Definitions, Scope and Features of Administrative Law ( in UK, US and Nigeria)

 

Administrative law is that branch of the law that developed in response to the socio- economic functions of the State and the increased powers of the government.

As the State developed, the relationship between inter-governmental agencies became complex; there was therefore the need to regulate the relationship as their complexity increased – a law that would regulate the relationship of the different agencies as well as well as act as checks on the exercise of powers of these governmental agencies; and also to defend the rights of citizens from governmental.

Administrative law is a branch of public law. Public law is the branch of law regulating the relationship between the citizen and the State.

Administrative law is a public law category in the sense that it deals with the intercourse between governmental institutions on the one hand and private individuals or corporations on the other.

Because of the involvement of the modern State in activities hitherto the exclusive domain of non-governmental actors, there has been the need for governments to establish many agencies that is, ministries, parastatals, bureaus, departments, etc for the actualization and implementation of governmental projects and programmes.

It is also a study of governance; congress or parliament creates authority, the President enforces that authority and the courts confine or discipline the exercise of that authority.

Thus, the starting point for many administrative law cases is an act of congress or parliament that allows the agency to function.

For you to understand administrative law, it is essential that you have a broad idea of the nature and scope of administrative law.

In this article, you should be able to:

· Define or describe the term administrative law

· In your own words, analyze the nature and character of administrative law

· Explain the relationship between administrators and citizens

· Demonstrate the history and development of administrative law.

 

Definition of Administrative Law

It is indeed difficult to evolve a scientific, precise and satisfactory definition of administrative law. 

Many jurists have made attempts to define it, but none of the definitions has completely demarcated the nature, scope and content of the subject.

Either the definitions are too broad, and include much more than necessary or they are too narrow and do not include all the essential ingredients. Like many legal terms, ‘administrative law’ does not possess a universally acceptable definition.

Therefore, each definition reflects the orientation of the definer. Nonetheless, several attempts have been made to define or, at least, describe the term.

It is our intention to consider the various definitions that have been offered by scholars with a view to our abstracting the features common to them.

Administrative law is the law relating to the administration. It determines the organization, powers and duties of administrative authorities.

 

Read: Types of government with examples of countries

Criticisms of the definition of administrative Law

Even though this is perhaps, the most widely accepted definition of administrative law, it is not without its attendant criticism.

According to Griffith and Street, there are some difficulties associated with this definition.

Firstly, it does not distinguish administrative law from constitutional law.

Secondly, the definition is seen as too wide. For the law which determines the powers and functions of administrative authorities may also deal with substantive aspect of such powers.

For example, legislation relating to public health services, houses, town and country planning. But these are not included within the scope and ambit of administrative law.

Thirdly, it does not include the remedies available to an aggrieved person when his rights are adversely affected by the administration.

Kenneth Culp Davis defines administrative law as follows:

“Administrative law is the law concerning the powers and procedure of administrative agencies, including, especially, the law governing judicial review of administrative action”.

According to Davis, an administrative agency is a governmental authority, other than a court and a legislature which affects the rights of private parties either through adjudication or rule-making.

This definition, though in one respect is proper as it puts emphasis on procedure followed by administrative agencies in exercise of their power, but it does not include the substantive laws made by these agencies.

It has also been criticized on the ground that it does not include many non-adjudicative and yet administrative functions of administration which cannot be characterized as legislative or quasi-judicial.

Also, is the fact that it puts an emphasis on the control of the administrative functions by the judiciary, but does not study other equally important controls, e.g. parliamentary control of delegated legislation, control through administrative appeals or revisions, and the like.

Administrative law is the law relating to the control of governmental power, other than the power of Parliament, and the body of general principles relating to the functioning (as opposed to structure) of public authorities: Wade & Forsyth. 

Its primary purpose is therefore, to keep the powers of government within their legal bounds so as to protect the citizen against their abuse: Wade & Forsyth

A first approximation to a definition of administrative law is to say that it is the law relating to the control of governmental power.

A second approximation to a definition is:

Administrative law may be said to be the body of general principles which governs the exercise of powers and duties by public authorities.

The primary purpose of administrative law, therefore, is to keep the powers of government within their legal bounds, so as to protect the citizen against their abuse.

Professor P. A. Oluyede sees administrative law as that branch of our law which vests powers in administrative agencies, imposes certain requirements on the agencies in the exercise of the powers and provides remedies against unlawful administrative acts.

In the view of David Scott and Alexandra Felix, administrative law is broadly defined as the law which regulates the exercise of power conferred under the law upon governmental bodies.

In this definition, the grant of power is not expressed but implied.

One area that the above definition ignore, like Davis’ definition is that the remedies invocable by persons who may be adversely affected by administrative acts.

Thus, Bernard Schwartz definition of administrative law as that branch of law which controls the administrative operations of government, setting forth the powers which may be exercised by administrative agencies, laying down the principles governing the exercise of those powers, and providing legal remedies to those aggrieved by administrative actions.

It is crystal clear from the various definitions above, and as earlier pointed out, that there is no comprehensive definition of administrative law, and that it only depends on the viewpoint of the definer.

 

Scope of Administrative law

The term ‘administrative law’ is one which has a comparatively narrow meaning. According to Freurd (1911), administrative law ‘has in relatively recent times gained acceptance as the best designation for the system of legal principles which set the conflicting claims for executive or administrative authorities on the one side, and of individual or private on the other.

What brought about this realization is that the exercise of power by the administration is at least of as great importance as the control of such power by the courts. 

An English writer expressed the view that ‘administrative law should be regarded as the law relating to public administration, in the same way as commercial law consist of law relating to commerce or land.

Robson, writing in British government since 1918, feels that for the administrative lawyer to abdicate the law of public administration, leaving its development entirely to the political scientist, is to leave a great part of the law governing administration in the same wholly systematized state that the field covered.

The underlying area of what in effect is law making authority, exercised by officials, whose actions are not subject to ordinary court review, is a contemporary tendency of administrative law.

The formulation and publication of executive orders and rules and regulations; hardly a measure passes congress the effective execution of which is not conditioned upon rules and regulations emanating from enforcing authorities.

These administrative complements are euphemistically called ‘filling in the details’ of a policy set forth in statutes. But the ‘details’ are of the essence; they give meaning and content to vague contours.

The control of banking, the professions, health and morals, in sum the manifold response of government to the forces and needs of modern society, is building up of a body of laws not written by legislatures, and of adjudications not made by courts and not subject to their revision.

A systematic scrutiny of these issues and a conscious effort toward their wise solutions are the concerns of administrative law. The broad boundaries and far reaching implications of these problems may be indicated by saying that administrative law deals with the field of legal control exercised by law in administering agencies other than courts, and the field of control exercised by courts over such agencies.

Administrative law also markedly influenced by the specific interests entrusted to a particularly administering organ, and by the characteristics – the history, the structure, and the enveloping environment – of the administrative to which these interests are entrusted. Thus, ‘judicial review’ and ‘administrative discretion’ cannot be studied in isolation.

The problems subsumed by ‘judicial review’ or ‘administrative discretion’ must be dealt with organically; they must be related to the implications of the particular interest that invokes a ‘judicial review’ or as to which ‘administrative discretion is exercise.

The main object of the study of administrative law is to unravel the way in which these administrative authorities could be kept within their limits so that the discretionary powers may not be turned into arbitrary powers.

Swhartz divides administrative law into three parts:-

1. The powers vested in administrative agencies;

2. The requirements imposed by law upon the exercise of these powers; and,

3. Remedies available against unlawful actions

 

Also read: What are the Major Causes of Unemployment in Nigeria?

The Growth and Development of Administrative Law

1. Growth and development in the U.S

It has been observed that we live in a changing world, a world of new moral concept but of outworn legal institutions. Even in the 19th century, administrative law was developing in the United States and today, it is in many phases of equal or greater importance than the judicial system developed through the common law.

The causes of this new law originated in the fundamental changes which occurred throughout the past century in the social and industrial life.

Administrative law seemed to have developed from the most powerful forces – economic and social; as observed by Aristotle, the first of all causes and the principal one is necessity.

The development of administrative agencies and of the law which governs them was a social necessity. If we look back to the continental U.S. of 1790, we find a nation occupied with tremendous territorial expansion – natural resources were tremendous, cheap immigrant labour flowed into the country – and mass production enormously elevated the standards of living.

Demands for special regulation were made when striking abuses appeared but there was practically no sentiment for governmental control as a general principle.

Professor Dickinson has to some extent summarized the reasons for the growth of administrative law which were inherent in the legal system when he wrote:-

“The particular advantages which a system of regulation by government thus has over one of regulation by law differ in the different fields of regulation, but the different one in the matter of emphasis the respective advantages fall, with greater or less incidence, under one or more of the following heads :

a. Regulation by government opens up a way for action to be taken in the public interest to prevent future harm where there would be no assurance that any action would be taken if the initiative wee left wholly to interested individuals.

b. It provides for action that will be prompt and preventive, rather than merely remedial, and will be based on technical knowledge which would not be available if it were taken through the ordinary course of law;

c. It ensures that the actions taken will have regard for the interests of the general public in a way not possible if it were only the outcome of a controversy between private parties to a lawsuit.

d. It permits the rules for the prevention of socially harmful conduct to be flexible rules, based on discretion, and thus makes possible the introduction of order in fields not advantageously admitting the application of rules of a rigid and permanent character.

Professor Frankfurt summarized the reasons for the general growth of administrative law when he said:

“Administrative law is, in effect, a major response of law to the complexities of a power age. 

It constitutes the processes by which great activities of government – the activities that perhaps touch most people and touch them most intimately – are subdued by the reasons most appropriate to them.

Most of the contemporary energy of law, it is now plain to all, runs into fresh channels. The new intervention of government into the affairs of men cannot be adjusted by the limited, litigious procedure, well enough adapted for ancient common law actions, or through hallowed instrumentalities.”

2. Growth and development in Nigeria

In its reception of English laws, Nigeria inherited English jurisprudence of administrative law into its domestic legal system at independence in 1960.

Desirous of fast-tracking the socio-economic and political development of various societal sectors, the national leadership of the newly independent Nigeria adopted State-centred economy by which the country assumed responsibilities previously performed by private persons and corporations.

The by-product of this was the necessity of creating myriad governmental agencies such as the railway corporations, marketing boards, etc.

Over and above the capacity of civilian governments, successive military regimes had a field day churning out series of agencies or tribunals. Such capacity was understandably fuelled by the fact that the modus operandi of military regimes is to act with dispatch. 

At present, there are hundreds of governmental agencies charged with different functions including the delivery of goods and services, and the enforcement of certain rules and regulations.

The principal institution driving the machinery of administrative law is the executive branch of government.

Thus, Section 5 of the Constitution of the Federal Republic of Nigeria (CFRN) 1999 provides that the executive power is vested in the President or Governor and may be exercised by him directly or through the Vice-President or Governor or Deputy Governor, Ministers or Commissioners and other officers of the public service.

Such powers extend to the execution and maintenance of the CFRN and all laws made by the National Assembly and all matters with respect to which the National Assembly is competent to make laws.

It is the process of executing this power that makes up the administrative arm of government and administrative law.

Therefore, the study of administrative law is the study of how the President carries out his enormous duties through the ministries, public corporations and other government agencies in accordance with the provisions of the constitution, thus maintaining the rule of law which is the president’s primary function.

Also, this study is important because it is through these agencies that citizens have their closest contact with government.

 

Functions of administrative law

A major function of administrative law is that it enables the task of government to be performed.

This is made possible with the creation of administrative agencies by law, equipped with powers to carry out public policies as approved by parliament.

Government makes policies and for these policies to be put into practical effect agencies are therefore created for its full implementation.

The second function of administrative law is that it governs the relations between an administrative agency and those individuals or private bodies over whose affairs the agency is entrusted with power.

It is a means of control upon administrative power because it grants the individual power to challenge the action of an agency which is contrary to law or beyond the powers of the agency or which has adversely affected the individual.

A third function of administrative law is that it governs the relations between various administrative agencies.

Finally, administrative law exist to ensure that public authorities take their decision in line or accordance with the law and it equally serve as a means of promoting accountability of public authorities.

 

Sources of  Administrative law

Administrative law is not codified, written or well defined like the Contract, Penal Code, Criminal Code, Evidence Act or the Constitution.

It is essentially an unwritten, uncodified or ‘Judge-made’ law. It has developed slowly in the wake of factual situations before the courts.

In a welfare state, administrative authorities are called upon the perform not only executive acts, but also quasi-judicial functions.

They used to deem the rights of parties and have become the fourth branch of government, a government in miniature.

The meaning of the sources of administrative law in this sense implies the origin of and places where administrative law could be derived. In this regard, we could examine the following sources:-

a. Case law: these are pronouncements and decisions of judges on cases brought before them.

b. Legislations and delegated legislation: As a source of law, they are the documentary laws made by Parliament in respect to administrative authorities.

They are equally laws made by bodies that have been empowered by Parliament to act on its behalf.

This source of administrative law has grown in importance because of the increases in the activities of government, which has gone beyond its traditional role.

c. Books of Authority: books of learned writers on the subject equally serve as a source of administrative law.

In the U.S, the following are the sources of administrative law: Administrative Procedure Act, Statutory Instrument Act 1946; Tribunals and Enquiries Act 1958; the Parliamentary Commission Act, 1962.

In the U.K., since there is no written constitution, the bulk of administrative law is derived from the decisions delivered by the superior courts, the customary practices that are followed in the course of administration and so on.

Read on: Definition, Meaning, Causes, Solutions and Facts of Insecurity in Nigeria

Conclusion on Definitions, Scope and Features  of Administrative Law ( in UK, US and Nigeria)

In the beginning, Professor A.V. Dicey had declared administrative law to be foreign to the British constitution, and incompatible with the rule of law, common law and constitutional liberty.

Despite the influence he wielded, his theory has failed to stand the test of time. This is manifested in the fact that administrative law has become a recognized and independent course of study amongst researchers, and a decisive component in the effective governance of States around the world.

Since Nigeria got its independence in 1960, administrative law has grown by leaps and bounds especially with the government’s involvement in, or even monopolization of, certain activities that were traditionally the usual domain of private individuals and corporate entities.

On this score, it is important to note that, by virtue of S. 5, the CFRN 1999 gives a pride of place to administrative law.

We can conclude by saying that despite the many definitions of administrative law, its basic minimal attribute is that it governs or regulates the powers of administrative agencies, the procedures for exercising such powers and the remedies available to victims of such exercise. 

In this article, we considered the historical background and development of administrative law. This took us to the legal systems of the UK, the US and Nigeria. 

We also examined its nature, features and various definitions.