The constitutional framework
Constitutions require social contracts. A contract shapes the state (Vanberg, 1994) and consequently delineates its legal characteristics, which is why administrative law is mostly a product of the constitution, if the latter exists.
In countries with a common law tradition, constitutional conventions usually do not confer any legal status on the sovereign power. When the state is judged, the impartial spectator is the principal, and he/she adopts the same procedures as he/she does with private individuals. In contrast, countries with a social contract tradition must provide a tight constitutional link. Since usually the principal is the state itself, there must be a strict guarantee by the constitution, so as to protect citizens and to ensure common interests rather than rent-seeking activities. It is a necessary link that shapes the objective function of the principal: what he/she maximizes is under the control of the constitution. This constitutional setting is essentially Kelsenian and it has been adopted by Germany and Austria, among others. Since the Second World War, especially among European nations, there has been a continuous trend towards the constitutionalization of administrative law. For example, in the Netherlands, the constitutional revision of 1983 introduced a provision (article 107.2) according to which general principles of administration must be laid down by statute. The case for this trend is further outlined by many other countries. In Italy, the 1947 constitution stipulates the liability of civil servants (article 28), control of public firms (article 43) and the organization of legal actions against the administration (article 113). The Spanish constitution (1978) introduces fundamental rights of citizens (articles 10 to 55), although the Crown prerogatives remain extensive. The statutory nature of the Council of State is provided by article 107. In Greece, article 20.2 of the 1975 constitution declares the right to a hearing in the case of a dispute with the administration.The case of the United States is also significant. Since the 1930s, the ongoing debate on the constitutionality of the ‘independent agencies’ exemplifies the competition for principalship between Congress and the president (Bermann and Lindseth, 1995, pp. 525-7). Whatever the outcome, the increasing number of agencies and their progressive emancipation may amount to a continuous renegotiation of the initial constitutional contract, but without the veil of ignorance that could at least partly prevent rent seeking. From this perspective, the European Union takes the middle ground. Whereas the French tradition largely inspired the early juridical construction, it has largely evolved from this continental approach towards the Anglo-Saxon regulatory precepts. Whatever the outcome, what is at stake is the control of the future European state.
In more general terms, the different kinds of administrative law illustrate the various answers to the unsolved principal-agent problem described in section two of the 1776 Virginia Bill of Rights: ‘that all power is vested in, and consequently derived from the people; that magistrates are their trustees and servants, and at all times amenable to them’.
References
Backhaus, Jurgen (2002), ‘Legal and economic principles for the common administrative law in Europe’, in A. Marciano and J.-M. Josselin (eds), The Economics of Harmonizing European Law, Cheltenham, UK and Northampton, MA, USA: Edward Elgar, 240-52.
Bermann, George and Peter Lindseth (1995), ‘Reflexions sur le droit administratif aux Etats- Unis’ [‘Observations on administrative law in the United States’], in Conseil d’Etat, Rapport Public, Paris: La Documentation Franςaise, pp. 515-28.
Bodin, Jean (1577), Les Six Livres de la Republique [The Six Books of the Republic], Paris: Jacques du Puis, Libraire jure a la Samaritaine (original edition).
Buchanan, James (1990), ‘The domain of constitutional economics’, Constitutional Political Economy, 1, 1-18.
Cooter, Robert (2000), The Strategic Constitution, Princeton, NJ: Princeton University Press. Ekelund, Robert and Robert D. Tollison (1980), ‘Economic regulation in mercantile England: Hecksher revisited’, Economic Inquiry, 18, 567-99.
Hume, David (1992), Treatise of Human Nature, Buffalo, NY: Prometheus (first published 1739-40).
Josselin, Jean-Michel and Alain Marciano (1995), ‘Constitutionalism and common knowledge: assessment and application to the design of a future European constitution’, Public Choice, 85, 177-83.
Josselin, Jean-Michel and Alain Marciano (2000), ‘Displacing your principal: two historical case studies of some interest for the constitutional future of Europe’, European Journal of Law and Economics, 10, 217-33.
Kelsen, Hans (1962), La Theorie pure du droit [The Pure Theory of Law], Paris: Dalloz (Reine RechtsLehre: first published 1934, rev. edition 1960).
Rose-Ackerman, Susan (1992), Rethinking the Progressive Agenda: The Reform of the American Regulatory State, New York: Free Press.
Smith, Adam (1976), The Theory of Moral Sentiments, Indianapolis: Liberty Press (first published 1759).
Vanberg, Victor (1994), ‘Social contract theory’, in P.J. Boettke (ed.), Elgar Companion to Austrian Economics, Aldershot, UK and Brookfield, US: Edward Elgar, pp. 337-42.
Witt, Ulrich (1992), ‘The emergence of a protective agency and the constitutional dilemma’, Constitutional Political Economy, 3, 255-66.
15
More on the topic The constitutional framework:
- The constitutional framework
- The material Constitution
- Constitutional Advice and Transitional Justice Mechanisms in the Framework of Colombia’s 1991 Permanent Constitution
- The Idiomorphic Constitution of Cyprus
- Republic of Chile: from sober deliberation to attempted revolution
- Introduction
- A description on the origins
- Introduction
- Two Constitutions that Did Not Get Made
- The road to the illegal founding