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The status of comparative administrative law: A comparison between French and Belgian legal education (1).

ABSTRACT. Administrative law is a legal field usually famous for its close links with specific historic features of domestic legal systems. However, states increasingly cooperate on a range of pressing issues (e.g. immigration, cybercrime, international corruption, etc.) relying heavily on administrative cooperation. Equally, lawyers are increasingly mobile, changing jobs and countries over the course of their career. These combined evolutions should encourage to revisit how legal education provides young lawyers with tools to facilitate their critical skills. This paper shows that comparative administrative law remains very much an untapped resource to provide these skills. It offers a survey (using a questionnaire) of French and Belgian private/public universities and administrative courts. This empirical methodology is supported by historical and theoretical analysis of the past, present and future of comparative administrative law. Belgian and French legal education includes modules entitled "comparative administrative law" in the academic curriculum. They also develop other tools such as double degrees ("bi-licence" and "bi-maitrise") for their students to gain a better understanding of another administrative law system. Beyond these similarities, France and Belgian legal education have their specificities. For instance, Belgian administrative law is often taught from a comparative law perspective which is not necessary the case in France. Whereas Belgian administrative judges develop strategies to learn from the Netherlands, their neighbor, in their daily work a comparative approach, it was rarely the case for the French Conseil d'Etat until the recent set up of an expert unit in comparative law (Cellule de droit compare). All in all, and although such tools are still few, this paper highlights the diversity of ways in which students are encouraged to become more familiar with foreign legal systems.

Keywords: comparative administrative law; legal education; France; Belgium; Public Law; administrative courts; European Administrative Law; law schools/universities; Comparative Law degree


Until relatively recently, comparing administrative legal systems was not common in Europe. Handbooks on that matter are hardly to be found (2) and rather focus on the framing of European Administrative Law (3) or on the need of a European legal education. (4) As a result, students sometimes face a gap between their education and the legal profession in our globalized word. (5)

Indeed, law studies need to cater for a wide range of needs, including vocational training as well as a more liberal education: they are expected to equip students with the necessary skills to find a job in the legal professions and to flourish in them. (6) Hence the relevance of cultural approaches to law, innovative ways of teaching (7) and transsystemic approaches. (8)

Although many students in France and Belgium will not remain in any of the main legal professions (judges, barristers etc.), legal education is predominantly designed with these professions in mind. In both France and Belgium, a degree in law is required to move on as a barrister or a judge. Directly after completing their studies or after a few years in one of these main legal professions, young lawyers will move into other roles such as politics, the financial world, EU institutions, human rights NGOs, lawyers in businesses or lawyers in public administration etc. Legal education ideally needs to support these young lawyers in their changing roles so that they can develop a successful career until they retire.

To give such flexibility, legal education related to administrative law could equip students with factual and theoretical knowledge of the domestic administrative system. It could also bring in the influence of the EU, the ECHR and globalization in general. Discussing these influences and being able to develop a critical appraisal of their meaningfulness would require students to be able to understand them in their wider political, economic, social and historical contexts, to go beyond the black-letter-law to understand the law in its context. Students could thus benefit from extensive comparative law teaching.

The same holds true for an academic career. The construction of European administrative law has boosted interest in comparative administrative law in the universities and opened the minds of most law scholars. The development of well-constructed and thoroughly discussed European administrative law requires extensive comparative work. In other words, comparative law is no longer seen as an exoticism and has begun to be taken seriously. There is thus a real need to train lawyers and practitioners in comparative administrative law.

For these reasons, studying the status of comparative administrative law in legal education appears crucial. Against this background, however, our survey of the place of comparative administrative law in Belgian and French and Belgian legal education shows that very few modules explicitly entitled "comparative administrative law" are provided in the academic curriculum. Yet, this survey brings out some optimistic elements regarding other ways in which students are encouraged to become more familiar with foreign legal systems and in which legal practice is starting to value the contribution of comparative law.

To give an account of French and Belgian practices in teaching administrative comparative law we looked at the law programs in various universities; we then pinned down modules in comparative law, comparative public law and comparative administrative law. We also tried to track specific master degrees in comparative law. Finally, we sent a questionnaire to a series of colleagues to help us gain a more accurate picture of the practices. So we take this opportunity to thank them here. (9)

Even if a blossoming of new modules entitled "comparative administrative law" is not likely to happen overnight, there is clearly increasing awareness that the lawyers of tomorrow need to develop the skills to work globally and to look at their own system from a critical and constructive perspective. Here, a selection of what is available for them in France and Belgium is given (2) and, beyond this, how law practitioners--mainly administrative judges--use comparative law in their day-to-day lives (3). This modest overview takes place within the historical development of comparative law in France and Belgium. We thus start by mentioning this context (1).

1. Using Comparative Law: Background to Comparative Law in and beyond the Classroom

Since the turn of the 20 (th) century, France and Belgium have shared a similar predilection for comparative law in private law. This is illustrated by the Congress of Comparative law hosted by the Societe de legislation comparee in Paris in 1900 (10) and by the setting up in 1908 of the Revue de droit international et de droit compare in Belgium.

In France, there was for a long time no public law counterpart to the comparative private law courses that date back, for instance, to 1831 (special chair of the prestigious College de France entitled "Histoire generale et philosophique des legislations comparees") and 1834 (course of comparative criminal law at the Faculte de droit de Paris (11)). Research centers for comparative private law, such as the Institute of Comparative Law founded in Lyon in 1920 (Institut Edouart Lambert) are much older than the few existing comparative public law institutes. (12) On its creation in 1869, the Societe de Legislation comparee--still very active today--concerned mainly private law, though it opened to public law approximately a decade ago.

This can be explained by the fact that comparative law as it was understood at the start of the 20 (th) century was connected to the "dream" of developing a common worldwide legal system. Such an approach was not possible for comparative public law: public law has historically been law that is intimately connected to the state-making process and the gradual recognition of the state's identity. Public law is indeed based on notions which are fundamental to defining this identity, such as sovereignty, democracy etc.

Therefore--and despite the fact that Charles de Montesquieu (1689--1755) is often considered to be one of the first comparatists in modern times (13)--for a long while French academics understood public law as a system to be exported, especially to its colonies. There was little space for comparative public law in France. Indeed, the prestige of the French Civil Code, and its influence on foreign legal systems, left little room for comparative public law. (14) The famous classification of legal families developed by Rene David (15) barely takes into account public law, and even now such classification based on public law is hardly to be found in France. (16)

A significant part of the doctrine supported the idea that French administrative law had nothing to learn from abroad and that legal transplants in public law were dangerous. (17) In his leading work Precis de droit administratif et de droit public, (18) the famous administrative law scholar Maurice Hauriou qualifies France as the most achieved model of administrative law as opposed to the UK, presented as a country where administrative law hardly exists. This brief comparison seems superficial because it is entirely and almost ideologically focused on the existence of a separated administrative court and a body of rules applying only to public bodies. (19) As surprising as it might seem, this veneration of French administrative law lasted until recently. (20)

Comparative law gradually lost much of its importance in France during most of the 20 (th) century, mostly due to the highly positivistic and legicentric method of teaching law in universities and to a lack of agreement on the method to be used for comparative law. (21) The foundation of an international faculty of comparative law in Strasbourg in 1949 was one of the few exceptions where comparative public law was taken into account. The status of comparative administrative law was very poor until the end of the 20 (th) century. (22)

The situation is different in Belgium. The Belgian Constitution of 1831 was from the start a mix of ideas coming from various foreign systems, such as the Netherlands, France and the United Kingdom. This was only a start. Overall, Belgian public law is largely a system made up of transplants. A few examples illustrate the scope of Belgian borrowing from its neighbors--given here by chronological order of borrowing. Belgium set up a Conseil d'Etat on the French model in 1946--48; (23) it took over the French notion of public service in 1952; (24) it borrowed the beginselen van behoorlijk bestuur in 1970 from the Netherlands; (25) its federal system and constitutional justice system are mainly borrowed from Germany. However, all these borrowings mean a lack of genuine legal culture, (26) and especially of an administrative legal culture. It seems that there is very little to export and mostly inspiration from abroad to be found.

Belgium is best known for its sustained pragmatism, in a fashion familiar to English lawyers: (27) pragmatism infuses legal education in administrative law. The lecturer will seek to equip students with the tools to learn how to formulate critical reasoning, reform and make decisions to meet the needs of citizens and other legal actors. (28) In the same vein, comparative law--any kind of comparative law, comparative administrative law included--is very often approached in this very pragmatic and eclectic way. (29) The question in mind would be: how can these principles, institutions or ideas be useful for working out a solution to this specific problem? Belgian practitioners confirmed that Belgian administrative law and judges seek to develop the law from concrete situations, adjusting it as and when needed.

EU law and ECHR are now increasingly developing tools and principles which affect how public administration and administrative judges have to make decisions (e.g. transparency, public participation, fair trial and good administration). Prominent debates about the relationships between EU law and domestic law have been numerous over the last decennia. Scholars need to take into account EU developments in their own administrative systems and bring them into an intellectual map. They look for inspiration in other legal systems and they are inclined to teach some of their findings to their students.

2. In the Classroom

Presented in such a way, teaching comparative administrative law seems an obvious need. The community of public comparatists is growing and, despite some reflexes from the past, students are increasingly encouraged to study abroad as well as to specialize in comparative (public) law. However, modules of comparative administrative law are extremely marginal in the programs of law schools in France and Belgium. So we will first look at the few instances where comparative administrative law is taught (1) before exploring the range of other modalities that provide students with access to other legal systems (2). We will then give a glimpse of comparative law in research and the research institutions within which PhD studies can take place (3).

1. The lack of specialization in comparative administrative law

In France, there are two expert master's courses based in Paris entitled "comparative public law." They attract approximately 15 students per year each:

* Master 2 in Comparative Public Law of the EU Member States ("Droit public compare des Etats Europeens") at the Universite Paris 1 Pantheon-Sorbonne. (30) Created in 2002, it was the first master's course specializing in comparative public law in France. It brings together French and foreign students. During the first term, foreign students follow lectures in Paris 1 whereas French students go abroad for their training and the research for their Memoire (dissertation). During the second term, all students follow lectures in comparative public law, pass their exams and have their viva for their Memoire in comparative public law. Unfortunately though, this Master will not be available anymore starting September 2016.

* Master 2 in Comparative Public Law at the Universite Paris 2 Pantheon-Assas opened recently in 2009. (31) French and foreign professors give lectures in comparative public law, all classes are taken in Paris and the students also write a Memoire.

Another Master 2 relates to comparative public law but is focused on former French colonies: Master 2 in African legal systems ("Droits africains") at the Sorbonne (Paris 1): this master's course is focused on public law and the concept of legal states in African countries. (32) It mainly concerns comparative constitutional law, leaving relatively little room for comparative administrative law.

These Master 2 courses are "Research Masters," which means that they aim to provide training for students willing to engage in an academic career. The other type of master's course, called the "Master 2 Professionnel," is more pragmatic (for instance, it includes compulsory training). The Universite Aix Marseille offers a Master Professionnel in Applied Comparative Law ("Droit compare applique") but this is entirely focused on private law. (33)

Overall, French universities offer very few master's courses specializing in comparative administrative law. The situation is even direr in Belgium, where there is no Master 2 (or "Master complementaire," "master's after

master's") devoted to public comparative law in the country. Indeed, the normal duration of law studies is five years in Belgium (compared to the four years required in France to gain the necessary certificate to present for exams leading to professional qualification). Most master's courses and master's options are integrated into the general law curriculum. The Bologna process also contributed to a strong reduction in master's after master's courses in Belgium. Master's in Belgium are mainly geared towards equipping students with the required skills and legal knowledge in one field of the law (such as private law, criminal law, European law, international law, public law). A master's entitled "Comparative Administrative Law" would probably be far too specific to attract a sufficient number of students in Belgium. The same remark applies to France, given the fact that, as already mentioned, comparative public law--a broader subject--attracts a limited number of students.

In addition, comparative administrative/public law modules can be part of a diploma/curriculum. A couple of hours devoted to comparative administrative law as part of a broader master's do not equal a specialization but they deserve to be mentioned here.

In France, for instance, the Master 2 in European legal systems--Comparative Law ("Droits europeens--droit compare: parcours droit compare") of the Universite de Strasbourg (34) and the Master 1 in Public Law of the Universite de Lille (35) offer the possibility of taking modules in comparative constitutional law. Nevertheless, again, most of these master's in European/international/comparative law are rather oriented towards private paw. This seems also to be the case, for instance, in the Universite Toulouse Capitole (Master 2 "International, European and Comparative Law--MADIC), (36) Lyon 3 (Master 1 & 2 in European, International and Comparative Law) (37) and Paris 2 (Master 2 in European Comparative Law, even if some seminars are devoted to comparative public law). (38)

In Belgium, modules at master's level may include an option dedicated to "comparative public law" or "comparative administrative law," although the module offering changes over the years. In 1999, four universities delivered "comparative administrative law" modules. (39) In 2015, there is only one module which is explicitly entitled "comparative administrative law:" an optional module taught at the University of Antwerp for students choosing to specialize in public law. It is taught in Dutch and is focused on France, Germany, the Netherlands and the United Kingdom. Each year, a different discussion topic is chosen for discussions in lectures and for guest speakers. Teams of students write research papers around this topic.

Two other universities, however, offer modules related to "comparative administrative law." The University of Liege organizes a module in "comparative government"--an optional module actually taught at the University of Maastricht. The module is taught in English. It is a mixed module spanning constitutional and administrative law in the USA, the United Kingdom, France and Germany. The objective is to ensure that students become more familiar with constitutional principles (state functions, democracy, electoral systems, federalism and constitutional review). However, topics more related to administrative law are also taught, such as the different forms of government, the separation of power and government-parliament relationships, as well as the constitutional implications of the EU. (40)

The Universite libre de Bruxelles also delivers a module on "institutions administratives comparees," which is an optional module for law students and a compulsory module for students in administrative sciences. It focuses on French and English administration, with a strong historical perspective.

Such limited provision of comparative administrative law modules is, however, only the tip of the iceberg. Indeed, students have a wide range of opportunities to trigger further curiosity about foreign systems. The ways in which this curiosity can be exercised, however, are expressed differently in France and Belgium.

2. Opportunities to study foreign administrative systems

In Belgium, as in France, comparative administrative law needs to be put in its wider context of comparative law teaching. The picture is indeed a little muddled by the criss-crossing of various initiatives--which does not help with visibility and access to information.

In France, opening one's mind to foreign systems is possible thanks to two main options.

The first option for opening one's mind to foreign systems relies on developing one's interest in a foreign legal system within a degree, in one form or another. Here, a range of French universities offer double degrees (Bi-Licence and Bi-Maitrise) with different countries, such as the UK, Spain and Germany. Such double degrees exist, for instance, between Nanterre/Lyon/Toulouse and Essex (41) and between the Universite Paris 1 Sorbonne and King's College, London/Koln University/Universidad Complutense/Columbia University of NY/Universita degli Studi de Florence. (42) In these double degrees, the main focus is not the comparison of administrative law but students are exposed to two legal systems and are trained to develop their mental maps and think as if they were "natives" of that system for a range of legal issues, including constitutional law, administrative law, the relationships between the EU and domestic laws. Similarly, licences in law and language can provide similar legal education in another legal system (e.g. Universite de Grenoble: Introduction to Common Law (43)).

Furthermore, some French universities offer the possibility of specializing in one foreign legal system through a "Diplome Universitaire (DU)." This is the case at Universite Lyon 3, which provides six DUs: in German law, in American law, in English law, in Spanish law, in Italian law and in Asian law. There are all taught in the original languages except for the last one, which is taught in French and English. Conversely, the Universite de Grenoble offers a DU in French law taught in English and dedicated to foreign students from all over Europe. (44)

The second option for opening one's mind to foreign systems is less structured: it relies on the provision of a range of opportunities for students to become familiar with another legal system. For instance, the universities set up lectures in foreign law provide legal terminology modules and invite guest speakers. At the Faculte libre de droit de Lille (a private university), approximately 60% of the European/international/comparative law degree (30 seminars/lectures) is taught in a foreign language (mainly English but also Spanish and German). In addition, this university offers bi- or tri-lingual licences in which foreign laws are taught in their original languages. (45)

Other universities set up schemes whereby students can spend a term abroad to learn the legal system of another country (without any specific comparative law training). For instance, the Master 2 droit public fondamental parcours "Droit public France--Amerique latine" of the Universite de Toulouse Capitole offers the possibility of spending the second semester in Costa Rica. (46)

The French education system thus provides students with a range of options and modalities for learning more about different legal systems and languages within and outside the EU.

In Belgium, comparative administrative law needs to be put in its wider context of comparative law teaching. As in France, the picture is indeed a little muddled by various initiatives which prevent visibility and access to information. Overall, the Belgian academic system is moved by practical considerations.

First, in contrast to France, Belgian administrative law is often taught from a comparative law perspective. Belgian colleagues, such as Professor Delperee, emphasize the need to integrate comparative law within their teaching. (47) This approach means that comparative law and comparative administrative law may be hidden in other modules, such as modules entitled "Comparative Federalism" (ULB) or "Constitutions et integration europeenne" (UCL). For instance, the latter module compares the constitutional principles and norms enshrined in European constitutions and contributing to the development of a European constitutional commonwealth. Issues related to balancing public finances are discussed, a topic especially relevant to any administrative law discussions. This innovative approach to comparative law provides fascinating intellectual opportunities as it brings administrative law topics into their wider constitutional and historical contexts.

Secondly, comparative law teaching is very much focused on Belgium's neighbors (France, Germany, the Netherlands and the United Kingdom), leading to the development of close relationships with neighbor universities (e.g.: Liege-Maastricht, KUL-Maastricht). A similar phenomenon can also be noted in France: with only a few exceptions, the majority of French partnerships are developed with French neighbors (Germany, Italy, Spain, the United Kingdom etc.).

Equally, close cooperation between some French-speaking and Dutch-speaking universities has developed within the Erasmus-Belgica exchange program (e.g. ULB-VUB, UGent-Liege, UAntwerp-Namur; KUL-UCL). Within this cooperation, one specific module needs to be mentioned. A joint degree between the KUL and the UCL exists at master's level with a special option devoted to public law, and thus modules of administrative law. (48) In this program, UCL students can take a series of options at the KU Leuven. These options include at least five out of the following options relevant to comparative administrative law purposes: federal systems, instruments of public authorities, legal protection against administration, law of foreigners, education law, and environmental and energy law.

Besides this French-speaking/Dutch-speaking cooperation, some universities put strong emphasis on German and German law. Liege, for instance, provides language courses supporting students in passing the language test to become a German-speaking judge. This university also provides very detailed modules in German law, including German public law.

However, there are exceptions to this focus on Belgian neighbors. There may well be individual lectures or a series of events related to foreign law. The KUL, for instance, has set up a Global Law School Program which hosts a series of twelve external guests, ranging from Pakistan to Spain, and the USA to South Africa (for the 2014--15 program). Modules in Islamic law, African or Chinese law are, however, uncommon. To our knowledge, no module is especially devoted to Spanish, Italian or Scandinavian law.

3. Institutional Research and PhD Research

Finally, an overview of legal education in comparative administrative law needs to look at institutional research and PhD research. Here the situation is quite different in France and Belgium.

In France, there are some research centers specializing in comparative law, and these sometimes focus on comparative public law. For instance, there are the French Centre for Comparative Law (49) and the UMR of Comparative Law, (50) which is part of the famous French National Centre for Scientific Research (CNRS) (51) and promotes the Master 2 in Comparative Public Law of Paris 1. Cooperation also takes place between universities such as the College doctoral franco-allemand de droit public compare (Paris 1/Strasbourg/Freiburg) (52) and the Alliance Atlantique (Paris 1/Columbia University/SciencesPo Paris). One should also mention here the Centre de droit compare (part of the IRDEIC of Toulouse-Capitole), which includes professors of public law, and the Institut Carre de Malberg in Strasbourg, where foreign professors are regularly invited.

Young French researchers aspiring to academia have long been discouraged from engaging in comparative studies, though, but fortunately the situation is changing rapidly. Recently, several comparative public scholars have published excellent PhDs and have succeeded at the academically all-important Agregation de droit public, which enables French doctors to become professors. Since 2011, the bibliography of this selective competition has included books and articles in comparative administrative/public law.

Taking the example of the Master 2 in Comparative Public Law of Paris 2, approximately half of the students start a PhD after completion. Two students per year are awarded an Allocation de recherche (a three-year fellowship). The other half of the cohort practices comparative public law, for instance at the College d'Europe, SciencesPo or at the Cellule de droit compare of the Conseil d'Etat (see below, under Section III.3).

In Belgium, the situation is quite the reverse: while there is no active institutional cooperation alongside an inter-university research centre, PhDs most often include comparative research.

At an institutional research level, there is only regular cooperation between the Dutch-speaking part of Belgium and the Netherlands, in the form of the Vereniging voor de Vergelijkende Studie van het recht van Belgie en Nederland (founded in 1947). Regular reports are issued, including discussions of administrative law topics: for instance, open access to public documents (in 2014), breaches of procedural requirements and the "bestuurlijke lus" (administrative loop) in administrative justice from a comparative perspective (in 2013), and procedural guarantees in a welfare state (in 2012). However, these reports fall more into the category of juxtaposition of domestic law than a genuine endeavor to draw comparative insights between Belgium and the Netherlands.

With regard to PhD research, colleagues in professorial positions (among others at the KUL, the Universiteit Antwerp, the UCL and the ULB) highlight the importance of comparative law in doctoral research. They emphasize that comparative law becomes increasingly important for doctoral research, with better tailored training being provided for that purpose. At the KUL, a PhD without some form of comparative law research is rare. At most of the universities, research centers in public law list a number of PhD research studies with comparative aspects on their websites. It is difficult to assess whether the numbers of PhDs related to comparative law are growing or if information on them is more easily accessible. However, the former case would reflect the answers received to our questionnaire, according to which universities stress the opportunities offered to PhD students by the skills that comparative law can help them to acquire and the further opportunities for internationalizing one's curriculum vitae. For instance, the European label for PhDs is starting to become more widely known. PhD students also seek ways in which they can receive tailored training in their research. However, the levels of enthusiasm for comparative law were diverse among the PhD students who answered to our questionnaire. Some were clearly seeing comparative law as a springboard for developing their future professional career while others were more hesitant to declare full optimism about similar developments.

Comparative administrative law is, however, not only a matter of academic research--although the professionalization of PhDs may in the long run contribute to the development of more systematic research works related to legal issues having a concrete impact on the practitioners. We turn here to the existing imprint of comparative law outside the academic world.

3. Beyond the Classroom: Developing a Practice of Comparative Administrative Law

The importance and relevance of comparative administrative law extend beyond the classroom. Foreign law is increasingly used as an inspiration for legal developments in legal reforms (1), in international networks (2) or in the context of administrative justice (3).

1. Comparative Administrative Law at a day-to-day level and in law reforms

In practice, there is a slight development in the ways in which foreign law is used in France. MPs and judges have been taking foreign law more strongly into account for the last five to six years. For instance, a 2014 statute on SEMOP looked at German and Italian models of cooperation between local government and economic actors in order to draft a framework of public-private cooperation. (53) Generally speaking, the French Parliament has its own database of foreign laws; the Ministry of Justice has at its disposal the Service des affaires europeennes et internationales. (54) Among the practising bar, comparative law is almost never used (except in cases involving foreign laws). To pass the bar, there is no exam on comparative law. The same applies to the Concours de la Magistrature--the competitive entrance exam to become a judge.

In Belgium, reforms of the Conseil d'Etat have been inspired by Dutch and French procedural devices, and the parliamentary works clearly identify and discuss these foreign inspirations. The 2014 reform grants a range of new powers to the Belgian Conseil d'Etat, (55) such as granting civil penalties (astreinte) or damages. A new procedure has also been introduced to speed up cases: the "boucle administrative" or "bestuurlijke lus," a technical device which had been introduced in the Dutch administrative court. (56) Dutch legal provisions and French case law are regularly referred to in parliamentary documents. (57) However, the legal context within which these various techniques have been developed is never explained in parliamentary discussions.

This reform has been much discussed. Belgian administrative judges have been to the Netherlands to discuss the Dutch system with their colleagues in the Dutch Raad van State. A conference regarding the efficiency of administrative justice included comparative law accounts. (58) The proceedings were published in a Belgian administrative journal, (59) while other discussions are available on-line. (60) However, Belgian scholarship has expressed doubts about the consequences of this legal reform. Indeed, the Belgian Parliament has inserted in its statute on the administrative judge some ideas picked up from France, without trying to see how this transplant might fit in the general logic of the Belgian administrative justice system. (61)

2. Administrative Courts as Members of International Networks

International networks can provide an intellectual space in which judges and practitioners can exchange information about their practice and the legal issues they face. Comparisons between experiences, background, issues, solutions and resources can be discussed. Inspiration from one system to another can be fostered. Both the Belgian and the French Conseil d'Etat are especially active in international networks.

The French Conseil d'Etat is a member of the ACA-Europe (Associations of the Council of States and Supreme Administrative Jurisdictions of the European Union (62)) and the AIHJA (International Association of Supreme Administrative Jurisdictions). Its representatives play managerial roles in these associations. For instance, J.M. Sauve, the vice-president of the Conseil d'Etat, is also vice-president of this European organization.

Similar trends and activism exist in Belgium: the Belgian Conseil d'Etat is part of the same networks of administrative colleges as its French counterpart: ACA-Europe and the AIHJA. In 2014, the General Assembly of ACA-Europe elected Geert Debersaques, State Councillor of the State Council of Belgium, as its Secretary General. (63) In this role he follows his Belgian colleague, Yves Kreins, known for his trilinguism (French, Dutch and German). Yves Kreins became Chair of the Belgian Conseil d'Etat in 2014. (64) Furthermore, a range of Conseil d'Etat members--both judges and assessors in the legislative section--have demonstrated interest in comparative law, for instance through their academic engagement. (65)

3. Comparative law in the work and structure of the administrative courts

In 2008, the French Conseil d'Etat set up an expert unit in comparative law (Cellule de droit compare). This new unit is part of the Department of Legal Research (service de recherche juridique--SRJ), which supports the members of the Conseil d'Etat by providing information, reports and databases. To compose this new unit, the Conseil d'Etat hires young graduate students specializing in comparative law (among them, students from Paris 1 and Paris 2 Masters in Comparative Public Law) but also, of course, lawyers, academics and trainees from abroad. The Cellule now includes three full-time employees and trainees. According to the experts working there, it has a growing influence: 80 to 90% of critical and crucial matters are resolved after reading a comparative report (66) (in 2014, approximately 40 notes/reports (67)). Most of the time, these reports take months to be drafted and are not published: they are synthetized in a "note" presented and discussed by the members of the Conseil in charge of the case.

The Cellule de droit compare is also in charge of a legal watch (veille juridique) in comparative administrative law published in the Revue internationale de droit compare.

However, no foreign cases have been mentioned explicitly so far in any Conseil d'Etat judgments. Therefore, the best way to detect the existence of comparative reasoning is to read the conclusions of the Rapporteur public. During a recent meeting, Jean Marc-Sauve quoted four matters in which comparative administrative law has a strong influence. (68) First, and obviously, when the case involves foreign legal systems and/or European law. (69) Secondly, when fundamental rights and public liberties are concerned. Here, the vice-president of the Conseil refers to the right of asylum, (70) immigration law (71) and rights of prisoners (droit des detenus). (72) Thirdly, fundamental rights/principles that have an "ethical" aspect: for instance, the principle of impartiality (73) or euthanasia. (74) Finally, technical matters such as the effect of a law that has become unconstitutional (75) or police powers. (76)

In other cases though, the rapporteur public refuses to take into account foreign administrative laws because doing so appears inefficient or non-convincing. (77) This is not a sign of resistance to comparative law: there is no obligation for French judges--or any judge--to apply and implement solutions coming from abroad. The key issue is whether these foreign administrative laws are seriously studied and taken into account, and if the decision to be inspired by them--or not--is scientifically based. The more lawyers are trained in comparative administrative law, the fewer mistakes are likely to happen.

Overall, French administrative judges appear to have taken comparative law a little more seriously very recently.

While French law has long been a law of exportation, seeking to promote its legal system abroad and claiming exceptionalism, Belgian legal culture has developed in a far more muddled way--so much so that one might say that it has failed to develop a genuinely distinctive legal identity, being always torn between the French and Dutch models. Yet, the Belgian Conseil d'Etat has also no tradition of referring to foreign law or foreign judgments. However, it will not refer to its own case law either. It does, however, pay attention to the case law of the European Court of Human Rights and the Court of Justice of the European Union. It also takes into account the way in which the law has been developed across the three Belgian regions/communities, bringing here a comparative perspective of some sort within the Belgian legal system. In very rare instances, parties may bring references to foreign case law in an instrumental fashion, to bolster their cases. (78) The auditeur can also provide references to foreign case law. The cases where this is most likely to happen would be mainly cases related to asylum, immigration and refugees. (79)

This rare use of comparative law in Belgian administrative justice can be related to various factors, such as:

* the very technical nature of many regulations, which impedes carrying out a real comparison;

* the awareness that it is difficult to assess the meaning of administrative/judicial decisions when their full location in a foreign administrative law system is only superficially grasped;

* the lack of time and resources (language included) to really delve into the sophistication of other administrative systems. (80)

To our knowledge, no systematic research has been recently carried out on comparative law in Belgian administrative law or jurisprudence. The same holds true for France, where the above three factors of difficulty and sometimes resistance also apply.

Conclusions: Growing Awareness of Administrative Comparative Law?

From this overview, we can answer that there is growing awareness of foreign law in Belgium and France. Students are given the opportunity to get glimpses into other legal systems, including other administrative law systems, through a variety of talks, lectures, research papers etc. Systematic comparative administrative law is, however, rare and reserved for a few specific programs (in France, for instance: institutions administratives comparees--Master 2 of Paris 1) or modules (institutions administratives comparees at the ULB or vergelijkend bestuursrecht at the UAntwerp). Belgian PhD students are, generally speaking, encouraged to develop research that includes comparative law. The situation is different in France, where PhD studies including comparative methods have for a long time not been seen as opening up tenured positions. This is slowly changing.

Foreign law is thus part of the overall education that average law students gain in both France and Belgium. Some students will have taken specific modules giving them a more coherent and systematic approach to methods in comparative law, where key themes and discussions relating to comparative law will have been discussed or the relationships between black-letter-law and the law in context will have been investigated further. Similarly, the influence of the EU and the ECHR will have featured more or less prominently in some modules, depending on the personal interests and professional backgrounds of particular teachers.

Comparative administrative lawyers face multiple challenges if they want to push their research and teaching agenda further. Firstly, comparative administrative law would benefit from being identified as a specific autonomous legal discipline, enabling students and legal professionals to develop an intellectual, methodological and critical framework to explore legal issues in other legal systems, and to use and help develop further the tools and databases that are increasingly developed.

Secondly, comparative administrative lawyers need to unpack another question: what do they aim to achieve? Do they want to develop a European administrative law, connecting back to the dream of comparative lawyers at the turn of the 20 (th) century to build a common worldwide legal system? If not, what is it that they want their research to achieve in practical, concrete or conceptual terms?

Thirdly, comparative administrative lawyers would need to develop a framework allowing recognition of the tensions at the core of administrative law. On the one hand, administrative law is, for many lawyers, the "DNA" of a legal system which has crystallized over time and expresses the cultural, political and economic identity of a legal system. (81) On the other hand, unpacking this specificity of administrative law would enable discussion of the very notion of administrative law and its relationships with private law, constitutional law and specific legal fields (such as environmental law, urban planning, housing etc.). Administrative lawyers would benefit from comparative discussions to ground in a deeper and more nuanced fashion the specific features of administrative law as defined by each legal culture.

With this intellectual and academic agenda more fleshed out, comparative administrative lawyers could start building the key stepping stones to engaging with the unique needs of each administrative judge, providing the relevant information that judges need in key cases from other jurisdictions. Comparative administrative lawyers could prevent the use of foreign law being seen as purely opportunistic by starting to build a strong intellectual case supporting more extensive use of comparison in cases where this would be relevant. This can only be done if a fertile discussion is held between practitioners and academics, between EU/ECHR judges and domestic judges. Platforms to foster these discussions would be very welcome.

Overall, administrative comparative law is a rich legal field, with many fascinating opportunities to grow and develop extended discussions on how power is organized in a given society and legal culture. This engagement with practical and intellectual needs is crucial for supporting the lawyers being trained today in taking up the many challenges that the search for identity in an increasingly global and European world brings to the fore.


We would like to thank warmly our colleagues who replied to our questionnaire related to the use of comparative law in our respective countries. They have provided useful information on how they understand the teaching of comparative law to their students:

For Belgium--Professor Eric Dirix (KUL and Conseiller a la Cour de Cassation--Belgique), Professor Patrick Goffaux (ULB), Professor Michel Paques (ULg and Conseiller d'Etat--Belgique), Professor Johanne Poirier (ULB), Professor Mathias Storme (KUL), Professor Xavier Thunis (Namur), Professor Michael Traest (Antwerp), Professor Erik Van Den Haute (ULB), Professor Francois van der Mensbrugghe (USL), Professor Marc Verdussen (UCL), Professor Kris Wauters (UCL) and Professor Alain Wijfels (UCL).

For France--Professor Aurore Gaillet and Fabrice Bin (Universite Toulouse Capitole), Professor Elisabeth Zoller and Professor Gilles Guglielmi (Universite Paris 2), Aurelien Raccah (Universite Catholique de Lille), Professor Laurence Francoz (Universite Lyon 3), Sebastien Brameret (Grenoble-PMF), Bruno Genevois (former Commissaire du Gouvernement and president of the legal section of the Conseil d'Etat and currently president of the French Association for the Fight Against Doping, an independent public service authority) and Sylvie Guillemain (Head of the Department of Legal Research of the Conseil d'Etat).

Students and PhD students undertaking comparative law research in Belgium have also provided interesting insights into their understanding of comparative law in their curriculum and their research: Dr Stephanie De Sommer, Sarah Ganty, Kevin Munungu, Adelaide Remiche, Emmanuel Slautsky, Laura Van den Eyde and Marie-Charlotte Warnier.

These answers have been very helpful for directing us toward the most relevant of the law programs at various universities. Unfortunately, we have not been able to secure answers from all our colleagues, which is why some universities have received more detailed attention with better contextualization.


1. This article is a longer and remodeled version of a paper presented at a workshop on the Jean Monnet Module "European Law and National Administrative Law: Bringing two worlds?" held in Brussels on December 5 (th), 2014, and organized by prof. Mariolina Eliantonio and prof. Chris Backes at the UM Campus, Brussels:

2. For an example by American scholars: Susan Rose Ackerman and Peter L. Lindseth (eds.), Comparative Administrative Law, Edward Elgar, coll. Research Handbooks in Comparative Law, 2010.

3. Jean Bernard Auby and Jacqueline Dutheil de la Rochere (eds.), Traite de droit administratif europeen, 2 (nd) edn., Bruxelles, Bruylant, 2014.

4. Chiara Bortoluzzi, "A New European Model of Legal Education as One of the Institutional Elements of the New European Common Law," Global Jurist, 26/01/2010, 10(1), article no. 3:; Elsa Hackl, Towards a European Area of Higher Education: Change and Convergence in European Higher Education, EUI, RSC, 2001/09:

5. Joan Squelch and Duncan Bentley, "Preparing Law Graduates for a Globalized World", The Law Teacher, 2015,

6. Mary Hiscock and William van Caenegem (eds.), The Internationalisation of Legal Education: the Future Practice of Law, Edward Elgar, 2014.

7. On that matter, see: Chloe J. Wallace, "Law, Culture and Euro-Crime: Using Spiral to Teach French Law," The Law Teacher, 2014, 48(2), pp. 154-165.

8. Helena Whalen-Bridge, "A Common Law Fly on the Transsystemic Wall: Observing the Integrated Method at McGill Faculty of Law," The Law Teacher, 2016:

9. For a full list of acknowledgments see the list at the end of this paper. The questionnaire used to collect information related to Belgium is put in an appendix to this paper. A similar questionnaire was used to collect the information in France.

10. See, for instance, the contributions of famous French scholars such as Edouart Lambert and Raymond Saleilles: E. Lambert, "Rapport general," in Congres international de droit compare, Proces-verbaux de seances et documents, vol. 1, 1905, p. 3 ff., R. Saleilles, "Rapport sur l'utilite, le but et le programme du Congres," op.cit., p. 9 ff and "Conception et objet de la science du droit compare," p. 167 ff.

11. In 1846 this university also created a chair entitled "Droit criminel et legislation penale comparee" (comparative criminal law) and E. Lambert gave lectures on "droit civil approfondi et compare" (comparative civil law).

12. See below.

13. One of his principal works, L'Esprit des Lois (1748), played a crucial part in comparative constitutionalism.

14. When the French law faculties were reorganized in 1805 after the French Revolution, their teaching focused on the French Napoleonic Codes: B. Fauvarque-Cosson, "Development of Comparative Law in France," in M. Reimann and R. Zimmermann (eds.), Oxford Handbook of Comparative Law, Oxford, 2006, p. 41.

15. R. David, Grands systemes de droit contemporain, Paris, Dalloz, coll. Precis, 1964.

16. For a critical analysis of legal families based only on private law, see: M.-C. Ponthoreau, Droit(s) constitutionnel(s) compare(s), Paris, Economica, coll. Corpus Droit Public, 2010, pp. 33-58. For a reflection on constitutional models and classifications, pp. 175-196.

17. See for instance: F. Larnaud, "Droit compare et droit public," Revue de Droit Public, 1902, vol. 17, p. 5. As far as French administrative court is concerned (double degre de juridiction): E. Laferriere, Traite de la juridiction administrative et des recours contentieux, t. 1, 1887-1888, reprint LGDJ, 1989, p.106 ff.

18. M. Hauriou, Precis de droit administratif et de droit public, 11th edn., Paris, Sirey, 1927.

19. On the misunderstandings of Maurice Hauriou about British administrative law and the work of Dicey, see for instance: S. Cassese, La construction du droit administratif. France et Royaume-Uni, Paris, Montchrestien, 2000, p. 61.

20. For an example of a "magnification" of contemporary French administrative law: A. Garapon, "Nous devons batir une strategie de defense de notre droit," LPA, 30/04/2004, p. 6.

21. B. Fauvarque-Cosson, "Development of Comparative Law in France," in M. Reimann and R. Zimmermann (ed.), Oxford Handbook of Comparative Law, Oxford, 2006, p. 48 ff.

22. See the 2000 report of Prof. A. Lyon-Caen submitted to the French Minister of Education and Research and an MP subsequently presented to the French National Assembly: This report denounced the poor status of comparative law in France and proposed the creation of a Foundation for Comparative Law Studies which was never implemented despite the fact that the law has been passed--Loi no. 2002-282, 28/02/2002, JO no. 51, 1/03, p. 3903.

23. P. Bouvier, La naissance du Conseil d'Etat de Belgique: une histoire francaise?, Brussels, Bruylant, 2012.

24. A. Buttgenbach, Theorie generale des modes de gestion des services publics en Belgique, Brussels, Larcier, 1952. This importation was debated from the beginning (see P.-O. Debroux, "Historique et transformation de la notion de service public a la lumiere du droit europeen," in H. Dumont et al. (eds.), Le service public, La Charte, 2009, vol. 1, pp. 1-56, spec. pp. 24-25).

25. L. P. Suetens, "Algemene rechtsbeginselen en algemene beginselen van behoorlijk bestuur in het Belgisch administratief recht" (1970), Tijdschrift voor Bestuurwetenschappen en Publiekrecht, pp. 379-396.

26. D. Heirbaut and M. Storme, "The Belgian Legal Tradition: From a Long Quest for Legal Independence to a Longing for Dependance," 2006, European Review of Private Law, pp. 645-683.

27. On pragmatism in the English scholarship, see H. Collins, "Methods and Aims of Comparative Contract Law" (1991) 11 Oxford Journal of Legal Studies, p. 396.

28. A.-L. Durviaux, "Enseigner le droit administratif," (2009) Rev. Dr. ULg, pp. 89-95.

29. F. Delperee, "Belgique," (1989) (41: 4) Revue internationale de droit compare, pp. 863-66, spec. p. 864.

30. See:

31. Ed.: Prof. Elizabeth Zoller.





36. 21 hours are dedicated to the Theory of Comparative Law & Legal systems and families

37. 634218


39. J. Vanderlinden, "Autour et alentour d'une generation de comparatistes belges--Ouverture en forme de justification," (1999) (51: 4) Revue internationale de droit compare, pp. 775-804, spec. p. 791.

40. Ph. Kiiver.


42. For more info:





47. F. Delperee, "Belgique," (1989) (41: 4) Revue internationale de droit compare, pp. 863-66, spec. p. 866.






53. Act (French) No. 2014-744 of 1 July 2014 for the creation of mixed companies to single operation.


55. Act (Belgian) of 20 January 2014 on the reform of jurisdiction, procedure and organization of the State Council.

56. Art. 13 Law above.

57. E.g.: Sen.b. (2012-13), Proposal to amend the laws on the Council of State, coordinated on 12 January 1973 no. 5-1965 /1, p. 11 and pp. 21-22; Ch.b. (2012-13), Proposal to amend the laws on the Council of State coordinated on 12 January 1973 No. 2583/001, p. 13.

58. For a systematic comparison related to the "bestuurlijke lus" in a number of jurisdictions: P. Lefranc, "A la recherche de la boucle administrative?," (2012) Administration publique trimestrielle, pp. 222-231.

59. L. Donnay, "Rapport sur la situation juridictionnelle belge destine au seminaire organise, les 1er et 2 mars 2012, par l'ACA et ayant pour theme: "Vers une plus grande efficacite des pouvoirs des Hautes Cours administratives" (2012) Chroniques de droit public--Publiekrechtelijke Kronieken, pp. 143-153.


61. P. Lewalle, "Le lien entre l'arret Danthony et le Conseil d'Etat belge--Commentaire de l'arret du Conseil d'Etat de France no. 335033, Danthony e.a., du 23 decembre 2011," (2014) Administration Publique Trimestrielle, pp. 360-378.




65. E.g., Baron Delperee gained his PhD in Paris. He was assessor at the Belgian Conseil d'Etat between 1985 and 2004; Michel Leroy translated G. Zagrebelsky's Ill Diritto mite into French (Le droit en douceur, Paris: Economica, 2000); M. van Damme taught comparative administrative law at the VUB.

66. X. Domino, A. Bretonneau, E. Bokdam-Tognetti, Jean Lessi, "Que fait le centre?," AJDA, 2014, p. 87.

67. J.-M. Sauve, "Le Conseil d'Etat et la comparaison des droits," in La comparaison en droit: hommage a Roland Drago, Colloque organise par l'IFSA et la SLC, Conseil d'Etat, 24/02/2014:

68. J.-M. Sauve, "Le Conseil d'Etat et la comparaison des droits," op.cit.

69. For instance, the conclusions of Mattias Guyomar in the case: C.E., ass., 8/02/2007, Arcelor Atlantique (rec. 56) or C.E., sect., 10/04/2008, Conseil national des Barreaux (rec. 129).

70. Conclusions of E. Crepey in C.E., ass., 13/11/2013, CIMADE et Oumarov, no. 349735 and C.E., ass., 21/12/2012, Fofana, no. 332491.

71. Concl. D. Botteghi in C.E., 29/05/2013, M. Baatarkhuu, no. 365666.

72. Concl. P. Frydman in C.E., ass., 17/02/1995, Marie et Hardouin, no. 97754 and more recently: concl. M. Guyomar in C.E., ass., 14/12/2007, Planchenault et Boussouar, no290420.

73. Concl. E. Glaser in C.E., sect., 12/05/2004, Commune de Rogerville, no. 265184.

74. Concl. R. Keller on the case Vincent Lambert that attracted media attention. See also : C.E., ass., 24/06/2014, Mme F., no. 37508.

75. Concl. J.-P. Thiellay in C.E., ass., 13/05/2011, Delennoy et Verzele, no. 317808.

76. Concl. X. de Lesdquen in C.E., ass., 26/10/2011, Commune de Saint Denis, no326492.

77. Concl. D. Botteghi in C.E., 30/11/2001, Torregrosa, no. 348161 or concl. X. DOMINO in C.E., 20/11/2013, M et Mme Saidou Fall, no. 3686760.

78. E.g.: C.E.b, 23 October 2014, no. 228.902, A.S.B.L. Association pour le Droit des Etrangers (ADDE); C.E.b., 23 October 2014, no. 228.901, Mustafa Nazifa; C.E.b., 31 January 2014, no. 226.305, A.S.B.L. Terre wallonne; C.E.b., 16 May 2012, no. 219.399, Labrique Benjamin; C.E.b., Ass. Gen. 21 December 2010, no. 210.000, XXX c. Ville de Charleroi; C.E.b., 2nd October 2000, no. 89.946, Philips Leo.

79. Based for instance on the Geneva Convention 28th July 1951 relating to the status of refugees.

80. Thank you to Professor Michel Paques for the discussions and investigations in comparative law in the administrative case law.

81. Thank you to Professor Patrick Goffaux for bringing this "DNA" image to our attention.


Universite de Lille


University of Essex; Universite Libre de Bruxelles

How to cite: Bousta, Rhita, and Yseult Marique (2017), "The Status of Comparative Administrative Law: A Comparison between French and Belgian Legal Education," Contemporary Readings in Law and Social Justice 9(1): 47-69.
Appendix--Questionnaire to gain a more informed view
on "Comparative Law in Legal Education" in Belgium

1. Historical information on the development of comparative law in your
institution or in the academic world
* Which events (papers, conference, creation of research centers in
comparative law, European cases) may be seen as milestones for the
development of comparative law in Belgium?
* When did modules in comparative law or foreign law start to be
* Did teaching in comparative public law lag behind teaching in
comparative private law? If so, why?
2. What does "teaching comparative law" encapsulate?
* What is the place of comparative law within the law curriculum?
* Is the teaching focused on foreign systems or on comparative law?
* Does the teaching focus on European systems or does it include any
legal families across the world?
3. How is comparative law taught?
* How many hours a term/year?
* As a compulsory or optional module?
* At which stage of their studies can students start to do comparative
* Do you have joint degrees with other countries?
* Are comparative law/foreign examples used in specific modules devoted
to domestic or European law?
* In which language is comparative law taught (in English, the native
language, the language of the system etc.)?
* Who teaches: guest speakers, visiting professors, teachers with
foreign PhDs or who have spent part of their career abroad?
* Are research centers important sources of support for PhDs in
comparative law?
4. Professional progress
* How are studies and degrees in comparative law seen by employers?
* Is comparative law desirable/required/excluded in PhDs and how does it
influence further recruitment and progression in the academic system?
* Do students value teaching in comparative law or is it seen as a fancy
module of limited interest for their understanding of the law and the
legal professions?
5. Some personal words
Could you briefly explain your approach to teaching comparative law?
Also, if possible give us any information which would help us to
understand your approach (e.g. trips abroad, strategies to attract PhD
candidates, a wish to develop international research networks and other
European research cooperation).
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Author:Bousta, Rhita; Marique, Yseult
Publication:Contemporary Readings in Law and Social Justice
Article Type:Essay
Geographic Code:4EUBL
Date:Jan 1, 2017
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