Public Administration, Administrative Law, Economic Law
| Published date | 01 March 1960 |
| DOI | 10.1177/002085236002600105 |
| Date | 01 March 1960 |
| Author | Emanuel Iserzon |
| Subject Matter | Articles |
Public Administration, Administrative
Law, Economic Law
by
Emanuel ISERZON,
Head of the Department of Administrative
Law, Maria Curie-Sklodowska. University,
Lublin, Poland.
UDC 35.06 + 35.01 + 5!H.82
1.
The opinion prevailing among theorists
Uef initio fit per genus proximum et diffe-
of administrative law that no satisfactory
rentiam specificam.
No definition should
positive and material definition of public ad-
jump over any step when indicating the
ministration can be constructed is, in my
genus : it must cite the closest genus in the
view, mistaken. The negative -
»
definition
hierarchy of genera. For instance, the regular
generally adopted is really positive and satis-
Aristotelian definition of Man is Homo est
factory. I have in mind the definition of
animal (genus proximum) rationale (differen-
public administration as the activity of a
tia specifica) ,
»
(3). The detractors of the
State, carrying out its tasks through govern-
above definition of public administration
mental and non-governmental agencies, with
assert that the genus proximum (
activity of
the exception of the representative (i.e. legis-
a State -) is too remote, and hence that the
lative) and judiciary organs (1).
definition is inadequate because it jumps over
a logical step.
This is not a negative kind of definition.
It does not state what administration is not,
This paper primarily aims at showing that
which would be an inadequacy of a really
the genus activity of a State, is really
negative definition of the type A
is not B .,
proximum, and that the flaw alleged does not,
but determines what administration is : pub-
in fact, exist.
blic administration is an 9 activity of a Sta-
te
2.
..
This type of definition eliminates from
Some notions are conventional, their
its positive contents (activity of a State in
contents being agreed upon by those who
carrying out its tasks) certain specified sec-
share a given knowledge (termini technici).
tions (legislative and judicial activities). This
Others are not the result of such conventions.
is a positive elimination of positive activities
They generate in the consciousness of man-
(2). The definition is, thus, by no means ne-
kind, throughout the centuries, in the process
gative from the standpoint of logic, since it
of the acquisition of knowledge. Their con-
is not of the type A
is not B * But it has
tents, at any given moment, are generally
been criticized for including too broad a basic
current.
term, the c activity of a State*.
Logic has long assumed that definition is
not a sine qua non of cognition, as there is
no need to define some terms because
(1) Cf. T. Bigo, Zwiazki publicznoprawne w swietle
people
ustawodawstwa polskiego (Corporations of Public Law in
have a clear and accurate representation of
the light of Polish Legislation), 1928, p. 78; — F. Long-
some things, and all those who, knowing a
champs, Zalozenie nauki administracji (Principles of the
Science of Administration), Wroclaw, 1948,
language, hear a certain word, form the same
p. 6.
(2) M.R. Cohen &
E. Nagel, An Introduction to Logic
mind-picture
»
(4). Modern logicians con-
and Scientific Method, London, 1951, p. 240 : « It is ob-
sider that it would be excessive to make up
viously preferable to define a thing in terms of what it is,
definitions for their own sake, ars pro arte,
rather than in terms of what it is not. For, in general, to
state what a thing is not does not sufficiently delimit it
from other things... However, it is easy to overemphasize
this rule, for in some cases an adequate definition can be
(3) Cf. T. Kotarbioski, Kurs logiki dla prawnikow
given this way. Thus to define a scalene triangle as one
(Course of Logic for Jurists), Warsaw, 1955, p. 28 & ff.
which is neither equilateral nor isosceles delimits perfectly
(4) Cf. Antoine Arnauld &
Pierre Nicole, Logic, or the
scalene triangles from all others
».
Art of Thinking (trans. into Polish), Warsaw, 1958, p. 23.
42
and still more so to attempt to solve material
ways, ports, mintage and mining, and of in-
problems by means of definitions only, thus
flicting fines and punishments, administering
« turning the essentials into pure verbalism »
justice, and seizing property in cases of high
(5).
treason are examples of regalia recognized as
such as early as the twelfth century. The
The contents of some notions have crystal-
privileges granted to the estates of the realm
lized clearly and completely in our conscious-
limited the powers of the sovereign. The
ness by an age-long process, so that there is
sovereign and the estates each moved within
no need for analytical definitions.
Such no-
their own circles of concurring rights. No
tions may be described as generally current.
idea then existed of integrating them by some
supreme rule of law (7).
3.
K Administration n is one of these gen-
erally current notions, together with r sys-
Public administration, in the modern sense,
tem », « direction »; K organization », « activi-
emerged with the disconnection of sovereign
ty ~, « task n, - analysis, « process
D
and
power from landed property and particular
thousands more in different branches of
sovereign rights (regalia). It was under the
science, where both the basic notions and their
authority of sovereign power that the business
verbal expression may freely be used without
of government was carried on, especially as
prior analytical definitions. This is particu-
regards the economy of the country. This in-
larly true in legal science. It may be desir-
creased with the growing cost of warfare and
able, however, in the course of teaching, to
of maintaining an army. Economic adminis-
have recourse to lexical description and so, for
tration required more elaborate State machi-
instance, administration may be described as
nery and greater numbers of officials.
Tax-
organized human activity for the performance
collecting became a concern of the sovereign
of certain tasks (6).
and was no longer dependent on the votes of
the estates.
Commoners were introduced in-
Using the notion of administration in this
to the State machinery as professional offi-
basic acceptation, we may define public ad-
cials to replace members of the nobility and
ministration in the broadest sense as a per-
gentry.
By playing the classes against one
manent and planned activity of the State
another, the sovereign manoeuvred himself
(permanency and planning being inherent in
into a position of absolute monarchy, sover-
state activities) for organizing the perfor-
eignty itself became the source of power in-
mance of certain public tasks. This notion of
stead of landed property, and the sovereign’s
public administration includes the activity of
will became the source of law. The sovereign
all state orga.ns.
enjoyed do~niniu~n eminens over the property
In fact,
of his
a narrower field o
public adminis-
subjects, i.e. the right to appropriate it
tration has become distinct from the broadest
in the public interest (- jus disponendi de
meaning of the
rebus
term, as a result of the histo-
propriis civium salutis publicae causa ’)
rical developments
and
we shall now outline.
pntesta.s eminens over their persons.
the sovereign’s administration, with its au-
4.
In the Middle Ages, there was no public,
thority based on his unlimited powers, shaped
or State administration as we now understand
the entire social life of his subjects. It issued
the term. The sovereign owned his domain
general or local regulations, for the whole po-
under feudal law. The concept of sovereign-
pulation or for particular groups, and made
ty, with respect to that domain, was slow in
decisions in individual affairs.
Government
forming, in the process of integration of par-
- what is now called administration in the
ticular regalia which were originally indis-
wider sense -
was the concern of the mon-
tinguishable from private rights. The sove-
arch, including legislation, the judiciary and
reign’s rights over public roads, inland water-
the politia, which coincided roughly with mo-
dern administration in the narrower sense,
insofar as a comparison is possible.
(5) J. Kotarbinska, Definicja (Definition), Studia logica.
II Vol., Warsaw, 1955, p. 321, cf. T. Kotarbinski, op. cit.,
An absolute monarchy’s administration was
p. 29.
bound by no rules in dealing with the sub-
(6) Here is a good example of a lexical description :
«
jects. Rules of administration were not re-
Verwaltung im Sinne des Gewöhnlichen Sprachgebrauches
ist jedc einem bestimmten Objekte gewidmete dauemde
planmässige Tätigkeit... die auf Sicherung und Instand
haltung des Objektes, auf eine geordnete wirtschaftliche
(7) Cf. E. Iserzon, Prawo panstwa do dysponowania
Gebarung, auf die möglichts zweckmässige Verwendung des
kopalinami (The Right of the State to dispose of Minerals),
erzielten Ertrages gerichtet ist ». Adamovich, Handbuch
Annales
Universitatis
Mariae Curie-Sklodowska, Lublin,
des österreichischen
Verwaltungsrechts, Vienna, 1954, vo-
1957, p. 165 & ff. — E. Forsthoff, Lehrbuch des Verwaltungs-
lume 1, p. 1.
rechts, Munich-Berlin. 1955, p. 18 & ff.
43
lated to private individuals, but were binding
of justice, and how far the courts could be
only on the monarch’s officers and provided
independent of the sovereign. A second pro-
no source of individual rights (8), legal cri-
blem was the extent to which the administra-
teria being based exclusively on the sovereign’s
tion might be allowed to carry out judicial
...
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