Renato Saeger Magalhães Costa: Substantive Values in Administrative Law – A Principle of ‘Jurisdicity’ to Complement the Principle of Legality

The implications of executive involvement in all aspects of modern life (from fixing local potholes to regulating national activities) led in Australia to the idea of the ‘new administrative law’ in the 1970s. The new administrative law aimed to respond to the breadth and depth of executive decision making by guaranteeing better processes in disputes arising from administrative matters.

The new administrative law was responding in part to the modernisation of the state and the proliferation and acceleration of administrative decision making. In this context, executive powers could be administered more quickly (and strategically) in a broader array of circumstances and contexts. Importantly, the new breadth and flexibility in modern administrative powers did not remove the need for all executive action and decision making to be tied positively to a legal source of power. However, as will now be seen, the way in which this requirement for legality has been expressed in common law countries is much narrower, and less rich, than in civil law countries.

In Australia, for example, the principle of legality is a tool of statutory interpretation rather than a free-standing common law principle. There, the principle of legality means that a statutory authorisation of executive action will only extend to curtail individual rights if it says so particularly clearly. As famously expressed by Kourakis CJ in L v South Australia, ‘the principle of legality operates as a rule of statutory construction and is not a free-standing substantive common law rule limiting the power of all administrative decision makers unless Parliament provides to the contrary’.

This is a very different understanding from the continental, civil law tradition, which conceives of the principle of legality in both a negative and a positive sense.

Traditionally, and especially for those in the French droit administratif school, there are two dimensions to the principle of legality. The first, commonly called negative legality, allows for any action to be undertaken so long as there is no law prohibiting that particular conduct. It is negative because it involves acting only when no restriction is imposed upon such an action. In other words, ‘everything is legal, except what is prohibited’. The second dimension, that of positive legality, dictates that an action can only be undertaken if the law has previously authorised it. Action outside the prescription of the (positive) law is automatically illegal. Usually, the application of the principle of legality in its negative or positive senses will depend on the character of the legal actor, that is, the person taking action. To the individual citizen (or, let us say, to the people), the negative sense of legality is applied: they are legally authorised to do everything that is not prohibited by the law. To the state, government institutions, and individuals acting as public officials, however, the positive sense of legality applies. In this sense, an executive body can only do what the law has expressly authorised it to do.

This admittedly broad-brushstrokes distinction between the positive and negative senses of legality holds in most countries, but especially those following a civil law tradition.

However, civil law systems have developed complex and robust checks on administrative action in contrast to the mostly lean principle of legality that operates in common law jurisdictions. In such civil law jurisdictions, modern administrative action demanded the conceptualisation of an entirely different administrative law principle to that of legality.

The French refer to it as the bloc de la légalité. The expression was conceived by Maurice Hauriou, Précis Élémentaire de Droit Administratif (5th ed, 1943) 230.

I call it the principle of ‘jurisdicity’. This is the word used by Spanish and Portuguese speaking scholars. For a summary, see my chapter on the conflict between the principles of legality and efficiency in the Brazilian scenario: Renato S. M. Costa, ‘Legalidade e Eficiência: O Aparente Conflito no Exercício do Controle Externo Brasileiro’ in Renato S. M. Costa and Juarez Freitas (eds), Direito Público: Grandes Temas (Juruá, 2017) 161-176.

While the principle of legality is commonly expressed in its strict and rigorous sense, implying that the exercise of executive powers must be exclusively subjected to the positive law, jurisdicityencompasses a wider range of areas that should be considered by the executive before it takes action. The underlying idea behind the principle of jurisdicity is its attention to the positive law as enacted by Parliament in reference to the principles that pervade the heterogenous areas in which the executive operates. The principle of jurisdicity directs administrative action to consider not only the legal boundaries but a plethora of interdisciplinary values related to the situation it is facing.

That is why it is known as the ‘block’ of legality in its French iteration; because it contains in itself a whole ‘block’ of principles that add to the meaning of legality. The principle of jurisdicity (bloc de la légalité) allows for executive actions to be aligned with values beyond (but not apart from) what is established by positive, statutory laws (la loi) but assume into its conception the dictates of law in its broader sense (le droit). Some principles encompassed by jurisdicity are justice, proportionality, economy, good governance, reasonability, impartiality, fairness, transparency, ethics, finality, rationality, and accountability. Interestingly, similar values have been recognised – both by government and judges – to underlie administrative law in common law countries, albeit they have not found the language of jurisdicity. For example, in Australia, the ARC (Australian Review Council), for example, has expressed at least five core values that ought to underpin administrative law: lawfulness, fairness, rationality, openness, and efficiency. These are all integral to the concept of jurisdicity and, arguably, beyond the scope of the principle of legality.

The principle of jurisdicity incorporates societal values, principles and objectives by submitting the exercise of executive powers not only to the scrutiny of the (constitutional, statutory or common) law, but to the fundamental, normative precepts that direct the whole of the social structure. Jurisdicity is, or should be, an essential idea of modern administrative law. It enhances the performance of executive powers without losing sight of the need for accountability. It forces executive action to be more adaptable to new and distinct circumstances while also compelling it to respect normative dictates beyond those required by the positive law. It is thus important that we separate these two most important concepts in administrative law; the time has come to call legality legality and jurisdicity jurisdicity.

Renato Saeger Magalhães Costa is a casual academic, PhD candidate, and RTP scholar at TC Beirne School of Law, the University of Queensland, Australia.

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