Mr. FRANK L.

AKYOO
 General Readings:
✓ Wade, Administrative Law, Chapter One
✓ Kessari, Administrative law, chapter one
✓ Foulkes, Administrative Law, Chapter One Garner,
Administrative Law, pp. 1-12
✓ Jain, A Treatise on Administrative law, Chapter One
✓ Chakraverti, Administrative Law, & Tribunals, Chapter
One
✓ Friedmann, The Rule of Law and the Welfare State
✓ CHIPETA, CONSTITUTIONAL LAW AND LEGAL SYSTEM
 In this topic we look on background
information about the political and economic
forces shaping the evolution and development
of administrative law.

 How and why administrative law was

recognized and later developed as a distinct
branch of law is discussed under this topic
 Then, the discussion on the meaning, sources,
scope and theories of administrative law
follows, whereas, different definitions of
administrative law given by different
scholars are compared and contrasted
 The second section compares and contrasts
administrative law with other concepts and
disciplines. It mainly analyzes administrative law
as influencing and influenced by concepts like rule
of law, good governance and human rights,

 as administrative law was born out of constitutional

law, analyzing their close relationship and
determining their differences and similarities of
these two subjects is relevant and necessary. It is
difficult to study and understand administrative law
without reference to its constitutional roots
 This section outlines the interdependence between
constitutional and administrative
law. It further, provides for the nature, form and
scope of administrative law.

 The last part of this chapter briefly summarizes

the historical development of administrative law as
new legal phenomena at a global level and in Tanzania.
 At the end of this topic the following are expected to
be achieved:
1. Analyze the economic and political circumstances
which shaped the evolution and development of
administrative law.
2. Define administrative law
3. Understand clearly the basic purpose of
administrative law and analyze the way such
purpose is attained.
4. Explain the place of administrative law in ensuring
rule of law and enforcement of human right.
5. Describe the similarity, difference and
interdependence between administrative law and
constitutional law.
 In order to understand the nature of
administrative law, looking at the political and
economic circumstances that led to its creation
is of essence.

 Let‘s begin our inquiry by asking the

following preliminary questions?
What is the meaning of the
following terms?
A) laissez faire
B) police state
C) welfare state
D) power
E) administration
Compare the police state‘ and the welfare state‘ in light of the following
points and list down the differences.

A. The role of government

B. The underlying political philosophy

C. Individual liberty and freedom

D. Extent of power of the government (extent of governmental interference)

 The change in the role of government and thereby the
transformation of the ‘police state’ to the ‘welfare state’
has necessitated the need for conferring more power
on the administration and simultaneously the need for
controlling this power.

 The increasing growth of these two directions, i.e. power

vs. control, their conflict and struggle somehow reflect
the growth of the administrative law.
 Administrative law is the by- product of the growing of socio-
economic functions of the state and the increased powers of the
government.

 Power has become very necessary in the developed society and

the relationship of the administrative authorities has become
very complex.

 In order to regulate these complex relations, some law is

necessary, which may bring about regularity, certainty and may
check at the same time the misuse of power vested in the
administration.
 In the ancient society the functions of the state
were very few, the prominent among them
being protection from foreign invasion,
levying of taxes and maintenance of internal
peace and order.
 The theory of laissez faire in the 19th century envisages
minimum government control, maximum free
enterprise and contractual freedom. The state was
characterized as the law and order state.

 Its role was limited to the traditional role of government

i.e. as a protector. The management of social and economic
life was not regarded as government responsibility. But
laissez faire doctrine resulted in human misery.
 The unequal bargaining power between labour and
management resulted in exploitation of workers, dangerous
conditions of work and child labour. This ultimately led to
the spread of poverty and the concentration of wealth in a
few hands.

 Then it came to be recognized that the state should take

active role in ameliorating the conditions of power. This
approach gave rise to the favoured state intervention,
social control and regulation of individual enterprise.
 The negative state‘ was then forced to assume a positive role.
In course of time, out of dogma of collectivism emerged the
concept of ―social welfare state- which laid emphasis on
the role of the state as a vehicle of socio- economic-
regeneration and welfare of the state.

 Thus, the growth of the administrative law is to be attributed

to a change of philosophy as to the role and function of the
state.
 The characteristics of a modern welfare state in
which we line in may be summarized as:

i. A vast increase in the range and detail of

government regulation of privately owned
economic enterprise;

ii. The direct furnishing of services by government

to individual members of the community, and

iii. Increased government ownership and operation of

industries and businesses.
 The welfare state in effectively carrying out these vast functions
to attain socio - economic justice, inevitability will come in
direct relationship and encounter with the private citizens.

 Therefore, the attainment of socio economic justice, being a

conscious goal of state policy, is a vast and inevitable increase in
the frequency with which ordinary citizens come into relationship
of direct encounter with state power holders.

 Striking a balance and bringing about harmony between power

and justice is the central mission of the administrative law.
 It is clear that political and economic circumstances brought about the
existence of administrative law. Administrative law was created as an
instrument to control the ever- expanding governmental power. As Acton
once said (power corrupts and absolute power corrupts absolutely.‘

 Concentration of power in the hands of public officials, unless regulated and

controlled properly and effectively, always poses a potential danger to the
rights, freedom and liberty of individuals.

 Administrative law was developed as a response to the threats of ‗big

government.‘ In other words as. Massey has put it, administrative law is the
by-product of an intensive form of government.
 Big government or what is referred to, as the welfare state, is the
product of a response to the economic, social and political reality of
the 19th century. The political theory prevalent at the time, i.e.
Laissez faire, failed to solve the economic ills and social evils
which resulted in poverty, ignorance, exploitation and suffering of the
mass. Due to the emphasis given to wider individual freedom,
interference of government was minimal, and its power was limited

 Administrative law was almost non-existent at this time. When

the power of the government is less and limited, the degree of
interaction with the individual is minimal. Hence, the need for
administrative law as a power controlling mechanism becomes
insignificant under these situations.
 The evolution of administrative law goes in a parallel
progressive stage with the transformation of the ‘police
state’ to the ‘welfare state’. The reason for the
transformation was the reason that necessitated
conferring more power on the state.

 The pitfalls, defects and shortcomings of the ‘police

state’ became clear at the end of the 20th century,
specifically after the Second World War. The
suffering, poverty and exploitation of the mass of the
population were sufficient to justify the need to confer
more power on the government.
 With more powers, the government also assumed new roles geared
towards alleviating the social and economic problems and social
evils to bring about development, social justice and equal
distribution of wealth. Administrative law is the response to the
problem of power.

 It unequivocally accepts the need or necessity of power,

simultaneously stressing the need to ensure the exercising of such
power within proper bounds and legal limits. Controlling the exercise
and excesses of power is the essence and mission of the
administrative law.

 There is a great divergence of opinion regarding the
definition of concept of the administrative law

 The is because of the tremendous increase in the

administrative process that it makes impossible to
attempt any precise definition of administrative law
which can cover the entire range of the administrative
process
 However, two important facts should be taken into
account in an attempt of understanding and defining
administrative law.
1. Firstly, administrative law is primarily concerned
with the manner of exercising governmental power.
The decision making process is more important than
the decision itself.

2. Secondly, administrative law cannot fully be defined

without due regard to the functional approach. This is
to mean that the function (purpose) of administrative
law should be the underlying element of any
definition
 The ultimate purpose of administrative law is
controlling exercise of governmental power. The
‘control aspect’ impliedly shades some light on the
other components of its definition.

 Bearing in mind these two factors, let us now try to

analyze some definitions given by scholars and
administrative lawyers.
 Austin has defined administrative law, as the law
which determines the ends and modes to which the
sovereign power shall be exercised.

 In his view, the sovereign power shall be exercised

either directly by the monarch or indirectly by the
subordinate political superiors to whom portions of
those powers are delegated or committed in trust.
 Schwartz has defined administrative law as the law
applicable to those administrative agencies, which possess
delegated legislation and adjudicative authority.‘

 This definition is a narrower one. Among other things, it is

silent as to the control mechanisms and those remedies
available to parties affected by an administrative action.
 Jennings has defined Administrative law as the law relating
to the administration. It determines the organization, powers
and duties of administrative authorities.

 Massey criticizes this definition because it fails to differentiate

administrative and constitutional law. It lays entire emphasis on
the organization, power and duties to the exclusion of the
manner of their exercise. In other words, this definition does
not give due regard to the administrative process, i.e. the
manner of agency decision making, including the rules,
procedures and principles it should comply with.
 Dicey like Jennings with out differencing
administrative law from constitutional law defines it
in the following way.
A. Firstly, it relates to that portion of a nation‘s legal
systems which determines the legal status and
liabilities of all state officials.

B. Secondly, defines the rights and liabilities of private

individuals in their dealings with public officials.

C. Thirdly, specifies the procedures by which those

rights and liabilities are enforced.
 This definition is mainly concerned with one aspect of
administrative law, namely judicial control of public
officials. It should be noted, that the administrative
law, also governs legislative and institutional control
mechanisms of power.

 Dicey‘s definition also limits itself to the study of state

officials. However, in the modern administrative state,
administrative law touches other types of quasi-
administrative agencies like corporations,
commissions, universities and sometimes, even private
domestic organizations
 Davis who represents the American approach defines administrative law as; ―The
law that concerns the powers and procedures of administrative agencies, specially the
law governing judicial review of administrative action.

 The shortcoming of this definition according to, Massey is that it excludes rule -
application or purely administrative power of administrative agencies. However, it
should be remembered that purely administrative functions are not strictly within the
domain of administrative law, just like rule making (legislative) and adjudicative
(judicial) powers.

 Davis‘s definition is indicative of the approach towards administrative law, which lays
great emphasis on detailed, and specific rule-making and adjudicative procedures and
judicial review through the courts for any irregularity. He excludes control mechanisms
through the lawmaker and institution like the ombudsman.
 Massey gives a wider and working definition of
administrative law in the following way.

“ Administrative law is that branch of public law which

deals with the organization and powers of
administrative and quasi administrative agencies and
prescribes the principles and rules by which an official
action is reached and reviewed in relation to individual
liberty and freedom”
 It studies powers of administrative agencies. The
nature and extent of such powers is relevant to
determine whether any administrative action is ultra
vires or there is a n abuse of power.

 It studies the rules, procedures and principles of

exercising these powers. Parliament, when conferring
legislative or adjudicative power on administrative
agencies, usually prescribes specific rules governing
manner of exercising such powers.
 It also studies rules and principles applicable to the manner of exercising
governmental powers such as principles of fairness, reasonableness, rationality
and the rules of natural justice.

 It studies the controlling mechanism of power. Administrative agencies while

exercising their powers may exceed the legal limit abuse their power or fail to
comply with minimum procedural requirements. Administrative law studies
control mechanisms like legislative & institutional control and control by the
courts through judicial review.

 Lastly it studies remedies available to aggrieved parties whose rights and interests
may be affected by unlawful and unjust administrative actions. Administrative
law is concerned with effective redress mechanisms to aggrieved parties. Mainly it
is concerned with remedies through judicial review, such as certiorari,
mandamus, injunction and habeaus corpus.
TO BE CONTINUED
 There has never been any serious doubt that administrative law is primarily concerned with the
control of power. With the increase in level of state involvement in many aspects of
everyday life during the first 80 years of the twentieth century, the need for a coherent and
effective body of rules to govern relations between individuals and the state became
essential.

 The 20th century saw the rise of the ―regulatory state and a consequent growth in administrative
agencies of various kinds engaged in the delivery of a wide variety of public programs under
statutory authority. This means, in effect, the state nowadays controls and supervises the lives,
conduct and business of individuals in so many ways.

 Hence controlling the manner of exercise of public power so as to ensure rule of law and respect
for the right and liberty of individuals may be taken as the key purpose of administrative
law.
 According to Peer Leyland and Tery Woods (Peter Leyland and Terry
Woods, Textbook on Administrative Law, 4th ed. ) Administrative
law embodies general principles applicable to the exercise of the
powers and duties of authorities in order to ensure that the myriad and
discretionary powers available to the executive conform to basic
standards of legality and fairness.

 The ostensible purpose of these principles is to ensure that there is

accountability, transparency and effectiveness in exercising of power
in the public domain, as well as the observance of rule of law.
 Peer Leyland and Tery Woods have identified the following as the underlying purposes of
administrative law.

 ➢ It has a control function, acting in a negative sense as a brake or check in respect of the
unlawful exercise or abuse of governmental/ administrative power.

 ➢ It can have a command function by making public bodies perform their statutory duties,
including the exercise of discretion under a statute.

 ➢ It embodies positive principles to facilitate good administrative practice ; for

example, in ensuring that the rules of natural justice or fairness are adhered to.

 ➢ It operates to provide accountability and transparency, including participation by

interested individuals and parties in the process of government.

 ➢ It may provide a remedy for grievances at the hands of public authorities.

  Similarly I.P. Massey (I.P. Massey, Administrative Law,
5th ed.) identifies the four basic bricks of the foundation of
administrative law as:


➢ To check abuse of administrative power.
➢ To ensure to citizens an impartial determination of
their disputes by officials so as to protect them from
unauthorized encroachment of their rights and interests.
➢ To make those who exercise public power accountable
to the people.
 A comprehensive, advanced and effective system of administrative
law is underpinned by the following three broad principles:

 Administrative justice, which at its core, is a philosophy that in

administrative decision- making the rights and interests of individuals
should be properly safe guarded.

 Executive accountability, which has the aim of ensuring that those

who exercise the executive (and coercive) powers of the state can be
called on to explain and justify the way in which they have gone about
that task.
 Good administration- Administrative decision and action should
conform to universally accepted standards, such as rationality, fairness,
consistency and transparency.
 Public Law/Private Law Divide

 The boundaries of administrative law extend only when administrative agencies and
public officials exercise statutory or public powers, or when performing public
duties.

 In both civil and common-law countries, these types of functions are sometimes called
―public law functions to distinguish them from ―private law functions.

 The former govern the relationship between the state and the individual, whereas the
later governs the relationship between individual citizens and some forms of
relationships with the state, like relationship based on government contract.
 Substance vs. Procedure

Many of the definition and approaches to administrative

law are limited to procedural aspects of the subject.

The focus of administrative law is mainly on the

manner and procedure of exercising power granted to
administrative agencies by the legislature.
The Relationship of Administrative Law to
Constitutional Law and Other Concepts

 Constitutional Law and Administrative Law

 Administrative law is categorized as public law since
it governs the relationship between the government
and the individual. The same can be said of
constitutional law. Hence, it is undeniable that these
two areas of law, subject to their differences,
also share some common features.

 With the exception of the English experience, it has

never been difficult to make a clear distinction
between administrative law and constitutional law.
However, so many administrative lawyers agree that
administrative law cannot be fully comprehended
with out a basic knowledge of constitutional law
 One typical difference is related to their scope. While
constitutional law deals, in general, with the power and
structures of government, i.e. the legislative, the
executive and the judiciary, administrative law in its
scope of study is limited to the exercise of power by
the executive branch of government.

 The legislative and the judicial branches are relevant for

the study of administrative law only when they exercise
their controlling function on administrative power.
 Constitutional law, being the supreme law of the
land, formulates fundamental rights which are
inviolable and inalienable. Hence, it supersedes all
other laws including administrative law.

 Administrative law does not provide rights. Its

purpose is providing principles, rules and procedures
and remedies to protect and safeguard fundamental
rights.
 To put it in simple terms, administrative law is a tool for
implementing the constitution. Constitutional law lays
down principles like separation of power and the rule of
law. An effective system of administrative law actually
implements and gives life to these principles.

 By providing rules as to the manner of exercising power

by the executive, and simultaneously effective controlling
mechanisms and remedies, administrative law becomes a
pragmatic tool in ensuring the protection of fundamental
rights.

 In the absence of an effective system of administrative

law, it is inconceivable to have a constitution which
actually exists in practical terms.
 Administrative law is also instrumental in enhancing
the development of constitutional values such as rule
of law and democracy. The rules, procedures and
principles of administrative law, by making public
officials, comply with the limit of the power as
provided in law, and checking the validity and
legality of their actions, subjects the administration
to the rule of law
 Judicial review, which is the primary mechanism of
ensuring the observance of rule of law, although
mostly an issue within the domain of administrative
law, should look in the constitutional structure for its
justification and scope.
 Every branch of law has incidental effects on the protection or
infringement of human rights, whether by constraining or enabling
actions which affect other people. Administrative law is, however,
particularly vulnerable to the permeation of human rights


claims, since, like human rights law, it primarily constrains the

exercise of public power, often in controversial areas of public
policy, with a shared focus on the fairness of procedure and an
emphasis on the effectiveness of remedies.
 Both systems of law aim at restraining arbitrary
or unreasonable governmental action and, in so
doing, help to protect the rights of individuals.

 Both share a concern for fair and transparent process,

the availability of review of certain decisions, and the
provision of effective remedies for breaches of the
law. The correction of unlawful decision-making
through judicial review may help to protect rights
 There are also marked differences between the two areas
of law. Human rights law is principally concerned with
protecting and ensuring substantive rights and freedoms,
whereas administrative law focuses more on procedure
and judicial review attempts made to preserve a strict
distinction between the legality and the merits of a
decision.

 Human rights law protects rights as a substant ive end in

themselves, whereas administrative law focuses on
process as the end and it may be blind to substantive
outcomes, which are determined in the untouchable
political realm of legislation or government policy