THE NEED FOR COMPARATIVE ADMINISTRATIVE LAW STUDIES IN LATIN AMERICA

Abstract

During most of the 20th Century comparative law was concerned primarily with private law, to the extent that, in spite of its ancient roots, it could be queried whether comparative public law should be called a “neglected discipline”. Important contributions in the field of public law existed, partly as a result of the interest of common law jurists in French administrative law, but the principal focus of comparative lawyers remained fixed on private law.

The last decades have seen, however, a growing interest in comparative public law. This happened, first, in the field of constitutional law due to the development of constitutional courts in several European countries after the Second World War. Subsequently, the enactment of new constitutions in Eastern European countries after the fall of the Iron Curtain gave additional impetus to comparative studies in the field. A significant amount of books and articles now exist on the subject.

Widespread interest on comparative administrative law is a more recent arrival. The creation of the European Union, and the resulting growth of its administrative law, has required EU courts to construct rules from the laws of the member States, thus forcing a comparative analysis of those laws. Also, due to the growing impact of community administrative law on the national laws of the member States, it has been said that in order to know the administrative law of any European country, it is now necessary to learn also about the administrative laws of the other States. Finally, reference should also be made to the growing importance of the so-called “global administrative law”, that brings about the issue of comparative administrative law putting into the forefront the topics analyzed in this paper. Several books and other works in the field of comparative administrative law have recently been published.

This paper will argue that a similar strong need for comparative administrative law studies exists in Latin America, although for a different reason: While the importance of those studies in Europe stems from to the need to extract common principles from the different national laws, in Latin America the first issue that presents itself is the consistency of the different sources of each of the national laws and the resulting need to take due account of the differences among all the donor systems in order to better understand one’s own law.