. The second is to discuss the results of our factual analysis with regard to two important forms of administrative action, namely adjudication and rulemaking. The factual analysis is completed by a consideration of the consequences that follow from governmental wrongdoing in terms of liability.

In Part 3, all these findings will be used to test the robustness of our initial hypothesis concerning the possibility of identifying a common core. The first step will be to consider its etiology; that is, the causes of what they have in common, as well as the causes of the divergences. The next step will be to examine the development of the common core, what it means, and its nature and extent today.