Administrative Law: 4 Key Procedural Variables

Four Variables of Administrative Procedure

There are four primary variables to consider within administrative law systems, divided between the initial phase and the judicial review phase.

Variables Within the Initial Phase

1. Combined-Function Agency vs. Separated Tribunal

• Combined-function agency: In some countries, the agency performs multiple roles. You must ask for a reconsideration within the same agency. Examples: United States, Spain, and Germany.
• Separated tribunal: You do not ask the same agency for reconsideration, but rather an independent tribunal. Examples: United Kingdom and other Common Law countries.

2. Adversarial vs. Inquisitorial Hearing Procedures

• Adversarial procedure: There is a judge where one party is the administration and the other is a citizen. Parties fight their case without the active participation of the judge; he only hears the parties, maintains impartiality, and does not have an active role in helping the parties find evidence. This looks like a real trial type with three parties: a judge and two parties represented by lawyers. In a reconsideration phase, it means that an agency is not the organ in charge of doing the previous investigation. Examples: Common Law countries (US, UK).
• Inquisitorial hearing procedure: The investigation phase (the initial phase) and the initial decision are made by the same agency. The judge is very active and acts as a witness to the process. Examples: Argentina, France, Spain, Germany, and Italy.

Variables Within Judicial Review

3. Open vs. Closed Review

• Open review: This determines if we can challenge or review the final decision. The parties can start a procedure from scratch, from the very beginning, meaning new evidence, new documents, and new arguments can be introduced by the parties. Examples: Continental systems like Italy and Spain.
• Closed review: The introduction of new documents is not allowed. The final decision can be reviewed by a new judge but is based strictly on the same documents provided at the beginning; nothing new can be added. The aim is to ensure consistency based on the original record. Examples: UK, US.

4. Generalized vs. Specialized Jurisdiction

These concepts often go together, though there are exceptions.

• Generalized jurisdiction: Cases are heard in general courts that are not specialized in a specific field of law. Examples: UK, US.
• Specialized jurisdiction: Cases are heard in special administrative courts, such as those dedicated to civil, criminal, labor, or financial matters. Every judge is an expert in the specific subject matter. Examples: Germany, Italy.
  • Advantages: This system is often faster and more precise.
  • Disadvantages: It can lead to several conflicts of jurisdiction and confusion as to which court a citizen should submit their claim.