For some time now, there has been a blossoming of comparative administrative law studies. Research and publications, of various national origins, are investigating this subject of common interest, because it concerns issues that are both common to the different legal systems and felt to play an essential role in them as providing for the concrete implementation of public policies and the production of public goods in everyday life.
There has been a sort of explosion in the literature on comparative administrative law. Since 2010 alone, I have identified more than twenty works published in French and neighbouring languages. The references can be found at the end of this text.
The limits of this post do not allow me to expand on the reasons for this explosion. They seem to me to stem from the twofold awareness that administrative law has to deal with widely shared issues and that it plays an increasingly strategic role in legal systems as the law of practical implementation of public policies and of public goods production in everyday life.
Independently of this aspect, recent doctrinal production abundantly nourishes our reflection both on the method of comparative administrative law (I) and on the objects to which it must focus on (II).
I. The method
1°. It seems to me that the general approach adopted by the authors depends on a conviction that they have or do not have: that there is a kind of homothetic relationship between administrative laws.
One can adhere to this idea – that is to say, think that, from a common figure, administrative laws draw different forms, because they do not give the same importance to different objects – for two kinds of reasons, alternatively or cumulatively. Because one thinks that administrative law is a typical creation of modernity, adjusted to the requirements of the modern state. Or/and because one thinks that in contemporary times there is such a degree of intermingling between laws due to globalisation that a broad symmetry of constructions necessarily follows: Marco d’Alberti (2019), in particular, devotes the first chapter of his book to phenomena of convergence between administrative laws in the European and global context.
On the other hand, it can be conversely considered that the similarities are limited, or only superficial, and that between the administrative laws, there are in reality structural differences, linked to historical choices or cultural gaps. In his “Administraciones publicas y Derechos administrativos”, (2020), for example, Francisco Velasco Caballero argues that, behind the universal existence of administrative law and the apparent homogeneity of its content, there are important functional differences, which are in keeping with the diversity of our societies.
2°. The fact of leaning towards one or the other branch of the alternative has – of course – strong consequences on the approach adopted by the various authors and works.
a) The works that value the idea of diversity, the heterogeneity of administrative rights, follow one or other of the following routes.
The most notable are those that seek to identify major patterns, to discern models. As was remarkably done in the classic “Droit administratif des Etats européens” (Presses Universitaires de France, 2006), in which Michel Fromont distinguished the “French group”, the “German group”, the “half-French, half-German group” and the “British group”. In its first part, the monumental “Oxford Handbook of Comparative Administrative Law” (Peter Cane, 2021) distinguishes between the Anglo-American, French, Germanic, Chinese and Middle Eastern traditions. “Administrative Law of the European Union, its Member States and the United States” (René Seerden, 2012) consists of national chapters on French, German, Dutch, British and American administrative law, plus a development on European administrative law.
To this reflection on models, we can add “Administrative Proceedings in the Habsburg Succession Countries” (Zbigniew Kmieciak, 2021), which compares the administrative laws of the historical Austrian area of influence: in addition to Austria, those of Croatia, the Czech Republic, Hungary, Italy, Poland, Serbia, the Slovak Republic and Slovenia. As well as “The Changing Administrative Law of an EU Member State. The Italian Case” (Domenico Sorace, 2021), which places the developments of Italian administrative law in a European comparative framework.
Research inspired by the conviction of the diversity of administrative laws can be linked to those that consist of investigations into the historical foundations of these laws. Such as the research on ten or so national systems in ‘The Administrative State’ (Armin von Bogdandy, 2017). Or the one at the European level carried out by Spyridon Flogaitis in ‘The Evolution of Law and the State in Europe’ (2014). Or, at the global level, the sample presented in the first part of “Comparative Administrative Law” (Susan Rose-Ackerman, 2010).
The analysis of the anchoring of administrative law is sometimes sought through investigations of its articulation with the rest of national public law or its links with the socio-economic context: as, for example, in the “Oxford Handbook of Comparative Administrative Law” (Peter Cane, 2021) and in “Comparative Administrative Law” (Susan Rose-Ackerman, 2010).
b) The works inspired by the idea of a convergence of administrative laws are situated around three major axes.
Some of them look for the structural components common to administrative law. This approach is typically followed in a current “Coceal” project, which aims to identify the common core of European administrative laws (Giacinto della Cananea, 2020).
Others try to conduct transversal historical analyses, based on the conviction that the various administrative laws have had to undergo parallel developments, especially in the contemporary period – due to the phenomena of liberalisation, decentralisation, globalisation, etc. -. Analyses of this kind can be found in “The Administrative State” (Armin von Bogdandy, 2017) and “Comparative Administrative Law” (Susan Rose-Ackerman, 2010).
The conviction that all administrative laws are fundamentally confronted with the same problems is finally reflected in works that compare them through a systematic grid of concepts, considered as common structural elements. This approach is the main focus of the Oxford Handbook of Comparative Administrative Law (Peter Cane, 2021).
II. The objects
All these distinctions shape the dominant spirit of the different works, which has consequences on the objects on which the analysis focuses, on the “entry points” they use to make the comparison. From this perspective, it seems to me that the works listed here follow three dominant paths.
1°. The first one consists in considering the general principles, the constitutional bases and the basic concepts as the primary factors that shed light on the most important aspects of the administrative law under consideration.
An example of this approach is Roberto Scarciglia’s “Diritto amministrativo comparato” (2020), which succeeds in giving about the administrative laws of more than 50 countries (including Cuba, North Korea and Somalia! ….) indications based on a constant battery of elements: a little history, sources, administrative procedure, controls and appeals.
As to the Oxford Handbook of Comparative Administrative Law (Peter Cane, 2021), in its Part IV, it organises the comparison around six basic concepts: administrative power, separation of powers, rule of law, accountability, public/private, democracy.
Currently, the “Coceal” project, already mentioned, focuses its comparative attention on the dialectic between general principles and sectoral rules.
2°. The second type of approach consists of comparing administrative rights around “large blocks” of issues held to be common.
Here, the leading role has long been held by analyses comparing administrative disputes: consider, for example, the classic “Le contrôle juridictionnel de l’administration. Etude de droit administratif comparé”, by Roger Bonnard (1934). The issue remains an important focus of comparisons: witness, for instance, the case-book “Judicial Review of Administrative Action”, edited by Chris Backes and Mariolina Eliantonio (2019), as well as “The Nature of Inquisitorial Processes in Administrative Regimes. Global Perspectives” (Laverne Jacobs, 2013).
In the recent period, attention has tended to shift to another universally recognized chapter, that of administrative procedure. In the wake of the 2012 conference of the International Association of Comparative Law, international analyses have focused first on the codification of administrative procedure (Jean-Bernard Auby, 2014), and then on the whole range of basic issues relating to it (Jean-Bernard Auby, 2016). A recent book focuses on the due process in European systems (Giacinto della Cananea, 2020).
Comparative analyses are now moving towards topics that are “classical” but where they did not venture too far because these topics are conceptualised differently here and there. In the field of public contracts, an important step forward has been the “Comparative Law on Public Contracts/Le Droit comparé des contrats publics”, edited by Rozen Noguellou and Ulrich Stelkens (2010). Comparative research on administrative liability has recently received a boost with “Tort Liability of Public Authorities in European Laws”, directed by Giacinto della Cananea and Roberto Caranta (2020).
3°. A third possible approach consists in carrying out the comparative analysis on concrete objects, mechanisms or situations that can be found in all administrative laws.
This approach sometimes joins the previous one, by approaching “classic” subjects through concrete means. This is what the casebook ‘Judicial Review of Administrative Action’, already mentioned (Chris Backes, 2019), does in the field of litigation, as does ‘Joint Public Procurement and Innovation’, edited by Gabriella Racca and Christopher Yukins (2019) in the field of public contracts.
Other concrete themes emerging in recent work are, for example, corruption and conflicts of interest (Jean-Bernard Auby, 2014), or regulations, explored in the book edited by Francesca Bignami and David Zaring (2018).
I will limit myself here to a few examples, because of course there is a fairly large number of comparative works here and there on a whole range of specific issues: territorial organisation, urban planning, administrative democracy, etc…. It is impossible, and indeed unnecessary, to list them here.
Posted by Professor Jean-Bernard Auby (SciencesPo).
This post is a translation from an original piece published in French on Chemins publics, under the title “Le printemps du droit administratif comparé” on 13th July 2021. The translation is published by kind permission of the editors of Chemins publics.
Karine Abderemane, Antoine Claeys, Elise Langelier, Yseult Marique and Thomas Perroud, Manuel de droit comparé des administrations européennes (Bruylant 2019)
Marco d’Alberti, Diritto amministrativo comparato. Mutamenti dei sistemi nazionli e contesto globale (Il Mulino 2019)
Jean-Bernard Auby (ed), Codification of administrative procedure (Bruylant, collection « Droit administratif/ Administrative Law » 2014)
Jean-Bernard Auby and Thomas Perroud (eds), Corruption and conflicts of interest. A comparative law approach (Edward Elgar 2014)
Jean-Bernard Auby (ed), Droit comparé de la procédure administrative/ Comparative Law on Administrative Procédure (Bruylant, collection « Droit administratif/ Administrative Law » 2016)
Chris Backes and Mariolina Eliantonio (eds), Cases, Materials and Text on Judicial Review of Administrative Action (Hart, coll. “Ius Commune Casebooks for the Common Law of Europe” 2019)
Francesca Bignami and David Zaring (eds), Comparative Law and Regulation (Edward Elgar Publishing 2018)
Armin von Bogdandy, Peter Huber and Lena Marcusson (eds), Handbuch Ius Publicum Europaeum, C.F.Müller (volumes 3, 4 and 5, published respectively in 2010, 2011 and 2014 are devoted to administrative law)
Armin von Bogdandy, Peter Huber and Sabino Cassese (eds), The Administrative State (Oxford University Press, coll. “The Max Planck Handbooks in European Public Law” 2017)
Giacinto della Cananea, Il nucleo comune dei diritti amministrativi in Europa. Un’introduzione (Editoriale Scientifica 2020)
Giacinto della Cananea and Roberto Caranta (eds), Tort Liability of Public Authorities in European Laws (Oxford University Press, coll. “The Common Core of European Administrative Laws” 2020)
Giacinto della Cananea and Martina Conticelli (ed), Rule of Law and Administrative Due Process in Europe. Trends and Challenges” (Editoriale Scientifica 2020)