A Re-examination of the Spanish Notion of « Fomento »
| Published date | 01 March 1979 |
| DOI | 10.1177/002085237904500111 |
| Date | 01 March 1979 |
| Author | J.M. De La Cuetara Martinez |
| Subject Matter | Articles |
ii
nature
and
has
since
1967
been
transferred
to
the
labour
courts,
the
solution
might
consist
in
replacing
the
remaining
tribunals
by
admin-
istrative
courts
whose
membership
would
en-
sure
the
participation
of
career
magistrates
and
of
professional
men
or
specialists,
with
a
uniform
procedure
in
compliance
with
the
essential
principles
which
govern
any
legal
proceedings.
A Re-examination
of
the
Spanish
Notion
of
«
Fomento
»
J.M.
DE
LA
CUETARA
MARTINEZ
Even
on
the
comparative
level,
administra-
tive
lawyers
are
concerned
with
classifying
pub-
lic
administrative
activities.
In
Germany,
as
well
as
in.
France,
the
classical
writers
have
contributed
towards
this,
particularly
by
dis-
tinguishing
between
home
government
(policia)
and
public
service,
or
the
exercise
of
domestic
sovereignty
and
the
provision
of
services.
This
two-sided
approach
has
of
course
been
devel-
oped,
but
the
classifications
finally
obtained
are
unsatisfactory.
As
Jordana
de
Pozas
has
observed
in
Spain,
a
classification
into
three
parts
is
more
accurate.
It
assumes
that
ad-
ministrative
activities
may
be
governed
by
one
/
of
three
ideas:
limitation
(policia),
promotion ;
i
(fomento)
or
public
management
(public
ser-
vice).
That
of
promotion
has
been
and
still
is
very
popular
in
Spain
because
it
corresponds
to
a
middle
course
between
the
regulation
and
the
direct
management
of
social
activity
by
the
public
authorities.
It
is
a
flexible
form
of
promotion
or
supervision
of
the
private
activities
considered
necessary
for
the
common
good.
The
textbook
definitions
of
the
notion
are
as
follows : -
(a)
It
is
an
administrative
method
or
activity
of
persuasion.
It
raises
a
few
difficulties
in
legal
theory
and
positions
still
vary
consider-
ably
as
to
its
precise
definition.
(b)
As
a
rule,
the
notion
is
negatively
de-
fined
as
not
involving
coercion
and
the
direct
assumption
of
management.
It
amounts
to
a
middle
course
between
policia
and
public
service
and
is
essentially
of
a
subsidiary
nature.
Promotion
comes
into
play
in
certain
cases
even
if it
tends
to
become
increasingly
fre-
quent.
It
is
not
intended
to
replace
sovereignty
or
the
public
service
which
remain
fundamental.
(c)
Subsidy
is
the
essential
means
of
promo-
tion,
in
the
sense
of
the
use
of
public
funds
to
help
or
encourage
private
activities
that
are
in
the
public
interest.
(d)
The
scope
of
the
rights
of the
individual
is,
in
theory,
enlarged,
in
that
he
receives
advantages
or
even
privileges.
There
are,
however,
serious
underlying
dif-
ficulties
because
the
classification
made
by
Jordana
de
Pozas
has,
above
all,
been
used
for
teaching
purposes
and
because
nothing
has
been
found
to
replace
it.
There
are
too
many
weak
points
in
classical
theory
and
new
pros-
pects
are
becoming
apparent
but,
as
nothing
is
achieved
if
promotion
is
reduced
to
a
mere
method,
a
modicum
of
authority
has
to
be
combined
with
it.
Baena
del
Alcazar
has
attempted
to
re-
construct
the
notion
of
f omento
by
stressing
the
selective
interventionist
and
other
features
which
make
it
a
juridical &dquo; category &dquo;
of
ad-
ministrative
activity.
His
position
remains
,
open
to
question.
A
difficulty
also
arises
from
the
historical
and
ideological
background
of
the
notion
which
goes
back
to
the
nineteenth
century.
As a
means
of
action,
promotion
gave
the
impression
of
being
a
substitute
for
liberalism,
since
Ferdinand
VII
described
it
as
&dquo; enlightened
ministerial
despotism &dquo;.
Es-
pecially
owing
to
the
development
of
liberalism,
that
description
should
have
become
obsolete,
but
that
was
not
so
in
administrative
law,
even
though
the
emphasis
attached
to
the
notion
varied.
It
is
still
frequently
and
confusedly
used
in
case
law
and
legislation.
Administrative
law
today
unquestionably
needs
a
system
of
reference
for
administrative
activities
which
come
under
neither &dquo;
sover-
eignty &dquo;
nor &dquo;
public
service &dquo;.
There
are
many
more
such
activities :
subsidies
have
been
mentioned
above,
but
indicative
planning,
joint
public
and
private
ventures,
tax
or
tariff
in-
centives,
the
supervision
of
enterprises,
and
official
loans,
etc.,
also
set
legal
problems.
The
administrative
authorities
have
yet
other
means
for
selecting,
protecting,
or
encouraging
various
economic
activities
by
their
decisions,
including
the
management
of
public
funds,
pro-
tection
combined
with
a
policy
of
full
employ-
ment,
and
measures
against
inflation.
Admin-
istrative
law
should
be
able
to
answer
the
many
questions
raised
by
defining
a
series
of
prin-
ciples
that
would
serve
as
a
basis
for
admin-
istrative
activity
and
protect
the
rights
of
the
citizen.
These
should
include :
-
the
principle
of
legality,
in
which
respect
budgetary
legality
is
now
alone
ensured;
-
the
principle
of
the
equality
of
all
citizens
before
the
administrative
authorities,
which
should
be
safeguarded
by
adequate
con-
trols ;
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