The Administration and the Judge: Pragmatism in Belgian Case Law (1890–1910)

Analysing the administrative case law of the Belgian Supreme Court between 1890 and 1910, this chapter shows that the Supreme Court applied the main features of a positivist legal thought (based on the assumption of clarity, coherence, and completeness of the formal law) to administrative action and its legality. It equipped the central and local institutions of the State with functioning powers, allowing an operational state to develop despite social unrest. As the social and technological context changed at the end of the nineteenth century, the statute book became more confused, however. This gave the Supreme Court ample room to interpret the law creatively and pragmatically. The ‘administrative miracle’ in Belgium is that the Supreme Court did not shackle social forces and unbridle the administration so much that the very course it wanted to avert actually happened. This may be down to the creative judicial genius that the Belgian judiciary developed a formal approach whilst deciding pragmatically on the substance of cases.

Standards of Judicial Review of Administrative Action (1890–1910) in the Austro-Hungarian Empire

This chapter argues that, if France has been the home of administrative courts, Austria has greatly contributed to the development of administrative law with regard to administrative procedure. Thanks to the Austrian Administrative Court, established in 1875, administrative law has been increasingly important in the regulation of public affairs. The chapter analyses the causes, development, and effects of these features. One main theme is, of course, the scope and purpose of judicial review of administrative action. In this respect, the chapter shows the growth of litigation and the liberal approach followed by the Court. Moreover, the role of the Court as lawmaker is examined in the light of the general principles of law that it developed. . Such principles included legality and procedural fairness, with particular regard to the right to a hearing and the duty to give reasons. Considered as a whole, they required public administrations to act reasonably rather than arbitrarily. Finally, it was judge-made law that constituted the basis for the codification of 1925.

The Judicial Elaboration of Standards for Public Administrations in France

This chapter underlines how administrative law has taken a much greater significance in France since the period 1890–1910. This period is not only symbolic of a full development of administrative law around the notion of public power (puissance publique) or public service (service public) but also of the ramifications given to the very notion of State and public administration. The chapter deals with different theories (Hauriou, Duguit, etc.) related to a redefinition of the State and public services. It discusses four specific aspects: the institutional context, the case law of the Conseil d’État, the innovative orientations concerning the action of the public authorities, and the creative role of this case law.

The Historical Foundations of Judicial Review in the United Kingdom

This chapter analyses judicially developed standards for reviewing administrative actions in the United Kingdom between 1890 and 1910. By exploring the context, reach, types, and frequency of judicial review during that timeframe—fin de siècle—this historical analysis reveals both significant changes and significant continuities by comparison with twenty-first century standards. The chapter concentrates in particular on reported cases which undermine the Diceyan claim that administrative law did not exist in the United Kingdom during this timeframe; and reflects on the inconsistencies that pervaded that body of law. It concludes that some judges tended to deploy concepts which had the effect of restraining administrative actions, whereas other judicial constructs tended to facilitate the administrative arrangements contested in court. As such, it recommends that the role of judicial review at this time should be characterized with this duality of purpose firmly in mind.

The Formation of the Italian Administrative Justice System, European Common Principles of Administrative Law, and ‘Jurisdictionalization’ of Administrative Justice in the Nineteenth Century

The present study deals with the formation of the Italian administrative justice system and its French derivation. The analysis therefore extends into the wider European context in the nineteenth century, showing the existence of European common principles of administrative law and providing reasons that explain why the administrative justice system achieved a citizen protection superior to that of the civil law tradition. Finally, the chapter focuses on the consequences of the process of ‘jurisdictionalization’ of administrative justice, suggesting that the gracieuse origins of administrative justice was more easily saved in systems, such as the French or Italian system, in which the ‘same’ administrative bodies in exercising administrative justice formally became administrative courts.

Initial Investigation on Excess of Power: Judicial Review of Administrative Action in Italy (1890–1910)

This study has been carried out in accordance with a precise methodology: it examines the decisions handed down by the Fourth Chamber of the Council of State in its first twenty years of operation on the issue of excess of power. An interpretation of excess of power could be proposed whereby its substance is not to be found in the concept itself, but rather in the explanations provided by the organ that created it as it examines each individual case. Thus, excess of power cannot be pinned down to one single concept, nor should the continuity among its various manifestations be understood conceptually; rather it must be examined from a historical perspective on a case-by-case basis. It is there that it can be seen how excess of power has characterized the work of the Council of State more than any other issue over the course of its existence.

Judicial Review of Administrative Action (1890–1910): A Brief Comparison between the Austro-Hungarian and the German Empires

In this brief chapter some reflections of a comparative nature between the Austrian legal order and some state systems of the German Empire are presented regarding the standards of judicial review adopted between 1890 and 1910. The comparison is based primarily on the research works of Angela Ferrari Zumbini and Lilly Weidemann, which, after a general introduction to the subject in the different legal orders, present a series of judgments issued by the administrative courts of last instance in that period. This chapter outlines the common and distinctive features of the review conducted by these courts before examining whether, and in what ways, this case law has contributed to the formation of general principles and rules of conduct for public administrations.

Commonality and Diversity in Administrative Justice: Fin de siècle

There is variety of opinion about the origins and development of administrative law. The studies collected in this volume seek to contribute to a better understanding its development in a period of crucial importance; that is, the last decade of the nineteenth century and the first decade of the twentieth century. This chapter is divided into three parts. The first explains the choices made concerning the timeframe, the methodology, and the selection of legal systems. The focus then shifts to four main features that characterized administrative laws in those years, including the variety of judicial mechanisms, the more liberal policy on standing, the gradual reinforcement of procedural constraints on the exercise of powers by public authorities, and the abandonment of immunity. The chapter concludes with discussion of commonality and diversity between administrative laws in Europe.

The Development of Administrative Law in the United Kingdom (1890–1910)

This chapter offers some reflections and thoughts on the evolution of nineteenth-century fin de siècle administrative law in the United Kingdom. The period 1890–1910 was a time of social, political, and economic change. Administrative power was expanding and there was a need for administrative law controls over the exercise of such power. The chapter examines the following principal themes: the dominant tradition of Diceyan constitutionalism and its reaction to the growth of administrative power; the development of judicial review by the courts; and the growth of non-judicial remedies in the form of tribunals. It is argued that the period between 1890 and 1910 was a formative one for both the administrative state and administrative law. Many of the developments in administrative law during this period still provide the key building blocks on which contemporary administrative law is based.

The Administrative World of Yesterday

This chapter claims that the decades between 1890 and 1910 were distinguished by a clear wave of globalization ante litteram, notwithstanding the existence of a great divide between national legal systems, depending whether they featured and harboured or not an ‘official’ administrative law. The main thrust of the thesis is that the overreliance on legal doctrines as the main source of historical research has to date shadowed and downplayed the keenness of answers to the question of how to tame the administrative hydra stemming and springing from judicial adjudications all over Europe. What an in-depth analysis of judicial case law highlights is, first, that there was everywhere an increasing attention for the respect of due process requirements. Second, that this judicial policy was swayed by the acknowledgement and protection of individual rights. Third, that all this judicial activity turned, irrespective of considerable national differences, into administrative discretion being increasingly constrained. Labelling such an outcome as the discovery of a bourgeois common understanding and sensibility toward administrative power and its boundaries represents in itself a path-breaking departure from a narrative where doctrinal discourse trumps the evidence provided by legal practices.