Concept and Foundations of Administrative Law
Administrative law is a central subfield of public law that deals with the organization, actions, and supervision of public administration. It systematically analyzes the legal foundations, functions, and structures of administrative authorities as well as the statutory framework for administrative actions. The aim of administrative law is to ensure and safeguard effectiveness and legality in public administration.
Historical Development of Administrative Law
Origins and Development
The origins of administrative law date back to the emergence of modern nation-states. With the establishment of a professionalized administrative apparatus in the 18th and 19th centuries, the need for scholarly examination of administrative law issues grew. Particularly in Germany, administrative law gained great significance through the work of Otto Mayer and later through the establishment of administrative legal science. It developed into an independent discipline within legal studies and significantly contributed to the development of a modern understanding of administration.
Key Guiding Principles
The guiding principles shaping administrative law include the principle of legality of administration, the rule of law, and the principle of separation of powers. These fundamentals still define the understanding of administration today and shape all administrative measures.
Subject Matter of Administrative Law
Definition of Administration
Administration in the legal sense refers to the activities of state bodies that serve to implement laws, regulate specific individual cases, and directly fulfill public duties. Administration stands alongside legislation and the judiciary as an independent function of the state.
Distinction from Administrative Science
While administrative law is primarily concerned with the legal aspects of administration, administrative science examines administration from political, sociological, and economic perspectives. Nevertheless, there are numerous interfaces and interactions between the two disciplines.
Structure and Organization of Public Administration
Theory of Organization
The theory of organization, as a subfield of administrative law, focuses on the structure and functioning of public administration. For example, it studies:
- Structure of Authorities: Distinction between federal authorities, state authorities, and municipal administrations.
- Leadership and Subordination: Hierarchies, authority to issue instructions, and responsibilities within the administrative apparatus.
- Decentralized and Centralized Organization: Implementation of the subsidiarity principle and the self-responsibility of individual administrative units.
Functional Units
In this context, administrative law differentiates between various forms of organization, such as public enterprises, own enterprises, corporations, institutions, and foundations under public law.
Actions of Administration
Administrative Actions in the Legal Context
Administrative law classifies administrative action into various forms of action:
- Administrative Act: The central form of action, by which the administration, in a sovereign, binding, and unilateral manner, establishes, modifies, repeals, or conclusively determines rights or obligations for an individual or a group.
- Administrative Contract: Arises from a public-law agreement between the administration and citizens or between administrative bodies.
- Material Acts: Actual administrative actions without direct legal effect (e.g., simple administrative activities such as providing information or giving instructions).
- Statute: Legal rule issued by a legal entity under public law to regulate its own affairs.
Sources of Law for Administrative Actions
- Laws in the formal and material sense: Federal law, state law, and municipal statutes.
- Statutory Ordinances: Abstract-general norms issued by the executive, based on statutory authority.
- Statutes: Own legal norms of corporations under public law (especially municipalities and rural districts).
Legal Supervision of Administration
Basic Principles of Administrative Supervision
Administrative law deals extensively with safeguarding legal protection against administrative actions:
- Fundamental Rights: Limitation and control of administration by the fundamental rights enshrined in the Constitution.
- General Administrative Supervision: Review of administrative actions by courts (administrative judiciary), especially based on the Administrative Procedure Act (VwVfG) and the Administrative Court Code (VwGO).
- Special and Technical Supervision: Supervision by superior authorities.
Forms of Legality and Appropriateness Supervision
- Legality of Administration: Binding the administration to existing laws (principle of legality).
- Review of Appropriateness: Examination of whether administrative actions in the context of discretionary decisions are appropriate and suitable.
Special Features of Individual Areas of Administrative Law
Police and Public Order Law
Administrative law regulates the sovereign powers of the executive to avert dangers to public safety and order. Important legal institutions include the Police and Public Order Act as well as the General Security and Public Order Act.
Building Law
Administrative building law deals with the approval and supervision of construction projects and their implementation, particularly based on the Building Code (BauGB) and state building codes.
Environmental and Planning Law
Within this subfield, administrative law regulates the requirements and procedures for the realization of public or private projects with environmental impacts, for example through provisions on emission control or nature conservation.
Significance and Function of Administrative Law in the Legal System
Administrative law contributes to ensuring a constitutional, transparent, and efficient administration. It guarantees a balance between effective fulfillment of tasks by the administration and the protection of the rights and interests of citizens. Moreover, administrative law ensures the adaptability of administration in light of social, technical, and legal changes.
Literature and Further References
Comprehensive coverage of administrative law can be found in numerous commentaries, textbooks, and monographs on general administrative law as well as administrative procedure law. Key sources include administrative procedures, administrative jurisdiction, and practice-relevant administrative regulations at the federal and state level.
Note: This article serves to provide a detailed explanation and clarification of the term ‘administrative law’ and is intended for publication in a legal encyclopedia.
Frequently Asked Questions
How is the legal binding of the administration regulated under German law?
Under German law, the administration is bound by law and the Constitution, as anchored in the so-called principle of legality (§ 20 para. 3 Basic Law, also known as the rule of law). This means, on the one hand, that administrative action may not take place without or against the law (primacy and reservation of law). Every administrative action must therefore have a legal basis (reservation of law), and existing laws may not be violated or circumvented by administrative acts (primacy of law). This includes both formal laws and ordinances as well as statutes. Furthermore, rule-of-law principles such as legal certainty, the principle of definiteness, and proportionality ensure that administrative action is comprehensible, foreseeable, and appropriate and necessary for its purpose. In addition, public administration is obliged to respect fundamental rights and is subject to judicial review, which can be exercised, for example, through actions for annulment or mandamus actions before administrative courts.
What legal remedies are available against administrative acts?
Several legal remedies are available under German law against administrative acts, ranging from simple administrative objections to various forms of legal action and appeals. As a rule—and except where the obligation to lodge an objection no longer applies—an objection (pursuant to §§ 68 et seq. VwGO) can first be filed, which allows the original authority or an objection authority to review the administrative act. If the administrative procedure does not produce the desired result, legal action before the competent administrative court is possible, particularly as an action for annulment, an action for performance, an action for a declaratory judgment (§ 42 VwGO), or an action for provision (§ 43 VwGO). In court proceedings, further legal remedies such as appeal to the Higher Administrative Court and revision to the Federal Administrative Court are available. In addition, there are special expedited legal protection options, such as an application for interim relief (§ 80, § 123 VwGO), which may provide a provisional regulation until a final decision is reached.
What is the significance of discretion in administrative actions?
In administrative action, discretion (regulated in § 40 VwVfG) means that, when the statutory requirements are met, the authority can choose whether and how to act, as long as this stays within legal boundaries. A distinction is made between the discretion to act (whether to act) and the discretion in choice (how to act). Discretion, however, is bound: The authority must observe legal standards, in particular the principle of proportionality, the principle of equal treatment (§ 3 para. 1 Basic Law), and fundamental rights. The so-called intended discretion establishes the normal case, which can be departed from only in atypical situations. Discretion is reduced to zero if only one lawful decision is possible. The exercise of discretion is only subject to limited judicial review: Not the appropriateness, but only errors in exercising discretion such as abuse, exceeding, or non-use of discretion can be challenged in court.
What should be considered regarding the duty to provide reasons for administrative acts?
Administrative acts are, as a rule, required to be substantiated in writing or electronically under § 39 para. 1 VwVfG, unless a justification is obviously unnecessary under the circumstances or exempted by law. The justification must include the essential factual and legal grounds that led the authority to make its decision. This serves transparency, understandability, and the reviewability of administrative action. Furthermore, the justification preserves the legal protection interests of those affected, as only then can the legality and appropriateness be reviewed. The justification is especially important for onerous administrative acts. If no adequate justification is provided, the administrative act may be unlawful, although subsequent justification may be permitted during judicial proceedings according to § 45 para. 1 no. 2 VwVfG.
What is the significance of the protection of legitimate expectations in administrative law?
The protection of legitimate expectations is a fundamental principle of administrative law and serves to protect citizens from retroactive burdensome measures by the administration. It derives from the rule of law and is made explicit in various legal provisions, especially § 48 VwVfG (revocation of unlawful administrative acts) and § 49 VwVfG (revocation of lawful administrative acts). Accordingly, beneficial administrative acts can only be withdrawn or revoked with retroactive effect under certain narrowly defined conditions. Those affected are generally entitled to rely on the validity of final, beneficial administrative acts, provided there is no deception, fraudulent misrepresentation, or gross negligence and there are no overriding public interests in withdrawal or revocation. This principle is particularly relevant for legal certainty and the stability of administrative actions.
How is the relationship between administration and courts in legal protection regulated?
Judicial review of the administration is a central element of the German rule of law and is referred to as administrative jurisdiction. It is constitutionally protected under Article 19(4) of the Basic Law and set out in the Administrative Court Code (VwGO). Courts generally review the legality of administrative acts, not their expediency (judicial review is of legal violations, not the replacement of administrative discretion by the court). An exception is the full reviewability of bound decisions and the review of discretionary errors in discretionary decisions. Courts can revoke, mandate, or determine administrative acts, but generally may not instruct the administration to act in a particular manner unless expressly provided by law. Judicial control thus ensures compliance with laws and fundamental rights in administrative action.
