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Power and Struggle: The Development of Administrative Law

Carmelito D. Clabisellas Jr.


Juris Doctor II
University of Cebu College of Law

Administrative Law can fairly be described as an infant field of law. Its emergence could be dated
back to the end of the 19th Century, an era which showed the transformation of the roles of government.
From mid nineteenth century to the present, the functions of administration have expanded, prompting a
change in the transformation of the meaning of administrative law in accordance with the changes in the
society.

The quick development of the administrative law at present is the immediate outcome of the
development of regulatory forces. The hypothesis of laissez-faire or the free enterprise principle in the
nineteenth century conceives least government control or intervention, leading to the desires of free
enterprise and the non-interventionist role of governments. In sum, the theory of laissez-faire gears
towards minimum control of the government, free enterprise, and that power is concentrated in the hands
of individuals. However, the consequence of giving the powers in the hands of the individuals and the
minimum government control proved to be tragic. This setup had paved the way for the rich to become
richer and the poor to become poorer since vital powers were concentrated in the hands of those who
had capital. The government had nothing to do against this disparity since its role was very limited, and
economic activities were not regarded as part of State responsibility.

The injustices in the laissez-faire setup led to the recognition that states must take active roles
against the concentration of power in the hands of the rich. Because of this, the principle of collectivism
evolved in which the state and individuals shall work together. The state had appropriate control over the
activities of the people and the state assumes the liability for the person's liberty and freedom. This
cooperative setup gave birth to the concept of welfare state, which endeavors to provide all kinds of
justice in all phases of human activities. This concept emphasizes the role of state in bringing about the
realization that governments need to achieve the maximum welfare of the masses.

In sum, the development of administrative law arises from the evolution of the function of states.
From the concept of free enterprise to social welfare state, the significance and meaning of administrative
law has grown immensely. In the wake of transforming into a social-welfare state, the capacity of state
moved from the traditional function of limited protection to observing responsibility in all strands of human
activities, including economic and social management.

Police State and the Welfare State

As established, the emergence of administrative law was hinged largely on the development of
the functions of states. Inevitably, political and economic circumstances gave rise to its existence.

The concept of political state is rooted on the ideals of free market economics and political
system. It emerged prior to the conception of welfare state. The end of the 19 th century, when power had
been greatly accumulated only by a few, police state proved to be a failure in addressing the social evils
and suffering of the people. The role of the government was limited only to protecting the mass on
matters other than social and economic affairs under the political philosophy that market conditions are
outside the business of governments, making way to the laissez-faire setup or the free enterprise market.

Meanwhile, the birth of the welfare state granted government with wider powers, taking active
roles not just in political activities, but also in economic and social development under the political
philosophy that the interest of the public, in general, is a concern of a responsible government.

The differences, therefore, of a police state and a welfare state can be summarized as follows:

As to the role of government and the extent of its power: In a police state, the government
only takes a traditional role, i.e. as a protector of the people. This protection, however, does not include
protection in social and economic interrelations. On the other hand, in a welfare state, the government
takes an active role in all phases of human endeavors including social and economic management and
encourages meaningful participation of the public in government administration.

As to their underlying philosophy: A police state is largely governed by a laissez-faire setup.


This mean minimum government control, free enterprise, law and order not counted as subjects of state,
and that power is concentrated in the hands of individuals, and not by the state. On the other hand, a
welfare state operates based on collectivism between states and individuals, coordinating in proper
synchronization. Welfare state conceives that promoting and protecting public interest is a primary
governmental function.

As to individual liberty and freedom: In a police state, individuals have greater level of liberty
and freedom since law and order are not considered as subjects of the state or of the government. The
individuals have the greater liberty to dispose its power at their will without control by the government.
This has led to abuses, and greater disparity between the rich and the poor since only those have bigger
capital and power take monopoly over economic and social affairs. On the other hand, in a welfare state,
liberty and freedom of individuals are controlled under the belief that control is necessary to prevent
abuses against minority and the poor and to protect the greater interest of the public in general. As a
result, proper government intervention is expected.

In a nutshell, administrative law is a result of the development of political and administrative


circumstances of time and its creation is a product of necessity. It is a response to the problem of power
and to close the disparity between those who control the monopoly and those who are vulnerable. Since
the nature of administrative law depends on the demands of the society, it is important therefore that we
guard the guarantee of protection from abuses not just against those who have the capital domination but
even against those who enforce it.