General overview on material-functional conception of the state administration

Author:Doc. Dr. Blerton Sinani
Pages:216-229
SUMMARY

The science of administrative law has accepted the view that the expression "administration" has two basic meanings: firstly, according to one of them, the term administration implies a certain circle of entities/executors (bodies or organisations), as a rule, within the state apparatus, which are different from other executors of the state activity by being entrusted the function of administration; secondly, by the term administration, a specific type of activities is indicated, which, according to some of its specific features, differs from other state activities. In the first instance, where the notion of administration is determined by the viewpoint of the executors-entities (bodies and organisations) performing administrative activity, the theoretical concept of the so-called the concept of management in formal-organisational terms. In the other case, where the function or the content of the administrative activity is taken as the basis for determining the notion of administration, the theoretical notion of administration in a material-functional sense comes into light. Whilst the functional concept of the administration tends to determine what the state administration does (what it consists of, what kind of activity or function), the organisational concept should determine who does it. Accordingly, there are two special considerations of the state administration: first, i.e., as a certain system of administrative organisations, i.e., as one single state instrument (formal-organisational term) and, second, as a separate form of state activity, meaning, system of certain functions (material-functional term). Basic innovation that determines the role of the administration in contemporary conditions is that it does not appear rather as an exclusive bearer of power, an empire, but as a system of organs whose main purpose is the enforcement of laws, under strong and continuous supervision of the government, parliament and the judiciary, and for the purpose of simplifying and efficient realisation and protection of freedoms and rights of the citizens.

 
CONTENT
216 BLERTON SINANI
GENERAL OVERVIEW ON MATERIAL-FUNCTIONAL
CONCEPTION OF THE STATE ADMINISTRATION
Doc. Dr. Blerton SINANI1
ABSTRACT
The science of administrative law has accepted the view that the expression "administration"
has two basic meanings: firstly, according to one of them, the term administration implies a certain
circle of entities/executors (bodies or organisations), as a rule, within the state apparatus, which are
different from other executors of the state activity by being entrusted the function of administration;
secondly, by the term administration, a specific type of activities is indicated, which, according to
some of its specific features, differs from other state activities. In the first instance, where the notion
of administration is determined by the viewpoint of the executors-entities (bodies and organisations)
performing administrative activity, the theoretical concept of the so-called the concept of
management in formal-organisational terms. In the other case, where the function or the content of
the administrative activity is taken as the basis for determining the notion of administration, the
theoretical notion of administration in a material-functional sense comes into light. Whilst the
functional concept of the administration tends to determine what the state administration does (what
it consists of, what kind of activity or function), the organisational concept should determine who
does it. Accordingly, there are two special considerations of the state administration: first, i.e., as a
certain system of administrative organisati ons, i.e., as one single state instrument (formal-organisational
term) and, second, as a separate form of state activity, meaning, system of certain functions
(material-functional term). Basic innovation that determines the role of the administration in
contemporary conditions is that it does not appear rather as an exclusive bearer of power, an empire,
but as a system of organs whose main purpose is the enforcement of laws, under strong and continuous
supervision of the government, parliament and the judiciary, and for the purpose of simplifying and
efficient realisation and protection of freedoms and rights of the citizens.
Keywords: material-functional conception; administration as public (state) power; administration
as a public service.
For the material and functional perspective of the state administration, only
the substance of the administration as an activity is important, that is, the function
or the content of the administrative activity is taken as the basis, and the form, that
is, the organisational form is abandoned in which this function is performed.
Hence, the material-functional perspective places the focus on the internal content
of the administrative activity. Thus, the state administration bodies are a special
1 Assistant Professor in the scientific legal field of Constitutional and Administrative Law and
Vice-Dean of the Faculty of Law at the South East European University; blerton.sinani@seeu.edu.mk.
Law Review vol. III, Special issue 2017, pp. 216-229
General overview on material-functional conception... 217
type of organisational unit of the state machinery, intended for undertaking
administrative activities, of the affairs of the state administration2. So the fundamental
intention of the state administration bodies consists in the fact that they are
established to perform the administrative activity as their main activity. In the
Republic of Macedonia, the state administration organs, the bodies of the state
administration and at the same time their organisational structure and scope were
established by the Law on Organisation and Work of the State Administration of
the Republic of Macedonia as of 2000. Since the affairs of the state administration
bodies are, as a rule, determined by law, it depends on the will of the law-maker
which works which operations shall be carried out by the state administration and
in which manner shall they do so3. The bodies of the state administration of the
Republic of Macedonia, within the frame of their legal competences, have been
performing the following activities: 1) implement the enforcement policy of the law
and other regulations of the Assembly of the Republic of Macedonia and the
regulations of the Government of the Republic of Macedonia; 2) are responsible for
the enforcement of laws and other regulations; 3) implement the guidelines and
the stances of the Government on the work of the state administration bodies;
4) pursue and are responsible for the situation in the areas they were founded for;
5) take an initiative to resolve issues in the areas they are established for; 6) resolve
administrative affairs; 7) supervise the legality of the acts and operations of the
trade companies, institutions and other legal entities when authorised by law;
8) perform administrative and inspection supervision and other administrative
matters when authorised by law; 9) draft proposals for the laws whose authorised
proposer is the Government; 10) draft regulations adopted by the Government and
11) perform other duties as assigned by the Constitution and by law4. The superficial
analysis of such legal provisions points to the difficulties that arise when in a
positive definition tends to present the numerous and complex administrative
matters. By virtue of this listing, in fact, only the most important administrative
activities are actually determined. The drawback that arises from the inability to
exhaustively list all the affairs of the administration is mitigated by the so-called
indeterminate notions such as „other administrative matters”, „other technical
matters” and alike.5 However, within their frames, typical administrative issues
may be recognised, such as a mutual, compact set that is key to defining the core of
the management. In their greatest part, they consist of contentious, characteristic
administrative activities that are primarily related to the adoption of administrative-
legal and administrative-material/factual acts. Typically, as standard administrative
2  ,  , , 2000, pp. 6-8.
3  ,      ,  
   , , 1996/98, pp. 115-128.
4 Article 13 of the Law on Organisation and Operation of the State Administration Bodies of the Republic
of Macedonia, Official Gazette of the Republic of Macedonia, no. 58/2000.
5 Ivo BorkoviР, Upravno pravo, Zagreb, 2002, pp. 12.
218 BLERTON SINANI
matters, the following are treated: resolving administrative matters, inspection
supervision, keeping public records, issuing public certificates and undertaking
coercive actions of executive character. These listed administrative matters as a whole
have three substantive legal features: conductive character, authoritativeness and
bound for individual life situations. The legal norms for administrative activity or
function are mainly within the four most important groups of legal regulations:
(1) in the regulations on the state administration – primarily regarding the subjects/
executors of the administrative activity, as well as of the „state administration affairs”;
(2) in the regulations in individual administrative areas, i.e. matters; (3) in the
regulations on administrative procedure – the legal norms related mainly to the
course and administrative control of the administrative activity, including the executive
administrative procedure; (4) in the regulations on administrative disputes – referring
to the judicial control of the administrative activity6.
Administration in a material-functional sense comprises two basic components:
firstly, administrative function, and secondly, administrative activity. According to
the striking legal theorist Pavle Dimitrijevic, the separate legal regime of the
administrative function consists of issuing individual administrative acts –
administrative acts that determine the „primary disposition” (the primary rule of
conduct) for certain subjects in the concrete situation for the purpose of carrying
out the general commandments (orders) contained in the laws and other legal
regulations; carrying out acts („material operations”) by applying coercion or
restriction – „of administrative actions – in order to directly implement the general
and individual commandments contained in the laws and other legal regulations,
as well as the individual legal acts, if a need occurs for the implementation of
public interests7”. Starting from this conception as stated by prof. Pavle Dimitrijevic
and elaborating it in a very detailed and lucid way, in determining the subject
content of the administrative function, prof. Zoran Tomic constructed his own
original notion of the administrative function. Therefore, according to the
understanding of prof. Zoran Tomic, the administrative function consists of two
pivotal elements: first, the administrative-operational function (i.e. resolving
administrative matters) and, second, the administrative-corrective function (i.e.
performing administrative oversight). The administrative-operational function is a
quantitatively predominantly a category of the administrative function, principally
turned towards the future. The essence is in the following: first - in the formulation
of an individual legal rule based on the general legal norm and in its application,
which in this situation is individualised (specified); second - in the direct bringing
into life either of the individual legal act, or of the general one (which is a rare
exception). The operability of the administrative function is reflected in the
immediate abstraction in everyday life by the legal and material definition of the
future behaviour of citizens and organisations. The administrative-operational
6 Zoran TomiР, Opšte upravno pravo, Beograd, 2011, pp. 53.
7  ,  ,  , , 1986, pp. 109.
General overview on material-functional conception... 219
function prevails in a good deal of administrative matters, especially in resolving
administrative matters and issuing public certificates (and other public documents),
as well as in the provision of other public services to the beneficiaries (citizens), in
administrative manner. The administrative-control function is a legal activity of a
corrective nature, for the purpose of further verification of the correctness of
certain behaviour8. It is primarily oriented towards past behaviour, already
undertaken actions, i.e. acts (legal and material): it is intervenes, on the basis of the
law, in the former social and legal relations that have occurred. The administrative-
control function is the core of administrative work designated as administrative
oversight. Applying the legal regulations, the public administration in that
situation controls, except for itself, the others, by means of taking administrative-
legal decisions and undertaking administrative-material operations. This is where
the main content comes from, i.e. the subject of the administrative function that
prof. Zoran Tomic qualifies as a legally regulated government supported by the
state activity of an operational-corrective character, which is reduced down to the
application of the legal regulations of the individual extra-dispute legal situations
of the citizens and organisations, in order to meet the public and private interests9.
The administrative activity is a set of authoritative and non-authoritative
activities that are performed for the fulfilment of the social or societal goals, i.e. the
goals that are in the common interest of all citizens10. The material-functional
notion of administration is graphically expressed as the god Janus11 – a deity with two
faces, meaning it is ambivalent, i.e. has a double sense or meaning. Accordingly,
the administration in material-functional sense is understood as one of the authorities
of the state and as a public service12.
Administration as public (state) power
The term „state administration” was first used in Germany in the mid-19th
century. According to its original concept, the state administration is an organ and
organisation whose activity rests on the state monopoly of the enforcement of laws.
Therefore, the domination of coercion is the key to its interpretation. The state
administration as a public (state) government is a set of organs and organisations
that constitute an „operational, non-political and purely technical part of the
executive branch”, i.e. a set of organs and organisations belonging to the state
8 Zoran TomiР, Opšte upravno pravo, Beograd, 2011, pp. 52, 183.
9 Zoran TomiР, Opšte upravno pravo, Beograd, 2011, pp. 52, 183.
10 : Bore Davitkovski, Ana Pavlovska-Daneva, Znaaj javne administracije za stabilnost institucija u
Republici Makedoniji, Aktuelne Promene u Pravnom Sistemu Država u Regionu, Novi Sad, 2011, pp. 21.
11 Janus - Ancient Italian and Roman deity, first god of the sun, later god of the years, god of war, of
time and of every beginning in general. He is represented with iron in the right and a key in the left, and
with two faces, one young face with the sight turned forward, i.e. in the future, and the other old face,
looking back, i.e. in the past. His temple was peacefully closed, and during the war it was constantly open.
– quoted as per  ,   , , 1985, pp. 372.
12 See: Onesin Cvitan, Uvod u upravu, Split, 2002, pp. 36-38.
220 BLERTON SINANI
apparatus. Its main task is to implement laws by fully respecting human rights and
freedoms13. Historically and fundamentally seen, the administration is an embryo,
that is, the first form of political power that will later be constituted as a state, and
even later it shall be called that name14. The administration as a public (state)
authority rests on the principle of power, the empire, expressing the sovereignty of
the state; in fact, it is part of the state or the political system. Actually, the state
administration is not just an instrument of the state executive power; it is largely
the state itself, a standardised and institutionalised form of government15. As a
consequence, the administration is the fundamental factor that makes the state as
what it is (organisation with the monopoly of physical coercion, disposing of a
special apparatus for that purpose), and it is exactly the administration. The special
activity of the state that is designated as administration has existed for as long as
the state exists, as it is an integral part of the notion of the state. There is no state
without administration, same as there is no administration without a state16. Only
in most countries administration in the longest period of the lifespan of those states
existed in the absence of law; rather as a state activity not regulated by any law (the
era of the police state). The administration of the state relates to the law in the
nineteenth century; in fact, it is then when the administrative law as a branch of
law was constituted17.
The state administration is only part of the overall state system. It is a complex
and largely hierarchical set of administrative structures that make up the „spinal”
column of the state18. The state administration is a basis or foundation, a central
part/central element of the state executive power. It has a role to provide or help the
work of the three branches of state power: legislative, executive and judicial, through
their specific interrelationships. It is as much as democratic, efficient and successful –
as the society is democratic and efficient in protecting the interests of its citizens and
at the same time confirming the legitimacy of the government of each state19.
According to the definition provided by Zejnulla Balanca, the state administration
is that special form of execution of the state power that qualifies as an executive
order-giving power, which is carried out by the administrative bodies, on the basis
and for the implementation of the law, for the immediate practical organisation of
the functions of the state. Thus, according to this author, the executive order-giving
activity is the very same activity and it is the only activity of the government, which
simultaneously appears in two aspects, in an executive and an order-giving aspect,
13  ,       1945 , 
  , , 2002, pp. 21.
14 Slavoljub PopoviР, Organizacija i funkcionisanje uprave u samoupravnom sistemu, Beograd, 1978, pp. III.
15 Onesin Cvitan, Uvod u upravu, Split, 2002, pp. 9.
16  ,   I,  , 2011, pp. 21.
17 : Eugen PusiР, Država i državna uprava, Zagreb, 1999, pp. 23; Onesin Cvitan, Uvod u
upravu, Split, 2002, pp. 29-32.
18  ,  - , , 2008, pp. 75.
19 Dragoljub Kavran, Javna uprava, Beograd, 2003, pp. 50.
General overview on material-functional conception... 221
but which are two sides of the same state activity, which is executed from the same
system of state organs and at the same time both executive and order-giving
bodies20. This author unifies or fuses into one single joint activity both executive and
administrative activities. However, it is a notorious fact that in the Republic of
Macedonia the executive activity belongs to the Government of the Republic of
Macedonia as a collegial/collective state body that has the greatest political power in
the society, while the administrative activity belongs to the state administration
bodies as single/individual/monocratic state bodies that, as an entirety, have more
professional and service-oriented than political power in the society.
In the most general classical sense, the administration as a public (state) power
represents a legal manifestation of executive and order-giving authority and power
that is reflected in the implementation of the legal order into practice for the purpose
of achieving and protecting the public interest. In correlation with this standpoint,
the state administration is a step ahead towards the citizens from the position of
power, as an empire, i.e. gives commandments, imposes certain behaviours onto the
subjects of the law21. In this context, the following examples may be cited to illustrate
the administration in the capacity of an executor of state power. Thus, for example,
„a police officer gives orders in the traffic where the participants should adhere to
them in practice”, because „in the event of non-compliance with the orders, the
punishment shall follow”. Or, the Public Revenue Office „gives orders for tax
payment22”. In these cases, a common characteristic would be that the administration
appears as a „state power executive”, of course, on each of its title bearers, within the
frames of their competences, as determined by law. The conclusion here would be, that
the administration's nucleus as a state power is in the perception of the administrative
activity as a sum, primarily, and predominantly, of the state-authoritarian activities.
Administration, i.e. the administrative function qualifies as one of the branches
(functions) of the state power, which is intended to emphasise that in the law
enforcement, it is authoritative authorisations that are primarily used. In doing so,
the respective authoritarian administrative powers may have a double meaning -
broad and narrow. Broad – if it is extended not only to individual authoritarian legal
and material acts, but also to those that are general normative – of secondary
legislation character. Narrow – if authoritative prerogatives in the law enforcement
process are limited solely to individual cases and to individualised persons, i.e. on
the exercise of power (with specific legal acts and official actions) in individual
situations23.
20 Zejnulla Ballanca, E Drejta administrative e Republikës Popullore Socialiste të Shqipërisë, Tiranë,
1988, pp. 3-4; 16-19.
21 Eugen PusiР, Upravni sistemi, Zagreb, 1985, pp. 232-233.
22 Esat Stavileci, Nocione dhe Parime të Administratës Publike, Prishtinë, 2005, pp. 73.
23 See:  ,  ,  ,  -,
 , , 2011, pp. 14;  ,  , , 2013, pp. 43-45;
Zoran TomiР, Opšte upravno pravo, Beograd, 2011, pp. 41.
222 BLERTON SINANI
Administration as a Public Service
The strengthened social function of the Welfare State that meets the needs of the
citizens in certain areas raises the education of the new form of public administration.
It strongly opposes the traditional state administration as a mastered model that
rests on the monopoly of coercion in administrative-legal relations. Therefore,
education, social protection and health care, scientific research, protection of the
human environment and economic development become models of the new
arrangement of the society in which the social and regulatory rather than the
coercive features of the state are strengthened. The notion of public administration
as a public service rests on the idea of achieving the complete organisation of society,
while at the same time reducing the degree of persistent social uncertainties.
Therefore, determining management as public service implies amplification
(strengthening) of the role of the state. According to this concept, the administration
is one of the activities of the state aimed at achieving the general social well-being
(bono publico) of the citizens by reducing the degree of coercion by the administration
towards the citizens24.
The French legal theorist Leon Digi, who is the founder of the public service
school in legal theory, says that „the whole country is just a set of public services”.
Public service is any activity that is carried out by the state administration, and
which satisfies a public interest. Classical examples of public services are primary
and secondary education, healthcare, post, telegraph and telephone office, state
railways and others. The need for provision of services of this kind by the state is
explained by the lack, or inadequacy of such services in the private sector25. Hence,
according to Leon Digi, the basic task of the state in the new conditions (at the
beginning of the 20th century) has changed (transformed). He would neglect the
role of the state as power executor, and thus, the primary priority was devoted to
the performance of actions that are utilitarian (useful) for all members of the state
union (the public service). The state is made up of individuals who dispose of
power, but they have the task to use it for the purpose of exercising and managing
public services. Hence, the administrative activity consists essentially in the
performance of various public services. However, the individual state-legal
functions may differ in the legal consequences that the individual functions cause
in the legal order. The individual functions cause various changes in the legal
order with their acts. Moreover, in practice the State Council of France used to
come to the conclusion that administration implies the activity of the state
consisting of the performance of public services subject to the public law regime26.
In correlation with this, instead of exercising public authority, the state has the task
24 Onesin Cvitan, Uvod u upravu, Split, 2002, pp. 36-39; Milan PetroviР, Nauka o upravljanju, Niš,
2011, pp. 80-89;  ,  , , 2013, pp. 32.
25 Duško Vrban, Država i pravo, Zagreb, 2003, pp. 87.
26 See:  ,   , , 1994, pp. 59-70.
General overview on material-functional conception... 223
of performing public services. This implies that Digi affirms the component of a
functional service-oriented public administration, which ultimately has the main
point of reaching social objectives as a set of services that are inherent (necessary)
for all citizens in the society, without which one could not imagine human everyday
life in modern conditions (electricity, water, telecommunications, infrastructure
construction, various public transport systems etc.), but completely ignores the role
and attribute of the administration as exercisers of public authorities27. In other
words, in carrying out its activities, the state no longer places the state government
on the top, but the realisation of the general social needs and the everyday needs of
citizens, where the instruments of the government, as modus vivendi, substitute
them with new methods by not using authoritative prerogatives. For that purpose,
the state itself, on its own initiative, takes over certain actions and tasks in the
sphere of economic and societal-social activities, such as education, health care,
social security, traffic, energy, communal services, maintenance of PTT traffic etc.28
Due to the exceptional importance of these activities for the society as a
community of free and equal citizens of a particular country and the quality of life
of each individual, the state not only needs to ensure normal course of their
activities, but also regulates and controls its work, with the establishment of the
relations of inequality, which is characteristic for the relations that are established
in the exercise of the state power, the state carries out the protection of the public
interest. It is precisely from the stated circumstances that the state performs the
above mentioned matters for the public interest (or entrusts the other entities that
perform it under its control) in the French law the concept of the public service is
27 See:  ,  , , 2013, pp. 45-47.
28 Onesin Cvitan, Uvod u upravu, Split, 2002, pp. 39. It is about public policies of one specific state.
The term public policy, in the broadest sense, refers to a science that studies the process of deciding on
issues of public interest. Main determinant of public policies is that they should be the product of the
interaction of the action of all stakeholders in society. The result of this interaction are certain
programs, that is, a set of measures whose implementation should lead to improvement in a
particular area, or at the level of society as a whole. The task of the public policy is to address the
problem or problems in a particular area of public interest, thereby offering concrete proposals for
possible solutions, in which the definition will always include all stakeholders. In today's basic areas
of public policies of today, the following are listed: education, health, social policy, traffic, urban
planning, and the preservation of the human environment are included. Public policies highlight the
interests of the individual, group and people. At the same time, the public policies highlight the
notion public goods, which represent specific values that are available to the majority of citizens to a
larger or smaller extent. On the other hand, the public choice represents a manner of adopting certain
decisions for “the public good or public choice from among the public and private good”. Determinant
that best describes the public administration is the creation of public goods and the expenditure of
public assets. This, at the same time represents, or more precisely, it should represent a mission for
each staff member of the public administration. – See:  , ,  ,
in:  , , 2002, pp. 126; Mark H. Moore, Creating public value: strategic
management in government, Harvard, 1997, pp. 127; See: Michael E. Kraft, Scott R. Furlong, Public policy:
politics, analysis, and alternatives, USA, 2012, pp. 3-20.
224 BLERTON SINANI
constructed29. Since these activities are carried out by the state through the bodies
established for carrying out the administrative function and under the regime of
administrative law, the content of the activity that composes the administrative
function has come to change, which content is expanded and enriched and certain
things that are not of authoritarian nature, but rather of a non-authoritative
character, that is, of a service character that spans things of public interest, i.e. of
common good of all, the collective benefit, which belongs to society as a whole.
Namely, the qualitative satisfaction of the public interest (of the citizens) should be
the main attribute and essential determinant in the activity of a particular state
administration. So there is insinuation and the insistence on the service-oriented
public role of the state, and with that of the administration thereof. Moreover,
citizens organize themselves in the state and finance its existence, in order to serve
as a service in the exercising and protection of their rights, needs and interests, in
the area of judiciary, administration, social protection, health care, property and
legal relations etc.30
The institute of public administration has firstly created the practice of the
State Council of France as a separate administrative court. Namely, the State
Council, resolving specific cases that came before it, began to apply its own
perceptions of the content of the administrative function by including the activities
that contained all the features of public services31. In this manner, the
administration has become a separate activity of the state that encompassed both
the activities of the exercise of power and the activities of the immediate
satisfaction of a range of important needs and interests of the citizens. Otherwise,
the conception of the State Council for Public Services was formulated in the
decisions that this Administrative Court adopted in 1903 in the Terrier case. The
Terrier case refers to a dispute that brought the citizen Terrier before the State
Council with a lawsuit on the occasion of the decision of the Regional Assembly of
Saoan-e-Loire to distribute award for eradication of poisonous snakes. Unhappy
with the prefect's decision on the amount of the award, Terrier filed a lawsuit
against the State Council against the department as a public-legal body. In this
dispute, Digi says: „The State Council has been declared competent, considering
that the Regional Assembly of Saoan-e-Loire has created a genuine public service,
which the government commissioner compared to the service for the eradication of
29 See for more:  ,   , , 1929, pp. 35-66.
30 See:  ,  , , pp. 45-47.
31 Public services are organisations that were founded to “meet specific needs of the general
interest, taking care of the general good and as such, they need to be specified by law”. The general
interest in this case is a factor having impact on the development of the society. Seen most extensively,
the general interest represents freedom, peace, human health, etc. When the general interest is defined
and précised in compliance to certain legal norms, it becomes a public interest, that is, interest of the
state. – quoted as per  ,      ,
   , , 2003, pp. 55.
General overview on material-functional conception... 225
wolves and which actually exists in many departments”. Accordingly, a dispute
concerning the performance of a public service is in question and therefore the State
Council is competent as an administrative court32. In this decision, the State Council
formulated its position on the content of the administrative activity, arguing that in
the administrative activity it includes everything related to the organisation and
functioning of the public services33. This attitude of the French State Council, together
with the then prevailing learning of the French administrative theory of public
services, led to a nebulous on the content of the administration in French law.
Conceived as a specific activity of the state, the administrative activity encompassed a
set of authoritative and non-authoritative activities that, with legal regulations, were
placed within the scope of the administrative bodies. All these activities were
regulated and were subject to the norms of a single legal regime, the legal norms of
administrative law34.
With the administration we come across almost in every step and every day,
because the state administration, except as an instrument of the state apparatus
through which the state performs its activity, is broad and versatile, which extends
into various fields of social, political and economic life, also appears as a public
office/service, which should meet the requirements and needs of the citizens35. In
fact, there are many examples of people appearing in the „counters of administration”
to meet „a certain need” with the administration not acting as a „power”, but rather
appearing as a „public service for citizens”. In regard to the administration, there is a
very impressive aphorism of prof. Esat Stavileci36 that is worth sharing: „The
administration counters are still low, in a way that „would force the citizens” to „beg
the authorities” so that a service is provided to them37”. This aphorism openly refers
to the justifiable conclusion that staff in public administration should be the only
mission in operation to be the quality service of the consumers. This aphorism openly
refers to the justifiable conclusion that the only mission of the staff in public
administration in their operation should be the provision of good quality service to
the consumers. These legitimate and legal requirements and needs are the right of
the citizen – not as „giving something to someone, at the will of the one who
decides or as „mercy” that is provided to him38. Hence, it is necessary the fact
32  ,   , , 1929, pp. 170-171.
33 Public administration experts regularly emphasise that public services are way more wide
concept compared to public administration, which from lower grades of generality arise – public and
state administration. – See: Dragoljub Kavran, Javna uprava, Beograd, 2003, pp. 23.
34  ,   , , 1994, pp. 61.
35 Neven Šimac, Europski principi javne uprave, Zagreb, 2002, pp. 7.
36 The Academician Esat Stavileci in Kosovo is considered the founder of the development and
the rise of administrative-legal science at the Law Faculty at Hasan Pristina University in Pristina, just
as Academician Aleksandar Hristov in Macedonia is considered founder of the development and the
rise of the administrative-legal science at the Faculty of Law at the University of Saints Cyril and
Methodius in Skopje.
37 See: Esat Stavileci, Nocione dhe Parime të Administratës Publike, Prishtinë, 2005, pp. 27, 367; Peter
Cane, Administrative law, Oxford, 2011, pp. 3.
38 Dragoljub Kavran, Javna uprava, Beograd, 2003, pp. 70.
226 BLERTON SINANI
should be instilled in the mental code of the employees in the administration that
they primarily exist for the qualitative servicing of their clients (citizens and legal
entities), whose public funds actually align/finance the operation of the public
sector and which, as taxpayers hold „the sacred” right to efficient and effective
way to exercise their rights and obligations39. Therefore, the civil servants40 should
be primarily in the service of citizens, to qualitatively service the demands and
needs of their own clients and to successfully effectuate the public interest. The
ultimate goal would be: satisfied consumers of administrative services – satisfied
staff – professional state administration41.
39  ,   ,  , 19.07.2012; Robert BlaževiР,
Upravna znanost, Zagreb, 2010, pp. 386-393; Ivan KopriР, Suvremena javna uprava i njezino prouavanje –
kompleksnost i integracija,     ”, , 2014, pp. 19.
40 Servants are an important integral element of public life and without them one can not imagine
the performance of state functions in contemporary civilisation, that is, the regular and efficient
functioning of civil services that meet the general social needs on a daily basis. According to Eugen
Pusic's view, the quality of the state administration's work, as an organisation, depends to a large extent
on the commitment, ability and honesty of public servants, of which, above all, highly technical,
professional, creative, initiative and responsive work is required, in accordance with the law. The
administration cannot be better than the people working in it, with the leading role and responsibility of
the managerial staff, given the fact that it represents a hierarchical organisation, and the quality of its
peak performance has crucial impact on the overall quality of work in the execution of operations within
its competencies and scope. In the comparative law, the modern office system, or the so-called merit-
based system (meritocracy system), which is solely applicable to the modern rule of law, is characterised
by the goals that it wants to achieve and the methods by which set goals are accomplished. The merit-
based system seeks to increase the efficiency and legality of the state administration's work, handing the
position in the administration to members of only one social layer or a political party should be avoided,
so that the attitude of political loyalty or patronage is avoided, to enable access to administration and
public services only to those who have the necessary expertise and experience, that is, the most
professional and creative personnel, and to accomplish the principle of access to the position in the civil
service, under equal conditions for all, depends sol ely on their capabilities. These objectives are achieved,
first and foremost, by the strict selection of candidates when they are admitted to the service by
conducting a public competition and checking their abilities and knowledge through testing, sitting
appropriate exams or probationary work; by establishing and applying the objective criteria for
assessing the work of the employees and, in this regard, for their advancement and classification on the
basis of the established nomenclature of titles, ie the established posts; with the introduction of a
standardised salary system and the institutions of the Central Office Commission, whose task is to
ensure uniform application of the regulations in the field of labour relations and personnel policy, to
participate in drafting those regulations, to take care of the selection of the best candidates for the civil
service and to decide on remedies submitted in relation to the exercise of the rights and obligations of the
work and on the basis of the work and thus limit the arbitrariness of political officials in the acception,
deployment and dismissal of administrative and other officers, etc. One typical example of the merit-
based system, undoubtedly, is the office system established in the UK, which has long served and still
serves as a model and inspiration for the normative arrangement of this matter in the respective foreign
countries. The civil servant in the UK, by definition, is a servant of the crown, who is given a salary from
the budget that is fully and directly voted or approved by the parliament. – See: Hrestomatija upravne
znanosti, Eugen PusiР, Kvaliteta ljudi u upravi, Zagreb, 1998, pp. 215-235; Gordana MaretiР, Službenici u
suvremeno doba, Javna uprava, Zagreb, 2006, pp. 112-114; Robert BlaževiР, Upravna znanost, Zagreb, 2002,
pp. 81-90.
41 See:  ,        ,  
  , 1996, pp. 39.
General overview on material-functional conception... 227
Practice shows and proves that the administration staff42 they generally treat
the citizens as subjected and subordinated applicants (power addresses), and
somehow they are missing code of ethics43, but at the same time they must not
touch the human dignity on purpose and should not play with the destinies of the
users of administrative services. As a consequence, the administration is today
spoken of in an unfavourable way, especially for its inhumane and uncivilised
behaviours towards citizens, and it is required to create better conditions in the
society for the administration in a way that it is transformed „from an unlimited
power” into a „good public service” for the citizens44. The public administration
does not enjoy the „respect of the public”. The reason lies in the fact that it „has
compromised and corrupted the legal system”. The syndrome that constitutes the
amount of these phenomena is characteristic of the unstable transitional states.45
Almost nobody is happy with the state administration: neither the citizens, who are in
constant relation with it; nor societies that pretend to „build democratic orders” within
them; nor the states, in the conditions and in the circumstances of their new roles; nor the
citizens to whom “the trust in it is being proclaimed”, and, lastly, neither the administration
staff who „work and earn from it”46. After all, from the end of the XIX century, Frank
Goodnow noted that „the greatest problem of modern public law is solely the
administration. If the past time was the time of constitutional reform, the present
time is the time of administrative reforms47”. Hence, it is right to ask the question:
What should be done in the society to have an administration that is: first,
institutionally organised; second, operatively more functional; third, professionally
more rational; fourth, procedurally more efficient; fifth, socially more controlled; sixth,
politically more accountable; seventh, technically perfected; eighth, more acceptable
from humanistic point of view. The more complete answer to these questions shall
systematise the following: first, the need for developing a new theory of
administration within the new conditions and circumstances of the development of
society in general and the changing role of the state in particular, and that for more
realistic evaluation of the administration analysis and studies should be conducted,
both in width and depth, would detect the causes of stagnation or congestion of the
administration on the path of its general transformation, although it is a long-term
42 : Robert BlaževiР, Upravna znanost, Zagreb, 2010, pp. 81-100.
43 According to the research results coded under the titme „Secret Agent” conducted by the
Ministry of Information Socety and Administration of the Republic of Macedonia, th rough analysis, it
was established that the clients were requesting information from the Cadastre Offices in Tetovo,
Gostivar and Kriva Palanka are utmostly unhappy with the regional cadastre units. „Citizens
complaint from the slowliness in the resolution of cases. Also, they react against inappropriate
behaviour of the desk officers. Hence, insufficient level of manners and etiquette towards clients is
noted”. – Alsat-M National Television, 12/08/2014.
44 Esat Stavileci, Nocione dhe Parime të Administratës Publike, Prishtinë, 2005, pp. 29.
45 Neven Šimac, Europski principi javne uprave, Zagreb, 2002, pp. 108.
46  ,  , , 2001, pp. 1, 65.
47 Ivo BorkoviР, Upravno pravo, Zagreb, 2002, pp. 3.
228 BLERTON SINANI
process; second, the administration is not „subjected”, neither as much as it should
be, nor as it should be, to „its adaptation” towards the new socio-economic and
political relations; third, the requirement to create adequate legislation in relation to
the conditions and circumstances that society and the state pass through today;
fourth, the need for higher professionalism in administration, which could help
eliminate the negative phenomena, even the pathological behaviours of the
administration towards the citizens; the recommendation for strengthening the
mechanisms of control and accountability of the administration and raising its
political awareness and responsibility; fifth, the suggestion for further perfection of
the work of the administration, which implies its computerisation48. At the same
time, the contemporary administrative legal theory fosters the established opinion
that, in fact, without modern, organised, functional, rational, efficient, controlled
and responsive administration, „a lawful state cannot be built”, neither a modern
society, a market economy, nor democracy, because the public administration extends
to all areas of social life49.
Conclusions
We may conclude from the above that the administration, originally, in its
development is a state administration and changes within the evolution of the political
system of a particular state. It is, together with the state, part of the institutional
network of the society, which means that it is also changing under the influence of
the transformation of society as a whole, to a wider framework of general societal
development50. As a consequence, the administration is no longer determined
traditionally only as a function of power, but also as an activity that goes beyond the
frame of the function of state power, embracing the overall activity of the
administration, in addition to the activities of exercising power (enforcement of laws
by adopting acts of power and carrying out material operations through the
application of state coercion), also the activities are included of satisfying the vital
needs of the citizens (performing public services). Thus, in the contemporary
developmental social and European trends in the area of state administration, the
theory of public services comes to life and it is explained that from the overall
administrative activity in a quantitative dimension it manifests itself as a public
service. It starts from the fact that the modern administration is of a service character,
being a „service to the citizens”, by which a state is implemented for the wellbeing of
its citizens. Explaining the administration as a public service is undoubtedly very
important and strategically conceptual, but above all – functional and practical.
Modern society requires a service state and an administration that must be at
48 Esat Stavileci, Nocione dhe Parime të Administratës Publike, Prishtinë, 2005, pp. 52.
49  ,  , , 2001, pp. 1.
50 Eugen PusiР, Nauka o upravu, Zagreb, 2002, pp. 69.
General overview on material-functional conception... 229
service to citizens as their clients and partners, rather than subjects. The modern
administration grounds its legitimacy on the real support of its measures and acts
by the citizens. Therefore, the administrative action should be reduced to a lesser
extent only to the legal manifestation of the state power, and to promote itself as an
active driver of social flows, i.e. transformation of the administration is essential
from the apparatus and instrument of the government, into efficient service for the
citizens51. There is increasing strive that the administration approaches the citizens,
and especially its „service” role towards the citizens, in order to exercise their
freedoms and rights as guaranteed by the Constitution, instead of executing gross
power only, to exclusively protect state interests, etc. The new administration must
obey to the legal regulations and act legally, but at the same time the principle of
legality is not an ultimate intention. The administration must effectively carry out
its activity and work in the interest of the state, but also safeguard the interests of
the citizens.52 Furthermore, prof. Esat Stavileci rightly claims that „regardless of the
unlimited exercise of power through the administration in opposition to any form
of democracy, the administration without power cannot work, and vice versa53”.
It is so because the administrative activity of a state is, in fact, „one tool for exercising
its functions” and at the same time, achieving the administrative goal – the public
interest54. Nevertheless, it is considered impossible to exclude the traditional
element of power, or the classical attribute of the domain found and manifested in
the administrative activity. Namely, it is undisputable fact that the authoritative
treatment was and remains differentia specifica – distinctive feature of the state's
activity in general and the administrative function in a special way. In some
administrative matters, the element of power is flagrant and absolutely present (for
instance, in the performance of inspection work and even more in the repressive
activity). But it is considered that that power must be carried out on the basis of
legal regulations with a new spirit, eagerness and approach towards the citizens
that should be respected, and that is the so-called concept of state administration
with a human face (physiognomy)55.
51  ,  , , 2013, pp. 30.
52  ,  - 1, , 2008, pp. 178.
53 Esat Stavileci, Nocione dhe Parime të Administratës Publike, Prishtinë, 2005, pp. 27.
54 Zoran TomiР, Opšte upravno pravo, Beograd, 2011, pp. 43.
55  ,  - 1, , 2008, pp. 178.