ADMINISTRATIVE LAW AND PUBLIC SERVICE

We have already seen that legislation of the revolutionary period established the principle that acts of the administration could not be subject to control by the ordinary courts and that a separate set of administrative courts gradually evolved to deal with litigation arising out of such acts. But though the principle of the separation of powers had inspired the creation of a separate administrative jurisdiction, it did not provide a solution to the problem of how to distinguish between the spheres of competence of the administrative courts and the ordinary courts. It has never been accepted that all litigation involving the administration falls within the competence of the administrative courts, for the state may act as a private individual, operating by means of the civil contract. The jurists of the revolutionary era, such as Merlin and Henrion de Pansey, were keen to justify the distinction between administrative and judicial competence by arguing that it did not establish a general privilege of the state; and this project was developed by the first great systematizers of French administrative law (such as Ducrocq, Aucoc and Laferrière, writing in the early years of the Third Republic), who constructed the distinction between acts of authority, or public power, which were under the remit of the administrative courts, and acts of management (gestion), which fell under the jurisdiction of the ordinary courts.

This system remained the orthodoxy among administrative jurists until the end of the nineteenth century.