General Principles of Law in Administrative Jurisprudence
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Themes
Administrative law, general principles of law, GPL, normative value, administrative jurisprudence, Conseil d'État, separation of powers, jurisprudential principles, pragmatic tool, legal gaps, legality, administrative action, non-codified field, French Revolution, DDHC, normative jurisprudential power, source of law, ordinances, Constitutional Council, principles of organization, legal order, legal security, jurisprudential norms, legislative value, administrative judge, case-by-case basis, judicial order, constitutional principle, historical principle, Aramu judgment, rights of defense, normative principles, administrative justice, legal uncertainties, extrajudicial sources
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Abstract
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Abstract
The general principles of law are essential in structuring administrative law, recognizing their superior normative value. Administrative judges must assess each situation on a case-by-case basis, balancing the principle of separation of powers with the need to fill legal gaps.
Extract
[...] They guarantee, in fact, a real interest in two cases. First, when there is no direct written basis for the norm, it seems difficult for the judge to interpret it in order to extract a normative principle without being accused of interpreting the texts in an abusive manner. In fact, by passing through the GPL, a more vague notion, it is easier for him to extract judicial principles under the cover of a political and legal interest, without directly referring to the texts on which he built this principle. [...]
[...] These ancient forms, and some of which are still in force, are the historical mark of the judges' distrust and their limitation to issuing legal principles resulting from a quasi-judicial French custom. Thus, the prohibition of such regulatory decisions with constitutional value seems not to be able to be derogated from. However, this prohibition of jurisprudential norms seemed to apply only to judicial judges, the only recognized judicial order at the time, inasmuch as the administrative judge was not perceived as a jurisdiction with the characteristics. [...]
[...] These principles have a normative "obligatory" scope, insofar as they aim to be applied by the judge and largely underpin administrative law. They therefore constitute a true source of law, although they are not written in a legislative text. The subject therefore opposes two imperatives of law or facts, on the one hand, the principle of separation of powers, inherited from 1789, which prohibits the judge from issuing general and abstract rules, a competence reserved for the legislator, and on the other hand, the practical necessity for the administrative judge to fill in the legal gaps and to guarantee the legality of administrative action in a non-codified field. [...]
[...] Principles that are now at the center of administrative philosophy, giving the main lines and directions to administrative law. II) The general principles of law: normative materialization of administrative jurisprudence The general principles of law are essential in structuring administrative law, which recognizes them as having a superior normative value but the theory of Chapus, which initially founded their normative value, seems inappropriate Essential and structuring normative principles of administrative law The general principles of law (GPL) find their origin in the famous Aramu judgment of the CE Ass dated October which guarantees the rights of the defense as the first GPL. [...]
[...] But it imposes itself on him, by constitutional principles, from now on that he is a true judge. However, practice will challenge this absolute prohibition, justifying itself by real practical requirements. The substitution of theoretical limitations with practical requirements The theoretical limitations of the administrative judge's ability to issue binding normative principles are confronted with certain practical requirements that the administrative judge must face. The most obvious argument in favor of the judge is the absence of codification in administrative matters and a law that has never been well defined. [...]
