Council of State and Administrative Law: A Politicized Relationship in French Jurisprudence

Extract

[...] An unequal law of essence Administrative law in its origin stems from the central place occupied by the State in French political thought and in the national construction based on a nation-state model. Centralization and the idea of a superimposed legal structure of the State will make administrative law the instrument of the State's power A. Administrative centralization and the idea of legal superiority of the State In many respects, the State cannot be assimilated to individuals, despite the fact that it has legal personality and moral personality, it is the very embodiment of political power. [...]

[...] Administrative law has accompanied the construction of the State since its origin. Its role consists of offering a certain number of rules adapted to it. The State, unable to be subject to private law rules in the revolutionary conception relying on the principle of the separation of powers theorized by Montesquieu and the will to avoid the interference of civil judges in the functioning of public powers. Thus, the laws of August 16 and will establish a dualism of law by distinguishing the judicial order from the administrative order, of which Article 13 thus provides: 'Judicial functions are distinct and will always remain separated from administrative functions. [...]

[...] However, this aspect will be tempered in the context of the Third Republic, which aims to promote a liberal democracy and reconsider the personal situation of citizens in order to recognize their rights, administrative law becoming a means of limiting the power of the State. Thus, being interested in the politicization of administrative law means being interested in its practice from the French Revolution to the Third Republic. In addition, it is necessary to study the relationships between politics and administrative law in the light of the different political regimes in place. [...]

[...] Thus, the Council of State, as the first source of administrative law can, by its close relationship, politicize administrative law A. The Council of State as the first source of administrative law Historically, the Council of State originated in the 13th century with the masters of requests and state counselors. The function of the masters of requests was to report administrative and judicial affairs to the Council, which were then deliberated by the state counselors and the king. However, it was not until Henry III in 1578 that the name 'Council of State' was used, and it was only under Louis XIV that the organization was clarified and the ancestor of the current Council of State could be discerned, where there was the 'Private Council of State, Finance, and Direction' which handled administrative and contentious issues. [...]

[...] This is why before the establishment of a liberal democracy affirmed by the IIIrd Republic and the reconsideration of the personal situation of citizens in order to recognize their rights, as well as with the establishment of an administration in charge of missions of general interest indispensable to collective life called by Léon Duguit "social interdependence"; the administrative law was only an instrument of the State in a context where it sought to impose its power and build a stable framework. As previously recalled, the role of the Council of State at its creation in 1799 was first political and then in a second time legal. From this ambiguity, we can assert that administrative law pleases in accordance with the political system. [...]