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THE GREEN BAG
CURRENT LEGAL LITERATURE This department is designed to call attention to the articles in all the leading legal periodicals of the preceding month and to new law books sent us for review.
ADMINISTRATIVE LAW. In the March Harvard Law Review (V. xix, p. 335) Edmund M. Parker in an article entitled " State and Official Liability " criticises a chapter in Mr. Dicey's " Law of the Constitution " in which the author discusses English administrative law as compared with that of continental countries. He criticises especially Mr. Dicey's statements to the effect that the scheme of administrative law is opposed to all English ideas. While this is true in a sense it is not true in the sense which the author intended to imply, namely, that such a scheme of administrative law is not recog nized by the law of England. "It would seem, therefore, that, if true of France, it is also true of England, that the extent of the rights, privileges, or preroga tives of the government as against the private citizen is to be determined on principles dif ferent from the considerations which fix the legal rights and duties of one citizen towards another; and it is also true of England, as well as of France, that an individual in his dealings with the state does not stand on anything like the same footing that he does in dealing with his neighbors, and one must conclude that if this notion is alien to the con ceptions of modern Englishmen, it can be only because of their lack of familiarity with the law of their own country." The second idea upon which French ad ministrative law rests is that of the separa tion of the departments of government. While this may seem strange to an English man it is a vital part of American constitu tional law. The author especially criticises Mr. Dicey's statement that in France the or dinary tribunals have, speaking generally, no concern with any matter of administrative law. "It must be remembered that among other things which administrative law includes are the civil rights and liabilities of private indi viduals in their dealings with the state and with officials as representatives of the state;
and as in France a fairly large part of those dealings falls within the jurisdiction of the ordinary courts, and is governed in many cases by no special and peculiar rules, it seems to me that attention should be called to this feature of the French law, in correction of Mr. Dicey's general statement." He also shows Mr. Dicey is in error in stating that " under the French, system no servant of the government who without any malicious or corrupt motives executes the orders of his superiors can be made civilly responsible for his conduct. "This brings us to the matter which is per haps of most importance in forming'any judg ment regarding the administrative law and administrative tribunals of France, and the entire omission of any reference to which from Mr. Dicey's chapter seems to me its greatest defect. "That matter is this, that as a complement of the exemption from suit enjoyed by govern ment officials in France on account of acts, even negligent and improper ones, within the limits of their functions, the state itself in many cases is held to be liable and may be sued by the private citizen who claims to have been injured by such negligence, or im proper act, of the government official. Xo comparison between the law of England and the administrative law of France can be con sidered as fair, which directs attention solely to the exemption from suit enjoyed by cer tain government officials in France, an exemp tion which similar officials do not enjoy in England, and fails to mention the right of the citizen in France to sue the state for .the act of that official, a privilege which the private citizen docs not enjoy either in England or in this country. "There are many other instances of a lia bility imposed on the state in France, not by statute but by the ' case law ' of the Council of State, in cases where, by the law of England and of the United States, no such remedy would be given the person injured. Among
