Administrative vs. Judicial Courts

The division between administrative and judicial courts represents more than organizational convenience—it embodies different conceptions of law, state, and justice.

Historical Origins

The separation stems from revolutionary-era distrust:

Separation of Powers: Revolutionaries interpreted Montesquieu as prohibiting judicial review of executive actions, viewing this as judicial interference in administration.

Law of 16-24 August 1790: Formally prohibited ordinary courts from reviewing administrative acts, establishing the principle that "judging the administration is still administering."

Napoleonic Consolidation: The Council of State's creation in 1799 institutionalized separate administrative justice, initially as part of the executive before evolving toward independence.

Philosophical Differences

The two court systems embody different legal philosophies:

Private vs. Public Interest: - Ordinary courts balance competing private rights - Administrative courts weigh individual rights against public interest

Legal Sources: - Ordinary courts apply civil and criminal codes - Administrative courts developed autonomous administrative law principles

Remedial Approaches: - Ordinary courts focus on compensation and punishment - Administrative courts can annul government actions and order administration to act

Procedure: - Ordinary courts follow adversarial procedures - Administrative courts use more inquisitorial methods with judges actively investigating

Jurisdictional Boundaries

Determining proper jurisdiction can be complex:

Administrative Jurisdiction includes: - Acts of public authorities exercising governmental power - Public service management (with exceptions) - Public works damages - Administrative contracts

Judicial Jurisdiction covers: - Disputes between private parties - Criminal matters (even involving public officials) - Personal status and capacity - Private property (with exceptions) - Commercial activities (even by public entities)

Grey Areas: Many situations require careful analysis: - Mixed contracts involving public and private elements - Damages from public services operating under private law - Actions by private entities exercising public functions

Convergence and Divergence

Despite separation, the systems show both convergence and persistent differences:

Convergence: - Both apply European law and constitutional principles - Procedural rights increasingly align - Cross-fertilization of jurisprudence

Persistent Differences: - Administrative courts remain more protective of administration discretion - Ordinary courts apply stricter evidence rules - Remedies differ significantly - Professional cultures remain distinct