Critical Studies
| Date | 01 March 1959 |
| Published date | 01 March 1959 |
| DOI | 10.1177/002085235902500115 |
| Subject Matter | Articles |
104
CRITICAL STUDIES
Administration and Law
< Review&dquo;,
2/1956).
Mr. Dana Montano
draws a parallel between the spirit of this
Act and the various theories on the Legal
Mr. Dana Montano has published two arti-
State.
He proceeds on similar lines for the
cles on Spanish legislation in «La Ley»
Redress of Grievances Act, which has been
(Buenos Aires), one on the Spanish Legal
analysed in our columns by Professor Jos6
System of the Public Administration Act, in
Ortiz Diaz (1957, pages 329-335). The gist
the 26 June 1958 number, and the other on
of his conclusions stresses the value of the
the Redress of Grievances Act, in the 30 June
two Acts as a model for Argentina. - Yves
1958 number. In these two general studies,
Cltapel.
he demonstrates the essentials of the relevant
changes in Spanish law, and examines the
Acts against their background, analysing their
relation to the notion of the Legal State.
« Vassalisaiion, stérilisation, libéralisation »
The Legal System of the Public Adminis-
tration Act, 20 July 1957, and the Redress of
Mr. Charles Fourrier has called his book on
Grievances Act, 27 December 1956, are part
the freedom of opinion of civil servants (La
of
liberti
a broad legislative plan to reform Spanish
d’opinion du f onctionnaire, Paris, Li-
law.
Mr. Dana Montano rightly considers
brairie g6n6rale de droit et de jurisprudence,
that they both fulfil all the desirable condi-
466 pages) an essay in comparative public
tions for the establishment of the Legal State.
law. It is a study of civil service regulations
He develops the theory, which he has advo-
in France, Great Britain, the United States,
cated
the
on former occasions, that there is no
USSR, Germany and other countries, not
discrepancy between a most democratic re-
only under present conditions, but also
gime and arbitrary administrative powers.
throughout their historical evolution. He has
The existence of the Legal State rests on State
divided his book into three parts, correspond-
activity, including administrative action, be-
ing to the three types of widely different so-
ing infused to the utmost with the spirit of
lutions given to the problem of the freedom
legality. The objective to be attained is an
of opinion of civil servants.
ideal which might be described as the jus-
The first solution is the vassalisation of the
tice State », doing away with all arbitrary
civil servant and is distinguished by his be-
use of authority and all discretionary power
ing subject to a definite political loyalty
unless it is controlled by the courts. But
which takes the form of public support for
whether such a State -
which would devolve
governmental policy. This solution was adopt-
important powers upon the judiciary - is
ed in France, until the early years of the Third
feasible, remains doubtful, and its advent is
Republic, and elsewhere. But there was a
certainly not to be expected in the near fu-
gradual tendency for the civil servant’s loyal-
ture.
But one may strive towards it through
ty to be widened so as to apply less to a poli-
an improved organisation of the State and by
tical leader than to a party and, even, less to
increasing the protection of individual rights.
a party than to the regime.
Mr. Dana Montano instances the two Spanish
The second half of the nineteenth century
Acts under review as illustrating these prin-
witnessed the rise of the working classes. The
ciples which, though praiseworthy, can hardly
civil service tended to b.ecome proletarian and
be fully applied. They appear to him a re-
so brought about a defensive reaction by the
markable endeavour to introduce a greater
ruling classes. The vassalisation -
»
of civil
measure of justice and legality into public ad-
servants was abandoned in favour of their
ministration. He hopes that the Spanish le-
political neutrality, which might be general
gislation will be a source of inspiration and
or, if limited to certain political attitudes or
guidance to the Argentine law-makers.
opinions, relative. This stérilisation of the
A distinguished lawyer has stated that the
civil servant was applied with some success
Legal System of the Public Administration
in Great Britain where it was achieved fairly
Act is a sort of citizen’s administrative Magna
early. In the United States, it is only under
Charta.
Its many practical provisions and
way and clashes with the deep-rooted tradi-
the way it apportions the responsibilities of
tion of political patronage due to the spoils
the public authorities and their agents, are
system. In France, it failed early in the pre-
noteworthy. This sector of the law has been,
sent century because the civil service had al-
for some time, in process of evolution in Spain
ready become closely connected with the
(cf. the article by E. Garcia de Enterria,
working classes.
105
Even in
England, stérilisation generale
annul or amend the act under review, or fine
tended to disappear with the growth of the
the administrative authorities; in the second,
trade unions. On the other hand, stérilisation
if the applicant has valid grounds, annulment
relative continued, with varying success, to
only can follow. Suits on the ground of ex-
limit the freedom of opinion of civil servants
cess of authority, which are typical of this
in most of the traditionally democratic coun-
procedure, can only end in two ways : dismis-
tries like Germany, Switzerland, Belgium and
sal of the case or annulment of the adminis-
the Netherlands.
trative act. The dual jurisdiction -
full pow-
The writer distinguishes
ers of review or powers of annulment -
is
two stages. The
basic
first
to the entire
began towards 1925-1930 in capitalist
system of judicial review,
and forecasts that the
countries where stirilisatt*on
two would
ginirale
merge have
was un-
known, when the foundations for joint action
proved mistaken.
by civil service and industrial trade unions
But some features of full jurisdiction may
be observed
were being laid. The second stage is in
to
pro-
appear in annulment proce-
dures in Switzerland and in
gress today, under the influence of the United
Germany. Annul-
States
ment is
s
where McCarthyism is rife.
no
« Re-
longer always the only course open
pression is *, according to Mr. Fourrier,
to
r in
an administrative tribunal dealing with a
fact only aimed at what is commonly called
petition for annulment, especially one based
’ the Left ’, i.e. the movements that imperil
on excess of authority. It may, instead, sub-
the principles
stitute its
on which the basic privileges of
own decision for the illegal act, and
the ruling class are based. But for several
so replace the administrative authority.
years the popular ’ Leftist ’ movement and the
The thesis presented by Mr. Adrian Hin-
aspirations towards national independence and
derling to the Faculty of Law of Zurich
peace found in the most varied social strata
(Die ref ormatorische Verwaltungsgerichtsbar-
have shown a certain similarity and even be-
keit. Winterthur, Hans Schellenberg, 1957,
come identified.
The two trends, which are
xvi &
101 pages) is interesting in this con-
progressively merging, are equally kept in
nection.
check by the rulers and both come within the
*
repressive field of stérüisation relative (page
449).
In a lengthy introduction which takes
The third solution lies in the libéralisation
up
one third of the study, the notions of juris-
of the civil servant. The author, who warm-
diction, administration, and administrative
ly advocates it, thinks that it has been fully
jurisdiction are discussed.
Mr. Hinderling
achieved in the Soviet Union, the land of
agrees with Professor Bettermann, of Germa-
freedom of opinion for civil servants. Accord-
ny, (Gedachtnisschrift fiir Walter Jellinek,
ing to Mr. Fourrier, the Soviet civil servant,
who
page 372) that the impartiality of the admin-
is fundamentally undistinguishable from
istrative authorities towards private parties is
the other citizens, is no longer vassalisé, since
the test of validity of administrative acts.
vassalisation is only a form of class domina-
The
tion. Neither is he stÙilisé,
body of the thesis comprises six chap-
as Soviet man is,
essentially,
ters of unequal length and doubtful
« a wholly political citizen -.
He
propor-
is
tions.
Under the
completely free because the
title, The nature of ad-
very principles
ministrative reversals
of the social order safeguard the full develop-
», the notion of reversal
is introduced as a
judicial act which
ment of the individual.
That, at least, ought
goes
beyond annulment, and establishes a
to be the final aim of Communist society
direct,
which,
positive and final relation in administrative
even if the objective has so far been
law This is illustrated
largely though imperfectly attained, is surely
by comparisons with
and continuously progressing towards it.
partial annulment, indicative annulment and
-
substituted
A.
decisions.
de Grand’Ry.
To justify the existence of judicial reversal,
Mr. Hinderling points to its practical advan-
tages which include the technical competence
Reversing Adndnistrative Dedsions
of the court due to experience and the possi-
bly more rapid settlement of cases. He does
French administrative law has long disting-
not support the idea that the protection of
uished between full jurisdiction
»
(conten-
citizens from the administrative authorities
tieux de pleine juridiction) and judicial annul-
needs strengthening, or seem to...
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