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Top>Opinion>Administrative Law is Fascinating

Opinion

Administrative Law is Fascinating

Masahiro Usami
Lawyer and Visiting Professor, Chuo Law School
Area of Specialization: Administrative litigation, civil law, corporate legal affairs

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1. Introduction

As a lawyer, I have been involved in administrative litigation for many years, and have been teaching practical administrative litigation at law schools. In my lectures, I make the case that administrative law is both fascinating and simple. I would like to explain how fascinating administrative law is based on my own experiences.

2. The Worst Kind of Encounter

Over 40 years ago, when I was in my third year of studying jurisprudence, I attended a lecture on general administrative law. The lecturer was a renowned, experienced professor, so I had high expectations. However, I was disappointed by the abstract and incomprehensible talks about what is administration, what is public law, and so on, all of which fell on deaf ears. It was the worst kind of encounter you could have with administrative law. Even to this day, I have an adverse reaction every time I hear something like "definition of administration." It did not spark any interest in me in the slightest, although, I must admit, I did not exactly apply myself to my studies as much as I should have. However, here I am today, handling administrative litigation cases and lecturing on it. I am sure my classmates back then would be surprised.

3. Administrative Law is Closely Tied to Society

Despite my strong dislike for administrative law, when I went on to study at graduate school, I was the only one who chose to attend lectures on the subject. That is how my reluctant relationship with administrative law started. In the beginning, I had trouble finding it interesting. I suppose I regarded administrative law as the laws of government offices, with little relevance to civic life—worse yet, as laws that restrict civic life—whereas criminal law connects to people through mass media reports, and civil law directly involves the buying and selling of products. Another reason why I kept administrative law at arm's length is that there is no actual law titled "Administrative Law."

That being said, our lives are structured in such a way that requires us to be in close contact with administrative law, from the cradle to the grave. For example, when a child is born, a birth registration has to be submitted based on the Family Register Act, and when someone dies, a report of death must be made. In order to drive a car, you need a driver's license, as required by the Road Traffic Act, and if you drive without a license, you are subject to criminal penalties. If you are building a house, you have to apply for a building certification based on the Building Standards Act, and have it confirmed. Throughout our lives, we are in a close relationship with administrative activities. In fact, it can even be said that we live our lives while being restricted by administrative laws. I decided that since it is unavoidable, I might as well deal closely with administrative law.

4. The Principle of Administration by Law

In administrative law, there is a principle called the "principle of administration by law." The principle of administration by law is, in simple terms, the official stance that exercising administrative authority must be based on laws, and must conform to the content of laws. The right to exercise or not exercise administrative authority must all be stipulated in laws. To put it another way, if you read the laws carefully, you will naturally understand the structures and the contents of the laws. It is similar to the concept of "no punishment without law" in criminal law. The concept of "no punishment without law" and the "principle of administration by law" are two completely different ideas, but they share the basic concept of protecting citizens from the power of the state. Also, the idea that to work as a public prosecutor, all you need is the compendium of laws, as a public prosecutor who was my senior liked to say, is something you can also say about the world of administrative law. Administrative laws are laws that stipulate the authority of administrative power, and are certainly not just laws that serve government offices.

5. The Purpose of Administrative Law and the Permission System, and the Need for an Authoritative System of Administration

The purpose of administrative law is said to be to serve the public interest. I find the term "public interest" to have a certain connotation that makes it hard to approach. When I explain this concept to my students, I use the term "administrative purpose" rather than "public interest."

You would expect anyone to be able to drive freely as long as they have the technical knowledge needed to do so, but if those without the technical knowledge or without knowledge of traffic rules get behind the wheel, they may cause accidents, posing a risk to people's lives and property. The Road Traffic Act states: "The purpose of this Act is to prevent road hazards and otherwise ensure the safety and fluidity of traffic, as well as to contribute to preventing blockages arising from road traffic" (Article 1). It uniformly prohibits people from driving cars without a license (Article 64, Clause 1). It also states that once the requirements stipulated in this law are met, then the restriction is lifted, a license is granted, and you are returned to the state before the restriction was imposed (the recovery of freedom) (Article 84 and below).

In other words, in order to fulfill the administrative purpose, the rights that citizens inherently hold are restricted, and once a defined set of requirements are met, the restriction is lifted and the citizen recovers their freedom. This lifting of restrictions is what we call permission. Driver's licenses are stipulated as "licenses," but in the classroom, we call them "permissions." The permission system is the foundation of administrative law, so if you understand its mechanisms, your pursuit of learning about administrative law will advance significantly.

Let me look from a different perspective. I mentioned that driver's licenses are a type of permission that is granted. Permission is a form of administrative action. In laws related to civil affairs, the right to personal autonomy and the freedom of contract, which are the general principles of civil law, are realized. Compared to this, in the case of activities in administrative law, for example, if you wait for public consensus on something like acquiring the land required to build a public school in a district whose population is rapidly increasing, you will not be able to achieve the administrative purpose. This is where the law enables administrative agencies to impose an obligation to citizens through unilateral judgment, and recognizes the functions that define the legal position.

6. Understanding of Administrative Law is Crucial in Modern Society

In order to understand administrative law, you must also understand other laws like civil law and the Code of Civil Procedure. Administrative actions are declarations of intent, so an understanding of the declaration of intent of civil law is necessary. In regards to litigation, in order to learn about the Administrative Case Litigation Act, you must have knowledge of the Code of Civil Procedure. In other words, in order to study administrative law you must also study other laws.

The ultramodern fields of economic law, such as the antitrust laws, and administrative law, such as tax laws, serve as the foundation of our modern society. Without knowledge of administrative law, you cannot understand these other laws. To understand the field of laws related to financial crime, which impose punishments for violating regulations related to financial transactions, you must have knowledge of administrative law.

7. Administrative Law is Fascinating

Based on the principle of administration by law, the authority of administrative power and the requirements of permission are all stipulated in laws. Administrative law is a field of law that is easy to understand. In addition, administrative law serves as the foundation of every aspect of the modern society we live in today. Administrative law is closely connected to society. It would not be an exaggeration to say that to understand administrative law is to understand society.

I hope you will also find administrative law fascinating.

Masahiro Usami
Lawyer and Visiting Professor, Chuo Law School
Area of Specialization: Administrative litigation, civil law, corporate legal affairs
Career history
April 1977: Graduated from Chuo University's Faculty of Law, Department of Law
March 1980: Withdrew from the Civil and Criminal Law Degree Program at Rikkyo University's Graduate School of Law and Politics
April 1983: Admitted to the bar (Tokyo Bar Association) 35th term
April 1999: Became a part-time lecturer at Rikkyo University's College of Law and Politics (until March 2008)
April 2005: Became a visiting professor at Chuo Law School (until March 2009)
April 2009: Became a specially appointed professor at Chuo Law School (until March 2019)
April 2019: Became a visiting professor at Chuo Law School (present post)
Compiled works
Jirei-betsu Jitsumu Gyosei Jiken Soshoho (Cases in Practice of the Administrative Case Litigation Act) (compiled by Hiroyuki Onuki and Masahiro Usami) (KOUBUNDOU Publishers Inc., April 2014 edition)
Gyosei Kisei ga Wakaru Kigyo Homu Tantosha no Tame no Gyoseiho Guide (A Guide to Administrative Law for Personnel in Corporate Legal Affairs for Understanding Administrative Regulations) (compiled by Masahiro Usami, Tsuneo Suzuki, and Yoshihiro Tanaka) DAI-ICHI HOKI CO., LTD. March 2017 edition
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