Modern solidarity and administrative repression

Modern society is based on the predominance of organic solidarity over mechanicalsolidarity and, consequently, on the predominance of the law, which ensures cooperationbetween autonomous subjects from repressive law, which sanctions, through penalty, anydeviation from the standards of the common conscience. Modern society is “civilized”, i.e. itis firstly and foremost based on “civil” law, the repressive law only being exceptional, whichtranslates into three principles: that of the subsidiarity of criminal law, that of the necessityand legality of offences and penalties, and that of the additional protection of individualfreedom when the subject is criminally charged. The consequence thereof is that, in modernliberal democracies, all repressive law is criminal, that any charge which may lead to theapplication of a repressive sanction is a criminal charge and that the law-maker cannotassign to the administration the competence regarding the application of repressivesanctions. Under these circumstances, the transformation of some repressive norms intonorms of administrative law is a violation of the fundamental principles that structure thelegal order of modern liberal states. Nonetheless, this type of practice is becoming morecommon. In order to ensure individual freedom, this tendency must be corrected. Aspoliticians are not willing to do so, naturally this is a task for the judicial courts, that canrely for this endeavour on the European Court of Human Rights’ constructive jurisprudence.