The Way Forward
Edited by Michael Faure and André van der Walt
Chapter 5: The Relation between Private Law and Administrative Law in View of Globalization
Frits Stroink 1 THE TRUE NATURE OF ADMINISTRATIVE LAW What is administrative law? In most manuals you find a definition such as: administrative law is law governing the relation between administration and citizen. That is true, but not the whole truth. Indeed, the administration determines unilaterally the legal position of a citizen when conferring licences, subsidies and so on, but, for a large part, administrative law aims at regulating, directing and determining the legal relation between citizens. Administrative law is an instrument of the administration to realize public policies in society. Administrative law is the result of the policy making process. The law (in fact the people via the parliament) gives the administration the tools, the power to intervene in society. Let me give some examples. The conditions of an environmental licence are of course meant to protect the environment (an aspect of the general interest) but they are also meant to protect the legal position of neighbours (third interested parties). If a licence holder does not meet the conditions of a licence, he can under Dutch law commit a tort against a neighbour. This is a clear example that an administrative decision influences the private law relation between two citizens (a licence holder and his neighbour). This is not only the case with environmental licences but also with other licences like building licences. Another example is to be found in the field of financial administrative law. Banks and insurance companies need a licence for exercising their business. The reason...
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