Tom Ginsburg. Written constitutions and the administrative
state: on the constitutional character of administrative law
Administrative and Constitutional are two fields of law which are strongly related. Both are categorized as
public law since they govern the relationship between the government and the individual. They share
similar purposes of protection of rights, control of agency costs, and limitation of government.
Despite this similarity, they have different legal sources and modalities, usually according to the country
they are developed. In facts, in some countries there are two legal courts which adjudicate their cases, on
the basis of the two legal systems: Civil Law and Common Law.
A BIG DISTINCTION between these two law fields, concerns their place in the hierarchy of public law:
Constitutional Law regulates the HIGHEST NORMS Administrative Law governs SUB-LEGISLATIVE
of the state. action.
The author attributes a GLOBAL and symbolic Somewhat lower in the hierarchy of sources, and
meaning to this one. He highlights that hence in importance. Differently, to the
constitutions can claim distinct functions that Administrative law system has been gave a 'LOCAL'
administrative law does not accomplish: only meaning because Administrative law accomplishes
constitutions constitute the nation. some but not all of those functions the
Constitution does, is enduring and it retains this
a1. Constitutional law is increasingly transnational ‘local quality’.
as well as, too frequently, transitional.
a2. Administrative Law reflects the local better
b1. Constitutions reflect and sometimes even and provides for more endurance in many
create a shared consciousness, and so overcome polities.
regional and ethnic divisions. So, constitutions
limit government, establish institutions, and serve b2. Administrative law overlaps a good deal with
as important symbols for the polity. Constitutions constitutional law and has a wider scope in the
work through reinforcement/ entrenchment, sense that it touches far more behavior. The
providing an enduring set of foundational rules, average citizen encounters the state in myriad
structuring and facilitating normal politics in a petty interactions, involving drivers’: licenses, small
particularistic way that reflects local values. business permits, social security payments, and
taxes. It is here that it meets the road for
constitutionalism, where it is most likely to affect
a large number of citizens. So, it seems clear that
administrative law is constitutionalist in
orientation and arguably more important to more
people than the grand issues of constitutional law.
In this duality, the most major systems involved (France, Germany, UK, USA) describe administrative law
as largely judge-made, in which courts apply a set of open-ended standards to myriad factual situations.
But each system keeps its own distinctive characteristics.
state: on the constitutional character of administrative law
Administrative and Constitutional are two fields of law which are strongly related. Both are categorized as
public law since they govern the relationship between the government and the individual. They share
similar purposes of protection of rights, control of agency costs, and limitation of government.
Despite this similarity, they have different legal sources and modalities, usually according to the country
they are developed. In facts, in some countries there are two legal courts which adjudicate their cases, on
the basis of the two legal systems: Civil Law and Common Law.
A BIG DISTINCTION between these two law fields, concerns their place in the hierarchy of public law:
Constitutional Law regulates the HIGHEST NORMS Administrative Law governs SUB-LEGISLATIVE
of the state. action.
The author attributes a GLOBAL and symbolic Somewhat lower in the hierarchy of sources, and
meaning to this one. He highlights that hence in importance. Differently, to the
constitutions can claim distinct functions that Administrative law system has been gave a 'LOCAL'
administrative law does not accomplish: only meaning because Administrative law accomplishes
constitutions constitute the nation. some but not all of those functions the
Constitution does, is enduring and it retains this
a1. Constitutional law is increasingly transnational ‘local quality’.
as well as, too frequently, transitional.
a2. Administrative Law reflects the local better
b1. Constitutions reflect and sometimes even and provides for more endurance in many
create a shared consciousness, and so overcome polities.
regional and ethnic divisions. So, constitutions
limit government, establish institutions, and serve b2. Administrative law overlaps a good deal with
as important symbols for the polity. Constitutions constitutional law and has a wider scope in the
work through reinforcement/ entrenchment, sense that it touches far more behavior. The
providing an enduring set of foundational rules, average citizen encounters the state in myriad
structuring and facilitating normal politics in a petty interactions, involving drivers’: licenses, small
particularistic way that reflects local values. business permits, social security payments, and
taxes. It is here that it meets the road for
constitutionalism, where it is most likely to affect
a large number of citizens. So, it seems clear that
administrative law is constitutionalist in
orientation and arguably more important to more
people than the grand issues of constitutional law.
In this duality, the most major systems involved (France, Germany, UK, USA) describe administrative law
as largely judge-made, in which courts apply a set of open-ended standards to myriad factual situations.
But each system keeps its own distinctive characteristics.
