Principles of Organization.
The judicial organ everywhere differs essentially from both the executive and legislative organs. Subject to the chapter’s qualifications on executive organ, the supreme executive power is today universally entrusted to a single magistrate. A more or less numerous assembly exercises the legislative power, usually consisting of two chambers. On the other hand, the judicial power is exercised neither by a single magistrate nor by an assembly, but by a series of magistrates or collegiality constituted tribunals usually hierarchically organized one above another, with a supreme court of review of cessation at the apex.
In Anglo Saxon countries, the courts, except those of appeal, usually consist of a single judge, while in Germany, France, and the continental European countries generally, the system of plurality des juges exists for all the courts except those of the justices of the peace that is, they are collegiality organized. Thus, in France, the tribunals of the first instance are composed of three to fifteen judges, the courts of assizes of three judges, and so on; no judgment is valid unless rendered by at least three judges.
In France and continental Europe, generally, the idea of justice dispensed by a single judge has never found general favor. The notion persists that the authority of a judgment bears a certain relation to the number of judges who render it. A plurality of judges, it is believed, affords a safeguard against arbitrariness and enables the court in criminal cases to resist more effectively the influence of the public prosecutor. But this system necessitates a great multiplicity of judges. There are more than five thousand in France and nearly as many in Germany-and, consequently, a heavy budget for the department of justice, even With inadequately paid judges. For this and other reasons, some ministers of justice in France, especially in recent years, have proposed abolishing the system of “plurality” and the substitution of a system of single judges for the lower courts.
A large number of judges in Germany, France, and the Continental countries generally forms a striking contrast to the organization of the judicial systems of Great Britain and the United States, where the number of judges is, in comparison, relatively small.
Another difference between the Anglo American and Continental systems to be found in the British and American practice by which the judges go “on Circuit” from county to county holding court in different towns that is, for the convenience of litigants, the courts go to them instead of requiring them to seek out the court in a distant community. On the other hand, in continental Europe, the courts are “Sedentary” or localized; that is, they generally sit always in a particular town, and litigants must take their cases there to have them decided.
Perhaps one advantage in the judiciary organization on the continent of Europe as compared with that in most of the American states is to be found in the more unified and integrated character of the judicial system. In late years there has been a movement in the United States looking toward the reorganization of the state judiciaries so that the whole judicial power of the state (at least the civil jurisdiction) shall be vested in one great court, of which all tribunals will be branches, departments, or divisions. Actual steps in this direction have recently been taken in several states (notably in Ohio, Wisconsin, Massachusetts, and Oregon) by creating judicial, administrative councils to supervise and coordinate the work of the courts. In 1922 a bill was passed by Congress, creating a council of judges to supervise the federal courts’ work. The new constitution of Louisiana (1921) provides a more highly unified system than is to be found in any other American state.
Organization of Courts in the Federal States.
In states with the federal government system, there are usually two separate and distinct series of judicial bodies, one to exercise the national or general jurisdiction of the whole union, the other the local jurisdiction in each component state.
This is not necessarily so, however, as the organization of the German judicial system clearly shows. Instead of two separate and distinct systems, one to exercise the judicial power of the federation (Reich) and the other that of each state (Land), there is a single uniform system for the federation and the states, all the courts being organized under national law and exercising their functions following a uniform code of procedure.
Thus, the entire judicial system of the country, from the bottom to the top, rests upon the same basis that all the courts’ competence and procedure are determined by national law. They are held by judges Whose qualifications and tenure are prescribed by judges of the same authority. There is no division of jurisdiction between the federation and the states; in short, the federal principle has no place in that country’s judicial organization.
Nevertheless, except the Reichsgericht, the courts are all regarded as state tribunals rather than national courts. The state governments appoint the judges, and their compensation is determined and provided by the same authorities.
Moreover, they exercise their jurisdiction in the local governments’ name and are subject to the oversight of the states in which they are situated. As there is one uniform judicial organization for all the German states, so there are common national codes of civil and criminal law and procedure. Thus neither diversity in judicial organization nor diversity Of law exists in Germany, though the state is federal in its organization.
On the contrary, there are many judicial organization systems and law and procedure in the United States as there are gates. Each commonwealth organizes its own Judiciary and frames its own codes of law and procedure, according to its own notions and its own conception of its local needs and conditions.
Nevertheless, in reality, there is far more resemblance than diversity, owing to the common basis afforded by the common law, upon which the legal system of each of the states (except Louisiana) rests. There are, of course, variations, but in essentials, there is remarkable similarity and uniformity. Only in a limited sense are the courts of one state regarded by those of another as foreign.
The constitution of the United States requires that the courts of each state shall give full faith and credit to the records and judicial proceedings of the other states and the Spirit of judicial comity the, deference paid by the courts of one state to the decisions of the others-which characterizes interstate judicial relations constitutes a powerful unifying force.
Together with the full faith and credit provision, this rule of comity makes possible the enforcement in one state of rights acquired in others and likewise contributes to the prevention by one of the acts that would infringe on prohibitions created by others.
Two General Types of Courts.
In all countries, the judicial tribunals are of two kinds: first, those who may be called the ordinary or regular courts, whose normal function is the decision of legal controversies between individuals and the trial of criminal cases, and second, those who may be classified as extraordinary or special courts. The latter category may be placed in the administrative courts, military, commercial, industrial courts, labor arbitration courts, courts of claims, conciliation courts, probate courts, customs courts, courts of impeachment, consular courts, and various others. Many of those of this latter category exercise only what is known as voluntary or non-contentious jurisdiction.
It is impossible here to consider the Organization and functions of the multifarious special tribunals found in the different countries. It must suffice to discuss briefly the most important of them, namely, the administrative Courts which are found in France, Germany, and a goodly number of other continental European countries. In these countries, the administrative courts have a separate and distinct organization, they constitute a system parallel with that of the ordinary judicial courts, they are charged with deciding controversies mainly involving claims against the state, and they apply a body of law separate and distinct from that of the civil law.
The idea of the separation of the administrative jurisdiction from the ordinary civil jurisdiction originated in France at the time of the Revolution and due to the general repugnance to the control which the judicial courts had exercised over the administrative authorities during the old regime. The feeling was that if the judges were allowed to decide controversies arising between the state and its administrative authorities, on the one hand, and private individuals, on the other, it would result in judicial interference with the operations of the government and impair the efficiency of the administration.
It was accordingly provided by law (Act of August 16, 1790) that the judicial and administrative functions should be kept separate and distinct. The judicial courts’ role should be restricted to the decision of cases arising under civil and criminal law. At first, administrative controversies were left to the administration itself, but in time a series of special administrative tribunals or councils were created to exercise this function.
They are the prefecture council in each departmental circumscription and the Council of State at Paris, which serves as the supreme administrative court, as the Court of Cassation is the supreme judicial court. The Council of State has the final jurisdiction, with some few exceptions, of questions involving the legality of all acts of the administrative authorities from the president of the republic down to the village mayor, and it may annul those which in its opinion are ultra vires and award damages to the individual who has sustained an injury in consequence of such acts,
In somewhat the same manner as the English courts have built up the common law, the Council of State has developed a large body of administrative case law (jurisprudence) relative to the responsibility of the state and its local governmental agencies for their acts a responsibility which has been gradually extended until to-day it is almost as absolute as the liability of a private employer of labor for injuries sustained by his employees.
Originally established to protect the administrative authorities from interference on the part of the judicial courts, the administrative jurisdiction has become the protector of the individual against the government’s arbitrary and illegal acts and its administrative agents. It may be safely said that in consequence of the extremely liberal jurisprudence which the Council of State has built up and the solicitude which it has shown for the protection of the individual against the wrongful acts of the government, the individual in France to-day enjoys a greater degree of protection against such acts than exists in any other country.
In France, if he suffers an injury at the hands of the state or its administrative agents, he can sue the state in the administrative courts and obtain a pecuniary indemnity, whereas, in England and America, where a different rule prevails, he cannot generally sue the state, but must be content with a damage suit against the particular officer or agent who committed the wrong and who is personally responsible many cases such a remedy is ineffective, as where the officer is insolvent and unable to pay the judgment recovered.
In France, a suit against the state is a straightforward matter. No attorney is necessary. The cost of bringing the case before the Council of State is only a few centimes, and cases are dispatched with remarkable celerity. Thus, the remedy is availed of upon a large scale, and many thousands of cases are decided every year by the Council of State.
In Germany, a distinction is made between the state as a natural person and Fiskus or Fisc. The individual who claims against it because of its agents’ tortuous acts can either sue the agent in the ordinary courts or the state as Fiskus. This privilege was definitely provided by a law of May 22, 1910, and by Article 131 of the new constitution of the Reich, it was extended to apply to the acts of all public servants, national and state. Unlike the French rule, the German laws make public servants liable for their personal faults and acts committed in their official capacity. The principle of liability extends to the military and civil servants.
The Anglo-American System.
In England and the United States, and in countries generally, where English legal institutions have been introduced, the doctrine of administrative jurisdiction, known and practiced on the continent of Europe, is little known. There the doctrine prevails that the state is never liable in tort or the contract except under the right petition. Their administrative law is not a separate branch of jurisprudence, and specially constituted administrative courts with jurisdiction over controversies between private individuals and public officials do not exist, at least not in the form in which they are found on the Continent.
Disputes between the public authorities and private citizens, like differences between private individuals themselves, are decided by the regular judicial courts and according to the land’s ordinary law. The private citizen whoured by the public authorities’ action has the same remedies that would have if another private individual had committed the injury, that is, a personal damage suit against the wrongdoing officer. In short, there is one law and one court for the citizen and the public functionary alike.
The English (and American) doctrine is that the ordinary judicial courts must decide all legal controversies because our theory of the law assumes the latter’s supremacy, and the notion of administrative jurisdiction is inconsistent with this theory. The right to sue the state is not admitted except where it is expressly conferred by statute, and when it is conferred, it is usually subject to restrictions that often make the action difficult.
In England, observes Dicey, The idea of legal equality or the universal subjection of all classes to one law administered by the ordinary courts has been pushed to its utmost limit. With us, every official, from the prime minister down to a constable or a collector of taxes, is under the same responsibility as any other citizen for every act done without legal justification. The reports abound With cases in which officials have been brought before the courts and made their personal capacity liable to punishment or the payment of damages for acts done in their official capacity.
Every act of public authority, no matter by whom or against whom it is directed, is liable to be called in question before an ordinary tribunal, and there are no other means by which its legality can be questioned or established. Dicey emphasizes what he called “the rule of law,” a rule that makes public servants liable for their acts equally with private individuals in England and America. He contrasts this rule with what he called the privileged position of public servants in France and Germany. To him, the very essence of the Droit administration Is the special position of functionaries regarding their immunity from responsibility. Still, in fact, this immunity is only one aspect of it.
Criticism of the Continental System.
In both Great Britain and the United States, there is a prejudice against the Continental system of administrative law and administrative jurisdiction. The popular belief prevails that the administrative judges are not independent. They render their decisions at the behest of the government that they do not decide cases according to the law’s fixed rules. Public officers are legally irresponsible and protected against damage suits and the like.
However, this prejudice is based largely upon a misunderstanding, and English and American jurists do not lack who frankly recognize the obvious merits of the Continental system. Even Dicey has expressed admiration for the skill and ingenuity which the French Council of State has displayed in building up from year to year a vast system of jurisprudence and devising remedies for protecting private individuals against the arbitrary and illegal conduct of the administrative authorities. He admits that the French system does possess merits that Englishmen do not always recognize.
The Criticism Answered.
The criticism that the administrative law system is fundamentally wrong because it is based on the principle of inequality between the official class and private citizens’ bodies is not well-founded. In fact, there is no country in which the individual is on an absolute footing of equality with public officials as to his privileges and immensities or where a private individual can sue a public officer without restriction.
Dicey’s conception that public servants are in effect “chartered Libertines” is absurd? As Professor J. H. Morgan of the University of London very accurately remarks,
“what administrative law does in France and still more in Germany is not to exempt public officers from responsibility where in this country England they would be liable, but to extend that liability to cases where in this country they would be immune.”
The criticism that the French administrative judges are not independent because, unlike the judges of the judicial courts, they are removable at the pleasure of the government has no foundation in fact since no one of them has ever been removed since the establishment of the Third Republic and is not likely to be in the future. There is no known instance in which the government ever attempted to exert pressure upon them to obtain a decision in its favor.
In fact, they have shown greater independence than have the judges of the Court of Cassation. In hundreds of instances, they have decided cases in favor of private f individuals and against the government when the Court of Cassation would have decided in favor of the government.
Their decisions may be remarked, are more often based upon considerations of equity, recourse to the Council of State is more Simple and less expensive, and whenever the injured individual has a choice, he does not hesitate to bring his suit before the Council of State.
For this and other reasons, the role of guardian of private rights which once belonged to the Court of Cassation has definitely passed to the Council of State, and today, the French people look upon it with somewhat the same respect and confidence with which the people of the United States regard their national Supreme Court.