Central University of South Bihar

Topic:

Difference between Administrative Law and

Constitutional Law

Submitted to:

Dr. Pawan Kumar Mishra

Associate Professor

Submitted by:

Abhishek Raj
CUB1413125004

B.A.LL.B.(H.)

VIth Semester

[1]
Table of Contents

Particulars Page no.

Introduction..03

The place of administrative law in the legal system06

Constitutional law viewed through administrative eyes..08

Difference between constitutional law and administrative law...11

Constitutional Law Administrative Law and Water shade..16

Conclusion18

Bibliography.20

Introduction

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The expression "Administrative Law" may mean two different things, namely, (a) law
relating to administration, and (b) law made by the administration. The latter would itself
be of two kinds. Firstly, it may be rules, regulations, orders, schemes, bye-laws, etc.,
made by the administrative authorities on whom power to make such subordinate
legislation is conferred by a statute. This may be called rule-making. Secondly, certain
administrative authorities have power to decide questions of law and or fact affecting
particular person or persons generally, i.e., adjudication. Most of such powers are
exercised quasi-judicially. Such decisions apply a statute or administrative policy and
instructions to specific cases. In doing so they create a body of administrative law.

The most significant and outstanding development of the 20 th century is the rapid growth
of administrative law. It does not, however, mean that there was no administrative law
before this century. For many years, in one form or other, it has very much been in
existence. But in this century, the philosophy of role and function of the state has
undergone a radical change. The governmental functions have multiplied by leaps and
bounds. Today the administration is ubiquitous and impinges freely and deeply on every
aspect of an individuals life. Administrative Law has a tremendous social function to
perform. Without good system of administrative law any society would die because of its
own administrative weight like a Black Hole. Administrative Law, therefore, becomes
that body of reasonable limitations and affirmative action parameters which are
developed and operationalized by the legislature and the courts to maintain and sustain a
rule of law society.

Early English writers did not differentiated between administrative law and constitutional
law and, therefore, the definition they attempted was too broad and general. Sir Ivor
Jennings defines administrative law as the new relating to administration. It determines
the organization, powers and the duties of administrative authorities. 1 This formulation
does not differentiate between administrative law and constitutional law. It lays entire
emphasis on the organization, power and duties to the exclusion of the manner of their
exercise.
1Jennings, The Law and the Constitution (5th edn.217)

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Administrative law relating to administration engages the attention of lawyers.
Administration is government or a department or an agency of the government. Under the
Constitution of India the powers of the state are divided between the Union (including the
Union Territories) on the one hand and the states on the other hand. Both the Union and
the states are divided into three great departments, namely, (1) the executive, (2) the
legislature, and (3) the judiciary.

Administrative powers are exercised by the executive in either of two ways. It may act in
exercise of the executive power of the Union or of a state or it may act under the
authority of a specific statute or subordinate legislation. The exercise of all administrative
powers is subject to the rule of law. The legal control may be exercised by three
authorities, namely, (1) the legislature, (2) the higher executive, and (3) the judiciary.
Administrative law concerns itself mainly with the legal control of the government or of
administrative authorities by the courts.

The primary function of administrative law is to keep governmental powers with in the
limits of law and to protect private rights and individual interests. As we have already
noted, the scope of activities of the government have expanded. Today the state is
protector, provider, entrepreneur, regulator and arbiter. Rule making power (delegated
legislation) and an authority to decide (tribunalisation) are described as effective as
2
effective and powerful weapons in the armory administration. As wade observed, all
powers have two inherent characteristics: i) they are not absolute or unfettered, and ii)
they are likely to be abused. Administrative law attempts to control the powers of the
government, and its instrumentalities and agencies. To achieve that objective,
administrative law provides an effective mechanism and adequate protection. It helps to
strike a balance between two conflicting forces: i) individual rights, and ii) public
interest.

2 Wade & Forsyth, Administrative Law (2009) 4-5

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If we talk about Constitutional Law of India, then it is the supreme law of India. It lays
down the framework defining fundamental political principles, establishes the structure,
procedures, powers and duties of government institutions and sets out fundamental rights,
directive principles and the duties of citizens. It emphasis on all three branches i.e.,
legislative, executive and judiciary. Constitutional law deals with major rules and
principles means it deals with the laws at rest and administrative law set them in motion.
Constitutional law focuses on rights and including fundamental rights and administrative
law deals with their remedies.

Constitutional Law would normally cover and connote the fundamental law of the land as
contained in the provisions of the constitution. More particularly it concerned with the
basic features of the framework of the distribution of powers between the organs of the
state and between the union and the units. However, modern constitutional law, especially
in free representative democracies, lays the greatest emphasis on fundamental human
rights and the relationship between the individual citizens and the state. 3Also, the sources
of constitutional law include not only the text of the constitution but also constitutional
case law, conventions and a number of statutes enacted under certain constitutional
provisions.

3 Subash C. Kashyap, Our Constitution,2, ( National Book Trust, India,2013)

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1.1 The place of administrative law in the legal system

Broadly speaking, law in a modern state is divisible into public law and private law. The
latter concerns the. legal relations of individuals or groups of individuals or associations
while the former deals with the relations between the states on the one hand and the
individual or groups of individuals or associations on the other hand. Whenever a
question arises as to the relationship in various circumstances between the state and the
individual, it falls in the domain of public law; for instance, constitutional law,
administrative law, criminal law, law of taxation etc., are all branches of public law. The
law of contracts, transfer of property, association etc., would be private law particularly
when the state is not a party to such private law relationships. While private law is found
to prevail in any organized society, public law presupposes a government under the law.
It is only when the structure of the state is formed by law and when the government
functions according to law that the relations between the state and the individual can be
governed by law which may be called public law. The basic structure of the state may be
called its constitution. Constitutional law, therefore, deals with the distribution of the
power of the state among its three branches and the rights and duties of the citizens of the
state, vis-a-vis the state. In a wide sense it would include administrative law.

With the abandonment of laissez-faire and advent of modern philosophy of a "welfare"

state, the administrative organ in almost all the democratic countries is performing large
variety of functions. The main task of the administrative organ is no longer merely
policing and defense. It has expanded to regulatory and managerial functions. The
enormous increase in the functions of the administration in the modern welfare state has
gradually led to the treatment of administrative law as a separate subject. For, the increase
in the powers and duties of administration has brought it in conflict with the individual in
various walks of life. This has led to an increase in the content of administrative law
which necessitated the treatment of administrative law as a separate subject. The main
motivation for the growth of administrative law is the need of the government to extend
its powers of control over different spheres of human activity and a corresponding need
for the definition of the powers of the administration and their control in the interest of

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the individuals affected by their exercise. The increase in functions and powers of
administration calls for its control and regulation. Legislature can pass laws of general
application. It cannot control the application of the law to the individual. It is true that
members of the legislature can be approached by an individual aggrieved by an
administrative action but the scope of redress of such grievances through the legislature is
extremely limited. Questions in Parliament can be asked regarding the wrong action of
the government or an administrative authority. As the government and the administration
are responsible to the legislature, they may try to redress the grievances of an individual
through departmental action when a matter appears in discussion in Parliament but
Parliament is busy with questions of general policy and law-making. Its influence on the
redress of individual grievances is, therefore, necessarily limited. The individual can,
however, seek remedy against administrative action either by representation to the
administrative authority concerned or by recourse to the law courts. A purely
administrative authority can attend to a complaint of an individual and can give relief if
some obvious wrong has been committed. But in the nature of things administrative
authorities develop a departmental bias in favour of their own action or actions of their
subordinates. For, they carry out administrative policies. It is generally difficult for them
to be so objective and detached in their attitude as to discover flaws in their own actions.
If an administrative authority is acting quasi-judicially then it acts objectively and
according to the natural justice procedure. If a defect in procedure is pointed out to it, it is
often likely to cure the same. But quite often it may believe that it has followed the
correct procedure and would refuse to give relief against a complaint. In the vast majority
of grievances, therefore, the remedy has to be sought in the courts of law. As Farewell,
LJ. Observed in Dyson v. Attorney General 4` The Convenience in the public interest is all
in favor of providing a speedy and easy access to the courts for any of His Majesty's
subjects who have any real cause of complaint against the exercise of statutory powers by
Government departments and Government officials... If ministerial responsibility were
more than the mere shadow of a name, the matter would be less important, but as it is, the
courts are the only defense of the liberty of the subject against departmental aggression.

4 (1911) 1KB 410

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2.1Constitutional law viewed through administrative eyes

Since the English Constitution is unwritten, the impact of constitutional law upon
administrative law in England is insignificant and blurred. As Dicey observes, the rules
which in other countries form part of a constitutional code are the result of the ordinary
law of the land in England. As a result, whatever control the administrative authorities
can be subjected to, if any, must be deduced from the ordinary law, as contained in
statutes and judicial decisions. But, in countries having written constitutions, there is an
additional source of control over administrative action. In these countries there are two
sources or modes of exercising judicial control over the administrative agencies
constitutional and non-constitutional. The written constitution imposes limitations upon
all organs of the body politic. Therefore, while all authors attempt to distinguish the
scope of administrative law from that of constitutional law, they cannot afford to forget
not to mention that in a country having written constitution with judicial review, it is not
possible to dissociate the two completely.

The acts of the executive or the administration are protected in India in various ways. The
legislative acts of the administration, i.e. statutory instruments (or subordinate legislation)
are expressly brought within the fold of Article 13 of the Constitution, by defining law"
as including order, bye-law, rule, regulation, notification" or anything having the force
of law". As in all common law countries, a delegated legislation can be challenged as
invalid not only on the ground of being ultra vires the statute which confers power to
make it, but also on the additional ground that it contravenes any of the fundamental
rights guaranteed by Part III of the Constitution

A non-legislative and a purely administrative action having no statutory basis will be void
if it breaches any of those fundamental rights which set up limitations against any State
action. Thus a non-statutory administrative act may be void if it violates Article 14,
guaranteeing equal protection ; Article 29 or Article 30guaranteeing minority rights;
Article 19guaranteeing freedom of speech, association, etc.; and Article 16
guaranteeing equality of opportunity in employment . Thus the court would strike down

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any administrative instruction or policy, notwithstanding its temporary nature, if it
operates as discriminatory, so as to violate any fundamental right of the person or persons
discriminated against. Non-statutory administrative action will also be void if its result
affects a fundamental right adversely where the Constitution provides that it can be done
only by making a law. The most significant examples of such a case would be actions
affecting Article 19, 21 or 300-A.

An administrative act, whether statutory or non-statutory, will be void if it contravenes

any of the mandatory and justiciable provisions of the Constitution, falling even outside
the realm of fundamental rights like Articles 265, 301, 311 and 314. In cases of
statutory administrative actions, there is an additional constitutional ground upon which
its validity may be challenged, namely, that the statute, under which the administrative
order has been made, is itself unconstitutional. Where the impugned order is quasi-
judicial, similarly, it may be challenged on the grounds, inter alia, that the order is
unconstitutional; that the law under which the order has been made is itself
unconstitutional.

Constitutional law thus advances itself into the judicial review chapter in administrative
law in a country like the USA or India. The courts in these countries have to secure that
the administration is carried on not only subject to the rule of law but also subject to the
provisions of their respective Constitutions. [It can be observed that an attack upon the
constitutionality of a statute relates to constitutional law and the constitutionality of an
administrative action concerns administrative law, but the provisions of the same
Constitution apply in both the spheres.

The object of both the common law doctrine of rule of law or supremacy of law and a
written constitution is the same, namely, the regulation and prevention of arbitrary
exercise of power by the administrative agencies of the Government. The rule of law
insists that the agencies of the Government are no more free than the private individual
to act according to their own arbitrary will or whim but must conform to legal rules
developed and applied by the courts". The business of the written constitution is to
embody these standards in the form of constitutional guarantees and limitations and it is

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the duty of the courts to protect the individual from a breach of his rights by the
departments of the Government or other administrative agencies.

Administrative growth in constitutional matrix Administrative law is a by-product of

intensive form of Government. During the last century, the role of Government has
changed in almost every country of the world; from laissez faire to paternalism and from
paternalism to materialism. Today the expectation from the Government is not only that it
will protect its people from external aggression and internal disturbance, but also that it
will take care of its citizens from the cradle to the grave. Therefore, the development of
administrative process and the administrative law has become the cornerstone of modern
political philosophy. Today there is a demand by the people that the Government must
solve their problems rather than merely define their rights. The rights are elaborately
defined in the Constitution but the policies to protect these rights are formulated by the
Government (the executive) and implemented by the administrative agents of the State.
There thus arises a direct nexus between the constitutional law and administrative law
where the former acts as a source from which the rights of the individuals flow and the
latter implements its policies accordingly mandated to preserve the sanctity of those
rights. It is felt that the right of equality in the American Constitution will be a sterile
right if the black is the first to lose his job and the last to be re-employed. In the same
manner the equality clause in the Indian Constitution would become meaningless unless
the Government comes forward to actively help the weaker sections of society to bring
about equality in fact. This implies the growth of administrative law and process under
the aegis of welfare philosophy embodied in the constitutional law. The constitutional law
being the prior in origin to administrative law, therefore, manifests the phenomenon of
absorption spectrum, from the former into the latter, of certain substantive characteristics
endorsing thereby a class of blood relationship between the two imperative branches of
law.

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3.1Difference between constitutional law and administrative law
Constitutional law and administrative law both are concerned with functions of
government, both are a part of public law in the modern state and the sources of the both
are the same. Yet there is a distinction between the two. The administrative law is but an
adjunct of the constitutional law. To the early English writers on administrative law there
was no difference between administrative law and constitutional law. Therefore, Keith
observed:
It is logically impossible to distinguish administrative from constitutional law and all
attempts to do so are artificial.

Actually the distinction between the two is one of degree, convenience and custom rather
than that of logic and principle. However, according to Holland, Constitutional law
describes the various organs of the government at rest, while administrative law describes
them in motion

In countries which have written constitutions the difference between constitutional law
and administrative law is not so blurred as in England. In such countries the source of
constitutional law is the constitution while the source of administrative law may be
statutes, statutory instruments, precedents and custom.

Whatever may be the argument and counter argument, the fact today that administrative
law is recognized as a separate independent branch of legal discipline though at times the
discipline of constitutional law and administrative law may overlap The correct position

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seems to be that if one draws two circles of administrative law and a constitutional law, a
certain place they may overlap and this area may be termed as watershed in
administrative law. This formulation does not differentiate between administrative law
and constitutional law. It lays entire emphasis on the organization, power and duties to
the exclusion of the manner of their exercise. A student of administrative law is not
concerned with how a minister is appointed but only with how a minister discharges his
functions in relation to an individual or a group. How the minister of housing and
rehabilitation is appointed is not the concern of administrative law but when this minister
approves a scheme of new township which involves the acquisition of houses and lands
of persons living in that area questions of administrative law arise. Jennings formulation
also leaves many aspects of administrative law untouched, especially the control
mechanism.

Professor Robson observed that constitutional law deals with individual right and
administrative law deals with public need.

3.2Constitutional law is genus while administrative law is species of Constitutional

law

Administrative law has been defined as the law relating to administration. It determines
the organization, powers and duties of administrative authorities. This definition does not
make any attempt to distinguish administrative law from constitutional law. Besides, this
definition is too wide because the law which determines the powers of administrative
authorities may also deal with the substantive aspects of such powers. It may deal with
matters such as public health, housing, town and country planning, etc which are not
included within the scope of administrative law. Administrative law, however, tends to
deal with these matters as the Constitution has embodied the principle of a welfare State,
and the State can execute and implement these rules veraciously in the society only

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through administrative laws. Prof. Sathe observes that: Administrative law is a part of
constitutional law and all concerns of administrative law are also concerns of
constitutional law." It can therefore be inferred that constitutional law has a wide sphere
of jurisdiction, with administrative law occupying a substantive part. In other words,
constitutional law can be termed as the genus of which a substantive portion of
administrative law is the species.

2.3Constitutional law deals with various organs of the state at rest while
Administrative Law deals with those organs as in motion.

According to Holland, the constitutional law describes the various organs of government
at rest, while administrative law describes them in motion. 5 Therefore, according to this
view, the structure of the legislature and the executive comes within the pureview of
constitutional law, but their functioning comes within the sphere of administrative law.
Maitland, however, does not agree with this classification for, in that case, powers and
prerogatives of the crown would be relegated to the arena of administrative law.6

According to another view,7 administrative law deals with the organization, functions,
powers and duties of administrative authorities while constitutional law deals with the
general principles relating to the organizations and various organs of the state and their
mutual relationships and relationship of these organs with the individual. In the other
words, constitutional law deals with the fundamentals while administrative law deals with
details.

3.4Constitutional law deals with the rights while administrative law

deals with public needs.
5 Holland, Constitutional Law of England (Ist Edn.) 506.

6 Maitland, Constitutional History of England (1908) 526.

7 Jennings, The Law and the Constitution (5th Edn.)217

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It may also be pointed out that constitutional law deals with the rights and administrative
law lays emphasis on public needs. However, a dividing line between constitutional law
and administrative law is a matter of convenience because every student of administrative
law has to study some constitutional law.8

3.5Constitutional Law is the highest law while Administrative Law is

the subordinate law.

Constitutional Law is the highest law of the land that we can call it as grund norm while
if we talk about administrative law it derives its power from the constitution only i.e., it is
the creation of constitutional law. As constitution is regarded as primary law which deals
with the major rule and principles and administrative law a subordinate law makes such
rules which act in application of the primary rules. If the rules made by the administrative
authority is ultravires to the provision of constitution than the rule made by
administrative authority will be void.

Thus, while the activities and powers of the government and administrative authorities
have increased, now, there is a greater need for the enforcement of the rule of law and
judicial review over these powers, so that the citizens are free to enjoy the liberty
guaranteed to them by the constitution. Provisions, are therefore, made in several statutes
giving right of appeal, revision, etc. and at the same time extraordinary remedies are
available under Articles 32,136,226 and 227 of the Indian constitution. The principle of
judicial review is held to be a part of basic structure of our Constitution. Orders passed
by administrative authorities can be quashed and set aside if they are malafide, dehors the
act or against the provisions of the constitution. If the rules regulation order passed by

8 Ee, benjafiel and Whitmore, Principles of Australian Administrative Law (4th Edn) 12.

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these authorities are not within their powers, they can be declare ultra vires,
unconstitutional, illegal or void.9

Constitutional law, being the supreme law of the land, formulates fundamental rights
which are inviolable and inalienable. Hence, it supersedes all other laws including
administrative law. Administrative law does not provide rights. Its purpose is providing
principles, rules and procedures and remedies to protect and safeguard fundamental
rights. This point, although relevant to their differences, can also be taken as a common
ground shared by constitutional and administrative law. To put it in simple terms,
administrative law is a tool for implementing the constitution. Constitutional law lays
down principles like separation of power and the rule of law. An effective system of
administrative law actually implements and gives life to these principles. By providing
rules as to the manner of exercising power by the executive, and simultaneously effective
controlling mechanisms and remedies, administrative law becomes a pragmatic tool in
ensuring the protection of fundamental rights. In the absence of an effective system of
administrative law, it is inconceivable to have a constitution which actually exists in
practical terms.

9 Keshvananda Bharti v. State of Kerla, (1973)4 SCC225: AIR 1973SC 1461; Indira
Nehru Gandhi v. Raj Narain, 1975 Supp SCC I: AIR 1975 SC 2299; Minerva Mills Ltd.
V. Union of India. (1980) 3 SCC 625: AIR 1980 SC 1789: L.Chandra Kumar v. Union of
India, (1997) 3 SCC 261: AIR 1997 SC1125; Raja Ram Pal v. Lok Sabha, (2007) 3 SCC
184.

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4.1Constitutional Law Administrative Law and Water shade.

Today administrative law is recognized as a separate, independent branch of the legal

disciplines of the Constitutional Law and administrative law may overlap. And that
overlapped part is called as Water shade.

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In India water shade one can include the whole control mechanism provided in the
constitution for the control of administrative authorities Article 32.136,26,227,300 and
311.

It may also include those administrative agencies which are provided by the constitution
itself like Inter State council10, Finance commission11, Interstate water dispute authority12,
Public service commission13, and Election Commission14.

It may further include the study of constitutional limitations on delegation o powers to the
administrative authorities and also those provisions of the constitution which place fetters
on the administrative action i.e., fundamental rights.

Though in essence administrative law does not differ from constitutional law in as much
as both are concerned with the functions of government and both are part of public law in
the modern state and the sources of both are the same and they are thus inter related and
complementary to each other belonging to one and the same family.

10 The Constitution of India, Article 263.

11The Constitution of India Article 280

12The Constitution of India Article 262

13 The Constitution of India Article 315

14 The Constitution of India Article 324

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Conclusion

Sometimes, a question is asked as to whether there is any distinction between

constitutional law and administrative law. Till recently the subject of administrative law
was dealt with the discussed in the books of constitutional law and no separate and
independent treatment was given to it. In many definitions of administrative law, it was
included in constitutional law.

Though in essence administrative law does not differ from constitutional law inasmuch as
both are concerned with functions of the government and both are a part of public law in
the modern state and the sources of both are the same and thus they are inter-related and
complementary to each other belonging to one and the same family. Strict demarcation,
therefore, is not possible, yet there is a distinction between the two. According to
Maitland15, while constitutional law deals with structure and broader rules which regulate
the functions, the details of the functions is left to the administrative law.

15 Constitutional History (1955)526;see also, Holland, Jurisprudence (13th Edn.) 374

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According to Hood Philips16:

Constitutional Law is concerned with the organization and functions of Government at

rest, whilst administrative law is concerned with that organization and those function in
motion.

But the opinion of the English and American authors is that the distinction between
constitutional law and administrative law is one of degree, convenience and custom
rather than that of logic and principle. It is not essential and fundamental in character.
Keith rightly remarks, It is logically impossible to distinguish administrative law from
Constitutional law and all attempts to do so are artificial.17

Both administrative law and constitutional law are the two faces of the same coin one is
the genus and other is the species. As constitution is the law of the land i.e., Grund Norm
while administrative law derive its from power from that constitutional law only. So it
can be said that constitutional law is the primary law while administrative law is the
secondary law.

Though today administrative law is recognized as separate, independent branch of the

legal discipline, though at times the disciplines of constitutional law and administrative
law may overlap. And that overlapped part as discussed above is water shade.

So both laws are complementary to each other with certain distinctions.

*********

16 Constitutional and administrative Law, (1962) 13; see also, Garner, administrative
Law (1963) 1-2; Jain &Jain, Principles of Administrative Law (2007) 17-18.

17 Basu, Administrative Law I(1996) I.

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Bibliography

JOURNALS & BOOKS

Dr I.P. Massey Administrative Law 7th ed. Eastern Book Company,2008.

C.K. Takwani Lectures on Administrative Law 6h ed. Eastern Book
Company,2017.
Subhash C. Kashyap Our Constituion5th ed. National Book Trust, India,2013.

ARTICLES REFERED

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 Sathe, S.P., Administrative Law (2004), p. 7.
Thakkar, Justice C.K., Administrative Law (1992), p. 6.
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WEBSITES

http://www.lawteacher.net/free-law-essays/administrative-law/relationship-
betweenconstitutional-law-and-administrative-law-administrative-law-
http://static.luiss.it/erasmuslaw/uk/Ingh2.html
http://www.plesner.com/cms/Constitutional_Law_and_Administrative_Law
2087.aspx

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