Moroccan Organic Doctrine Through the Lens of Dysfunctions of the Administrative Judicial System
If an organic doctrine does exist alongside a university doctrine thus forming a kind of "body reflex", they demonstrate, in this regard, the existence of two distinct modes of thought within the doctrine of administrative law, confirming by the same token the specific place that the members of the administrative jurisdictions hold within this one. Indeed, the doctrinal field was built in administrative law on the basis of a close link with the administrative judge. The education provided by members of administrative jurisdictions is a fundamental part of the doctrinal work of administrative law. They also participate in university research activity. Because the judge who creates the law is not a judge who opposes political power, but who is content to recall principles that apply to all, doctrine is rightly speaking of the " government spectrum of judges " to maintain that, in reality, judges do not govern, but that, over their power of interpretation, they may disregard the principle of the separation of powers. Nevertheless, the Moroccan administrative judicial system is the subject of several criticisms related mainly to its indifference towards the specificity and the technicality of Moroccan administrative law which requires special training and advanced experience of the judges in charge of cases belonging to administrative discipline.
Moroccan Organic Doctrine Through the Lens of Dysfunctions of the Administrative Judicial System, International Journal of Science, Technology and Society.
Vol. 8, No. 3,
2020, pp. 73-79.
J. RIVERO, "Jurisprudence and doctrine in the development of administrative law", ECDE 1955, p. 30.
Y. POIRMEUR, E. FAYET, "administrative doctrine and the administrative judge; the crisis of a model for the production of law", C.U.R.A.P.P., p. 104.
J. Philippe, “Doctrine and Jurisprudence: A Liaison of 25 Centuries”, “4th Albert-Mayrand Conference, 2001”, Thémis, 2004, p. 2.
G. Vedel, “ Jurisprudence and doctrine: two speeches”, RA, 1997, special issue, p. 10.
see for example, administrative courts and State of law, work of the international colloquium organized by the law faculty, Marrakech, series: seminars and colloquia, n° 5, 1996: Elmountassir Edaoudi, Advisor to the administrative chamber of the supreme court, p147. (In Arabic); the procedures followed before the administrative courts, work of the international conference organized by the law faculty, Rabat-Souissi June 15, 1996, REMALD, n° 9, 1996.
For example, Mohammed Bahi, Royal Commissioner of Law and right at the Administrative Court of Rabat, book entitled: Studies and comments on certain disputes in Moroccan administrative justice, REMALD, Coll. "Manuals and University Works", n° 115, 2017. Mohamed Kasri, President of the administrative court of Rabat, The litigation relating to the tax base and the recovery of the tax before the administrative jurisdictions, REMALD, Coll. "Manuals and University Works", n° 62, 2005.
For example Mr. Bahi, counselor at the Casablanca Administrative Court and temporary teacher at the Faculty of Law, Casablanca.
E. Laferriere, Treaty on administrative jurisdiction and contentious remedies, 2 volumes, Berger-Levrault, 1887-1888, reprint, LGDJ, 1989.
L. Aucoc, Conferences on administration and administrative law, 3rd ed., 3 volumes, Dunod, 1885-1887.
R. ODENT, Administrative litigation, 6th ed., Fasc. I to VI, Law courses, Paris, 1977-1981, re-edition, 2 volumes, Dalloz, 2007.
G. Braibant, B. Stirn, French administrative law, 7th ed., Political Science Press - Dalloz, 2005.
Administrative courts and State of law, work of the international colloquium organized by the law faculty, Marrakech, series: seminars and colloquia, n° 5, 1996: Elmountassir Edaoudi, Advisor to the administrative chamber of the Supreme Court, p147. In arabic; the procedures followed before the administrative courts, work of the international conference organized by the law faculty, Rabat-Souissi June 15, 1996, REMALD, n° 9, 1996.
See Oleg Curbatov. Academic freedoms as vectors of higher education and Peace. IAUPL / CEPN. Dynamic and critical views of the governance of universities, 2017, G. VEDEL, "University freedoms", Review of higher education, 1960, p. 134; C. MONIOLLE, "Independence and freedom of expression of teacher-researchers", AJDA, 2001, p. 226.
It is mainly a question of the principles of independence or even of the judicial authority (art. 82) and the irremovability of the magistrates of the seat (art. 85) of the constitution.
O. BEAUD, “Doctrine”, in Dictionary of legal culture, PUF, 2003, p. 386; D. TRUCHET, “Some remarks on the doctrine in administrative law”, Mélanges Amselek, Bruylant, 2005, p. 771.
M. Deguergue, University Doctrine and Organic Doctrine, in Doctrine in administrative law, French Associations of Administrative Law (AFDA), n° 3, Litec, 2010.
Toko, P. W. Is the judge who creates the law a judge who governs?, Les Cahiers de droit, 54 (1), 2013.145–174. p. 148.
This is particularly the case since the article by Marcel Waline, "The normative power of jurisprudence", in The technique and principles of public law. Studies in honor of Georges Scelle, Paris, L.G.D.J., 1950, p. 613.
Jean RIVERO, "The French administrative judge: a judge who governs", in André de LAUBADERE and others, Pages of doctrine, t. 2, Paris, L.G.D.J., 1980, p. 303.
J. RIVERO, "Apology for the" makers of systems "", in André de LAUBADERE and others, Pages of doctrine, t. 1, Paris, L.G.D.J., 1980, p. 3; J. RIVERO, "Jurisprudence and doctrine in the development of administrative law", in A. de LAUBADERE et al., Cited above, note 46, p. 63.
Toko, P. W., op.cit., p. 151.
G. Vedel, "Can administrative law be indefinitely jurisprudential?", In France, Council of State, Studies and documents, no 31, Paris, National printing house, 1980, p. 31.
D. Linotte, "Decline of Jurisdictional Power and Rise of Jurisdictional Power in Administrative Law", A.J.D.A. 1980. doctr. 631.
The collective work edited by F. Melleray (ed.), The comparative law argument in French administrative law, Brussels, Bruylant, 2007, illustrates the interest of the question for academic legal doctrine. Read also the article by Marie-Claire Ponthoreau, "Comparative law in question (s) between pragmatism and epistemological tool", R.I.D.C. 2005.1.7.
D-M. Bléou, "The administrative chamber of the Supreme Court of Côte d'Ivoire", in Gérard Conac and Jean du Bois de Gaudusson (dir.), The Supreme Courts in Africa, t. 3 "Administrative jurisprudence", Paris, Economica, 1989, p. 112, at page 124. Judge Zoro Epiphane Ballo in Côte d'Ivoire illustrates this politicization of justice by justifying by law the establishment of the nationality certificate of Alassane Dramane Ouattara, one of the potential contenders for the supreme office, this judge has known serious difficulties.
Especially since, according to a still widespread idea which says a lot about the insufficient institutionalization of political power, to bring an action against his hierarchical superior, it is to declare hostilities to the State.
Toko, P. W. (2013). op.cit., p158.
M-A. Flamme, Administrative law, Brussels, Bruylant, 1989, p. 613.
J. Rivero, "The Huron at the Royal Palace or naive reflections on the appeal for excess of power", in A. de Laubadère et al., Cited above, note 11, p. 329.
Toko, P. W., op.cit., p. 160.
M. Rousset, “Plea for the administrative chamber of the supreme court”, REMALD, n° 99-100, July-October 2011, p. 18.
In this context, the testimony of the late Mustapha Etterab, president of the administrative court of appeal in Rabat, on the occasion of the fourth anniversary of the entry into operation of the administrative courts of appeal in 2011.
M. Bahi, Studies and comments on certain litigations of Moroccan administrative justice, REMALD, Collection "Manuals and university works", n° 115, 2017. (In Arabic).
M. El Yaagoubi, "the regulatory role of the administrative chamber of the supreme court", Legal and Political Review: Independence and Cooperation, n° 1, p. 81. Quoted by M. Rousset, op.cit., P. 16. See also M-A. Benabdallah, "Reflections on the law establishing administrative courts of appeal", REMALD, n° 68, 2006, p. 9.
A. Ciaudo, "Back on some paradoxes: the administrative judge and the doctrine of administrative law", Blog Droit administrative, June 8, 2007.