The Rule of the Courts

Vasco Pereira da Silva

uttered or whether they were already somewhat exaggerated 40 , what is clear is that they no longer correspond to the British reality resulting from the transition from Aggressive Administration to Service Administration. However, as “prejudices” and “stereotypes” are very difficult to dispel, it is curious to note how “DICEY’s denial of the existence of ‘droit administratif’ in England led many people to assume that there was no Administrative Law in the United Kingdom” (BRADLEY / EWING) 41 . The intervention of public authorities in economic, social and cultural life (which began in the late 19th century but intensified in the 20th century) led, also in Anglo-Saxon countries, to the emergence of rules regulating administrative activity, the recognition of certain administrative authorities (the “administrative tribunals”) with powers of self-regulation of their deci sions, and even the emergence of specific contentious issues, even with regard to the functioning of the courts, where sole jurisdiction does not preclude progressive specialisation 42/43 One could say, ironically, that, like MOLIÈRE’s famous character, who “wrote prose without knowing it”, the British public authorities also began to create and apply Administrative Law “without realising it”, as they began 40 In this regard, CASSESE considers that “DICEY, in contrasting these two models, forced positive law for ideological reasons,” evoking the author’s “Whig” militancy, as well as his “highly critical” judgement of French institutions and his conviction of the superiority of the English legal system. This position led him to ignore that, already in the 19th century, in England, there were authorities, called “inspectorates”, whose task was to exercise public functions with powers derogating from common law (for example, in matters of child labour protection, with powers of inspection and financial penalties)”. (SABINO CASSESE, ‘Le Basi Costituzionali’, in SABINO CASSESE, ‘Trattato di Diritto Amministrativo – Diritto Amministrativo Generale’, Giuffrè, Milan, 2000, vol. I, p. 208). 41 BRADLEY / EWING, Constitutional and Administrative Law, 12th edition (4th reprint), Longman, London / New York, 1998, page 700. 42 See the description of the main distinguishing features between the French system, or ‘executive administration’, and the British system, or ‘judicial administration’, as well as their evolution in FREITAS DO AMARAL, ‘Curso de D. A.’, vol. I, cit., pp. 95 et seq.; VASCO PEREIRA DA SILVA, ‘Para um Contencioso A. dos P.’, cit., pp. 36 et seq. and 52 et seq. 43 See VASCO PEREIRA DA SILVA, ‘O Contencioso Administrativo no Divã da Psicanálise’ (Chapter I), which compares the British and French systems, from which we are quoting some excerpts.

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