1 - Red and green light theories

Summary

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. 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 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. […]