*Olu
Ojedokun
(B.L., LL.B, Ph.D)
Faculty of Law
Lead City University, Ibadan
Employlawone@aol.com +2348153344265
and
**Jamila Bisi Aduke Suleiman
(LL.B, B.L, MA. Law
& Diplomacy, MA English for Specific Purposes)
Centre for Peace and
Security Studies
Modibbo Adama
University of Technology, Yola. Adamawa State, Nigeria
jamilasuleiman120@gmail.com +234803 3760 239
Abstract
Experiences gathered from a
significant amount of discourse relating to the study of Administrative law is usually
found around its definitions, Oyelowo (2016), pp.12-15. In some instance these
are found to be very academic and obtuse.
There is a suggestion from anecdotal evidence that this sometimes limits
the understanding or appreciation of the extent, scope and its relevance to the
areas of the rule of law, separation of powers, Remedies, Judicial Review, Natural
justice, the Constitution and Delegated legislation amongst others areas. The paper argues that many definitions
proffered do not usually go far enough to the root of Administrative law and
usually creates a disconnect from its true utility or functional value. This paper
seeks to unravel a cleverage and open up future discourse, which connects the
academic to the more clinical and more functional. In other words this paper
will show ways in which a discourse of Administrative Law may be made more
accessible.
Keywords: Administrative Law, Definitions, Constitutional Law, Pictogram
Introduction
Muhammad (2019) argues that Administrative law is the bye-product
of the growing socio-economic functions of the State and the increased
powers of the government. He suggests that Administrative law has become very
necessary in the developed society, the relationship of the administrative
authorities and the people have become very complex. He opines that in order to
regulate these complex, relations, some law is necessary, which
may bring about regularity certainty and may check at the same time the
misuse of powers vested in the administration. There is a contention that historically
the most significant development of twentieth century is the rapid growth of Administrative
Law. According to Thomas (2018) Administrative Law was not even accepted as a
separate branch of law until the 20th century.
Ozumba (2014), p. 97, continues in the historicity stating
Administrative Law in Nigeria was imported into Nigeria by means of local
legislation in 1863, and then later in 1914 it became part of the Supreme Court
ordinance, which introduced into Nigeria the rules of general application. He
opines that it is also important to state that Administrative Law has much to
do with constitutional law, that in fact, Administrative Law is part of
constitutional law.
He suggests that in formulating Nigerian constitution, the
administrative processes of government were taken into consideration and these
laws were formulated to guide the operations of administrative agencies. He
concludes that though Administrative Law is very important, in Nigeria it
has not yet attained its full operational capacity, it is this full operational
capacity that we suggest may be found in the functional and the clinical
definitions of Administrative Law.
The reason the lack of operational capacity is alluded to Is that
in this century is that the philosophy as to the role and function of the
state has undergone a radical change. It is said that in the ancient
society the functions of the state were very few and the most prominent
among them being protection from foreign invasion, levying of taxes and
maintenance of internal peace and order. However, today the state is not merely
a police state, exercising the sovereign function, but as a progressive
democratic state. It seeks to ensure social security and social welfare
for the common man.
So Muhammad (2019) argues that Administrative law is that branch
of the law, which is concerned, with the composition of powers, duties,
rights and liabilities of the various organs of the government. However,
problematic in trying to contain a definition or definitions of Administrative
law is that it is indeed difficult to evolve a scientific
precise definition of administrative law. Some definitions are found too
broad and some are too narrow. This paper suggests a clinical approach may
be a way of addressing this conundrum but recognises that it can only rest upon
that conclusion only after we have considered quite a few definitions both
textually and in case law.
Some
Definitions
Nzebuchukwu (2016) draws from
Igbinedon (2016) in arguing against a generally accepted definition of Administrative
Law explaining that one of the reasons given for the difficulty is the wide
field that it covers. He however
suggests that two things be taken into account in the attempt of understanding
and defining Administrative Law. That it
is in its concern with the manner of exercising governmental power and secondly
it cannot fully be defined without due regard to the functional approach, in
order words the functional approach should be the underlying element of any
definition. That is why this paper proceeds
beyond using the functional approach through clinical in its attempt to capture
a more contemporary definition of Administrative law. It proceeds at this stage
to highlight and commence with a few definitions deployed by scholars that is
of concern to this paper.
Malemi (2012), pp.2-4, states:
“There is no generally accepted definition of administrative law. There
are many definitions as there are writers.”
He then draws upon a few of the writers starting with
Sir Ivor Jennings who argues that:
“Administrative Law is the law
relating to administration. It determines the organisation powers and duties of
administrative authorities. ”
In the case of Prof. E.C.S. Wade and Prof. A.W.
Bradley they say:
“Administrative
Law is a branch of public law which is concerned with the composition, powers,
duties, rights and liabilities of the various organs of government which are
engaged in administration, or more concisely, the laws relating to public
administration.”
According to Prof P.A. Oluyede:
“Administrative law means that
branch of our law which vests power in administrative agencies, imposes certain
requirements on the agencies in the exercise of the powers and provides
remedies against unlawful administrative acts.”
Prof B.O. Iluyomade and Hon. Justice B. U. Eka stated
that:
“Administrative Law is the body
of rules which aim at reducing the areas of conflict between the administrative
agencies of the State and the individuals.”
However, it will appears that Prof. H.W.R. Wade’s
definition mirrors more closely the quest to achieve a clinical less academic
one of administrative law. He argues that:
“…is the law relating to the
control of governmental powers. This …is
the heart of the subject. All…powers
are…subject to legal limitations; there is no such thing as absolute or
unfettered administrative power. It is
always possible for any power to be abused….And the court will invalidate it,
….if it infringes the limits which parliament has ordained. The primary purpose of administrative law
therefore, is to keep the powers of government within their legal bounds so as
to protect the citizen against abuse.
The powerful engines of authority must be prevented from running
amok. As well as power there is duty. It
is also the concern of administrative law to see that public authorities can be
compelled to perform their duties if they make default….. Administrative law
may be said to be the body of general principles which govern the exercise of
powers and duties by public authorities.”
In Oyelowo (2016), he opines
that:
“There are several definitions of
administrative law from different jurisdictions. Indeed, from its common law
origin in England administrative law has been defined differently by different
authors and academic writers. The kernel
according of the whole subject of administrative law, according to D.C.M.
Yardley, is the control of power within its lawful compass.”
A more descriptive definition
of modern administrative law and practice is provided by Leyland (1999), pp.1-2:
“Normally it is regarded as the area of law
concerned with control of governmental powers, which originate in primary
legislation or in the prerogative. Or the subordinate powers exercised by
individuals and bodies acting under the power given by primary legislation (or legislation of a binding nature emanating
from the European Community). It may, then operate in respect of controlling
the prerogative powers of ministers, but it might equally well apply to the
minutiae of administration in central and local government. It embodies general principles, which can be
applied to the exercise of the powers, and duties of authorities in order to
ensure that the myriad of rules and discretionary powers available to the
executive conform to basic standards of legality and fairness. The ostensible
purpose of these principles is to ensure that as, well as observance of the
rule of law, there is accountability, transparency and effectiveness in the
exercise of powers in public domain”.
Whilst many of the authors and academics appear
to echo the general understanding that Administrative Law is the law that
regulates administration Wade in his own case more specifically attempts to
mirror the more clinical aspect of Administrative Law. The focus always seems
to rest more substantially on the abstraction that the more academic definition
offers. The use of diagrams or pictogram in the trying to elucidate or explain
the definitions in major texts such as Malemi (2012), Oyewo (2016) and Emiola (2011)
is simply another way of capturing its clinical and functional essence. So in the midst of all these how do we bring
the clinical to bear on the understanding and explanation of Administrative
Law?
Pictogram
of Administrative Law Definition
This paper argues that to obtain
a better understanding of Administrative Law we need to be more clinical in our
approach and use pictorials such as the above to explain it in functional
terms.
The pictogram above places
the administrator or executive at the centre and surrounded and circumscribed
around it are some of the curbs on his power, the circumscribing of the power,
limiting the ability to exercise power indiscriminately. In order words the
circumscribing is necessary to prevent power from corrupting and from absolute
power from corrupting absolutely. The Administrator is curtailed by the various
principles such as Rule of law, Natural Justice, Remedies, Separation of Powers
and even more. This allows and provides
the law teacher the opportunity to proceed further breaking the curriculum and
study of Administrative law into the various sub circles mentioned providing a
tangential link that is visible to the eye. Whilst pictograms may are usually used in subjects such as leisure,
tourism, and geography there is no reason why it cannot be deployed in the
study of law if it aids in the grasping of basic concepts.
An Experiential Definition
According to Frank (1973)
Administrative Law helps to achieve peace, if the law does not help the poor,
the solution is to change the law, not change the form of government. He agrees
Administrative Law cannot solve all our problems, they are economic and social
as much as legal, however, failure to observe the law will take the country
backward, it might end the possibility of helping the poor. Laws are different
in each state, the reasons for poverty, the background and living conditions of
the poor are different in each state, the attitudes of politicians and public
servants towards the poor is different in each state. But he goes on to
highlight its limitations, mentioning, limited scope, difficulty in
interpretation, level of enlightenment, general case of corruption, general
underdevelopment and poverty
The leads to the experiential,
which, is based upon observation, trial and error or experience can also play a
role in opening up the definition of Administrative law to better understanding. The use speed bumps on the road to slow down
vehicles, reduce their speed and save lives is a measure of control it ensures
that even though vehicles have enormous speed at their disposal the bumps act
as breaks and circumscribe the power of the administrator.
A picture of a speed bump.
Riding with a student who is driving
can be related to the administrator/executive and how their propensity to abuse
power is limited by the speed bumps of Rule of law, Natural Justice, Remedies,
Separation of Powers, etc. Hence a student is able to grasps concept principles
with ease. This will help bridge the gap between the theory and practice of
law.
Conclusion
In a world where social
medial, pictorials, pictograms and more experiential is used in deploying
complex concepts, law cannot afford to be absent or escape its use. Pictograms present information in a fun and new way, and can be
very effective for communicating a message in an emotionally evocative way. Pictograms now form part of
our daily lives through their use in medication, transport, computers, etc.,
because they indicate - in iconic form - places, directions, actions or
constraints on actions in either the real world (a town, a road, etc.) or
virtual space (computer desktop, Internet, etc.). A pictogram is better than a
label, and recognizing an image is easier than reading text (Norman, 1990) and
so there is no reason why the study and research of law should not be fully
engaged.
This paper attempts to open a
small window in which the study of law could become more clinical, functional
and more experiential to the learner and the budding researcher.
*Acting Dean Faculty of Law, **
Lecturer
Bibliography
· Emiola, A (2011). Remedies in
Administrative Law. Emiola (Publishers) Ltd: Ogbomosho
· Endicott, T (2018) Administrative
Law 4th Edition. Oxford University Press: Oxford
· Frank
Parker S.J (1973) The Law and the poor, Orbis book Maryknoll, Newyork.
· Igbinedon,
Simeon (2016), Course Guide on Administrative Law National Open University, pp.
11
· Leyland, P and Wood, T. (1999). A Textbook ON Administrative Law, 3rd
edn. Blackstone Press Ltd.
· Malemi, E (2012). Administrative
Law. Princeton & Associates: Ikeja
· Muhammad,
H (2019), Assignment on Administrative
Law, Meaning, Functions and Importance downloaded, 8th May 2019 from
https://www.academia.edu/27310418/_Assignment_on_administrative_law_meaning_functions_and_importance_
· Norman, D (1990), The
'Problem' with Automation: Inappropriate Feedback and Interaction, not
'Over-Automation' Philosophical Transactions of The Royal Society B Biological
Sciences 327(1241):585-93
· Nzebuchukwu, S (2016),
Administrative Law, Being a Seminar Presentation in Partial Fulfillment of The
Requirements for The Award of LLM Degree downloaded 9th May 2019
from https://independent.academia.edu/NzubechukwuSamuel
· Oyewo, O (2016). Modern
Administrative Law & Practice. University of Lagos Press and Bookshop:
Lagos
· Ozumba,
L (2014), Approaches and Effects of Administrative Law in Nigerian Political
and Administrative Setting. Journal of Integrative Humanism – Ghana March, 2014
· Thomas, T (2018), All You Need To
Know About Administrative law download 9th May 2019 from https://blog.ipleaders.in/administrative-law-1/
Published in
No comments:
Post a Comment