The bifurcation of administrative review in Germany and England

Abstract

This study considers review of administrative decision-making in the German and the English legal systems. These two legal systems have been investigated because in each legal system, administrative review is 'bifurcated', meaning that there are in principle two mechanisms available to review a given administrative decision. The phenomenon of bifurcation is illuminated by separately considering its institutional and substantive dimensions. The institutional dimension relates to the difference in the characteristics of the two institutions responsible for review; whilst the substantive dimension relates to the difference in scope of the criteria which the two institutions use in carrying out review. In addition to its comparative focus, the study approaches its subject from an historical perspective. The study demonstrates that in each legal system, the bifurcation of administrative review has its origins in the 19th century, whilst noting that the form which bifurcated review presently takes differs from its form in the19th century, particularly in its substantive dimension. The study seeks to gain an in insight into the phenomenon of the bifurcation by examining its historical context. To this end, the study considers the social, political and legal milieus of Germany and England in the 19th century. The study suggests that in each legal system, bifurcation resulted from recognition of the need to supplement the existing institution responsible for review with a new institution. In Germany the new institution was the superior administrative court, and in England it was a multifunctional body known as a tribunal. Supplementation was necessary, it is argued, because in the 19th century the state was intervening in civil society in an unprecedented manner. Such intervention had the potential to undermine the prevailing liberal understanding of the role of the state in society. In light of this potentiality, the existing protection for the individual in changing the legal order afforded by the existing institution was perceived to be inadequate, because it failed to combine the qualities of independence, expertise and efficiency. Having identified the relationship between the state and society as crucial to the introduction of bifurcation, the study goes on to consider the way in which state authority is reflected in the legal system. It suggests that in both Germany and England in the 19th century, the bifurcation of administrative review was influenced by, and reflected, what is termed an institutional understanding of state authority. Accordingly, a significant part of the study is devoted to establishing a historical basis for an institutional understanding of state authority in the German and the English legal systems respectively. By contrast, the fate of the substantive dimension of bifurcation, since bifurcation was first introduced into each legal system, suggests that in both legal systems, the understanding of state authority has shifted more toward what is termed a normative understanding of state authority. Show more