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distinguish it from Constitutional law

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EXPLAIN THE NATURE AND SCOPES OF

ADMINISTRATIVE LAW AND DISTINGUISH IT
FROM CONSTITUTIONAL LAW

Explain the nature and scopes of Administrative law and distinguish it from Constitutional law.

Introduction

In 1986, Norfolk County Council created a route for road by-pass. As a consequence, a house previously
valued at some £400,000 was destroyed and rendered valueless. The Council refused to buy the house on
the basis that its acquisition was not necessary for the construction of the by-pass. The Secretary of State for
Transport approved the by-pass scheme (David Stott, 1997). This decision taken by the council affected what
would normally be regarded as fundamental rights or freedoms that is property right. This situation takes
account of an exercise of power conferred by law but the question is that whether the decision maker had
failed to act according to law in the sense of either having positively exceeded the mark of his or her legal
authority or having negatively failed to exercise a power when the law intended it to be exercised. This type of
issue gives us an idea about what administrative law is about, which is the legal regulation of exercising
governmental power.

The nature of administrative law is concerned with safeguarding that public decision-makers act within the
law and are, on this basis, accountable before the law, its development is due largely to a desire on the part
of the courts to restore the balance of power and to safeguard the rights and interests of citizens.
Administrative law is also concerned about ensuring there will be an element of fairness operating in public
decision making and generally ensuring proper administration. This is not only for the advantage of the
individual citizen but it is for the advantage of government also.

The purpose of this writing is to discuss the nature and scopes of Administrative law and to find out how it
can be differentiated from Constitutional law
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2/4/2019 The Lawyers & Jurists 1 Explain the nature and scopes of Administrative law and distinguish it from Constitutional law
can be differentiated from Constitutional law.
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Definition of Administrative Law

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AdministrativeCONTACT
law dealsUS WEBMAIL
with the legal control of government and related administrative powers. In other
words, we can define administrative law as the body of rules and regulations and orders and decisions
created by administrative agencies of government. ADVANCED SEARCH 

Administrative law is part of the branch of law commonly referred to as public law, the (HTTPS://WWW.LAWYERSNJURIST
law which regulates the
relationship between the citizen and the state and which involves the exercise of state power. So, it is a part
of the legal framework for public administration. Public administration is the day-to-day implementation of
public policy and public programs in areas as diverse as immigration, social welfare, defense, and economic
regulation—indeed in all areas of social and economic life in which public programs operate.

Administrative law consists of complaints respecting government action that adversely affects an individual.
Thus, administrative law involves determining the legality of government actions. There is a two-fold analysis:
the legality of the specific law itself and the legality of particular acts purportedly authorized by the specific
law.

Governments cannot perform any act by itself. Governments act through government officials who must act
within certain limitations. A government’s power to act comes from legislation. Thus, government officials
must act within the parameters (or scope) of such legislation which give their actions lawful authority. These
are lawful actions. If government officials act outside the scope of their lawful authority and individuals are
affected by these acts, then the principles of administrative law provide individuals with the ability to seek
judicial review of the administrative action and possible remedies for the wrongful acts.

Nature and Scopes of Administrative Law

Administrative law determines the organization, powers and duties of administrative authorities. The
emphasis of Administrative Law is on procedures for formal judgment based on the principles of Natural
Justice and for rule making. Administrative law also determines the nature and scope of the powers
deliberated to the government official by the specific legislation. Through legislation, the Parliament delegate
specific powers as well as duties to government officials to enable them to act on behalf of the government.

The concept of Administrative Law is founded on the following principles:

a) Power is conferred on the administration by law

b) No power is absolute or uncontrolled howsoever broad the nature of the same might be.

c) There should be reasonable restrictions on exercise of such powers depending on the situation.

The Administrative law deals with the structure, functions and powers of the Administrative structures. It also
lays down the methods and procedures which are to be followed by them during the course of remedies
which are available to the persons whose rights and other freedoms are damaged by their operations.
Administrative law specifies the rights and liabilities of private individuals in their dealings with public officials
and also specifies the procedures by which those rights and liabilities can be enforced by those private
individuals. It provides accountability and responsibility in the administrative functioning. Also there are
specified laws and rules and regulations that guide and direct the internal administration relations like
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2/4/2019 The Lawyers & Jurists 1 Explain the nature and scopes of Administrative law and distinguish it from Constitutional law

hierarchy, division of labor etc.

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General Principles of Administrative Law
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In the administrative law context, the first step is to determine the legal validity or authority of the action by
the government official. This involves looking at the basis of the legal authority to act, that is, the specific law
ADVANCED SEARCH 
that gives that administrator the lawful authority to act. Constitutional law essentially deals with who has the
ability to make laws. Administrative law deals with the government officials who have been empowered by
(HTTPS://WWW.LAWYERSNJURIST
these laws to act. Therefore, there is a close relationship between constitutional and administrative law.
Specifically, if the law that empowered the government official to act was itself found to be unconstitutional,
and therefore invalid, then any actions by the government official under that law will also be invalid.
Consequently, this may result in a legal remedy for an individual adversely affected by this action.

The Rule of Law

It is based on the concept of rule of law that supports Natural Justice, i.e. to judge based on impartiality,
unjustness and the prescribed laws and legal methods instead of arbitrariness and abuse of official power on
the part of govt. while serving the people and deciding cases brought before its Tribunals etc. Natural justice
is basically applied in cases where there are no laws prescribed, here the individual has to be given an
opportunity to be heard and the judgment is to be taken into consideration the particular facts and cases of
the case and the judgment should be free from bias. It is to prevent violation of people’s rights by officials in
power. One of the best-known definitions of rule of law is that of Professor A V Dicey contained in his famous
book The Law of the Constitution. He considered that the Rule of Law requires the recognition of the
predominance of the regular law (as opposed to arbitrary or wide discretionary powers), equality before the
law and that the constitution is the product of the ordinary law.[2] In essence, therefore, the Rule of Law
requires that there should be government according to law and an avoidance of arbitrary action.

Dicey’s Rule of Law depends on the capacity of the court to control abuses of administrative power. That the
courts are incapable of undertaking this control function is seen in the fact that not all administrative action is
contained in statute amenable to judicial interpretation. Increasingly, administrative functions are dissipated,
particularly with the development of privatization. In this and many other governmental contexts some
functions are carried out by means of contracts governed, not by public, administrative law, but by the private
law of contract. Even if Dicey’s Rule of Law depended on the supremacy and sovereignty of Parliament, there
would be an important question about Parliament’s capacity to control the executive. For so many different
purposes the reality is that the executive government of the day influences and controls Parliament.

Delegation of Powers

Delegation of powers from the legislators to administrators is necessary given the great importance of the
business of government. Due to the volume of decisions required, it is not possible for the Parliament to
decide all issues in a country. Another important reason for the delegation of powers is that laws by their very
nature need to be broad since the wording of laws cannot encompass all specific and often changing
circumstances that occur. Thus, the application of the law may require some aspect of discretion in order to
apply to specific circumstances, and the laws themselves must set out criteria for the application of such
discretion to ensure fairness and consistency. Almost all laws passed by Parliament identify specific powers
and duties for various government entities or officials such as a cabinet, a specific minister or civil servant, or
a judge. Given the grave importance of the delegation of powers, Parliament has developed control
guidelines for their own delegation of powers to administrators.

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2/4/2019 The Lawyers & Jurists 1 Explain the nature and scopes of Administrative law and distinguish it from Constitutional law

Characterization
HOME ABOUT US of Powers
OUR and Sub-Delegation
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Characterization of the function of the legislative powers enables the determination of the scope of these
GALLERY CONTACT
powers and the US grant,
duties they WEBMAIL
and the procedures the delegate is required to follow to lawfully exercise
these powers. In turn, this determines the available remedies in court if the impugned act is found to be
unlawful. ADVANCED SEARCH 

Powers can be characterized as (HTTPS://WWW.LAWYERSNJURIST

• Legislative

• Judicial (or quasi-judicial) or

• Administrative (or executive)

If the delegated power is legislative or judicial in nature, the general rule in administrative law is that such
powers must be exercised by the specific person identified in the legislation. Such a person (government
official) is prohibited from sub-delegating these powers and duties to another person. By contrast, powers
characterized as administrative can be sub-delegated.

Characterization of Duties and Discretionary Powers

Another important principle of administrative law distinguishes between delegated powers that are duties that
the delegate must perform and delegated powers that are discretionary in nature. Some powers are broadly
set out in the legislation with some discretionary aspects to enable the delegate to apply the broad principle
to specific circumstances. The rationale behind such discretionary powers includes the difficulty of providing a
general rule that would apply to all circumstances; the difficulty in anticipating all possible factors for all
situations; and the difficulty in ascribing weight of all factors in a broad legislation. Discretionary powers
generally constitute either the delegate being authorized to exercise discretion on an ad hoc basis or the
delegate being authorized to enact “subordinate legislation” to govern specific types of cases. Examples of
subordinate legislation include regulations, codes, and bylaws. In administrative law, it is important to
determine the scope of discretion of delegates in order to examine the validity of their acts, especially given
that discretionary powers are generally granted within specific limits.

Administrative Boards or Tribunals

Federal and provincial laws have expressly created administrative boards or tribunals as decision-making
bodies for a variety of areas. The underlying rationale is to make the governmental decision-making process
more efficient and accessible to the general public. The checks and balances for these decision-making
bodies are provided by the provincial superior courts who oversee them by providing judicial review of the
administrative actions of the boards and tribunals.

Administrative Remedies

In reviewing the legality of an impugned act, if a court determines that the act was ultra virus, it has the
following remedies available: declarations; injunctions; damages; statutory appeals to a court or another
administrative body; or prerogative remedies.

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2/4/2019 The Lawyers & Jurists 1 Explain the nature and scopes of Administrative law and distinguish it from Constitutional law

Constitutional Law
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Constitutional law is the body of law which defines the relationship of different entities within a state, namely,
the executive,CONTACT
GALLERY the legislature,
US and the judiciary. Constitutional law can be defined as the written text of the
WEBMAIL
state and federal constitutions. The bodies of judicial precedent that has gradually developed through a
process in which courts interpret, apply, and explain the meaning of particular constitutional provisions and
ADVANCED SEARCH 
principles during a legal proceeding.

(HTTPS://WWW.LAWYERSNJURIST
The text of the U.S. Constitution is marked by four characteristics: a delegation of power, in which the duties
and prerogatives of the executive, legislative, and judicial branches are delineated by express constitutional
provisions; a Separation of Powers, in which the responsibilities of government are divided and shared
among the coordinate branches; a reservation of power, in which the sovereignty of the federal government is
qualified by the sovereignty reserved to the state governments; and a limitation of power, in which the
prerogatives of the three branches of government are restricted by constitutionally enumerated individual
rights, Unremunerated Rights derived from sources outside the text of the Constitution, and other constraints
inherent in a democratic system where the ultimate source of authority for government action is the consent
of the people.

In deciding their cases, courts look to these constitutional provisions and principles for guidance. Once a
court has interpreted a constitutional provision in a certain fashion, it becomes a precedent. Under the
doctrine of Stare Decisis, the judicial branch is required to adhere to existing precedent in all future cases
presenting analogous factual and legal circumstances, unless it has a compelling reason for deviating from
the precedent or overruling it. A state or federal law is said to be constitutional when it is consistent with the
text of a constitutional provision and any relevant judicial interpretations. A law that is inconsistent with either
the written text or judicial interpretation of a constitutional provision is unconstitutional.

Distinguishing Administrative & Constitutional Law

Sometimes, a question is asked as to whether there is any distinction between constitutional law and
administrative law. Till recently, the subject of administrative law was dealt with and discussed in the books of
constitutional law and no separate and independent treatment was given to it. In many definitions of
administrative law, it was included in constitutional law.

The relationship between constitutional and administrative law is complex. In general, written constitutions
tend to say relatively little about the administrative state. General due process type considerations may apply
particularly to administrative agencies.[3] More directly, of course, constitutions control the administrative
state through founding the structures of government, providing chains of accountability and democratic
legitimacy for the decisions of administrative.

Though in essence constitutional law does not differ from administrative law inasmuch as both are concerned
with functions of the government and both are a part of public law in the modern State and the sources of
both are the same and they are thus inter-related and complementary to each other belonging to one and the
same family. Strict differentiation, therefore, is not possible, yet there is a distinction between the two.
According to Maitland, while constitutional law deals with structure and the broader rules which regulate the
functions, the details of the functions are left to administrative law.

The orthodox understanding is that the fields of constitutional and administrative law share similar purposes
of protection of rights, control of agency costs, and limitation of government. The primary difference, in this
view concerns their place in the hierarchy of public law: constitutional law regulates the highest norms of the
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2/4/2019 The Lawyers & Jurists 1 Explain the nature and scopes of Administrative law and distinguish it from Constitutional law
view, concerns their place in the hierarchy of public law: constitutional law regulates the highest norms of the
state, while
HOME administrative
ABOUT US law LAWYERS
OUR rules sub?legislative action, somewhat
OUR SERVICES OURlower in the hierarchy
CLIENTS CAREER of sources.


According to Hood Phillips, “Constitutional law is concerned with the organization and functions of
GALLERY
Government CONTACT US administrative
at rest whilst WEBMAIL law is concerned with that organization and those functions in
motion.”[4] But the opinion of English and American authors is that the distinction between constitutional law
and administrative law is one of degree, convenience and custom rather than that of ADVANCED
logic and SEARCH
principle. It is
not essential and fundamental in character. Keith Rightly remarks: “It is logically impossible to distinguish
administrative law from constitutional law and all attempts to do so are artificial.”[5](HTTPS://WWW.LAWYERSNJURIST
According to Maitland,
while constitutional law deals with structure and the broader rules which regulate the functions, the details of
the functions are left to the administrative law. So, constitutional law deals with the general principles relating
to the organization and power of the legislature, executive and judiciary and their functions inter se and
towards the citizen, administrative law is that part of constitutional law which deals in detail with the powers
and functions of the administrative authorities, including civil services, public departments, local authorities
and other statutory bodies. At the end, constitutional law is concerned with constitutional status of ministers
and civil servants; administrative law is concerned with the organization of the service and the proper working
of various departments of the government.

A table of distinguishable features of both administrative and constitutional law is provided below.

Constitutional Law

1. Constitutional law is its own kind.

2. Constitutional law deals with various departments of the state.

3. It deals with the structure of the state.

4. It is the highest law.

5. It gives the guidelines with regard to the general principles relating to organization and powers of organs of
the state, and their relations between citizens and towards the state. It touches almost all branches of laws in
the country.

6. It also gives the guidelines about the international relations.

Administrative Law

1. Administrative law is a species of constitutional law.

2. It deals with those organs as in motion.

3. It deals with the functions of the state.

4. It is subordinate to constitutional law.

5. It deals in details with the powers and functions of administrative authorities.

6. It does not deal with international law. It deals exclusively the powers and functions of administrative
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2/4/2019 The Lawyers & Jurists 1 Explain the nature and scopes of Administrative law and distinguish it from Constitutional law
6 t does ot dea t te at o a a t dea s e c us e y t e po e s a d u ct o s o ad st at e
authorities.
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Conclusion
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Although the relationship between constitutional law and administrative law is not very distinct to be seen with
bare eyes but the fact remains that related points are neither so blurred that one has to look preciously with a
ADVANCED SEARCH
magnifier to locate the relationship. The aforementioned validities and illustrations provide a clear evidence to
establish an essential relationship between the fundamentals of both the concepts. If doubts still remains, the
(HTTPS://WWW.LAWYERSNJURIST
very fact that each author, without the exception of a single, tends to differentiate between the two branches
of law commands the hypothecation of a huge intersection.

References

1. Stott, D. Principles of Administrative Law (1997)

2. Hawke, N. and Parpworth, N. Introduction to Administrative Law (1998)

3. wordnetweb.princeton.edu/perl/webwn

4. Stott, D. Principles of Administrative Law (1997)

5. Cane, P. Administrative Law (1996)

6. Administrative Law: The Basics, Connie L. Mah, accessed from http://www.lawnow.org

7. Dicey, A. V. The Law of the Constitution (1985)

8. Ginsburg, T. On the Constitutional Character of Administrative Law, accessed from

http://www.law.yale.edu/documents/pdf/CompAdminLaw/Tom_Ginsburg_CompAdLaw_paper.pdf

9. Phillips, O.H. Constitutional and Administrative Law (1962)

10. The Indian Journal of Public Administration, Volume 33, Published by The Institute (1987)

[1] Hawke, N. and Parpworth, N. Introduction to Administrative Law (1998)

[2] Dicey, A. V. The Law of the Constitution (1985)

[3] Ginsburg, T. On the Constitutional Character of Administrative Law, accessed from

http://www.law.yale.edu/documents/pdf/CompAdminLaw/Tom_Ginsburg_CompAdLaw_paper.pdf

[4] Phillips, O.H. Constitutional and Administrative Law (1962)

[5] The Indian Journal of Public Administration, Volume 33, Published by The Institute (1987)

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