Freedom of Speech in the West: A Comparative Study of Public Law in France, the United States, and Germany

By Frede Castberg | Go to book overview

Chapter 4.
FREEDOM OF SPEECH IN ADMINISTRATIVE PRACTICE

1. Judicial Control of the Administration

1. Administrative and ordinary tribunals. In the French Constitution of 3 September 1791, Titre III, Chapter V, Article 3, a principle is established which ever since has dominated French constitutional law: "The tribunals cannot intervene in the exercise of legislative power or suspend the execution of the laws, or interfere in administrative functions, or summon before them the administrators by reason of their functions". This principle has been applied in such a way that the acts of authority of the administrative organs cannot be tested by the ordinary tribunals. On the other hand the administrative tribunals possess the competence to undertake a review of this kind. At the head of the administrative tribunals stands the Conseil d'Etat (Council of State), which was set up in 1799, and acts as the final court in administrative conflicts of the kind here envisaged. Even though the administrative tribunals in principle can be regarded as a branch of the administration, there is no doubt that they are completely independent in their judgments.1

Naturally doubts are liable to arise with regard to the boundary between the authority of the ordinary and the administrative courts. The decision in disputes of this kind regarding competence is made by the Tribunal des Conflits, a tribunal consisting of an

____________________
1
On this subject see Waline: Droit administratif, p. 152.

-65-

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