Summaries of Articles published in French and Spanish
| DOI | 10.1177/002085237103700310 |
| Published date | 01 September 1971 |
| Date | 01 September 1971 |
| Subject Matter | Articles |
i
Summaries
of
Articles
published
in
French
and
Spanish
The
Rule-Making
Power
of
Ministers
in
French
Law
C. WIENER
In
France,
the
rule-making
power
of
the
administrative
authorities
has
long
been
con-
sidered
an
anomalous
device
that
had
to
be
reluctantly
accepted
under
the
force
of
cir-
cumstances,
but
maintained
within
strict
limits.
Circumstances,
i.e.
the
constant
growth
of
the
intervention
of
public
authorities,
have
only
increased
the
trend
established
by
the
1958
Constitution.
Though
the
field
of
rule-
making
has
thus
been
vastly
extended,
it
belongs,
on
the
national
level,
solely
to
the
Prime
Minister
and,
to
a
certain
degree,
to
the
Head
of
State.
The
reason
for
this
attitude
to
rule-making
can
be
explained
by
three
kinds
of
considera-
tions :
(i)
political,
since
legislative
authority
should
be
reserved
to
elected
or
kindred
bodies;
(ii)
functional,
because
the
predeter-
mination
of
general
principles
to
be
applied
automatically
is
inconsistent
with
the
adminis-
tration’s
duty
to
decide
individual
cases;
and
(iii)
technical,
since
a
multiplicity
of
specialized
regulations
issued
by
various
authorities
would
be
prejudicial
to
the
unity
of
administrative
action.
However
pertinent
these
objections
may
be,
the
question
is
whether
a
certain
autonomous
rule-making
power
is
not
a
natural
complement
to
the
duties
and
responsibilities
of
certain
administrative
authorities,
and
particularly
of
the
ministers.
It
is
quite
clear
that,
in
fact,
they
exercise
the
power
by
indirect
means,
not
only
through
the
Prime
Minister,
but
also
the
Prefects.
This
inevitably
causes
friction
and
difficulties.
A
great
change
is,
however,
taking
place
and
the
former
objections
have
become
less
definite
because
of
events
and
the
present
necessities
of
administrative
action.
Two
points
should
be
examined
in
accounting
for
the
change
and
the
reasons
justifying
it.
The
first
is
the
authority
to
provide,
by
general
means,
for
the
exercise
of
personal
powers.
It
was
formerly
considered
that
ministers
should
only
take
decisions
of
an
individual
nature
in
particular
cases,
and
without
having
to
conform
to
any
pre-estab-
lished
general
principle.
Theoretically
this
is
still
so,
but
is
increasingly
becoming
the
excep-
tion
rather
than
the
rule,
since
it
is
being
more
widely
acknowledged
that
the
power
of
making
individual
decisions
necessarily,
in
practice,
includes
that
of
establishing
general
rules.
This
is
essential
not
only
for
obtaining
effective
and
nationally
organized
adminis-
trative
action
but
also
for
complying
with
legality,
applying
general
criteria
ensuring
equal
treatment
for
all,
and
facilitating
sub-
sequent
control
of
the
manner
in
which
cases
I
are
dealt with.
This
is
also
the
practice
in
/
different
foreign
countries.
In
the-
United
I
Kingdom,
the
ministers
are
expected
to
for-
mulate
general
rules
or
policies
in
certain
matters.
Though
this
is
not
compulsory
in
France,
it
is
being
done
more
frequently,
without
raising
objections.
It
is
thus ad-
mitted
both
that
ministers
have
the
power,
even
in
an
independent
manner,
to
attach
to
.
decisions
in
individual
cases
general
condi-
tions
of
form
or
substance
imposed
on
those
concerned,
and
that
the
power
to
settle
individual
cases
may
be
generalized,
i.e.
exercised
in
terms
of
predetermined
categories
or
specified
to
apply
to
some
or
all
of
those
concerned.
All
this
is
covered
by
the
case-
law
of
the
Council
of
State
and
the
established
principle
has
therefore
been
largely
relaxed.
Similar
solutions
are
found
in
several
other
countries
including
Belgium
and
the
Federal
Republic
of
Germany.
The
second
point
to
be
examined
is
the
authority
to
make
general
rules
concerning
the
exercice
of
subordinate
powers.
This
is
inherent
in
any
higher
authority
and,
more
particularly,
in
the
ministers
who
have
to
interpret
the
objectives
of
the
Legislature
in
terms
of
administrative
action.
It
frequently
implies
issuing
detailed
operational
instruc-
tions
to
subordinate
officials,
so
that
the
legislation
may
be
consistently
applied
through-
out
the
country.
The
need
for
such
uni-
formity
is
obvious
and
its
natural
medium
is
the
memorandum
(circulaire)
which
sums
up
all
the
ministerial
instructions
and
is
the
official
interpretation.
There
are
many
in-
stances
of
memoranda
which
are
not
only
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