Common Law Control Compared with the French System
Chapter Fifteen
Syllabus topic 1, "Concepts and Agencies"
Pages 45 to 47 of 430
In one line
The common law controls the administration through the ordinary courts using ordinary law; France controls it through separate courts using special law; both control it, and they trade different advantages.
In the wording a student can write in an exam: judicial control over the administrative process in common law countries is exercised by the ordinary courts, on the basis of the same law that governs private persons, through the prerogative writs and their statutory successors; in France it is exercised by a separate hierarchy of administrative courts headed by the Conseil d'Etat, applying a distinct body of judge-made administrative law developed for the purpose.
MU's question
The University has set the comparison twice as a whole question, once as how judicial control in common law countries differs from the French system, and once as an evaluation of the relevance of the French system of administrative adjudication in comparison with the common law model. What follows is the comparison, and then the evaluation, because the second question asks for a judgment and not only a table.
The comparison, row by row
| Common law model, England and India | French model | |
|---|---|---|
| Which court | The ordinary courts; in India the High Courts and the Supreme Court | A separate administrative jurisdiction: tribunaux administratifs, cours administratives d'appel, Conseil d'Etat |
| Which law | The ordinary law, supplemented by judge-made public law principles | A distinct body of administrative law, judge-made by the Conseil d'Etat |
| Who judges | Career judges, generalists | Members trained and employed as administrators, moving in and out of the service |
| The action | The prerogative writs, and in India a petition under Articles 226 and 32 | The recours pour exces de pouvoir, and the recours de pleine juridiction |
| Standing | Traditionally a person aggrieved, relaxed in India through public interest litigation | Any person with an interest, historically wide |
| What the court can do | Quash, prohibit, command, declare; ordinarily it remits rather than substitutes | Annul with effect against everybody; in plein contentieux it substitutes and awards damages |
| Damages | A separate civil suit on ordinary tort principles, subject to what survives of sovereign immunity | Before the same administrative courts, on special principles including liability without fault |
| Cost and formality | Advocates, court fees, formal pleadings | Cheap, written, no advocate necessary |
| Preventive control | None; the court acts after the decision | The advisory sections vet decrees and bills before they are made |
The four differences that carry the marks
One, the separation of jurisdictions. This is the difference from which all the others follow. France separated administration from justice in 1790 and has policed the boundary through the Tribunal des Conflits ever since. The common law never separated them, which is why an English judge who decides a contract in the morning quashes a licensing decision in the afternoon.
Common Law Control Compared with the French System
Two, the source of the law. The common law started from the position that the State is subject to the same law as everybody else, and had to build public law principles inside a private law framework, which is why English administrative law took so long and why sovereign immunity survived so long. The French started from a special law and built it deliberately.
Three, the remedy. A writ court quashes and remits; it does not decide what the licence fee should be. The French court in plein contentieux does. That is the strongest argument in favour of the French system for a citizen who wants an answer rather than a fresh hearing.
Four, prevention. The Conseil d'Etat sees an instrument before it is made. No common law court does, and the nearest Indian equivalent is a scrutiny committee of the legislature, which is dealt with in [Legislative Control: Laying and the Scrutiny Committees].
The evaluation MU's most recent paper asks for
In favour of the French model. It is cheap and accessible. It gives a complete remedy including damages in one proceeding. Its judges understand administration. Its liability law is more generous to the citizen. Its advisory control prevents illegality instead of curing it.
In favour of the common law model. Its judges are visibly independent of the administration they judge, which matters for public confidence. It applies one law to the State and the citizen alike, which is a moral position and not merely a technical one. It has no boundary problem, so a litigant never loses two years discovering which system he should have gone to. And in India it is entrenched: judicial review by the constitutional courts cannot be taken away, which no French rule guarantees.
Where India actually stands. India is a common law system with a large French-looking overlay. It has tribunals which are separate adjudicators for whole classes of dispute, but they sit under the High Courts rather than beside them. It has borrowed proportionality, which is a continental technique. It has developed public law compensation in Rudul Sah v. State of Bihar, AIR 1983 SC 1086, which does in a writ petition what a French court does in plein contentieux. And it has kept the single hierarchy of courts, which is the one thing Dicey was right to value.
A worked example
A customs officer confiscates goods and imposes a penalty, wrongly construing the licence under which they were imported.
In France. One action, before the administrative tribunal, to annul for violation de la loi, and if the trader wants his losses he adds a claim in the same jurisdiction. He needs no advocate and pays very little.
Common Law Control Compared with the French System
In India. A statutory appeal first, because of the alternative remedy rule. If that fails, a writ petition under Article 226, where the ground is a jurisdictional error of the kind found in Union of India v. Tarachand Gupta and Bros., AIR 1971 SC 1558. Quashing is what he gets; for damages he must file a civil suit and prove a tort.
What this does NOT mean
It does not mean one system is better. MU asks for an evaluation, and an evaluation that ends in an unqualified verdict is usually a weak one.
It does not mean England has no administrative courts. It has an Administrative Court within the High Court and a large tribunal system, but those are parts of the ordinary judicature.
It does not mean India could adopt the French system by legislation. After L. Chandra Kumar the High Courts' supervisory jurisdiction is part of the basic structure, so a wholly separate administrative jurisdiction closed to them is not open to Parliament.
Quick revision
The common law controls the administration through ordinary courts, ordinary law, career judges, the writs, quashing and a separate suit for damages. France controls it through separate courts, special judge-made law, administrator-judges, the recours pour exces de pouvoir, annulment against everybody, and damages in the same proceeding, with advisory vetting before instruments are made. The French system is cheaper, more complete and preventive; the common law system is visibly independent, applies one law to all, has no boundary problem, and in India is constitutionally entrenched.
Test yourself
1. Give the single institutional difference from which the others follow. The separation of administrative from judicial authority in France, effected in 1790 and policed by the Tribunal des Conflits.
2. Why can a French court give a complete remedy where an Indian writ court often cannot? Because in plein contentieux it may substitute its own decision and award damages, whereas a writ court quashes and remits, leaving damages to a separate civil suit.
3. Could India adopt a separate administrative jurisdiction closed to the High Courts? No. The supervisory jurisdiction of the High Courts under Articles 226 and 227 is part of the basic structure: L. Chandra Kumar.
The rest of this subject
These notes are cut from the University's printed syllabus. Open the syllabus itself, or the past papers, for the same subject.