This is the sixth piece in a series of comments offered on John Bell’s and François Lichère’s book French Contemporary Administrative Law (CUP 2022 – available in open access by clicking on this link) at a hybrid workshop hosted by the British Association of Comparative law and the Constitutional and Administrative Justice Initiative at the Essex Law School on 16th March 2023. The workshop brought into discussions Professor John Bell (UK – Cambridge), Professor François Lichère (FR – Lyon 3), Professor Giacinto della Cananea (IT – Bocconi, his comment can be accessed here), Professor Peter Lindseth (USA – Connecticut University, his comment can be accessed here), Professor Anne Jacquemet-Gauché (FR – Clermont-Auvergne, her comment can be accessed here), Professor Rob Widdershoven (NL – Utrecht, his comment can be accessed here), Professor Karl-Peter Sommermann (DE – Speyer), all experts in comparative and/or European administrative law. Professor Bell introduces his book in the first piece published in this series (available here). The following pieces are the comments kindly contributed by the speakers. The authors of the book will conclude this series by replying to the comments.
May all speakers and authors be warmly thanked for the constructive and highly stimulating exchanges – a genuine academic sharing at the highest level.
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First of all, I want to thank the organisers for the invitation to the discussion on this important book by John Bell and François Lichère that has been published last year and raises questions that are relevant to administrative lawyers in all countries although it is limited, according to its title, to “Contemporary French administrative law”.
In my short contribution, I would like to draw the attention to four points:
- first the context of the publication;
- second, I will ask for the epistemic aim of the book,
- before I turn, third, to the methodological approach and
- finally address select outcomes of the study.
I. Context of the publication
Regarding the context of the book by John Bell and François Lichère, I would like to ask more precisely: Why have we recently seen an increase in publications on national administrative law in an external perspective and in foreign language?
One could refer to the numerous collective books on topics of administrative law with contributions of authors of different countries, books that are very particularly useful for comparing solutions to specific problems and questions such as rulemaking by independent regulatory agencies or improving judicial review. In our context, I want to hint at two books that give a deeper insight in the administrative law of another country. In chronological order, first the book “Das Verwaltungsrecht der Vereinigten Staaten von Amerika” written by Eberhard Schmidt-Aßmann and published in 2001, second the book „Droit administratif allemand“, published last year and whose author is Anne Jacquemet Gauché, and we have the pleasure to hear her as one of our discussants of today.
Why this increasing interest in the national administrative law of other countries?
The American author Frank Johnson Goodnow stated in in his “Comparative administrative law” of 1897 that the “great problems of modern public law are almost exclusively administrative in character” and that the demand for solutions can only be adequately met on the basis of knowledge obtained “by study and by comparison of our own with foreign administrative methods” (vol. 1, p. IV).
So the idea that national administrative legal orders are learning systems and have to be seen in context of an international exchange of ideas is not new. What has changed, is the need for more international administrative cooperation and – in particular in Europe – for interoperable structures or settings of national administrative law (connectivity). International treaties such as the Aarhus Convention or the Paris Agreement are driving force of this development. Therefore, a deeper understanding not only of the specific features of national law but of an administrative law system as a whole is a prerequisite for tackling the task of creating viable and sustainable systems of cooperation.
II. The epistemic aim of the book
The fundamental aim of the three books: the books of John Bell and Francois Lichère, Anne Jacquemet-Gauché and Eberhard Schmidt-Aßmann, appears quite simple: they intend to give an introduction into the administrative law of the respective country, and this – and here it becomes already more sophisticated – for an audience not necessarily speaking the language nor necessarily having knowledge of the administrative law of the country under consideration. Everyone, who had to wrestle with translations of legal texts, knows how difficult it is to find a translation that evokes (awakens) the same ideas and connotations in its readers as in the readers of the original text. We can say it: It is inherently impossible, but one can try to come as near as possible to the original thinking.[1] Writing a book on a foreign administrative law system needs more and other explanations.
In all three books, there is a distinctly or rather unspoken further aim in addition to the aim of providing an introduction: to give readers new insights into their own legal order at the same time.
This aim is outspoken in the book of Anne Jacquemet-Gauché: “… je profite du dépaysement et de l’altérité offerts par le droit allemand pour livrer et soumettre quelques pistes de réflexion sur le droit administratif français. » (p. XVI). And the book provides conclusions for French law on every important topic throughout.
In the case of the book of Eberhard Schmidt-Aßmann, the goal of gaining insight into one’s own law is addressed cautiously. The author only wants to “draw on German law where it facilitates access to American law, the problems appear similar or the chosen approaches invite for a comparison”. (p. 37). He deliberately uses analytical categories from German legal doctrine.
Even if not in the latter respect, the study of John Bell and François Lichère seems to go in the same direction. Reference is made to the law of the United Kingdom where this helps to identify more clearly the specific features of French law, but also the differences or similarities. This is the case when the authors
– explain the conception of French administrative law against the background of the writings of Albert Venn Dicey (pp. 1 et seq.), partly misunderstood, as the authors point out. For not few readers it will be slight surprise that Dicey had “admiration for the achievement of droit administrative”, p. 1).
– This is also the case when they show that it is – for reasons of data protection – in France not “possible to undertake the classic English approach of analyzing the decisions or opinions of different judges” (P. 24),
– when they draw parallels between the slowness of the Conseil d’État and that of the House of Lords to recognize the supremacy of EEC law (p. 12), or
– address problems connected with the public/private law divide.
Notwithstanding the similarities to the two aforementioned books, the work of John Bell and François Lichère differ from both in its analytical and methodological approach. And here we come to point III:
III. The methodological approach
The first characteristic that has to be mentioned is the “binocular” perspective on the French administrative law. Binoculars do not only provide a sharper view on the objects, but also improve spatial vision. In bringing together the two views, the authors intend “to blend French rigour, system and principle with English attention to cases and empiricism” (Preface). And this is done by authors who both also know the respective other law very well. But because of the deeper socialisation in one system, complete equidistance to two different legal systems, often regarded as the ideal of comparison, can generally not be achieved by one author alone.
As far as the topics dealt with, the book covers the usual topics of French administrative law books: roughly speaking the regulation of administrative institutions and of administrative actions in relation to the citizens (individuals). Any other treatment would not be appropriate to the nature of an introduction to French administrative law. Nevertheless some concepts are considered with less attention than in French law books, for example the concept of service public, others which more, such as the “constitutional turn” (p. 301).
Furthermore, the book sets numerous accents of its own in its treatment of the subject matter: The special attention paid to case law (better: jurisprudence of the courts) is already apparent in the book’s opening pages with a 40-page Table of Cases by Date and by Name. Equally European Union cases and European Court of Human Rights cases are enumerated in the list.
Here we come to a second characteristic of the book: It is the particular emphasis which is put on the impact of European law on the French administrative law. This is of particular importance because a study in English language should also give clues for a link to European law and thus a possible connectivity to other legal orders.
Against the backdrop of the changes brought about by the influence of European law, the authors are able to clearly illustrate the character of French administrative law between a slow-moving, path-dependent instrument and a dynamically living one. In this context, not least the enrichment of public administration by new types of authorities such as the quangos (autorités administratives indépendantes) plays an important role. At the same time, the authors show how traditional institutions of French administrative law such as the Conseil d’État and the Commissaire du gouvernement/rapporteur public can be misunderstood by European judicial bodies and are therefore sometimes subject to unjustified demands for change.
IV. Select outcomes of the study
The book provides many new insights that are worth to be discussed in more detail. One important insight should be highlighted. It concerns the debate of divergence and convergence of national legal orders. The authors recall early statements of authors who in view of the eminent role of the Conseil d’État for the development of the French administrative law observed a common law like inductive approach when elaborating general principles (pp. 55 et seq.). And as far as legislation and further rulemaking is concerned, the authors present figures which, at least in quantitative terms, point to a comparable development in France and in the United Kingdom (p. 30): In 2018, the UK Parliament adopted 34 public and general Acts, the UK Government 1.128 statutory instruments; in the same year the French Parliament passed 45 laws and the executive power 28 ordonnances and 1.267 decrees. It goes without saying that a purely quantitative assessment is not very meaningful. However, one can take the data provided in the book as an opportunity to ask conversely about a gradual legalistic reorientation of the British legal system.
Overall, the book presented here is not only an instructive and helpful source of knowledge, but also a thought-provoking study and important element of a transnational science of administrative law.
Suggested citation: KP Sommermann, “Comment on the book “Contemporary French administrative law” by John Bell and François Lichère”, BACL blog available at https://wp.me/p80U0W-1sU.
[1] Paul Ricoeur, Sur la traduction, Paris 2004, p. 13: „Non seulement les champs sémantiques ne se super-posent pas, mais les syntaxes ne sont pas équivalentes, les tournures de phrases ne véhiculent pas les mêmes héritages culturels; et que dire des connotations à demi muettes qui surchargent les dénotations les mieux cernées du vocabulaire d‘origine et qui flottent en quelque sorte entre les signes, les phrases, les séquences courtes ou longues.“
British Association of Comparative Law 
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