The new face of administrative law

Nelson Arriaga

Referring to the recent transformations of administrative law, Spanish professor Oriol Mir Puigpelat calls on jurists not to try to wrap it in an unusable skin that is too rigid and inflexible.

This administrative law of the twenty-first century, or of the second modernity as he calls it, requires a new skin, new techniques and new instruments because the central position that this discipline exhibits in the legal system, besides being undeniable, remains in constant advance and transformation.

The transition from the police State to a Social and Democratic State of Law and from this to a guarantor State has led not only to a change in the role that administrative law plays vis-à-vis individuals, but also to a rethinking of the classic conception of administrative law as a branch of the legal system intended solely for the organization and control of power. Today, this administrative law of freedom must be centered on the person in order to guarantee not only that his or her rights are respected, but also that his or her individual and collective needs are efficiently met.

Modern States are expected to abide by their rules of organization and operation, but also to guarantee respect for the rights of individuals and access to public services under conditions of universality, accessibility, quality, equality and free of charge.

Therefore, the search for the new skin of administrative law requires good administration (seen in the key of fundamental right as recognized by the Constitutional Court in its STC-322-14) to strengthen the administrative procedure in State acquisitions, expropriations and disciplinary trials; transparency, agreement and respect for the principles of administrative organization in the processes of reorganization and restructuring of administrative bodies and entities, as well as the strengthening of the contentious-administrative justice and respect for its decisions just to mention some fundamental issues.

The new skin of administrative law is also found in the respect and promotion of rights, freedom, diversity and inclusion. Therefore, it must be founded "on respect for human dignity, fundamental rights, labor, popular sovereignty and the separation and independence of public powers" (Article 7 of the Constitution) to materialize the essential function of the State in the "effective protection of the rights of the individual, the respect of his dignity and the obtaining of the means that allow him to perfect himself in an equal, equitable and progressive manner, within a framework of individual freedom and social justice, compatible with public order, the general welfare and the rights of all" (Article 8 of the Constitution).

The challenges facing States in the 21st century are numerous and with their modernization comes the demand from citizens for better services, greater levels of transparency and participation in the decisions that impact their lives. This new-skinned administrative law must also tend to guarantee an exercise of the power to multiply rights by and for the citizen.

This new-skinned right is not and should not be one of restrictions but of freedom so that, without dispensing with the rules but also without abusing them, citizens' expectations are transformed into materialized services and fair claims against the Administration into sentences executed without undue delays.

It is the duty of jurists, public policy makers, academics, lawyers and judges to give administrative law a new skin, one that, in fact, identifies and distinguishes it as the discipline of guarantee, promotion of rights, freedom and satisfaction of the public interest. The new skin of administrative law must turn it, above all, into a legal discipline of citizen attention.

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