A COMPARITIVE STUDY ON THE DEVELOPMENT OF

ADMINISTRATIVE LAW IN U.K. AND U.S.A.

Administrative Law

Submitted by:

Tathagat
SM0115055
III Year; VI Semester

National Law University, Assam

 CONTENTS

S.No. Topic Page No.

01. Contents I

02. Table of Cases II

03. Table of Statutes II

04. Table of Abbreviations II

05. Introduction 01

06. Aim and Objectives 02

07. Scope and Limitation 03

08. Research Questions 04

09. Research Methodology 04

10. Development of Administrative Law in UK 04

11. Development of Administrative Law in USA 09

12. Concluding Remarks and Suggestions 13

13. Bibliography III

I
 TABLE OF CASES

Case Law Page No.

1. Board of Education v. Rice, 1911 AC 179 07

2. Board v. Arlidge, 1915 AC 129 07
3. R. v. Inland Revnue Commissioner, (1982) AC 617 08
4. Ridge v. Baldwin, [1964] AC 40 07
5. Wong Yang Sung v. Mc Grath, 339 US 33 (1950) 12

TABLE OF STATUTES

1788– The United State Constitution

1950- Constitution of India

LIST OF ABBREVIATIONS

ABBREVIATION EXPANSION
¶ Paragraph
§ Section
§§ Sections
Art. Article
Ed. Edition
P. Page No.
U/s Under Section
V. Versus

II
Abstract

It has been observed that we are living in a changed world, a world of new moral concepts
but of outworn legal institutions. It is evident that the English and American legal system has
slowly been adapting itself to meet great changes. The developments of the past few decades
have resulted mainly in the establishment of a system of administrative agencies, tribunals,
and law. The causes of this new and divergent arm of the law originated in the fundamental
changes which occurred throughout the past century in the social and industrial life of these
countries, changes momentous enough to effect, in some spheres of social and industrial
activity, entirely original and unprecedented methods of dealing with the problems presented
therein. These causes must be considered in any intelligent study of the problem of
administrative law.

Introduction

The advent of the concept of Welfare State during the 19th Century led to the development of
Administrative Law, as a branch of legal discipline separate and distinct from the
Constitution Law.

The profound change in the conception of Government, as to the role and function of the
State, attributed to the growth of the Administrative Law. Prior to this change, laissez faire
was the ruling principle gospel. It manifested itself in the theories of individualism,
individual enterprise and self-help.1 It envisaged minimum government control, maximum
free enterprise and contractual freedom. The State was known to be “law and order” State. It
role was conceived to be negative as it extended primarily to defending the country from
external aggression, maintaining law and order within the country, dispensing justice to its
subjects and collecting taxes to finance these activities. A sensible law-abiding citizen thus
could pass through life and hardly notice the existence of the State, beyond the post office
and the policeman.2 It all resulted in human misery, exploitation of the weaker by the strong,
slums, unhealthy and dangerous conditions of work, etc. It came to be realised that the State
should take active interest in ameliorating the conditions of the common man. It was felt that
it was the duty of the Government to provide remedies for social and economic evils of many
kinds. It gave rise to the “collectivism” which became a political dogma, which favoured

1
Dicey, Law and Public Opinion in England in the Nineteenth Century, 64, quoted in Wade and Frosyth,
Administrative Law, 2007, 3.
2
A.J.P. Taylor, English History, 1914-15, 1.
State intervention in and social control and regulation of individual enterprise.3 The State, in
order to provide social justice, assumed a “positive” role; and in the course of time, there
emerged the concept of “social welfare State”, which lays emphasis on the role of the State as
a vehicle of socio-economic regeneration and welfare of the people.4 It required the State to
care for its citizens from the cradle to the grave.5 This all led to State activism, because of the
outburst of the regulatory legislation and the tendency to entrust more and more power to the
State.6

This State activism inevitably led to the coming of the administrative age. In its quest to
improve the social, economic and moral and physical well-being of the people, the State
came to assume more and more powers. While it meant in the functions of all the organs of
the State (namely, executive, legislative and judiciary) yet the largest extension of functions
and powers took place in that of execution-cum-administrative organ. It so happened that
administration came to exercise not only its traditional functions of administration but other
varied types of functions as well. The administration came to exercise not only legislative
power but also power of adjudication over disputes between itself and private individuals.

If the State is to care for its citizens from their cradle to grave, it needs a huge administrative
apparatus.

There are different approaches towards the Administrative Law, for this project topic we are
taking into account only the English and the American Approach. The English writers did not
lay so much emphasis on procedures of administrative agencies though the current thinking,
there is that procedures have great significance in Administrative Law and therefore more
attention is being devoted, there, to the study of administrative procedures, while the
American approach emphasises on the procedure used by Administrative agencies in
exercising their powers. Hence, in this project report, the development of Administrative Law
in UK and USA has been discussed.

Aims and Objectives

Aims and Objectives of this Project Report remains very limited due to the very nature of the
project topic. I would be aiming to explain the development of the Administrative law in UK

3
Dicey, supra note 1, quoted ibid.
4
MacIver, The Web of Government, 236 (1965).
5
Wade & Forsyth, Administrative Law, 2007, 4.
6
Supra note 2.
2
and USA and how they are essentially different from each other. The objective of the study is
to know how the administrative law originated and how it was different in two different
countries one with constitution and one with an unwritten constitution.

Scope and Limitation

Scope of this project report will be limited to firstly, two countries USA and UK and
secondly, till the era of 1950’s-60’s, it will be an exhaustive study if I would try to compare
till the present stage which will be impossible with limited resources and time.

Review of Existing Literature

I.P. Massey, Administrative Law, 8thEdition, Eastern Book Company, Lucknow, 2012

This book provides a comprehensive, authoritative and lucid treatment of the subject,
compressing in its volume a vast amount of essential information. The work touches upon
and explains many grey areas in administrative law. It covers all the aspects of the
administrative law including India and abroad and provides an insight on the development of
the administrative law.

Mark Elliot, Administrative Law Text and Materials, 4thEdition, Oxford University Press,
Chennai,2005
The book combines carefully selected extracts from key cases, articles, and other sources
with detailed commentary and explanation. An essential text while studying the development
of the administrative law. Rather than simply presenting administrative law as a straight
forward body of legal rules, this engaging, critical text considers the subject as an expression
of underlying constitutional and other policy concerns and origin and development of
Administrative Law.

Martin Loughlin, Foundations of Public Law, 1stEdition, Oxford University Press,

Chennai, 2010
This book offers an account of the formation of the discipline of public law with a view to
identifying its essential character, explaining its particular modes of operation, and specifying
its unique task. Building on the framework, conceives public law broadly as type of law that
comes into existence as a consequence of the change that give birth to modern state, public
law establishes the authority and legitimacy of modern government.

3
Carol Harlow and Richard Rawlings, Law and Administration, 3rd Edition, Cambridge
University Press, Cambridge, 2009

As the branch of law dealing with the excercise of governmental power, administrative law is
directly concerned with politics and policy issues. The classical text of this book, recognising
the field as complex and sometimes controversial, takes a contextualised approach,
considering the social, economic and political factors informing the law. From the
governmental agenicise through to questions of adjudication and judicial review, the book
looks at the law as it stands and the environment in which it was developed and thus helping
me in my project report.

Research Questions

1. How did Administrative Law originated?

2. What is the fundamental or essentials of Administrative Law in UK where the
constitution is unwritten?
3. Whatis the fundamental or essential of Administrative Law in USA where the
constitution is written?

Research Methodology

Approach of Research:

In this project doctrinal research is used. Doctrinal Research is a research in which secondary
sources are used and materials are collected from libraries, archives, etc. Books, journals,
articles were used while making this project.

Type of Research

Explanatory type of research is used in this project, because the project topic was relatively
new and unheard of and also because various concepts were needed to be explained.

Sources of Data Collection

Secondary source of data collection was used which involves in collection of data from
books, articles, websites, etc. No surveys or case studies were conducted.

4
Development of Administrative Law in United Kingdom

Administrative Law in England has a long story. There always existed a somewhat messy
system of administrative institutions. But, the subject in its modern form is said to have
emerged in the second half of the seventeenth century. A number of its basic rules are dated
back to that period and some, such as the principles of natural justice, are still older.7

Originally, the English Monarch, who was considered to be “a Divine being”, was conceived
to be the foundation-head of justice and had Himself death out justice to His subjects. Under
the Tudor Monarchy, power was centralized in the State which was exercised through the
Star Chamber, enforcing the Privy Council’s superintendence.8 Later on, the function came to
be assigned to a few chosen individuals, who were styled, as they indeed still, are as His
Majesty’s Judges. The King used to take over any case he pleased and decide it Himself. To
this situation, Sir Edward Coke could not reconcile.9 He protested and said, “God has
bestowed upon your Majesty great endowments, but you are not learned in the laws of the
realm. Law is an art and protects you and your subjects in safety and in peace.” In the Royal
battle, Coke asserted, “The King ought not to be under any man but under God and the law.”
This infuriated the King and Coke was, eventually, dismissed from office in 1616.10

As a result of 1688 Revolution,11 a new situation emerged. Sovereignty of the King was
passed on to the Parliament. In course of time, Parliament itself became despotic. There was
considerable agitation. The jurists and the lawyers started asserting that the Sovereignty of
Parliament should subserve the supremacy of law and that the supremacy of the law as
opposed to arbitrary power, should be recognized at all costs. The King’s Bench made their
writs of mandamus, certiorari and prohibition as well as, its original remedy of damages
available to anyone who wished to dispute the legality of administrative acts of the justices
and of such other public authorities as there were.12 The field say Wade & Forsyth, was thus
clear for the development of Administrative Law.

The Industrial Revolution caused large scale migration of the people from the rural to the
urban areas. In consequence, the Government had to provide for welfare legislation for the

7
Wade & Forsyth, Administrative Law, 2007, 13.
8
Id., 14.
9
Radcliffe & Cross, The English Legal System, 1954, 174-175.
10
Id., 175
11
Populary known as “Glorious Revolution”
12
Wade & Forsyth, Administrative Law, 2007, 16.
5
workers in the factories, such as health services, compensation for accidents, habitation for
slum dwellers and so on. Legislation was also needed to provide for matters like public
safety, public health, unemployment relief, etc. Parliament, elected by adult franchise, lacked
both the technical knowledge and experience necessary for the task. It could set out the main
principles for the legislation and, the details of working out the measure were to be left to the
administration.

The reforms thus necessitated the development of administrative and adjudicative mechanism
on a large scale. There came to be constituted a number of statutory bodies or tribunals which
were charged with various functions under the respective legislative enactments. The
ordinary courts were kept in the background in view of disproportionate costs involved in
using them as also to lessen their burden.13 With the beginning of 20th Century, the conditions
changed and the Courts showed signs of losing confidence in their constitutional functions
and they, then, hesitated to develop new rules in step with the mass of new regulatory
legislation.14 The Executive took full advantage of the situation.15

As a result of the welfare enactments, the administrative agencies created for administration
as also adjudication, became very powerful and even a law unto themselves. The Judiciary
had not been happy with the role of these bodies. Very soon, it came to be felt that they
should be held accountable to law. It was suggested that what was, needed was the
formulation of a wholesome body of ‘Administrative Law’ in harmony with the traditional
principles of ‘Common Law’.

Though, loud complaints were raised about the bureaucracy, but the state of the things was
exposed only by the former Chief Justice of England, Lord Hewart, in his famous book
entitled “The New Despotism”, published in 1929. The civil services and bureaucracy were
alleged to be the true rulers of the country.16Two particular evils brought to light were: “the
extent to which the executive was given freedom by Parliament to make delegated legislation
and the complementary evil of freedom from control by the Courts over the exercise of
executive discretion”.

13
P.P. Craig, Administrative Law, 2007, 65.
14
Supranote, 15.
15
Ibid.
16
J. F. Garner, Administrative Law, 1963, 21-22.
6
Publication of Lord Hewart caused a good deal of sensation. Under such circumstances, the
importance of, the system of Administrative Law had been brought more and more into public
notice.

The response to the publication of Lord Heawrt’s book was the setting up of the Committee
on Ministers Powers in 1932 with Lord Donoughmore, its Chairman. The Report of the
Committee made some sound criticism of the system and called attention to the defects in
Administrative Law as it then existed. The Report, was little more than an academic exercise.
Its recommendations to make the system fairer and more impartial were not entirely realistic
and proved unacceptable to the strongly entrenched administration.17 But it did lead to certain
improvements in delegated legislation.18 The discontent with the administrative procedure,
therefore, continued to accumulate.

During and after the Second World War, a deep gloom settled upon Administrative Law.
Blank-cheque powers were showered by Parliament upon Ministers. It was a period of ‘great
depression’, when eminent Judges having lost the power to control executive said that the
Common Law must be given a death certificate.19 Dicey, in 1885, in his famous thesis on
“the rule of law”, maintained that there was no Administrative Law in England. He had
pronounced to Robson: “In England, we know nothing about it.”20 Prof. Dicey’s eloquent
exposition was largely responsible for ingrained prejudice against Administrative Law among
the Common Law lawyers. Lord Reid, in Ridge v. Baldwin,21 remarked that there was no
developed system of Administrative Law in England.

Dicey had ignored the existence of administrative discretion and administrative justice which
was current in his days. Conscious of the true position in 1887, his contemporary Maitland
remarked22: “If you take up a modern volume of the report of Queen’s Bench Division, you
will find that about half of the cases reported have to do with rules of Administrative Law: I
mean such matters as local rating, the power of local boards, the granting of licenses for
various trades and professions, the Public Health Acts, the Education Acts, and so forth.”

17
Prof. G.W. Keeton, The Nineteenth Century and After, 1949, 230.
18
Wade ... 15.
19
Lord Devlin in 8 Current Legal Problems, 1956, 14, quoted in Wade & Forsyth, 19. See also Lord Mac
Dermott, Protection from Power under English Law, 1957, 88.
20
Robson, Administrative Law in England, 85-86.
21
[1964] AC 40
22
Constitutional History of England, 1955, 505.
7
No systematic study was undertaken and the general principles of Administrative Law, which
could be seen working throughout the area, remained unnoticed.23 For long the English
writers, being influence by Dicey’s thesis, maintained that Administrative Law was
repugnant to the British Constitution.

However, after the famous decision in Board of Education v. Rice,24 and Local Government
Board v. Arlidge,25 Dicey himself became conscious of the emergence of Administrative Law
in England. In his article,26“The Development of Administrative Law in England”, wrote in
1915, he observed: “legislation had conferred a considerable amount of quasi-judicial
authority on the administration which was considerable step towards the introduction of
Administrative Law in England.” In the last edition of his book “Law and the Constitution”.
published iin 1915, Dicey admitted that due to increase of duties and authority of the
officials, during the last thirty years, some elements of droit had entered in the law of
England. But he asserted that so long as the Court dealt with a breach of law by an official,
there could be no droit administrative in England and the rule of law would be preserved.27

Dicey was thus reluctant to admit the existence of Administrative Law in England. Friedmann
remarked that “Dicey misunderstood the scope and abmit of Administrative Law. While
studying the rule of law, he excluded altogether Administrative Law and a special system of
administrative courts.28 However, Dicey’s misconception did throw chilly shadow on the
growth of Administrative Law. Griffith and Street29 observed that the study of Administrative
Law had to suffer a lot because of Dicey’s conservative approach.

In due course, however, the scholars reconciled themselves to the excistence of

administrative tribunals and administrative discretion.30 Lord Diplock in 1981 described in R.
v. Inland Revnue Commissioner,31that “progress towards a comprehensive system of
Administrative Law that I regard as having been the greatest achievement of the English
Courts in my lifetime.”

23
Some treaties on Administrative Law were published, but the subject was given inadequate treatment. See
Port, Administrative Law, 1929; Halsbury’s Laws of England.
24
1911 AC 179
25
1915 AC 129
26
31 L.Q.R. 1915, 148
27
Dicey, “The Development of Administrative Law in England”, 31 LQR 1915, 148.
28
American Administrative Law, 1962, 21.
29
Principles of Administrative Law, 1963, 3.
30
Breen v. Amalgamated Engineering Union, (1971) 2 QB 175.
31
(1982) AC 617
8
But as yet, the study of Administrative Law was obstructed only to two aspects, namely
delegated legislation and administrative adjudication.

The Dounoughmore Committee32 was appointed in 1932 to examine the problems of

delegated legislation and the judicial and quasi-judicial powers exercised by the officers
appointed by the Ministers. The Committee was asked to suggest effective steps and suitable
safeguards to ensure supremacy of the rule of law.33 The Committee made certain
recommendations with regard to the better publication and control of subordinate legislation,
which led to the passing of the Statutory Instruments Act, 1946 and the Crowns Proceedings
Act, 1947. The Act of 1947 liberalized the law relating to civil proceedings against the
Crown. It made the Government liable to pay damages in case of tortuous and contractual
liability of the Crown. It was, in a way, the abandonment of the famous doctrine “The King
can do no wrong”, which considerably expanded the scope of Administrative Law in
England.

The subject was again reviewed by the Davises Committee34 in 1953. But, this committee did
not recommend any substantial improvements.35 Discontent with administrative procedures,
therefore, continued to accumulate.

In 1955, a new Committee on Administrative Tribunals and Enquiries was set up to consider
the matter, generally in the areas of Tribunals and Inquiries.36 As a result of its Report,
known as Franks Report,37 the Tribunals and Inquiries Act, 1958 was passed, which Statute
set up as a permanent Council on Tribunals and laid down certain general procedural
principles to be applied to most administrative tribunals and inquiries. It also provided for
better control and supervision of administrative authorities and tribunals by Court of Law.

Since the report of the Franks Committee, 1957 the working of the tribunals improved. They
were, now, to be seen as part of the machinery of adjudication. The role of the Courts in
reviewing administrative actions has been far more active and creative in controlling
administrative actions. All the administrative institutions, by implicit assumption, “could be

32
Known as “Committee on Ministers’ Powers”, 1932.
33
P.P. Craig, Administrative Law, 2007, 67.
34
The Select Committee on Delegated Legislation, 1953.
35
J.F. Garner, Administrative Law, 1963, 2.
36
P.P. Craig, Administrative Law, 2007, 68.
37
The Chairman of the Committee was Sir Oliver Franks.
9
fitted into the pigeon-holes “inquiry” or “tribunal” with those terms bearing their Franksian
meaning”.38

The office of the Parliamentary Commissioner set up in 1967, has made a significant
contribution to the growth of Administrative Law. The above developments led Lord Denning
to observe that:

“it may truly now be said that we have a developed system of Administrative Law.”39

The Development of Administrative Law in the USA

The term “Administrative Law” has no authoritative definition in English. In the third
revision of Bouvier’s Law Dictionary by Francis Rawle, published in 1914, the term does not
appear. The first book on the subject in this country, if not in English, appeared in 1893. This
was Professor Goodnow’s “Comparitive Administration Law.” In that book he says: “Of late
years, with the great awakening on the continent of Europe of interest in administrative
subjects, the term administrative law- in reality a simple translation of a French Expression-
has gradually crept into our vocabulary, and at the present time has obtained recognition from
some of the most advanced legal thinkers. The use of the term may therefore be regarded as
perfectly proper; though that use must be accompanied by an explanation.” His definition of
Administrative Law is as follows: “Administrative Law is therefore that part of the public law
which fixes the organization and determines the competence of the administrative authorities,
and indicates to the individual remedies for the violation of his rights”.

Administrative Law and Administrative agencies in America are said to be as old as

American Government themselves.40 In its very first Session, the American Congress enacted
three Statutes conferring important administrative powers. Under the Statutes 29 and 95 of
1789, adjucating authority was conferred on the Port collectors. They were vested with the
licensing powers and the power to decide the amount of duties payable.41 By the statute 95 of
1789, the President of the United States was vested with the power to make regulations for
the payment of pensions to disabled veterans.

38
P.P. Craig, Administrative Law, 2007, 68.
39
Breen v. Amalgated Engineering Union (1971) 2 QB 175.
40
Bernard Schwartz, Administrative Law, 1976, 16.
41
Chief Justice Marshall in Scott v. Negro Ben, 6 Cranch 3
10
The setting up of the Inter-state Commerce Commission in 1887 is considered to be the
beginning of the American Administrative Law.42

The American Constitution founded upon the concept of “separation of powers” embodied
independence of the three vital organs in the Constitution, viz., Executive, Legislature and
Judiciary.

In course of time vast changes took place in the American way of life. As in England and
elsewhere, there occurred in America, exodus of people from rural to urban area, resulting in
economic and social problems. Being federal state, due to want of cohesion amongst various
governments, different laws began to operate, discriminatory in nature. It all led to
government interference in the matters of private enterprise. As a result, the Interstate
Commerce Act, 1887 was passed. The Act, 1887 brought into being the Inter-state Commerce
Commission, charged to prevent excessive charges and discriminatory practices. The
Commission was an autonomous body. It was vested with the broad powers of rule-making
and adjudication agencies, endowed with the power to determine, by rule or by decision,
private rights and obligations.43

In the course of time, the Inter-state Commerce Commission was invested with the powers to
legislate, to prosecute and to decide cases. Not unnaturally, the Courts got extremely jealous
of the powers of the ICC. While, the American people found the activities of the Commission
to be very beneficial to them. They could get redress their grievances by the Commission,
saving a lot of trouble and expenses. The Government, on its part, began to enlarge the
powers of the ICC. The Hepburn Act passed in 1906 consolidated the powers of the ICC. Its
power were further supplemented in 1920. Very, soon the commission began to embrace all
public and social activities like the control of stock exchange, prevention of fraud in central
enterprises, workmen compensation, labour disputes, trade and commerce, etc.44

The two World Wars and the resulting Great Depression, led to multiplication of agencies
like the ICC. The administration by these tribunals satisfied the legitimate aspiration of the
American people. In the course of the time, these agencies became very powerful. The
judiciary could not take the development kindly.

42
Report Attorney-General’s Committee, 1941 8-9, quoted in Schwartz, Supra 1, 17.
43
Schwartz, supra note 1, 18; Wayman v. Southard, 10 Wheat 1, 43.
44
S. Rajagopalan, Administrative Law, 1970, 45-46.
11
With the rapid growth in the activities of the ICC, the expression “Administrative Law” came
into general use. In 1893 Frank G. Goodnow, collected the entire law and published a book
on Comparative Administrative Law. He published in 1905 another book on “Principles of
Administrative Law of the United States”. Earnest Freund, in 1911, also wrote a book entitled
“Case Book on Administrative Law”. Elilu Root, the President of the American Bar
Association in 1916 foresaw the development of Administrative Law. In this presidential
Address he said45:

There is one field of law development which has manifestly become inevitable. We are
entering upon the creation of a body of Administrative Law, quite different in its machinery,
its remedies and its necessarily safeguards, from the old methods of regulation by specific
statutes enforced by the Courts.

Though, the term “Administrative Law” was getting into use, the Bench and the Bar, says
Schwartz46, were still under the influence of Dicey’s view that Administrative Law was
completely opposed to Anglo-American principles. Even the scholars treated it as an exotic.47
Roscoe Pound, writing in 1938, held that these bodies had better than scrapped.48

The famous New Deal measures were carried out through the medium of administrative
agencies. It led to the rapid growth of law. However, it was thought imperative that these
agencies be regulated by the law. A special Committee on Administrative Law was appointed
in 1933 to make certain changes in the functioning of these bodies. Besides other things, this
Committee was to consider49 the powers committed to these agencies/commissions involving
dangerous opportunities for oppression; the principles of supervision over the citizens’ and
“checks against the excessive power and abusive exercise of power”.

The Government was anxious that something must be done to prevent these agencies, styled
as “headless Fourth branch of the Government”50 from being a law unto itself. Not
accountable to the President, the ICC came to be regarded as miniature independent
Government, constituting, ‘A haphazard department of irresponsible agencies and

45
Quoted in Bernard Schwartz, Administrative Law, 1976, 18.
46
Ibid
47
Felix Frankfurter, The Task of Administrative Law, 75 U Pa L Rev 6, 1927, 614-15.
48
S. Rajgopalan, Administrative Law, 1970, 47.
49
Ibid
50
Humphrey’s Executor v. United States, 295 US 602 (1935).
12
uncoordinated powers.’51President Roosevelt in 1938 appointed Attorney General’s
Committee to investigate “the need for procedural reforms in the field of Administrative
Law.”52 Based on the recommendations of this Committee, the Administrative Procedure Act,
was passed in 1946, containing provisions relating to the judicial over control of the
administrative agencies.

The Act of 1946 provides minimum standards of administrative procedure. Its enactment,
says Schwartz53, gave clear evidence of a congressional desire to call a halt to the process of
administrative expansion. The Supreme Court in Wong Yang Sung v. Mc Grath54indicated
that the Act of 1946 would be interpreted in such a way as to give full effect to its remedial
intent. The Act, 1946, however remains to be landmark in the history of Administrative Law
in America. Stating the American Administrative Law had largely grown like “Topsy”,
Justice Frankfuter wrote55:

How to fit ancient liberties, which have gained a new preciousness into solution of
those exigent and intricate economic problems that have been too long avoided rather than
faced, is the special task of the Administrative Law.

Conclusion
The growth of administrative law resulted as the natural accompaniment of the growth of
administrative agencies in existence in the recognized governmental functions and of the new
agencies set up to meet the needs of a changing society. The present form of the
administrative system is accounted for by the fact that, while there are certain fundamental
differences in American and English jurisprudence, our legal institutions were molded in the
traditional principles of the common law which were familiar to, and a part of the culture of,
the great majority of the colonists who established our system of government. In the United
States a written Constitution has prevented the same degree of growth and concentration of
powers found in England. This constitution provided for a separation of legislative,
executive, and judicial powers. An administrative system had been tried in England under the
Tudors with great efficiency from the executive standpoint, but with such great abuse from
the popular standpoint that it was virtually abolished. The prime reason for the development

51
Reports the President’s Committee, 1937
52
The Committee submitted its Report in 1941.
53
Supranote ernard Schwartz ,21.
54
339 US 33 (1950).
55
41 Colum L Rev 585, 586 (1941).
13
seems to have been in the slowing down of the economic and social forces which were
present by reason of tremendous territorial expansion and industrial revolution, and the
necessity of meeting conditions which those forces, especially the latter, brought. We
changed from a rural to an urban society, we greatly increased our standards of living, we
concentrated our population in large cities, we began to be increasingly conscious of the
disadvantages of this new life and sought to minimize them by governmental control. The
great uprisings of the farmers of the Middle West, the "Granger Movement," started the
practical beginnings of the administrative system. Their demands for protection from the
domination of the railroads in the control of eastern and foreign capital resulted in the
establishment of state railroad commissions. Administrative agencies developed faster in the
local and state units because the problems were first apparent there. But as the problems
assumed wider significance the administrative system became a part of the larger units of
government. The establishment of these new agencies was perhaps made easier by the fact
that tremendous numbers of immigrants had been accustomed to an administrative system in
the countries of their origin. As the course of history emphasizes, abnormal conditions are
usually marked by concentration of power. We also met the extraordinary problems which
were arising by a concentration of power in the executive through the establishment of
administrative arms of government. This was especially true of the already highly centralized
federal government. The change naturally produced conflict with the established customs of
which the legal system is inherently the protector.

The existing legal system could not keep pace with the rapidly growing demands of society
due to its outworn methods. Neither in England or in the United States was there a concerted
effort by the bench or bar to recognize and eliminate the imperfections of the legal structure.
The courts adopted a permissive attitude to the encroachments of administrative tribunals.
The administrative method also had certain inherent characteristics and advantages which
made it more adaptable to existing problems than the courts of law. It was able to move more
rapidly than the legislature. It was modern. The administrative agency was a flexible body
which could take cognizance of changing conditions as they arose, marching almost step by
step with the society of which it was a part. Specialists were in charge of particular fields,
knowing not only the needs of society but having the power to harmonize these needs and
correct abuses by their own motion, proceeding at relatively low cost by the curtailment of
technical formalities and by disposing of large numbers of cases as one. Exact tendencies are
most difficult of determination. With the rising standards of education we are obtaining a
14
better understanding of the nature of the problems of society. Due to closer contacts we are of
necessity required to surrender certain freedom which we formerly possessed. By common
consent our actions are regulated by government but these had become too complex for the
method of the established common law. Administrative agencies were created by Congress as
a solution but even they have found it necessary to re-delegate their powers. Administrative
agencies have been obtaining more powers. Their determinations have tended more and more
to become final-if they are fairly arrived at there is no need for a complete re-examination by
the courts. As these agencies grow older their own weaknesses appear. A better
understanding has tended to a consolidation of functions and the creation of more settled
procedure. In brief the tendency is for the administrative system to proceed according to the
rules of law rather than upon personal discretion. However, as the administrative agency
becomes an increasing factor in determining economic policy it becomes more desirable to
shape its decision. The political power has tended to influence these determinations,
especially in newer bodies, through its powers of appointment and removal. There is also
some tendency to eliminate the checks of power which the ordinary courts possess by the
establishment of a system of administrative courts. But the developing insistence on
improvement of administrative procedure and a curtailment of its powers will probably
prevent an extension that is manifestly unwise or determinations that are clearly personal.

On the whole the evidence is clearly against the theory that a completely administrative
system is superior to the fundamental principles of government which exist in our country
today. It is true that the administrative system is desirable in some aspects and almost a
necessity in others, but it does not follow that it should encompass every field of human
endeavor. The United States and England seem to have progressed far more than some of
their much ruled brethren. While the impossibility of measuring the multiplicity of factors is
obvious, there is grave reason to well consider whether we should sacrifice, in even
seemingly minor details, the fundamental principles of our government, substituting therefore
the more flexible, less certain justice of our administrative system.

15
BIBLIOGRAPHY

Primary Source

The Constitution of India, 1949

The United State’s Constitution, 1788

Books

M.P. Jain and S.N Jain, PRINCIPLES OF ADMINISTRATIVE LAW, 7th Edition, 2011,
Lexis Nexis Publication, Nagpur

H.W.R. Wade & C.F. Forsyth, ADMINISTRATIVE LAW, 11th Edition, 2012, Oxford
Publication, United Kingdom

SP Sathe , ADMINISTRATIVE LAW, 7th Edition, 2012, Lexis Nexis Publication, Nagpur

Dr. U.P.D Kesari, ADMINISTRATIVE LAW, 18th Edition, 2010,Central Law Publication,
Allahabad

Dr. J.J.R. Upadhyaya, ADMINISTRATIVE LAW, 8th Edition, Central Law Agency
Publication, Allahabadh

C.K. Takwani, LECTURES ON ADMINISTRATIVE LAW, 5th Edition, 2014,Eastern Book

Company Publication, Lucknow.

I.P.Massey, ADMINISTRATIVE LAW, 8th Edition, 2012, Eastern Book Company

Publication, Lucknow.

Websites

www.judis.nic.in

www.legalservicesindia.com

www.scconline.com

www.shodhganga.com