Comment on the article “Rally in favour of Administrative Justice”

This paper seeks to provide a critical commentary on the Article “Rally for Administrative Justice”, authored by Professor Vasco Pereira da Silva. It was published in volume nº. 6 of Elpis´ Law Review, entitled “Global, European and National currents in search of a multi-level rule of law”. The article examines the effectiveness of administrative courts within the various layers of governance - global, regional, and domestic. The purpose of this commentary is twofold: to summarise the central arguments presented in the article and to evaluate their contribution within the framework of the contemporary administrative legal landscape.

In the article, Professor Vasco Pereira da Silva advocates for the relevance of administrative justice, as the title suggests. Professor defends the importance of administrative and tax jurisdiction throughout a series of arguments presented in a rhetorical style, often reinforced by persuasive slogans. The Author begins by analysing the historical development of the English and French systems. Then, emphasises the period when their approximation became more pronounced and explores the various models of administrative courts through a comparative law perspective.

The article first assesses the divergent origins of administrative justice in France and the United Kingdom, which underpin the classical distinction between unity and duality of jurisdiction. In France, the Revolution gave rise to what the Professor calls the “original sin” of the administrative justice: the creation of specialised administrative bodies with adjudicative powers (administrative courts), along with a separate branch of law governing the executive power (administrative law). By contrast, administrative justice in the UK developed within the framework of common law and common courts. Therefore, it was not marked by this “original sin of confusion”. 

The convergence of both systems became more evident with the rise of the social state. In France, administrative courts began to assert their independence from the executive. In the UK, administrative law expanded to regulate economic and social functions. This led to the creation of administrative tribunals that, although not formal courts, exercised quasi-judicial powers. It is important to stress that these bodies were not formal administrative courts but tribunals. While these tribunals sometimes blurred the lines between administration and justice, the material constitution principles ensured that ultimate authority rested in the courts. Thus, the “problematic adolescence” of the system was overcome. At this stage, the first slogan of the rally is introduced: “Commons or special, a court is a court.” The point is clear: despite different ideological roots, both systems progressively move towards the jurisdictionalisation of administrative justice.

By the 1970s, in the post-social state, the judicial nature of administrative courts had been fully consolidated. Judicial powers expanded, courts gained broader competence, and the protection of individual rights was recognised as a central purpose. These changes were reinforced by constitutional developments in Europe and by the Europeanisation of administrative justice. Administrative courts came to be seen as equivalent to ordinary courts, with the same powers and responsibilities. In the UK, the creation of a formally recognised Administrative Court, together with distinct procedural rules, further strengthened this specialisation. In response to the misconception that the UK lacks an administrative court, held by some legal practitioners, the Author presents his second slogan: “In the UK, there is an administrative court.”

As a result of these developments, both France and the UK feature, nowadays, specialised courts for administrative disputes with specific procedural frameworks. The main difference between these systems lies in the hierarchical status. In France, as well as in Portugal and Germany, administrative courts act as superior courts. Whereas in the UK, administrative courts are at the first-instance level. From a comparative law perspective, the central question is no longer the unity or duality of jurisdictions. Instead, it concerns the scope, level, and degree of specialisation of administrative courts. Most contemporary legal systems exhibit some degree of specialisation. This may be at the first-instance level (like the UK), at the second-instance level (as in the federal courts of the United States and Brazil), or at all levels (as in France, Portugal, and Germany). This recognition inspires the third slogan: “Specialisation: the solution.” 

The article also discusses the paradoxical trends in the contemporary organisation of administrative courts. Countries with a long tradition of first-instance courts often impose limitations on judicial action, either through self-restraint (which happens, for example, in the United States Courts) or restrictions on judicial knowledge. By contrast, countries with highly specialised administrative courts, such as Germany, benefit from broader powers and greater judicial expertise. In Portugal, the Constitution establishes an autonomous jurisdiction for administrative and tax litigation, with specialisation in judicial training, career development, and court organisation. Still, challenges remain, as the author observes. The system still requires enhancing judicial training, further autonomy for the administrative judiciary, and developing specialised courts within the broader administrative jurisdiction. The article closes with a final rallying: “Administrative lawyers around the world, unite for a global rule of law”. Professor calls for an ongoing reform and the need for international collaboration, stressing that the specialisation can reinforce the rule of law and improve the effectiveness of administrative justice.

Several strengths can be identified in this article. First, it demonstrates convincingly that courts and law are inseparable, both historically and in present practice. These historical and comparative perspectives add depth by illustrating how structural organisation and judicial empowerment are essential for the establishment of an effective judicial administration system. Second, situates administrative justice within a broader constitutional framework, pointing out that judicial independence is one of the pillars of democracy. Third, presents a multilevel analysis of the rule of law, which examines different judicial administrative systems across various countries. Fourth, it stood out Professor’s assessment on specialisation. Concentrating jurisdiction in specialised courts or divisions fosters expertise, as well as consistency and legitimacy in judicial decisions. Decision-makers acquire a deeper understanding of the complex regulatory frameworks and technical subject matter that often characterise administrative disputes. Moreover, specialisation fosters procedural efficiency and reinforces legal certainty. Judges with targeted knowledge can resolve disputes more swiftly and with greater analytical precision, reducing delays. Fifth, the article also draws attention to a central issue in EU administrative law – the constant negotiation between constitutional ideals and European standards. As the Author notes in O Contencioso Administativo no Divã, a key dilemma remains: should administrative justice strive for the constitutional and European optimum, or merely settle for the minimum required to remain functional? This tension reflects the broader challenge of reconciling some legal principles with the realities of administrative practice, emphasising that striving for the optimum may not always be feasible, but settling for the minimum risks undermining the rule of law.

Some topics, however, deserved deeper analysis. While the article highlights the value of administrative justice, it pays less attention to the difficulties surrounding its implementation. Diverging legal interpretations, problems with enforcement, and tensions between state sovereignty and supranational oversight all pose serious challenges. The rule of law is widely accepted as a principle, but its practical application requires closer examination. At the international and European levels, interaction between legal systems is intensifying. Issues such as data protection, migration, and climate litigation demand strong judicial cooperation and mutual trust. Cross-border disputes highlight the need for coherent adjudication and efficient enforcement mechanisms. In practice, this process often involves a considerable degree of complexity. The obligation for national courts to refer to the Court of Justice of the European Union is a clear example of that. The effectiveness of administrative justice also faces new pressures. Domestically, courts must grapple with increasingly complex regulations, from environmental law to digital governance. Judges are often asked to solve highly technical disputes, and yet they lack the expertise and resources to address them effectively. This problem could be addressed, for example, through specialised judicial training or the use of expert advisors.

Moreover, reforms such as digitalising procedures and simplifying rules merit consideration as they could improve efficiency and accessibility by speeding up processes, enhancing transparency, and reducing barriers to justice. However, they carry risks. Oversimplification is one of them, as it might undermine judicial discretion or weaken guarantees of due process.

To conclude, the article “Rally in favour of Administrative Justice” highlights the main structural challenges of administrative justice. It emphasises its dual dependence on constitutional principles and the supranational legal order. Professor Vasco Pereira da Silva’s “rally” acts as both a reflection and a call to action. It urges legal systems to strengthen specialisation, reinforce judicial independence, and encourage cooperation across jurisdictions. Ultimately, the article shows that administrative justice is not just a technical field. It is a vital part of democratic governance and the rule of law. Nevertheless, numerous challenges remain that warrant careful attention and must be addressed to ensure that administrative justice remains effective and accessible in an increasingly complex legal landscape.

 

Referência bibliográfica:

• SILVA, Vasco Pereira da — O Contencioso Administrativo no Divã da Psicanálise, 2.ª ed., Coimbra: Almedina, 2009.
• ANDRADE, José Carlos Vieira — A Justiça Administrativa (Lições), 20.ª ed., Coimbra: Almedina, 2025.
• https://www.youtube.com/watch?v=JhpFFhwbRHc&list=PLY0Vwz-ThmtSDpTzf7FGfVmhY26LQQ5dY&index=4 

 

Maria Teresa Rosado, nº 140122050 

09-10-2025