Welcome to the new books network. Hi, welcome to the new books network. My name is Dr. Jesse Cohen and today I am on the Brill Nihoff Lawcast speaking with Dr.
Diosin Todela Caninea about his 2023 book, The Common Core of European Administrative Laws, Retrospective and Perspective. This is the fourth book in the series, Comparative Law and Global Perspective, published by Brill Nihoff, and it is available open access at the linked in the show notes. Diosin Todela Caninea is a full professor in the Department of Law at the University of Boconi. He holds a PhD in European Law from the European University Institute and a law degree from the University of Rome.
He is a public lawyer with research interest spanning administrative law, European Union Law and Global Administrative Law with specific focus on three areas, the Comparative Law of Administrative Procedures, the General Principles of Law and Budgetary Issues. He and Maru Boconi are co-editors of the series Comparative Law and Global Perspective, published by Brill Nihoff. Hi, how are you? Welcome to the new books network.
Good morning. Thank you very much for this invitation. I am very happy to have this conversation about our series. Yeah, first, can you introduce yourself to all listeners a little bit about yourself and your career?
Sure. Very gladly. I'm a professor of administrative law in Italy and I've been teaching for many years, not only in Italian and European administrative law, but also comparative administrative law and in new course, focusing on global administrative law, which concerns the discharge of global administrative functions and powers. Great.
And how did you become an editor of this series? So this book is in the series Comparative Law and Global Perspective. How did you become an editor of this along with Maru Boconi? Yes.
Professor Busani Atai had been working together for some years in the field of comparative law. Maru is a world expert in the field of private law and I'm a public lawyer. So we thought that it could be a good idea to join our efforts and research paths. And since we were convinced that there was not yet a series in the marketplace of ideas focusing on both comparative and global perspectives, we thought that it could be helpful to make a proposal to be real.
And it went through very smoothly. And so what do you do in your role as a series editor? Just for our listeners who don't maybe know how I can help you. Well, in that role, there are many tasks, essentially.
Not only do you receive book proposals and you have to assess whether they are consistent with the main goals and the theology of the whole series, but you may also, as we often do, solicit and propose to offer us to write new books. Whenever the proposal arrives, we carry out first prima fascia assessment and then we appoint external reviewers because our series in full agreement with Briele is characterized by a double blind review process. And sometimes we have even more than two external reviewers because the either the topic or methodology might require to have more experts on board. Okay, I see.
And you mentioned all of the books have to be aligned with the goals. So what is your goal with the series? And why is it important to have a global perspective on law and legal systems? I'll try to take questions.
So our goals concern the advancement of research. That means that we are happy to receive and publish monographs concerning a very wide range of topics, including if you look at the titles of the first books, Shariya Course in the UK, Global Standards, or as is the case with my book, a comparative research on amaise-re-lose in Europe. What we think is really important is that we want to have brand new research. So we are not interested in books which simply describe issues that have been the object of other books and also from the view part of methodology.
We are open to a variety of approaches and methodologies. The only thing which really matters is that there is consistency between what the author or the author have established at the beginning and results. So in a way, we could say that ours is a very liberal series, but at the same time that we are very demanding from the viewpoint of accuracy and consistency. And so you just mentioned your book which we're talking about today.
It's the fourth in a total of eight books that have been published, I believe. So yeah, how does it fit within this series, within the broader eight books that have been published? Well, at the beginning of this conversation, Marlon and I want you to have in full accordance with Braille, a series which could cover at the same time global approaches and comparative approaches to the study of low institutions. We had a couple of monographs above types and we thought that a monograph with a broader coverage, not limited to two or three legal systems, could be helpful.
And in this respect, we were lucky because a few years ago I was awarded an advanced grant by the European Association Council, which is the operational arm of the European Commission, the field of research. And that gave us the possibility to finance various lines of research. Some of those lines of research have been published elsewhere in articles in legal journals in various languages, including the introductory and methodological piece which Marlon and I wrote, which has been translated into French and Chinese more recently. And there were books published in our languages, including not only English, which is the main language for our research, but also Italian and now possibly Spanish.
But what we wanted to have was monograph which could offer a sort of synthesis of our studies in the field. Gotcha. And so before we dive into the book itself, can you clarify for listeners what exactly is administrative law? That's it.
Where's your for which I would need some more time. But let us say that there's a traditional approach, especially in some Anglo-Saxon countries, according to which the minister below is more or less simply the law of judicial control of administration. But that is a narrow view of the subject because as many Anglo-American and as well as Australian scholars who agree today, a minister below is more broadly about the discharge of administrative functions and powers. And increasingly, some of these administrative functions and powers are discharged by private bodies acting under public control, which makes our field even more complex because there is a mixture of public law and private law with innovative and also complex legal relations which emerge.
Yeah, I can imagine. And so what is the scope of this book and how did you determine the inclusions and the boundaries of the study? Because you talked about examining major and minor legal systems? Well, first of all, the comparative research which I mentioned earlier, the one for which I recall funds from the ERC focuses on European administrative laws.
But we intended the scope of our analysis in a broad sense because first of all, we want you to have on board legal systems from different corners of Europe, not only both but are included in the European Union. And secondly, we also included some non-European legal systems because we want you to have an idea of the borrowings and exchanges and transplants between legal systems operating in various regions of the globe. So just to give a couple of examples, we have carried out an analysis on how the Austrian legislation on an anesthetic procedure which was adopted one centigrical in 1925 had an influence, a remarkable influence in some countries of central and Eastern Europe, including Poland, Czechoslovakia and so on. But now we are getting out a comparative analysis focusing on how the Spanish legislation on an anesthetic procedure which was adopted in 1958 exerted a considerable influence on Latin American countries including Argentina, Brazil, Chile, Mexico and others.
Just to add an element concerning your question regarding major and minor legal systems, one of the main methodological points that Mar and I made at the outset is that we don't share the traditional approach which limits comparative legal analysis to the usual two or three positive before major legal systems including the UK, France, Germany, United States. Now that is so for three reasons which I deserve mentioning. First of all, in the complex world in which we leave it is important to confront Western legal systems with non-Western legal systems including for example China as we argued in true three of our books or some legal systems of Latin America or Africa. Now secondly the idea of the major legal systems is in itself questionable because it very much depends on the topic that you are examining.
Thus for example in the field of aminicity procedure legislation, we used to say when there's a legislative framework regulating in a general manner all aminicity procedures and laying down some general substantive and procedural principles such as due process proportionality and transparency. There is evidence that the first qualifications took place in Spain and Austria and only at the later stage in the US. As a consequence of these are focused on say Germany or the UK or France would not allow a full understanding of the reasons why in some legal systems legislators decided to use this innovative technique. Now thirdly and finally since our main interest is in both diversity and commonality we are trying to identify some legal systems which can be helpful for us to understand the complex interplay of a common and distinctive feature.
So just to make an example, there are some countries which are now outside the European Union such as Serbia and Ukraine. Serbia has several common features with for example Croatia and Slovenia that are already members of the European Union simply because they share a common legal culture concerning the regulation of aminicity procedure. Ukraine is a bit different even though they are making important steps in the framework or the so-called strategy or pre-accession to the European Union. Sometimes we find unexpected commonalities but sometimes quite the contrary where someone would expect to find commonality there are important significant differences beyond the surface.
Yeah and we'll get into those a little bit more but first can you tell me the main themes of this book? Sure. Now as the book has focused on the common core of European and Minnesota laws I have chosen to focus on one hand on what was or what was regarded as the main part of an initiative law in the 19th century and in the first decades of the 20th century but it's to say judicial review of an investigation including for example what happens if someone is unhappy with expropriation or with the refusal by a public authority to issue a license authorizing some private activity while the second part of the book the focus is rather on aminicity procedure and I consider not only the general frameworks that have been adopted in 23 member states of the European Union out of 27 but also others outside the union such as Serbia which I mentioned earlier and I try to cover a wide range of types of aminicity of activities including not only aminicity of electrification which includes for example aminicity of licensees I am escapations sanctions and so on but also aminicity rule making and planning which is increasingly important in modern government because for example national regulators within and outside the European Union define the standards for the delivery of essential public utilities or they establish for example tariffs for having access to the internet and so on okay and I don't know if this is too big of a question but can you give us a little bit of a background of you know how administrative law has transformed over time? sure that's a fascinating issue for us because you know aminicity law has not a precise date of birth historians still wonder whether it was a product of the French Revolution and the American Revolution and the changes which occurred at the constitutional level at the end of the 18th century or whether there were some administrative institutions and processes even before that period now for us what matters is that huge transformations have occurred first of all in the second half of the 19th century when there was a process of democratization with the extension of the right vote to many parts of the population which were previously excluded from that and as a consequence of that there was an increasing a rapidly increasing demand for public services and then in the 20th century the two world wars had a considerable impact on the machinery of government not simply because governmental institutions had to discharge all the new functions not only the military but also the supply of ammunition and materials but also because they began to regulate in a much more detailed and for some for some this contents in a much more intrusive manner into private individual lives that is if you want to put it in this way the other side of the welfare system when you have a welfare system that provides services not only from the cradle to the grave but also before the cradle because there are for example pre-natal services access to reproduction techniques and so on or two pills for interrupting the pregnancy and when you have rules concerning how certain activities can be carried out in the final part of our lives that means that ethnicity below has changed remarkably and it is now so different from what it used to be two centuries ago that we really need to have a better understanding of what it means from a comparative and global level yeah that's really interesting what is comparative inquiry?
Terrific question let's say that there's a variety of methodologies and in our research we accept as a starting point that there is a methodological pluralism what we suggested initially and what we have tried to do in our research is to use a blend of historical and comparative approaches to the study of ethnicity below historical because we thought that it was helpful to have an understanding of the antecedents of modern amalisa live institutions in a way if I can use a metaphor what we want to have is not simply a picture but to have a movie showing the dynamics and not only the statistics of this important part of public law and from the other perspective the comparative perspective Maureen I have asked more than 150 scholars working in more than 30 countries for the different lines of research that we have developed in the last nine years to use a variety of techniques including what we have called a factual analysis that is we don't begin with a abstract analysis of for example how judicial review is shaped by the institutions of say Germany and the United States or China but we are used some hypothetical cases which means for example that we assume that a public authority at local level so municipality has issued a license to an old lady for selling something in a kiosk and one day suddenly without any previous notice having been sent to the lady the local authority simply notifies to her that her license has been either modified or even revoked with drone which means that the lady is no longer able to continue that activity and so we ask all the participants in our company workshops first of all what happens if the lady is deprived of such an important instrument for having her income what happens if there is as I mentioned in my hypothetical case there is neither a previous notice to the lady nor any meaningful opportunity for her to make her case and try to convince the local authority that they are making a mistake so we ask our colleagues our national experts is that possible if so is the lady entitled to contest this kind of behavior either judicially before a fully fledged court or in another manner for example by way of an administrative appeal and at the end of the day if everything was wrong is the lady entitled to receive damages for the wrong conduct of the public authority okay that's a really interesting way to do it and how does that fit into your use of diaconic and synchronic comparison this is really another telephic question on the use of history and what we see the electronic comparison is important for understanding how the general principles of the mainstream law have been elaborated so just to give an example I we want you to understand whether in different legal systems based on very different judicial appeals more or less the same principles were emerging in the period of the belly pock that is to say between the end of the 19th and the beginning of the 20th century because that would have been the key to understand how the courts are developing a vote principles today and interestingly and a bit unexpectedly because we didn't have an expectation of his type it turned out but more or less the same problems concerning for example expropriation or the dismissal of civil servants emerged more or less in the same years in different countries such as France and the United Kingdom or Italy and Belgium and interestingly it turned out that even when the courts could not rely on written constitutions which was the case for example of the UK or could not use a systematic legislation similar to that which existed in the field of private law in continental countries the courts always use and apply consistently the principles of legality and due process of law if necessary assuming that this was in the natural things or even at your desire as the Germans and the Austrian said that that a book now that is important because it shows that the judicial elaboration of the general principles of the needs of the public law is not a phenomenon which is limited to the last 25 or 30 years you know in the last three decades there have been some discontents who have accused the not only national courts but even more the European court of human rights or the European court of justice of judicial overreach while what we have showed with our comparative research is that the courts have always gradually defined and defined general principles such as a due process and more recently proportionality which is probably the most important principle of public law in our epoch that doesn't mean of course that the courts cannot be criticized in specific cases but the claim that the general principles should be only determined in a legislative manner from both a historic and constitutional point of view is very questionable to say at least. Okay yeah and with Cinconic comparison could you give us an example of that as well? Well sure let me come back to my example of the dismissal of a civil servant. Now in in in many modern legal systems including liberal democracies, a political appointees, policy advisors can be dismissed when the government changes but what about what about a civil servants with a career?
We thought it would be interesting to understand how the disciplinary proceedings are managed in a in a wide range of legal systems and interestingly it turned out that there's a couple of common features which are shared by all liberal democracies and which by contrast are not shared by those countries which have at least some authoritarian traits. So to remain in this example in all liberal democracies a civil servant can be dismissed and only if there have been some procedural safeguards including in particular the right to be heard before the final measure of the adverse effecting of the interest of that public civil servant has been adopted and secondly there must be judicial review of that measure and in several legal systems there's further qualification in the sense that judicial review must not only exist but also be effective. By contrast just to give an example even though the Chinese legal system has made very important progress in the last two or three decades from the perspective of judicial review this is a civil service I mean one of the fields for which there are severe limitations of the possibility of having access to the course. Now that is doesn't mean let me clarify these that the Chinese way to consider the civil service is in itself wrong we don't take that normative stance but certainly it's interesting to consider first of all factually the Débérez city and secondly from a more theoretical view point to understand which are the practical or normative justifications of these differences and apparently the idea is that there's a sort of reluctance of admit that a civil servant who is acting on behalf of the state may sue the state increasingly that underlying ascension was not unknown in other legal systems for example in Italy one century ago and that is once again a very important element not supporting the idea that sooner or later all legal systems will converge in one direction but in the sense that legal systems generally tend to evolve in one way or another which is why it is so important to pay attention not only to what we call a static comparison what happens today but to understand to try to understand the underlying dynamics and also the factors which support the evolution towards a certain change for another.
Yeah that's really interesting too I mean yeah well we're the you know main take ways from this research that you did but you can share with that listeners. Thanks this is once again a talented question let us see first of all we had learned that using a variety of approaches including in our case a historical perspective and a comparative perspective with the latter for you seeing as I just said on a factor analysis can be very helpful to better understand the diversity which still characterizes the legal systems of the world and sometimes there are also new diversities emerging for example when a country such as Venezuela I decided to change the constitution or another country in Europe decides to adopt new rules concerning the independence of the judiciary but we have also learned a lot about the what I could call not so much the operational rules of every legal system every system took to come back to an example which I used earlier allows in one way or another the expropriation of private property but there are important differences can it be done by the executive branch alone either at national local level or is the intervention of the judicial authority necessary is the private owner who is as propiated entitled to receive a fair compensation or only a limited amount of money. Now what we have learned is that beyond the operational rules of every legal system there are very important cultural differences which are shaped by history and tradition and in this sense it can be said that administrative law is largely a product of cultural history but we have also learned that policy preferences are important and that many people in different periods of their evolution have decided to make important changes just to give three quick examples countries which did not have a constitution or which had a very old constitution have decided during the 20th century and in particular after the fall of the burning wall in 1989 to introduce radical constitutional transformations. Secondly an increasing number of countries not only in Europe but also in Southeast Asia and of course in Latin America have decided to adopt general administrative procedure and that is in itself an interesting phenomenon which because it shows that there is a a felt necessity in the business of government and thirdly and finally even though judicial review remains a pillar of modern government not only within liberal democracies but also within other well administered countries which don't share all our ideas about rights but which for example are trying to achieve a sound administration what is now emerging is that there is increasingly a room for non judicial instruments for solving disputes such as arbitration so that is an important element not only in very specific areas such as for example for investment but also in areas such as barbecue curaments from this point of view what we are witnessing is a continuing evolution of our systems of public law and in this sense we could say that it's important to use a not only a comparative perspective but also to look at history because history never finishes.
Yeah it's really interesting I think one of the big things that I'm being reminded of as I've heard you talking is right that the law is never done it's always evolved and always changing and right? It is it is so. Yeah and it changes with history it changes with big events like it's it's never finished. Yeah is there anything else you wanted to share that was maybe surprising from your research that you found or anything that maybe didn't make it into the book that you wanted to share here?
Well thanks yes indeed there's a couple of things that I would like to say. One is concerns one of the surprises so to say that we had and another one concerns a new line of research which we are developing now in the field of our AI. Now from the first point of view there was an expectation that although we're in the European Union but also within a larger group of western countries there could be some commonality some shared general principle concerning the possibility for someone who is involved in an administrative procedure before banking or financial regulators to remain silent if he or she thinks that is closing certain elements or bringing light to certain facts could give rise to criminal proceeding against him or her. This is called in United States the privilege against set inclination in Europe where we call it in many ways the right to remain silent or in other ways and since there was a reference which was made by a national constitutional court of the European Court of Justice and had been some cases before the European Court of Human Rights there was an expectation that in one way or another there could be a sort of general principle of this type while unexpectedly it turned out that even though the European Court of Human Rights has a broad interpreted the European Convention of Human Rights in that sense there are important significant differences between European and legal systems and as a consequence of this it would be hard to say that there is today a sort of general trend let alone a constitutional a convention that is common to the legal system even though of course with the impulse of the European Court of Human Rights things might change.
Well the other part I want to mention is that initially we have focused on some very traditional instruments of administrative laws such as administrative adjudication and rulemaking but now recently we have become aware of the importance of AI so we had included some hypothetical cases in the lines of research which we are developing now and so there will be for example a couple of cases of this type in in a book which will be published during this year and there's now a new line of research which is developed by some colleagues of mine focusing on how various public authorities in Europe are using AI to give a couple examples one concerns the imposition of economic burdens for the use of the public domain for example when you want to have a part of the street or what a big square for your restaurant or for example a part of a public beach it turns out there are local authorities using this type of techniques and there are also manifestations of the use of AI for example for the regulation of issues within the public service when you want to decide who is going in a certain premise or in another what is more problematic is when these techniques are used for example for determining the amount of amalisa extensions because certain infringement of existing rules can be assessed more or less easily while other ones are not so easily susceptible to be determined by AI which is why in some people systems the archivalages later or the higher courts are emphasizing the necessity that there is a sort of last instance of human control on the amalisa decision-making that's sort of new frontier yeah that's really interesting and it you know anticipates one of my questions for you of you know is there anything else we can look forward to being published soon so is there anything else that you wanted to share with our listeners that we come up with or to oh yes thanks that's that's really a very helpful question because we have just published on the American general cooperative law a comparative analysis of amalisa depreciation in europe and there's another book which in this case is not a monograph a bad unedited book which would be submitted to our series concerning as i said earlier the exercise of public authority but in a new field there is to say the field of the management welfare benefits that is to say when individuals families or social groups seek to have access to financial benefits for example for obtaining a grant for a student or a support for a family with numerous children and that is in one way another step beyond the more traditional instruments of amalisa convection the user of welfare benefits and the procedural requirements which must be respected by both public authorities and private bodies in this field and is there anything that you personally i mean i never canceled the series is anything else that you personally are working for working on right now that we can afford to oh yes i am carrying out a research which grows extensively on the methodologies that we have been using in the last years it's a brand new research concerning the protection of the coasts in the Mediterranean area and also outside of the Mediterranean basin and it's interesting to see how public authorities parliament and the course are seeking to make sense of all the instruments for example the concessions and permits to use the beaches in a period in which the global warming as you know is determining a rapid increase of the level of the seas so for example we had cases both in the Mediterranean area for example in the southern part of France in province and in Australia where obviously the consequences of the rising level of the ocean are even more serious and what is difficult for local authorities is to understand the temper of a time frame which they can use to decide whether a permit to build can be issued to private parties and it's even more difficult for the courts to employ a new principle which is increasingly important and at the same time a controversial but it's a semi-precautionary principle so i'm using the lessons that we have learned in traditional areas of Amalisa the public law to investigate how a variety of legal systems are trying to face the new challenges that are determined by climate change at this stage we are i can only say that we are have a kind of understanding that the same problems are emerging more or less everywhere maybe next time i will be able to tell you whether the solutions that are adopted are similar and sometimes even maybe the same yeah that's a really interesting new field it sounds like a i mean of course because we have new challenges every day we have to have new legislation to kind of deal with government trust and manage it so yeah i'm not interested to hear more about yeah this AI research and also your research on the coastlines that's really fascinating um well thank you for chatting with me is there anything else you wanted to share before we go uh first of all but i'm very grateful i for this opportunity i to chat about our research and the other thing that i want to say especially for younger so to say researchers is that i'm comparatively good analysis with um a good historical sensitivity is great fun so uh it is really worth trying yeah it's been really clear as we're talking that you really like in this field of studies so thank you so much for chatting with me i'll let you go my pleasure thank you so much thank you for listening to my interview with Gia Cento Delekin and Nia about his 2023 book the Common Core of European Administrative Laws retrospective and prescriptive on the Brill Nichos Lawcast you can find an open access pdf of the book at the link in the show notes have a great day