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The Modern Welfare State and Evolution of Administrative Law
In order to understand the nature of administrative law, you should start studying the subject by looking at the political and economic circumstances that led to its ‘creation,’ /or its ‘invention’/ as a distinct subject at a certain point in history.
Let’s begin our inquiry by asking the following preliminary questions?
1) What is the meaning of the following terms?
A) laissez-faire B) police state C) welfare state D) power E) administration
2) Compare the ‘police state’ and the ‘welfare state’ in light of the following points and list down the differences.
A) The role of government
B) The underlying political philosophy
C) Individual liberty and freedom
D) Extent of power of the government (extent of governmental interference)
The change in the role of government and thereby the transformation of the ‘police state’ to the ‘welfare state’ has necessitated the need for conferring more power on the administration and simultaneously the need for controlling this power. The increasing growth of these two directions, i.e. power vs. control, their conflict and struggle somehow reflect the growth of the administrative law.
Administrative law is the by-product of the growth of socio-economic functions of the state and the increased powers of the government. Power has become very necessary in the developed society and the relationship between the administrative authorities has become very complex. In order to regulate these complex relations, some law is necessary, which may bring about regularity, and certainty and may check at the same time the misuse of power vested in the administration.
In the ancient society, the functions of the state were very few, the prominent among them being protected from foreign invasion, levying of taxes and maintenance of internal peace and order. The rapid growth of administrative law in modern times is the direct result of the growth of administrative powers. The theory of laissez faire in the 19th century envisages minimum government control, maximum free enterprise and contractual freedom. The state was characterized as the law and order state. Its role was limited to the traditional role of government i.e. as a protector. The management of social and economic life was not regarded as a government responsibility. But laissez-faire doctrine resulted in human misery. The unequal bargaining power between labour and management resulted in exploitation of workers, dangerous conditions of work and child labour. This ultimately led to the spread of poverty and the concentration of wealth in a few hands.
Then it came to be recognized that the state should take active role in ameliorating the conditions of power. This approach gave rise to the favoured state intervention, social control and regulation of individual enterprise. The ‘negative state’ was then forced to assume a positive role. In course of time, out of dogma of collectivism emerged the concept of “social welfare state” which laid emphasis on the role of the state as a vehicle of socio- economic- regeneration and welfare of the state. Thus, the growth of the administrative law is to be attributed to a change of philosophy as to the role and function of the state.
The characteristics of a modern welfare state in which we line in may be summarized as:
- A vast increase in the range and detail of government regulation of privately owned economic enterprise;
- The direct furnishing of services by government to individual members of the community, and
- Increased government ownership and operation of industries and businesses.
The welfare state in effectively carrying out these vast functions to attain socio- economic justice, inevitability will come in direct relationship and encounter with the private citizens. Therefore, the attainment of socio economic justice, being a conscious goal of state policy, is a vast and inevitable increase in the frequency with which ordinary citizens come into relationship of direct encounter with state power holders. Striking a balance and bringing about harmony between power and justice is the central mission of the administrative law.
It is clear that political and economic circumstances brought about the existence of administrative law. Administrative law was created as an instrument to control the ever-expanding governmental power. As Acton once said ‘ power corrupts and absolute power corrupts absolutely.’ Concentration of power in the hands of public officials, unless regulated and controlled properly and effectively, always poses a potential danger to the rights, freedom and liberty of individuals. Administrative law was developed as a response to the threats of ‘big government.’ In other words as. Massey has put it, administrative law is the by-product of an intensive form of government.
Big government or what is referred to, as the welfare state, is the product of a response to the economic, social and political reality of the 19th century. The political theory prevalent at the time, i.e. Laissez faire, failed to solve the economic ills and social evils which resulted in poverty, ignorance, exploitation and suffering of the mass. Due to the emphasis given to wider individual freedom, interference of government was minimal, and its power was limited.
Administrative law was almost non-existent at this time. When the power of the government is less and limited, the degree of interaction with the individual is minimal. Hence, the need for administrative law as a power controlling mechanism becomes insignificant under these situations.
The evolution of administrative law goes in a parallel progressive stage with the transformation of the ‘police state’ to the ‘welfare state.’ The reason for the transformation was the reason that necessitated conferring more power on the state. The pitfalls, defects and shortcomings of the ‘police state’ became clear at the end of the 20th century, specifically after the Second World War. The suffering, poverty and exploitation of the mass of the population were sufficient to justify the need to confer more power on the government. With more powers, the government also assumed new roles geared towards alleviating the social and economic problems and social evils to bring about development, social justice and equal distribution of wealth. Administrative law is the response to the problem of power. It unequivocally accepts the need or necessity of power, simultaneously stressing the need to ensure the exercising of such power within proper bounds and legal limits. Controlling the exercise and excesses of power is the essence and mission of the administrative law.