Comparative public law in Europe
In many jurisdictions, the research on administrative law was profoundly changed in the past roughly 25 years. Change was mainly driven by the aim to reach a higher level of interdisciplinary work. Taking up knowledge from social sciences including economics, as well as from history lead to the integration of concepts such as regulated self-regulation, good governance, steering or efficiency into administrative law scholarship. In Germany in particular, opening administrative law this way was an important step after the rebuilding of the rule of law following the end of catastrophe in 1945.
Comparative work has not been in the focus of that transformation. This is to be deplored: We (in Germany) do not even know very well whether administrative law scholarship developed the way explained in the rest of Europe. However, there is no reason for disappointment. Comparative law research is blossoming, so what we need to do is to link it to the transformation effort. Why?
There are first of all practical needs. European Union administrative law needs comparative research more than ever. Until recently, EU administrative law was somehow about creating a synthesis between the divergent European approaches with a way to harmonise and integrate deeper and deeper. In times of Brexit, this is not the core requirement any more (if it ever was). There is a greater need to find a balance between European unity and Member States’ diversity in the concrete formulation of principles and rules. Further, some Member States have turned down important elements of the rule of law. This has been shown for Bulgaria, Greece, Italy, Romania and Hungary by a team around Armin von Bogdandy, and we might have to add Poland following the events around the Polish Constitutional Court. EU law has to formulate central elements of the rule of law in administrative matters, and comparative research must be ready to provide a sound background to this formulation. More practical needs are generated through the foundation of global administrative law which cannot develop outside the findings of comparative administrative law.
Second, practical needs are not the only reason behind comparative research efforts. These efforts may lead us out of theoretical impasses – and to identify them in the first place. Peter Häberle has developed the comparative method as a fifth method of interpretation – next to the textual, systematic, teleological and historical arguments. One exemplary field for such theoretical advancement could be constitutionalisation. Whereas Germany has a long (post-war, of course) tradition of administrative law as concretised constitutional law, the even more traditional split between constitutional and administrative law is losing its sharpness in other jurisdictions. This is bound to be an ideal moment to learn from each other.
How can we design comparative administrative legal scholarship to continue and intensify the enrichment of administrative law? Certainly, direct scientific exchange must be carried on. Greater projects like the codification of the Research Group on New Administrative Law (ReNEUAL) are joined by smaller ones like the Dornburg Research Group on New Administrative Law. The efforts of Susan Rose-Ackerman and Peter Lindseth have to be mentioned in particular. Furthermore, comparative administrative law has to be developed as a genuine method of legal scholarship. We are not talking about a new interdisciplinary approach, but about broadening the scope of administrative legal scholarship. Such perspective could also strengthen the self-confidence of our subject as a whole.
Professor Matthias Ruffert
(Humboldt-Universität zu Berlin)
(Suggested citation: M. Ruffert, “Comparative Law Perspectives for Administrative Law Scholarship – Some Remarks from a German Viewpoint”, available at : https://europeancommonwealth.org/2017/03/27/matthias-ruffert-comparative-law-perspectives-for-administrative-law-scholarship-some-remarks-from-a-german-viewpoint)