The Continental System of Administrative Legality

In continental Europe, until the last quarter of the twentieth century public administration studies were developed in most countries by scholars who had received their main education in law, and by legal practitioners of public administration.1 For the large part, public administration studies have been primarily a by-product of administrative law. Even Max Weber,2 the founder of sociology of administration, had been educated as a lawyer before becoming interested in economics and in sociology. This tradition contributes a great deal to a somewhat misleading perception of a homogeneous system of law relating to continental European public administration — as opposed to an Anglo-American system that would derive its features from common law heritage. A closer look at different countries would reveal a lot of common features between a number of European continental countries and the United States, other similarities between some European continental countries and the United Kingdom, and a lot of important differences between one European continental country and another. The purpose of this chapter is to describe and explain the role of law in the structure and functioning of public administrations across the Western part of continental Europe, taking into account the weight of two historically dominant models: the French principe de légalité and the German Rechtsstaat idea.

The German and French Models

The two main models of contemporary European continental public administration were developed in Prussia during the eighteenth century and in France at the turn of the nineteenth century, mainly during the time of Napoleon.3 Whereas the Prussian model had an early influence on the Austrian administration, the attraction of the Napoleonic model has also been important for both countries, as well as for the Netherlands -and thus consequently for Belgium and Luxembourg — Italy and Spain. Only Sweden and Switzerland have kept an administrative system with structures very different from the rest of Western Europe, but with a strong role of law, as on the rest of the Continent.4 As far as the role of law is concerned, the Prussian tradition of the Rechtsstaat and the French tradition of the principe de légalité both explain the importance of law for public administration.

The idea of the Rechtsstaat - literally ‘the legal state’, but usually translated in Europe by ‘Rule of law’ — was developed mainly during the nineteenth century by German writers,5 as opposed to the Poliziestaat - police state. The latter corresponded to autocratic absolute monarchy. The Rechtsstaat idea has its roots in the Siècle des Lumières philosophy that influenced the Prussian enlightened despotism throughout the eighteenth century. In outline, the main feature of the Rechtsstaat idea is that a sovereign has to be bound by the rules they have made and which have to be stable, known by their subjects and applied in a fair manner to all of them by politically neutral judges and administrators. Until the twentieth century the idea of Rechtsstaat was centred on legal formalism as a safeguard for a fair social order and was closely linked with the existence of a bureaucratic apparatus as the main guarantee of the functioning of the system. It was therefore quite appealing to the European monarchies that had not yet been transformed into [Page 261]parliamentary regimes, mainly the German countries and, during its most enlightened periods, the Austro-Hungarian Empire. It also influenced Nordic countries and to a limited extent the Netherlands. The Nazi period and the perversion of German legal traditions that it fostered — with the help of renowned lawyers and academics like Carl Schmitt6 — led to a deep transformation of the Rechtsstaat idea after the Second World War. Beyond legal formalism, which remains important in the perspective of procedural guarantees to the citizen, it now incorporates a very solid constitutional protection of human rights and non-discrimination, and above all the dignity of human beings. It relies on a sophisticated system of judicial protection centred upon a constitutional court -the model of which had already been developed in Austria in 1920 under the influence of Hans Kelsen.7 This revived concept of the Rechtsstaat has had a growing influence in Europe, having met with developments of much the same kind in Italy as a reaction to the fascist period. German constitutional law has become a major source of inspiration in the transition to democracy in Europe, first for former autocratic regimes — Greece and Portugal after 1974 and Spain after 1976 — then for former communist countries after 1989.

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