A Case For Administrative Tribunals*

Date01 November 1944
DOIhttp://doi.org/10.1111/j.1468-2230.1944.tb00985.x
Published date01 November 1944
A CASE FOR ADMINISTRATIVE TRIBUNALS
209
A
CASE
FOR
ADMINISTRATIVE
TRIBUNALS*
YVERYTHING indicates that after this war the field and scope of
public administration will be notably greater than
it
has been up to
the present war. Though many of the restrictions which have come
into existence as a necessary result of war conditions will sooner or later
go,
we can nevertheless take it for granted that in the post-wa? period
public authorities will be concerned with many affairs which up to the
present war were regarded as being beyond the reach of bureaucratic
control. The private life
of
individuals will be exposed much more to
intervention by officialdom than has hitherto been the case. Whether
we like it or dislike it, this will be a fact, and will find expression in one
form or another in all states, the United Kingdom not excepted.
If,
with this growth of public administration, the classic rule of law,
which, inspired by the shining British example. has become an indispensable
element in the life of all democracies worthy of the name,
is
to be preserved,
this will mean a considerable increase in the bulk of administrative law.
For every new power possessed by a public authority to intervene in any
zspect
of
a citizen’s life must be firmly anchored in the legal order and
as precisely defined as possible,
so
that arbitrary action
on
the part of
authorities can be checked to the greatest possible degree.
The enhanced influence of public administration which will result from
these developments must be counterbalanced by the prcivision of
a
greater degree of protection for the citizen’s individual rights. The more
rights a public authority has to direct and limit the individual and lay
obligations upon him, the greater on the other hand must be the facilities
afforded to him to protect himself against its possible abuses, against a
wrong or exaggerated interpretation of
its
powers, against any
excbs de
pouvoir.
The protection of liberties as a whole will be attended to by
Parliament. The protection of the individuals must, however, be provided
by courts
of
law.
With this we are brought to the root of the whole question.
I
would
contend that the ordinary civil judiciary will not be capable under changed
conditions of concerning itself with this protection to an adequate degree,
and that it will therefore be necessary for
this
purpose to create everywhere
a regular system of special administrative justice.
Why are courts of civil law not fully capable of dealing with this task
?
There are several reasons.
The first and foremost is that the methods
of
civil procedure are
entirely inappropriate to the equitable solution of conflicts arising out of the
relation between individual citizens and public authorities.
In
both cases,
of course, the procedure must involve the application of rules of law, which
have to be interpreted in accordance with similar methods and principles.
The fundamental approach to the problem is, however, very different in
the two cases. In a civil
Zitis conlestatio
there are only the conflicting
private interests of the contesting parties to be considered. In an admini-
strative dispute
a
private and a public interest, or various public interests,
must, as a rule, be weighed against each other. To cope successfully with
the latter task requires a rather different functional conception of law and
its
relation to society than that entertained by
a
civil judge, dealing as
€!A
*
See
also,
on this subject, Alibert, the French
Corzseil
d’gtat
(3
MOD.
L.
R.,
257)
.-ED.
3-4

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