Public Law, Constitutional Law and Administrative Law

DOI10.1177/002085238004600111
AuthorA. Galleco Anabitarte
Publication Date01 Mar 1980
SubjectArticles
ii
and
a
duty
of
public
service.
That
is
what
justifies
the
incompatibilities
mentioned
in
the
Constitution
which
do
not
apply
to
personnel
in
the
private
sector.
All
the
personnel
employed
by
public
ser-
vices
ought
to
come
under
special
legislation,
some
of
which
would
be
outside
the
scope
of
labour
legislation.
This
fits
in
with
the
traditional
justification
for
the
existence
of
administrative
law.
Moreover,
in
view
of
the
trend
towards
the
debureaucratization
of
ad-
ministrative
personnel, .a
solution
on
German
lines
which
distinguishes
between
civil
ser-
vants,
who
alone
come
under
public
law,
and
employees
and
workers
should
not
be
ruled
out.
That
is
among
the
questions
that
will
have
to
be
settled
by
the
future
Spanish
civil
service
regulations.
Public
Law,
Constitutional
Law
and
Administrative
Law
A.
GALLEGO
ANABITARTE
The
question
arises
whether
Otto
Meyer’s
statement
made
in
1923
that &dquo; constitutional
law
changes
while
administrative
law
remains &dquo;
or
Fritz
Werner’s
statement
of
1959
that
&dquo;
administrative
law
is
constitutional
law
in
concrete
form &dquo;
should
be
preferred.
For
obvious
reasons,
the
question
is
discussed
in
Spain
as
it
was
in
Germany,
both
after
the
fall
of
the
Empire
and
the
collapse
of
the
Third
Reich.
As
might
be
expected,
the
prevailing
idea
is
that
administrative
law
can
be
nothing
but
a
reflexion
of
the
constitutional
system
and
that
the
solutions
it
adopts
are
not
necessarily
uniform.
This
raises
the
question
of
the
relations
between
administrative
law
and
the
old
regime.
Judging
by
a
remark
made
in
France
by
Vedel,
there
was no
interruption
and,
with
a
few
exceptions,
the
principles
remained
fairly
similar
whatever
the
form
of
government.
If
the
administrative
law
in
force
was
inconsistent
with
the
new
constitutional
law,
it
necessarily
had
to
be
adjusted.
No
fixed
rules
governed
the
change
or
con-
tinuity
of
administrative
law.
Though
there
have been
nine
Constitutions
in
Spain
between
1812
and
1978,
there
have
been
many
less
major
organic
acts
concerning
public
admin-
istration.
In
fields
like
mining
and
forestry,
there
are
infrequent
technical
revisions.
Ad-
ministrative
cases
have
been
governed
by
three
Acts,
of
1845,
1888,
and
1958,
and
civil
ser-
vice
regulations
by
only
two,
of
1918
and
1968.
It
should
not
be
hastily
deduced
from
this
stability
and
continuity
that
constitutional
law
changes
and
administrative
law
remains.
First,
the
number
of
Constitutions
is
incidental,
what
matters
are
appreciable
changes
of
course
such
as
the
restoration
of
absolutism
or
a
transfer
to
a
republican
system.
Second,
administrative
law
is
more
mobile
in
certain
fields
than
is
generally
thought.
There
have,
for
instance,
been
more
Local
Government
Acts
than
Con-
stitutions.
Many
matters
come
under
mere
outline
laws
and
hence
under
regulations
or
instructions
which
are
sometimes
direct
sour-
ces
of
law.
On
the
other
hand,
there
is
no
lack of
cases
in
which
administrative
law
varies
with
constitutional
law.
The
outcome
of
this
rather
futile
debate
seems
to
be
the
need
for
a
distinction
between
constitutional
law
and
administrative
law,
but
that
the
two
are
not
independent
and
originate
from
the
public
law
which
has,
since
the
six-
teenth
century,
been
in
the
making
on
well-
known
lines
which have
gradually
altered
its
substance.
The
difficulty
which
remains
is
to
reconcile
the
administrative
law/constitutional
law
dichotomy
with
the
unity
of
public
law.
The
writers
on
the
philosophy
of
law
have
always,
throughout
Europe,
replied
that
there
is
no
contradiction.
The
statement
that
public
law
is
uniform
is
an
assertion
of the
principles,
notions,
and
institutions
common
to
the
con-
tinental
States
since
the
sixteenth
century.
In
Spain,
however,
the
uniformity
of
public
law
has
been
broken,
since
political
or
con-
stitutional
law
and
administrative
law
have,
since
the
beginning
of
the
century,
been
looked
upon
as
separate
disciplines
there.
Political
law
makes
room
for
political
science,
sociology,
and
other
elements
and
is
gradually
getting
rather
like
a
theory
of
the
State,
a
southern
Staatslehre.
Administrative
law
has
evolved
on
similar
lines
which
sometimes
makes
Span-
ish
theory
different
from
that
of
the
rest
of
the
continent
in
such
a
way
that
it
will
be
difficult
to
turn
back.
The
adoption
of
the
1978
Constitution
is
a
considerable
historical
event
that
provides
an
opportunity
for
attempting
to
restore
the
unity
of
Spanish
public
law.
That
will
only
be
possible
through
closer
relations
between
the
specialists
of
the
two
disciplines
of
constitu-
tional
political
law
and
of
administrative
law.
This
might
lead
to
the
drawing
up
of
the
principles
of
a
legal
theory
of
the
State
that
would
be
based
on
a
series
of
data
such
as
sovereignty,
the
separation
between
admin-

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