Paper's abstract
Jacques
Chevallier,
Obligation in Public Law
The issue of obligation constitutes an excellent leading strand to bring out the structuring logic and the dynamic of the evolution of public law. Public law was build on the fundamental principle of unilaterality and of nonreciprocating in the obligation relationship: the sovereign State is given as the source and the center of obligation for citizens, when the State is subject to an obligation, it is only under the conditions and terms it set itself. This alone prevents from transposing the obligation relationship from private law where the State only acts as a third party or a guarantor, in a relationship working fundamentally on a reciprocal basis. Therefore the concept of obligation is unusual in public law. However the State is a dynamic and evolutive reality: its building up as a subject of law, through the theory of moral personality and the promotion of the theme of civil service had already, at the turn of the century, allowed to underline the dialectic of relations which are at the very beginning of the State institution and which had already been brought to the fore by the theories of the "contrat social". The decline suffered today by the absolutist conception of sovereignty helps more balanced relationships between the State and its citizens to arise, by a lessening of the most dispensatory points of the administrative system, thus at the same time easing the transposition of the general principles of the theory of obligations. However this coming closer to private law knows a breaking point: there the State is not merely a third party or guarantor but also takes part into the obligation relation. This is the reason why any pure and simple assimilation is out of the question, as witnessed by the existence of special rules to be applied to the public power in countries who do not have, strictly speaking, any administrative law.
Key Words : obligation, public law, unilaterality, state, sovereignty, administration
t. 44, 2000 : p. 179-194
