Administrative Law, Red and Green Light Theories
Cambridge University Press 978-0-521-70179-2 - Law and Administration, Third Edition Carol Harlow and Richard Rawlings Excerpt More information
1
Red and green light theories
Contents
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.
© in this web service Cambridge University Press
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Cambridge University Press 978-0-521-70179-2 - Law and Administration, Third Edition Carol Harlow and Richard Rawlings Excerpt More information
2
Law and Administration 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
1
Red and green light theories
Contents
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.
© in this web service Cambridge University Press
www.cambridge.org
Cambridge University Press 978-0-521-70179-2 - Law and Administration, Third Edition Carol Harlow and Richard Rawlings Excerpt More information
2
Law and Administration 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