HIUC Note of Administrative Law For 2nd Year PADM Students-2016

UNIT ONE
INTRODUCTION TO ADMINISTRATIVE LAW
Introduction
This chapter presents you some highlights of the nature, meaning, scope and sources of
administrative law. Administrative law, as a branch of public law, governs the relationship
of the state and its citizens. Specifically, it regulates the manner of exercising power by the
executive branch of government and administrative agencies so as to ensure its legal limits.
Ultimately, by controlling power, it provides protection to the citizen against ultravires
acts, abuse of power and arbitrariness.
This chapter begins by giving students background information about the political and
economic forces shaping the evolution and development of administrative law. How and
why administrative law was recognized and later developed as a distinct branch of law is
discussed under this unit.
Then, the chapter discusses the meaning, sources, scope and theories of administrative law.
Different definitions of administrative law given by different scholars are compared and
contrasted to show the various approaches towards the subject. Sources of administrative
law may be mentioned as: constitution, enabling act, delegated legislation, and judicial and
administrative decisions. The study of these instruments is relevant to understanding its
practical application. It is believed that these points will ultimately enable students to
understand and determine the proper scope of administrative law.
The second section compares and contrasts administrative law with other concepts and
disciplines. It mainly analyzes administrative law as influencing and influenced by
concepts like rule of law, good governance and human rights. Administrative law was
born out of constitutional law. Hence, analyzing their close relationship and determining
their differences and similarities of these two subjects is relevant and necessary. It is
difficult to study and understand administrative law without reference to its constitutional
roots. This section outlines the interdependence between constitutional and administrative
law. Lastly it provides a comparative survey of the nature, form and scope of
administrative law in common law and civil law countries.
The last part of this chapter briefly summarizes the historical development of
administrative law as new legal phenomena at a global level and in Ethiopia. The
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development of ‘Ethiopian administrative law’ is discussed with some emphasis on its

current and future situations within the federal and regional context.
1.1 The Modern Welfare State and Evolution of Administrative Law
In order to understand the nature of administrative law, you should start studying the
subject by looking at the political and economic circumstances that led to its ‘creation,’ /or
its ‘invention’/ as a distinct subject at a certain point in history.
Let’s begin our inquiry by asking the following preliminary questions?
1) What is the meaning of the following terms?
A) laissez faire B) police state C) welfare state D) power E) administration
2) Compare the ‘police state’ and the ‘welfare state’ in light of the following points and list
down the differences.
A) The role of government
B) The underlying political philosophy
C) Individual liberty and freedom
D) Extent of power of the government (extent of governmental interference)
The change in the role of government and thereby the transformation of the ‘police state’ to
the ‘welfare state’ has necessitated the need for conferring more power on the
administration and simultaneously the need for controlling this power. The increasing
growth of these two directions, i.e. power vs. control, their conflict and struggle somehow
reflect the growth of the administrative law.
Administrative law is the by- product of the growing of socio- economic functions of the
state and the increased powers of the government. Power has become very necessary in the
developed society and the relationship of the administrative authorities has become very
complex. In order to regulate these complex relations, some law is necessary, which may
bring about regularity, certainty and may check at the same time the misuse of power
vested in the administration.
In the ancient society the functions of the state were very few, the prominent among them
being protection from foreign invasion, levying of taxes and maintenance of internal peace
and order. The rapid growth of the administrative law in modern times is the direct result
of the growth of administrative powers. The theory of laissez faire in the 19th century
envisages minimum government control, maximum free enterprise and contractual

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freedom. The state was characterized as the law and order state. Its role was limited to the
traditional role of government i.e. as a protector. The management of social and economic
life was not regarded as government responsibility. But laissez faire doctrine resulted in
human misery. The unequal bargaining power between labour and management resulted in
exploitation of workers, dangerous conditions of work and child labour. This ultimately led
to the spread of poverty and the concentration of wealth in a few hands. Then it came to be
recognized that the state should take active role in ameliorating the conditions of power.
This approach gave rise to the favoured state intervention, social control and regulation of
individual enterprise. The ‘negative state’ was then forced to assume a positive role. In
course of time, out of dogma of collectivism emerged the concept of “social welfare state”
which laid emphasis on the role of the state as a vehicle of socio- economic- regeneration
and welfare of the state. Thus, the growth of the administrative law is to be attributed to a
change of philosophy as to the role and function of the state.
The characteristics of a modern welfare state in which we line in may be summarized as:
 A vast increase in the range and detail of government regulation of privately owned
economic enterprise;
 The direct furnishing of services by government to individual members of the
community, and
 Increased government ownership and operation of industries and businesses.
The welfare state in effectively carrying out these vast functions to attain socio- economic
justice, inevitability will come in direct relationship and encounter with the private
citizens. Therefore, the attainment of socio economic justice, being a conscious
goal of state policy, is a vast and inevitable increase in the frequency with which ordinary
citizens come into relationship of direct encounter with state power holders. Striking a
balance and bringing about harmony between power and justice is the central mission of
the administrative law.
It is clear that political and economic circumstances brought about the existence of
administrative law. Administrative law was created as an instrument to control the ever-
expanding governmental power. As Acton once said ‘ power corrupts and absolute power
corrupts absolutely.’ Concentration of power in the hands of public officials, unless
regulated and controlled properly and effectively, always poses a potential danger to the

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rights, freedom and liberty of individuals. Administrative law was developed as a response
to the threats of ‘big government.’ In other words as. Massey has put it, administrative law
is the by-product of an intensive form of government.
Big government or what is referred to, as the welfare state, is the product of a response to
the economic, social and political reality of the 19th century. The political theory prevalent
at the time, i.e. Laissez faire, failed to solve the economic ills and social evils which
resulted in poverty, ignorance, exploitation and suffering of the mass. Due to the emphasis
given to wider individual freedom, interference of government was minimal, and its power
was limited.
Administrative law was almost non-existent at this time. When the power of the
government is less and limited, the degree of interaction with the individual is minimal.
Hence, the need for administrative law as a power controlling mechanism becomes
insignificant under these situations.
The evolution of administrative law goes in a parallel progressive stage with the
transformation of the ‘police state’ to the ‘welfare state.’ The reason for the transformation
was the reason that necessitated conferring more power on the state. The pitfalls, defects
and shortcomings of the ‘police state’ became clear at the end of the 20th century,
specifically after the Second World War. The suffering, poverty and exploitation of the
mass of the population were sufficient to justify the need to confer more power on the
government. With more powers, the government also assumed new roles geared towards
alleviating the social and economic problems and social evils to bring about development,
social justice and equal distribution of wealth. Administrative law is the response to the
problem of power. It unequivocally accepts the need or necessity of power, simultaneously
stressing the need to ensure the exercising of such power within proper bounds and legal
limits. Controlling the exercise and excesses of power is the essence and mission of the
administrative law.
1.2 Definition, Purpose, Scope and Sources of Administrative Law
A) Definition
There is a great divergence of opinion regarding the definition
of concept of the administrative law. The is because of the tremendous increase in the
administrative process that it makes impossible to attempt any precise definition of

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administrative law which can cover the entire range of the administrative process. Hence
one has to expect differences of scope and emphasis in defining administrative law. This is
true not only due to the divergence of the administrative process within a given country,
but also because of the divergence of the scope of the subject in the continental and Anglo
– American legal systems.
However, two important facts should be taken into account in an attempt of understanding
and defining administrative law. Firstly, administrative law is primarily concerned with the
manner of exercising governmental power. The decision making process is more important
than the decision itself. Secondly, administrative law cannot fully be defined without due
regard to the functional approach. This is to mean that the function (purpose) of
administrative law should be the underlying element of any definition. The ultimate
purpose of administrative law is controlling exercise of governmental power. The ‘control
aspect’ impliedly shades some light on the other components of its definition. Bearing in
mind these two factors, let us now try to analyze some definitions given by scholars and
administrative lawyers.
Austin has defined administrative law, as the law which determines the ends and modes to
which the sovereign power shall be exercised. In his view, the sovereign power shall be
exercised either directly by the monarch or indirectly by the subordinate political superiors
to whom portions of those powers are delegated or committed in trust.
Schwartz has defined administrative law as “the law applicable to those administrative
agencies, which possess delegated legislation and adjudicative authority.’ This definition is
a narrower one. Among other things, it is silent as to the control mechanisms and those
remedies available to parties affected by an administrative action.
Jennings has defined Administrative law as “the law relating to the administration. It
determines the organization, powers and duties of administrative authorities. Massey
criticizes this definition because it fails to differentiate administrative and constitutional
law. It lays entire emphasis on the organization, power and duties to the exclusion of the
manner of their exercise. In other words, this definition does not give due regard to the
administrative process, i.e. the manner of agency decision making, including the rules,
procedures and principles it should comply with.

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Dicey like Jennings without differencing administrative law from constitutional law
defines it in the following way. ‘Firstly, it relates to that portion of a nation’s legal systems
which determines the legal status and liabilities of all state officials. Secondly, defines the
rights and liabilities of private individuals in their dealings with public officials. Thirdly,
specifies the procedures by which those rights and liabilities are enforced.’
This definition is mainly concerned with one aspect of administrative law, namely judicial
control of public officials. It should be noted, that the administrative law, also governs
legislative and institutional control mechanisms of power. Dicey’s definition also limits
itself to the study of state officials. However, in the modern administrative state,
administrative law touches other types of quasi- administrative agencies like corporations,
commissions, universities and sometimes, even private domestic organizations. Davis who
represents the American approach defines administrative law as; “The law that concerns
the powers and procedures of administrative agencies, specially the law governing judicial
review of administrative action.” The shortcoming of this definition according to, Massey
is that it excludes rule - application or purely administrative power of administrative
agencies. However, it should be remembered that purely administrative functions are not
strictly within the domain of administrative law, just like rule making (legislative) and
adjudicative (judicial) powers. Davis’s definition is indicative of the approach towards
administrative law, which lays great emphasis on detailed, and specific rule-making and
adjudicative procedures and judicial review through the courts for any irregularity. He
excludes control mechanisms through the lawmaker and institution like the ombudsman.
Massey gives a wider and working definition of administrative law in the following way.
“ Administrative law is that branch of public law which deals with the organization and
powers of administrative and quasi administrative agencies and prescribes the principles
and rules by which an official action is reached and reviewed in relation to individual
liberty and freedom”
From this and the previous definitions we may discern that the following are the concerns
of administrative law.
It studies powers of administrative agencies. The nature and extent of such powers is
relevant to determine whether any administrative action is ultravires or there is an abuse of
power. It studies the rules, procedures and principles of exercising these powers.

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Parliament, when conferring legislative or adjudicative power on administrative agencies,

usually prescribes specific rules governing manner of exercising such powers. In some
cases, the procedure may be provided as a codified act applicable to all administrative
agencies. It also studies rules and principles applicable to the manner of exercising
governmental powers such as principles of fairness, reasonableness, rationality and the
rules of natural justice.
It studies the controlling mechanism of power. Administrative agencies while exercising
their powers may exceed the legal limit abuse their power or fail to comply with minimum
procedural requirements. Administrative law studies control mechanisms like legislative &
institutional control and control by the courts through judicial review.
Lastly it studies remedies available to aggrieved parties whose rights and interests may be
affected by unlawful and unjust administrative actions. Administrative law is concerned
with effective redress mechanisms to aggrieved parties. Mainly it is concerned with
remedies through judicial review, such as certiorari, mandamus, injunction and habeaus
corpus.
B) Purpose of Administrative Law
There has never been any serious doubt that administrative law is primarily concerned with
the control of power. With the increase in level of state involvement in many aspects of
everyday life during the first 80 years of the twentieth century, the need for a coherent and
effective body of rules to govern relations between individuals and the state became
essential. The 20th century saw the rise of the “regulatory state” and a consequent growth
in administrative agencies of various kinds engaged in the delivery of a wide variety of
public programs under statutory authority. This means, in effect, the state nowadays
controls and supervises the lives, conduct and business of individuals in so many ways.
Hence controlling the manner of exercise of public power so as to ensure rule of law and
respect for the right and liberty of individuals may be taken as the key purpose of
administrative law.
According to Peer Leyland and Tery Woods Administrative law embodies general
principles applicable to the exercise of the powers and duties of authorities in order to
ensure that the myriad and discretionary powers available to the executive conform to basic
standards of legality and fairness. The ostensible purpose of these principles is to ensure

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that there is accountability, transparency and effectiveness in exercising of power in the

public domain, as well as the observance of rule of law.
Peer Leyland and Tery Woods have identified the following as the underlying purposes of
administrative law.
 It has a control function, acting in a negative sense as a brake or check in respect of
the unlawful exercise or abuse of governmental/ administrative
power.
 It can have a command function by making public bodies perform their statutory
duties, including the exercise of discretion under a statute.
 It embodies positive principles to facilitate good administrative practice; for
example, in ensuring that the rules of natural justice or fairness are adhered to.
 It operates to provide accountability and transparency, including participation by
interested individuals and parties in the process of government.
 It may provide a remedy for grievances at the hands of public authorities.
Similarly I.P. Massey identifies the three basic bricks of the foundation of administrative
law as:
 To check abuse of administrative power.
 To ensure to citizens an impartial determination of their disputes by officials so as
to protect them from unauthorized encroachment of their rights and interests.
 To make those who exercise public power accountable to the people.
To realize these basic purposes, it is necessary to have a system of administrative law
rooted in basic principles of rule of law and good administration. A comprehensive,
advanced and effective system of administrative law is underpinned by the following three
broad principles:
Administrative justice, which at its core, is a philosophy that in administrative decision-
making the rights and interests of individuals should be properly safe guarded.
Executive accountability, which has the aim of ensuring that those who exercise the
executive (and coercive) powers of the state can be called on to explain and justify the way
in which they have gone about that task.
Good administration- Administrative decision and action should conform to universally
accepted standards, such as rationality, fairness, consistency and transparency.

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C) Sources of Administration Law

Administrative law principles and rules are to be found in many sources. The followings
are the main sources of administrative law in Ethiopia.
The Constitution
The F.D.R.E constitution contains some provisions dealing with the manner and principle
of government administration and accountability of public bodies and officials. It mainly
provides broad principles as to the conduct and accountability of government, the principle
of direct democratic participation by citizens and the rule of law. It also embodies the
principle of separation of powers by allocating lawmaking power to the house of people’s
representatives, executive power cumulatively to the Prime Minister and Council of
Ministers, and finally the power to interpret the laws to the judiciary. Art, 77(2) talks about
the power of Council of Ministers to determine the internal organizational structure of
ministries and other organs of government, and also Art 77(3) envisages the possibility of
delegation of legislative power are also relevant provisions for the study of the
administrative law, (see also Articles 9(1), 12, 19(4), 25, 26,37,40, 50(9), 54(6)(7) 55(7),
(14)(15), (17),(18),58,66(2),72-77,82,83,93,101-103 of F.D.R.E constitution).
Legislation
Laws adopted by parliament, which may have the effect of creating an administrative
agency, or specify specific procedure to be complied by the specific authority in exercising
its powers, can be considered a primary sources for the study of administrative law. The
statute creating an agency known as enabling act or parent act, clearly determines the limit
of power conferred on a certain agency. An administrative action exceeding such limit is
an ultra virus, and in most countries the courts will be ready to intervene and invalidate
such action. Moreover, parliament, when granting a certain power, is expected to formulate
minimum procedure as to how that power can be exercised to ensure fairness in public
administration. This can be done, on the one hand, by imposing a general procedural
requirement in taking any administrative action mainly administrative rule making and
administrative adjudication just like the American Administrative Procedure Act (APA).
And on the other hand, parliament in every case may promulgate specific statutes
applicable in different situations.

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Delegated Legislation
Rules, directives and regulations issued by Council of Ministers and each administrative
agencies are also the main focus of administrative law. Administrative law scholarship is
concerned with delegated legislation to determine its constitutionality and legality or
validity and ensure that it hasn’t encroached the fundamental rights of citizens. One aspect
of such guarantee is subjecting the regulation and directive to comply with some minimum
procedural requirements like consultation (public participation) and publication (openness
in government administration). Arbitrary exercise of power leads to arbitrary
administrative action, which in turn, leads to violation of citizen’s rights and liberty.
Hence, the substance and procedure of delegated legislation is an important source of
administrative law.
Judicial Opinion
Much, but not most, of the doctrine that envelops and controls administrative power is
found in judicial analysis of other sources. However, much of administrative law will not
be found solely in judicial opinions. Furthermore, the opinions themselves must be
carefully pursued to avoid generalizations about controls on agency behavior that may not
be appropriate, as the outcome of many cases may turn on particular statutory language
that may not necessarily reflect the nature of disputes in other agencies.
The American experience as to judicial opinion influencing administrative law is
characterized by lack of generalization and fluctuating impacts. These may be due to two
reasons. First, cases coming before the courts through judicial review are insignificant
compared to the magnitude of government bureaucracy and the administrative process.
Second, even as between two apparently similar cases, there is a possibility for points of
departure.
In Ethiopia, judicial opinion is far from being considered even as the least source of
administrative law. Only cases less than 1% go to court through judicial reviews. The
subject is not known by judges, lawyers, the legal profession and administrative officials,
let alone by the poor and laypersons who are expected to seek judicial remedy for unlawful
administrative acts and abuse of power by public officials. However given the fact that
presently the rule of precedent is applicable, judicial opinion, it is hoped, may have a
limited role as one of the sources of administrative law in Ethiopia.

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1.3. Administrative Law in Civil Law and Common Law Countries

The comparative method is useful in many branches of law. It is particularly important in
administrative law, because of the nature of the leading problems, related way of
controlling government according to the interests of both state and citizen, which is
common to all the developed nations of the west and in many developing countries of the
third world. There is a clear difference with regards to the scope of and the approach to
administrative law in these two legal systems.
France is the source of a distinct system of Administrative law known as ‘droit
administrative’, which has a huge impact not only in civil law countries, but also on the
system of administrative law of common law countries. In France, Italy, Germany and a
number of other countries, there is a separate system of administrative court that deals
with administrative cases exclusively. As a natural consequence, administrative law
develops on its own independent lines, and is not enmeshed with the ordinary private law
as it is in the Anglo- American system. In France, droit administrative is a highly
specialized science administered by the judicial wing of the conseil de etat, which is staffed
by judges of great professional expertise, and by a network of local tribunals of first
instance.
The British system of administrative law, which is followed throughout the English-
speaking world, has some salient characteristics, which distinguish it sharply from the
administrative law of other European countries adopting continental legal system. The
outstanding characteristic of the Anglo- American system is that the ordinary courts, and
not special administrative courts, decide cases involving the validity of government action.
This can be attributed to the conception of the principle of rule of law as developed by
Dicey, which among other things emphasizes the resolution of disputes between
government and the citizens through the ordinary courts.
The scope of Administrative law is also wider in scope in the continental system compared
to its common law counterpart. Administrative law in civil law countries covers issues
such as the organization, powers and duties of administrative authorities, the legal
requirements governing their operation, and the remedies available to those adversely
affected by administrative action. It also includes subjects like the structure and
composition of the various administrative agencies, civil service law, the acquisition and

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management of property by the administrative authorities, public works, and contractual

and non- contractual liability of administrative authorities and public officials.
In Anglo- American countries, administrative law is limited to delegation of rule- making
powers, adjudication of administrative cases, manners and procedures of exercising these
powers, the mechanisms of controlling and the available remedies. It mainly focuses on
control through the courts or judicial review of administrative action by the ordinary
courts. Hence the study of composition and structure of administrative power is not its
primary concern. Wade & Forsyth, commenting on this point have said:
“ An exhaustive account of the structure and functions of government is not necessary in
order to explain the rules of administrative law.” Moreover, its domain extends only when
public officials exercise powers and discharge duties, which are in the nature of public
power and statutory duties. In other words, administrative actions which are a private law
nature meaning relations arising out of contract by administrative authorities and their
extra- contractual liability falls outside the scope of administrative law.

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