Red and green light theories
1. Law and state 2. The Diceyan legacy (a) Dicey and the rule-of-law state (b) ‘The English have no administrative law’ (c) State and Crown (d) The state and statutory authority (e) Public and private law 3. Dicey and ‘red light theory’ 4. Ouster clauses and the rule of law 5. ‘Green light theory’ 6. ‘Green light theory’ and control 7. Allocation of functions 8. Towards consensus?
1. Law and state
Behind every theory of administrative law there lies a theory of the state. As Harold Laski once said, constitutional law is unintelligible except as the expression of an economic system of which it was designed to serve as a rampart.1 By this he meant that the machinery of government was an expression of the society in which it operated; one could not be understood except in the context of the other. In 1941, Sir Cecil Carr made a similar point in a series of lectures on administrative law given at Harvard University, in the course of which he said: We nod approvingly today when someone tells us that, whereas the State used to be merely policeman, judge and protector, it has now become schoolmaster, doctor, house-builder, road-maker, town-planner, public utility supplier and all the rest of it. The contrast is no recent discovery. De Tocqueville observed in 1866 that the State ‘everywhere interferes 1
H. Laski, A Grammar of Politics (Allen and Unwin, 1925), p. 578.
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more than it did; it regulates more undertakings, and undertakings of a lesser kind; and it gains a ﬁrmer footing every day, about, around and above all private persons, to assist, to advise, and to coerce them’ (Oeuvres, III, 501). Nassau William Senior, a Benthamite ten years older than Chadwick, a colleague of his on the original Poor Law Commission, had justiﬁed this tendency. A government, he thinks, must do whatever conduces to the welfare of the governed (the utilitarian theory); it will make mistakes, but non-interference may be an error too; one can be passively wrong as well as actively wrong. One might go back much earlier still to Aristotle, who said that the city-state or partnership-community comes into existence to protect life and remains in existence to protect a proper way of living. What is the proper standard? That is an age-long issue which is still a burning question of political controversy. The problems of administrative law are approached in the light of that ﬁre. Those who dislike the statutory delegation of legislative power or the statutory creation of a non-judicial tribunal will often be those who dislike the policy behind the statute and seek to ﬁght it at every stage. On the one side are those who want to step on the accelerator, on the other those who want to apply the brake.2
In this passage, Carr placed the demise of the minimal state, or state as ‘policeman, judge and protector’, and the birth of state interventionism, in the early nineteenth century, attributing the change to the work of the economist Nassau Senior and Edwin Chadwick, social and administrative reformer. Barker set two momentous decades of state growth slightly later, in the 1880s, when the number of state employees increased significantly, and the 1890s, when state expenditure as a percentage of national expenditure began to rise. By the end of the nineteenth century all the major political parties had for practical purposes abandoned the ideal of limited government, and accepted the necessity for intervention. The old conception of government as minimal and static was being swept away by a new conception, which was:...