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Andreas Funke
Claims and Actions in Administrative Law It is beyond dispute that administrative courts protect the rights of individuals. Yet how does this protection actually operate? In his recently published monograph “Actio, Anspruch, subjektives Recht” (2017), Johannes Buchheim suggests a fresh account of legal protection in administrative law issues. Buchheim develops an action-based model concerning the reconstruction of administrative law. The project questions the prevalent approach towards administrative law, labelled as the claim-based model. The claim-based model focusses on substantive claims, which may originate from a violation of an individual right or which may be established directly by a statute, a contract or anadministrative act. It conceives judicial actions as being strictly dependent on such substantive claims. The action-based model denies such a dependence. Instead, it assumes that the courts follow an autonomous logic of decision-making, perceiving the violation of a right only as the initial reference point. This article aspires, firstly, to identify Buchheim’s main objections, secondly, to clarify and to confine the claim-based model in some respects, and lastly, to examine the objections raised by Buchheim in detail. While the book offers a plethora of inspiring ideas, it finally does not succeed in establishing the action-based model. Judicial review is based on claims, not only on (violation of) rights.
