For Léon Duguit, the transition from a despotic state to a state based on the rule of law is explained by the discovery and implementation of the theory of natural law, which imposes on the state legal norms that they have hitherto established for others without having to follow them themselves. Such a transition can only take place in a certain economic and social context, the development of a political democracy that subjects the administration and national authorities to the “social conscience” (which could be called public opinion today). This consciousness is embodied in the law: it is therefore initially legitimist. The most classic illustration of this control is the control of the judge in matters of administrative police: the judge will take the place of the administration. The judge has the power to examine whether the measures taken were necessary and whether they were exactly proportionate to the objective pursued, namely the maintenance of order. It replaces the administration. In these cases, it is said that the judge is no longer the judge of legality, but of the relevance of the decision. The judge leaves his role and becomes a judge of opportunism, but it is more accurate to say that expediency becomes an element of legality. This shows the breadth of these two principles. German doctrine has developed the distinction between the police state, the rule of law and the rule of law: the principle of legality is defined as the submission of the administration to the law. – There are decisions on the appropriateness of which the judge does not exercise control or does not consider himself to have the right to make an assessment. These are “decisions that cannot be discussed in legal disputes”.
This is the case where the assessments of the merits of candidates carried out by the selection boards are purely arbitrary, save for irregularities. Citizens must have the legal means to compel the authorities to comply with legal standards: the state must allow the use of an independent judge to sanction its own abuses. It is precisely this balance between respect for the law, legality and respect for the freedom necessary for administrative action that the distinction between tied and discretionary powers is important. All legality in normal times is based on the attempt to reconcile these two aspects. The proper execution of missions requires that they have sufficient freedom to adapt these decisions to the concrete realities they face and know best. The distinction between discretion and associated competence responds to this need for freedom. The subjection of the administration to the principle of legality does not mean that it is deprived of any discretionary power. The principle of legality does not mean that the WMD is bound by hands and feet.
The concept of source of law; In a general sense, the notion of source refers to the elements underlying the law, but in the legal sense, the notion of source refers to the processes of creating a legal norm. On the other hand, discretion does not affect other aspects of the lawfulness of the decision. While the ADM has discretionary powers, it will have to comply with a series of necessary formal and procedural rules. The administration must also not make mistakes in the law and misunderstand the meaning of the texts. Care must be taken to ensure that there are no errors in the facts or in the characterization of the facts (no punishment for acts not committed by the staff member; if it is a disciplinary offence). In a system based on the rule of law, the State is subject to the law. In particular, the executive does not have full control over its actions: on the contrary, it is subordinated to the legal norms that determine the modalities of this action or the challenges that citizens can resist from this action. This subordination is the principle of legality in French administrative law. She did not push herself without difficulty; In the past, the state has been reluctant to submit to the law and even more so to the control of a judge[1]. Even today, there are spaces of “lawlessness” in which the administration is only imperfectly subject to the law: in French administrative law, this applies to government acts that cannot be submitted to the administrative judge or to internal measures.
Written sources are national, international or, in the specific case of Community law, mixed. The administrative judge ensures respect for the Constitution in the strict sense, but also for the other norms of the constitutional bloc, recognized by four judgments of the Council of State: the Condamine judgment for the Declaration of the Rights of Man and of the Citizen; the judgment of the Supreme Court of the Republic of New Caledonia for the fundamental principles recognized by the laws of the Republic (PFRLR); the Dehaene decision for the preamble to the 1946 Constitution; the judgment of the Eky Society for the preamble to the 1958 Constitution. The Constitutional Council has identified certain principles with constitutional value in the Constitution or the block of constitutionality, sometimes with regard to the general principles of law established by the Council of State, which has itself identified principles with constitutional value. These include the principle of continuity of the civil service and the principle of respect for the dignity of the human person. In addition, the Constitutional Council has set objectives, or even requirements with constitutional value, which have a lower value than the principles with constitutional value, but make it possible to limit the scope of other constitutional norms; the administration cannot avail itself of it (CE, 2002, Association de réinsertion sociale du Limousin). Moreover, administrative acts always have a higher value than individual administrative acts, regardless of the authority that adopted the act (for example, the administrative act of a prefect has a higher value than the individual act of a minister). SECOND PART – LEGALITY OF ADMINISTRATIVE ACTION 347.- Definition of the principle of legality.- The principle of legality can be defined simply as the submission of the administration to the law. The sources of this principle have gradually diversified and its effectiveness is ensured by the review of legality by the administrative judge.
Chapter I . [Read more…] In Canadian law, the principle of legality derives from the common law and the British constitutional heritage. [1] It is also found in the preamble to the Canadian Charter of Rights and Freedoms. According to authors Henri Brun and Guy Tremblay, the principle of legality was identified by constitutional expert A.V. Dicey and can be summarized in three statements: “The public administration has no powers other than those conferred on it by law; The powers of the administration are limited; The administration is subject to the law. [2] These developments are based on Article 55 of the Constitution, which gives treaties higher priority than laws (Council of State, 30. May 1952, Dame Kirkwood): On this basis, the administrative judge declares himself competent to judge the legality of an administrative act with regard to the contractual norm under a contrary law. The unwritten sources of administrative legality are customary law, general principles of law or principles of constitutional value. The principle of legality suffers from two exceptions in French administrative law, which lead the administrative judge to waive his review of legality. However, both types of measures appear to be diminishing because of the judge`s use of the “separable act” doctrine. However, if it is a reverse right with regard to the treaty, the administrative judge has been slow to recognize the superiority of the treaty: while the Court of Cassation accepted it in 1975 (Jacques Vabre judgment), the Council of State did not do so until 1989 (Nicolo judgment), following the case-law of Costa v. Enel of the CJEU of 1964, which enshrined the principle of the primacy of Community law over national law.
Chapter Two – Approval of the Principle of Legality The review of the legality of unilateral administrative acts may be carried out by different judges and in different procedures. This control may be carried out by the judge in certain cases. This applies in particular to the criminal court, which, in accordance with art. [Read more…] The theory of natural law affirms that there are essential rights that exist before human reason or that come from the same sources as them, and that man cannot therefore change, since he can only discover them and then indicate them or improve their pronunciation. This thesis has been taken up by human rights defenders to assert that human rights are precisely natural rights and therefore cannot be challenged by the State but, on the contrary, imposed on it under no circumstances.