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Administrative and Constitutional Law Distinguished

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Administrative and Constitutional Law Distinguished


For a long time the similarity between constitutional law and administrative law had led to confusion between both because the latter was, until very recently, treated as an appendage of or annexure to the former.

One of the reasons therefor is that the two were fused for a long time because English scholars such as Austin and Maitland hesitated to see administrative law as a body of law distinct from constitutional law.

Also A.V. Dicey’s denial of the existence of administrative law in the UK in his exposition on the rule of law worsened the non-recognition of administrative law as an autonomous course of study.

Moreover, this blurred relationship between administrative law and constitutional law was not helped by the fact that the UK operates an unwritten constitution.

Thus, it was usual for textbooks on constitutional law and administrative law to contain much of constitutional law and little of administrative law.

However, with the recognition of administrative law as an independent course of study, the situation has since improved as we now find books that are exclusively devoted to administrative law and, more importantly, administrative law is no longer tied to the apron string of constitutional law.

In this article, you shall be able to:

• Compare administrative law with constitutional law

• Contrast administrative law with constitutional law.

Sometimes, a question is asked as to whether there is any distinction between constitutional and administrative law. 

Till recently, the subject of administrative law was dealt with and discussed in the books of constitutional law and no separate and independent treatment was given to it.

In many definition of administrative law, it was included in constitutional law.

According to Maitland, while constitutional law deals with structure and the broader rules which regulate the functions, the details of the functions are left to administrative law.

According to Hood Phillips, ‘constitutional law is concerned with the organization and functions of government at rest while administrative law is concerned with that organization and function in motion.

But the opinion of English and American authors is that the distinction between constitutional law and administrative law is one of degree, convenience and custom rather than logic and principle. It is not essential and fundamental in character.

 


Relationship between constitutional law and administrative law

Sometimes, a question is asked as to whether there is any distinction between constitutional law and administrative law.

Though in essence constitutional law does not differ from administrative law inasmuch as both are concerned with functions of the Government and both are a part of public law in the modern State and the sources of both are the same and they are thus inter-related and complementary to each other belonging to one and the same family. Strict demarcation, therefore, is not possible, yet there is a distinction between the two.

According to Maitland, while constitutional law deals with structure and the broader rules which regulate the functions, the details of the functions are left to administrative law.

According to Hood Phillips, “Constitutional law is concerned with the organization and functions of Government at rest whilst administrative law is concerned with that organization and those functions in motion.”

But the opinion of English and American authors is that the distinction between constitutional law and administrative law is one of degree, convenience and custom rather than that of logic and principle.

It is not essential and fundamental in character. Keith rightly remarks: “It is logically impossible to distinguish administrative law from constitutional law and all attempts to do so are artificial.”

Constitutional and administrative law both govern the affairs of the state. 

To the early English writers on administrative law, there was virtually no difference between administrative law and constitutional law. This is evident from the words of Keith: “It is logically impossible to distinguish administrative from constitutional law and all attempts to do so are artificial.” 

Some jurists like Felix Frankfurter even went as far as to call it “illegitimate and exotic”. The root of all confusion in the United Kingdom is its lack of a written constitution.

In a state with a written constitution, the source of constitutional law is the Constitution while the sources of administrative law include statutes, statutory instruments, precedents and customs whereas in the United Kingdom, this distinction is not very clear cut – it is in fact, quite blurred.

Due to this lack of clarity, it will be vital to observe the views of jurists and scholars on the difference between administrative law and constitutional law.

According to Holland, constitutional law describes the various organs of the government at rest, while administrative law describes them in motion. Holland contends that the structure of the executive and the legislature comes within the purview of constitutional law whereas their functioning is governed by administrative law.

Jennings puts forward another view, which says that administrative law deals with the organization, functions, powers and duties of administrative authorities while constitutional law deals with the general principles relating to the organization and powers of the various organs of the State and their mutual relationships and relationship of these organs with the individual.

Simply put, constitutional law lays down the fundamentals of the workings of government organs while administrative law deals with the details.

The fundamental constitutional principle, inspired by John Locke, holds that “the individual can do anything but that which is forbidden by law, and the state may do nothing but that which is authorized by law”. Administrative law is the chief method for people to hold state bodies to account.

People can apply for judicial review of actions or decisions by local councils, public services or government ministries, to ensure that they comply with the law.

Whatever be the correct position, there always exist an area of overlap between constitutional law and administrative law.

 

Read: Types of government with examples of countries


Administrative growth in constitutional matrix

Since the English Constitution is unwritten, the impact of constitutional law upon administrative law in England is insignificant and blurred. As Dicey observes, the rules which in other countries form part of a constitutional code are the result of the ordinary law of the land in England.

As a result, whatever control the administrative authorities can be subjected to, if any, must be deduced from the ordinary law, as contained in statutes and judicial decisions.

But, in countries having written constitutions, there is an additional source of control over administrative action. 

In these countries there are two sources or modes of exercising judicial control over the administrative agencies – constitutional and non-constitutional.

The written constitution imposes limitations upon all organs of the body politic.

Therefore, while all authors attempt to distinguish the scope of administrative law from that of constitutional law, they cannot afford to forget not to mention that in a country having written constitution with judicial review, it is not possible to dissociate the two completely.

As in all common law countries, a delegated legislation can be challenged as invalid not only on the ground of being ultra vires the statute which confers power to make it, but also on the additional ground that it contravenes any of the fundamental rights guaranteed by the Constitution.

A non-legislative and a purely administrative action having no statutory basis will be void if it breaches any of those fundamental rights which set up limitations against any State action.

Thus a non-statutory administrative act may be void if it violates rights guaranteeing equal protection; guaranteeing minority rights; guaranteeing freedom of speech, association, etc.; guaranteeing equality of opportunity in employment.

Thus the court would strike down any administrative instruction or policy, notwithstanding its temporary nature, if it operates as discriminatory, so as to violate any fundamental right of the person or persons discriminated against. 

Non-statutory administrative action will also be void if its result affects a fundamental right adversely where the Constitution provides that it can be done only by making a law.

An administrative act, whether statutory or non-statutory, will be void if it contravenes any of the mandatory and justiciable provisions of the Constitution, falling even outside the realm of fundamental rights.

In cases of statutory administrative actions, there is an additional constitutional ground upon which its validity may be challenged, namely, that the statute, under which the administrative order has been made, is itself unconstitutional.

Where the impugned order is quasi-judicial, similarly, it may be challenged on the grounds that the order is unconstitutional; that the law under which the order has been made is itself unconstitutional. Constitutional law thus advances itself into the judicial review chapter in administrative law in a country like the USA or India.

The courts in these countries have to secure that the administration is carried on not only subject to the rule of law but also subject to the provisions of their respective Constitutions.

It can be observed that an attack upon the constitutionality of a statute relates to constitutional law and the constitutionality of an administrative action concerns administrative law, but the provisions of the same Constitution apply in both the spheres.

The object of both the common law doctrine of rule of law or supremacy of law and a written constitution is the same, namely, the regulation and prevention of arbitrary exercise of power by the administrative agencies of the Government.

The rule of law insists that “the agencies of the Government are no freer than the private individual to act according to their own arbitrary will or whim but must conform to legal rules developed and applied by the courts”.

The business of the written constitution is to embody these standards in the form of constitutional guarantees and limitations and it is the duty of the courts to protect the individual from a breach of his rights by the departments of the Government or other administrative agencies.

So, what features typical of constitution can we extract from the above?

They are provided below:

(a) Constitution is the organic, supreme law or the grundnormof a State

(b) All laws inconsistent with it are to the extent of their inconsistency void

(c) It regulates power distribution amongst the three arms of government

(d) It governs the relationship between citizens on the one hand and governmental agents on the other, and amongst governmental organsinterse

(e) It stipulates the rights and duties of citizens

(f) It constitutes a code of governance in the hands of government officials.

On the other hand, administrative law is law relating to the power and the exercise of such power of an administrative agency and which controls the exercise of governmental powers through judicial reviews.


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Conclusion on Administrative and Constitutional Law Distinguished

Although the relationship between constitutional law and administrative law is not very emboldened to be seen with naked eyes but the fact remains that concomitant points are neither so blurred that one has to look through the cervices of the texts with a magnifier to locate the relationship.

The aforementioned veracities provide a cogent evidence to establish an essential relationship between the fundamentals of both the concepts.

If doubts still persist, the very fact that each author, without the exception of a single, tends to differentiate between the two branches of law commands the hypothecation of a huge overlap.

In this article, we considered the features of both administrative law and constitutional law before we attempted a comparison and a contrast between them.

In our discourse, we now know that, notwithstanding their similarities, they are, after all, separate courses of study.

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