Politics and Administration

A Study in Government

Frank J. Goodnow

• Publisher: Routledge
• Year: 2017
• ISBN:
  9781351308267
• Edition: 1
• Topic: Politics & International Relations
• Subtopic: Politics
• Index: Politics & International Relations

The conventional model for explaining the uniqueness of American democracy is its division between executive, legislative, and judicial functions. It was the great contribution of Frank J. Goodnow to codify a less obvious, but no less profound element: the distinction between politics and policies, principles and operations. He showed how the United States went beyond a nation based on government by gentlemen and then one based on the spoils system brought about by the Jacksonian revolt against the Eastern Establishment, into a government that separated political officials from civil administrators.

Goodnow contends that the civil service reformers persuasively argued that the separation of administration from politics, far from destroying the democratic links with the people, actually served to enhance democracy. While John Rohr, in his outstanding new introduction carefully notes loopholes in the theoretical scaffold of Goodnow's argument, he is also careful to express his appreciation of the pragmatic ground for this new sense of government as needing a partnership of the elected and the appointed.

Goodnow was profoundly influenced by European currents, especially the Hegelian. As a result, the work aims at a political philosophy meant to move considerably beyond the purely pragmatic needs of government. For it was the relationships, the need for national unity in a country that was devised to account for and accommodate pluralism and diversity, that attracted Goodnow's legal background and normative impulses alike. That issues of legitimacy and power distribution were never entirely resolved by Goodnow does not alter the fact that this is perhaps the most important work, along with that of James Bryce, to emerge from this formative period to connect processes of governance with systems of democracy.

Chapter I

The Primary Functions of the State

THE tendency of most writers on governmental subjects has been to confine their study to the more striking facts which become apparent as a result of considering alone the formal governmental organization. Thus, most writers on American government begin and end their work with the Constitution. Some, it is true, endeavor to treat of the history of the Constitution as well as its present form, but few have attempted to get back of the formal governmental organization and examine the real political life of the people. The cause of this method of treating our political institutions is unquestionably to be found in the fact that most of the writers who have left their impress on American political science have been lawyers, and are therefore not accustomed to look beyond the provisions of positive law.

No method of treatment, however, is more likely to mislead the student in the formation of his judgment of a nation's real political life; for the character of a governmental system is determined just as much by extra-legal as by legal institutions. Indeed, it is not infrequently the case that extralegal institutions have more influence in giving its character to a political system than the mere legal form in which it may be framed. Thus, Rome became an empire, preserving for a long time the outward forms of a republic. Thus, again, the public law of England makes provision for a Crown, a Privy Council, and a Parliament. But every one who knows anything about the English government knows that none of these institutions is to the real political life of the English people what the Cabinet is, — a body absolutely unknown to the English law.

Burgess, in commenting upon the distinction of sovereignty from government, which he has done so much to make clear, says : The " change from the old form to the new one, when it works itself out gradually and impliedly, so to speak, does not mark off the boundary sharply and exactly between the old and the new systems. Naturally the old state [sovereign] does not perceive the change at all, or at least not for a long time and not until after suffering many bitter experiences. It still expresses itself in the language of sovereignty. It still struts about in the purple, unconscious that the garment is now borrowed. On the other hand, the new sovereignty comes very slowly to its organization."¹ What is here so forcibly said about sovereignty may be said with even greater truth about government, and particularly about a government which is based on a written constitution. No sooner is such an instrument adopted than political forces begin at once to interpret it and amend it until the actual political system becomes, almost without the knowledge of the people, quite different from the system as outlined in the constitution itself. In course of time, the changes actually made in the system will without doubt come to the knowledge of the people, and, it may be, will be incorporated in the formal constitution. But the actual system of government may be changed long before the formal government is changed.

No better example of this fact can be found than the method of electing the President of the United States. Although as provided by the Constitution, the President is formally elected indirectly by the people of the states, that is, by presidential electors who are elected by the people, hardly any one who votes for a presidential elector gives a thought as to his character. Every one is thinking of the presidential candidates put in nomination by the political parties. The party system has thus come to supplement — we may say indeed to amend — the Constitution, and no discussion of the constitutional method of electing the President would give a fair idea of the actual method of his election, which did not treat of the attitude of the political parties toward this matter.

Where the governmental system is not based on a written constitution, it is more probable that extralegal institutions will be given a place in any theoretical discussion of the governmental system. For the constitution itself in such a country is largely a matter of custom. Custom must therefore be examined in order to set forth the constitution. It is not possible for the investigator altogether to omit the consideration of extra-legal institutions» For outside of them he may not have anything upon which to base his conclusions. It is for this reason that the modern treatment of the English governmental system is perhaps more satisfactory than that of the governmental system of the United States. By this is meant that a more exact and accurate account is ordinarily given of the operation and working of political forces. It is significant that the best description of the actual political system obtaining in the United States is given us by an Englishman, Mr. Bryce, who, accustomed in his own country to look behind the positive law to find its political system, and applying the methods to which he is accustomed to our system, has given us an admirable description of American political institutions.

Not only does the student of governmental subjects ordinarily fail to lay due stress on extra-legal institutions. He also is too apt to confine himself to constitutional questions, perhaps not considering at all the administrative system. The administrative system has, however, as great influence in giving its tone to the general governmental system as has the form of government set forth in the constitution,

Gneist was almost the first student of note to call attention to the importance of administrative institutions. He became convinced that the parliamentary system of government, originating in England and thence transplanted to the Continent, was not accomplishing there what it had accomplished in England. He therefore set to work to make a thorough study of English institutions, not merely what is known as the English Constitution, but the entire English system of government and particularly its administrative system. He arose from his study with the belief that English parliamentary government could not be understood apart from the English administrative system, and that the reason for the comparative failure of parliamentary government on the Continent was that an English superstructure had been raised on a Continental foundation. Such was the case, in Gneist's opinion, because the English system had been explained to Continental Europe by French writers like Montesquieu, De Lolme, and Benjamin Constant, who were acquainted merely with the relations of the English Crown to the English Parliament, and knew nothing of the English administrative system on which the English parliamentary system was based.¹ The rest of Gneist's life was successfully devoted to advocating such changes in the German administrative system as would make a proper foundation on which a system of parliamentary government similar to that developed in England might be built up.

If it be borne in mind that the political institutions of a people are to be found without, as well as within, the law, and that the constitution cannot be understood without a knowledge of the administrative system, it is believed that the political institutions of different peoples will show a much greater similarity than would be thought to exist were the consideration confined to the formal provisions of the constitutional law.

The political life of man is largely conditioned by the fact of his humanity, the fact that he is man. Of course his degree of intelligence, his ideas of right and wrong, at different periods of his development, are by no means the same, and the form of government adopted at one stage of his development may have an important effect upon his later condition. But it is believed that the real political institutions of different peoples at the same stage of intelligence and morality will show a great similarity, even where the external forms of government appear very different. This similarity is due, as has been said, to the fact that after all man is man everywhere and at all times, and that all political organizations of men must therefore have ultimately the same ends, and must adopt in a general way the same methods for their satisfaction. Sometimes it may be that these political organizations will be adequately reflected in the formal governmental organization. At other times, and indeed most frequently, they will not be. The whole political life must be considered.

It is because of this similarity of the real political systems of different states that it is possible to conceive of the state as an abstraction. Just as we would be unable to conceive of a horse in the abstract, if concrete horses did not resemble each other, so would we be unable to think of the state apart from the concrete examples of the states we know, were there not great similarity between these concrete states. This abstract conception of the state is not only possible, but as a matter of fact would seem to have been grasped by almost all writers on theoretical political science. This conception is further the conception of a thing endowed with life and capable of action. The state abstractly considered is usually likened to an organism. This analogy between the state and an organism has been seen by many writers on politics. Hobbes, in his Leviathan, would seem to have foreshadowed the idea which has of recent years been so commonly accepted. Some writers even go so far as to claim not so much that there is an analogy between the state and an organism, but that the state is actually an organism.¹ Others, however, while believing that the biological analogy is a dangerous one to emphasize, still speak of a social mind and a social will, as if the action of political organizations were the result of the exercise of a real will by a person capable of willing. Thus Giddings says:² "The primary result of association is an evolution of the individual mind. The secondary result is an evolution of the social mind.^,, Again he says,³ " Sociology is the science of mental phenomena in their higher complications and reactions, and of the constructive evolution of the social medium through which the adaptations of life and its environment become reciprocal."

Whatever may be the truth or error in this conception of the state, it is still true that political functions group themselves naturally under two heads, which are equally applicable to the mental operations and the actions of self-conscious personalities. That is, the action of the state as a political entity consists either in operations necessary to the expression of its will, or in operations necessary to the execution of that will. The will of the state or sovereign must be made up and formulated before political action can be had. The will of the state or sovereign must be executed, after it has been formulated, if that will is to result in governmental action. All the actions of the state or its organs, further, are undertaken with the object, either of facilitating the expression of this will or of aiding in its execution. This would seem to be the case whatever may be the formal character of the governmental system.

In a purely monarchic system the operations necessary to the expression of the state will are naturally much less complex than in a popular or democratic government. But they are in both cases of essentially the same nature. The same is true to an even greater degree of the execution of the state will. The form of government has little influence upon these conditions with the single exception that the less popular the government, the less is the function of executing the will of the state differentiated from the function of expressing that will. For the tendency of all monarchic governments is to concentrate governmental powers in the hands of the same authority. At the same time, the necessity for the division of labor makes it necessary, even in monarchic governments, to distinguish between these two functions.

The distinction between these two functions, further, is made necessary by psychological causes. In the case of a single person, who naturally both formulates and executes his will himself, it is necessary that this will be formulated before it is executed. In the case of political action it is necessary not only that the will of the sovereign be formulated or expressed before it can be executed, but also that the execution of that will be intrusted in a large measure to a different organ from that which expresses it. The great complexity of political conditions makes it practically impossible for the same governmental organ to be intrusted in equal degree with the discharge of both functions.

The fact is, therefore, that not merely may these two functions be distinguished in all kinds of governments, but that in every government more or less differentiated organs are established. Each of these organs, while not perhaps confined exclusively to the discharge of one of these functions, is still characterized by the fact that its action consists largely or mainly in the discharge of one or the other. This is the solution of the problem of government which the human race has generally adopted. It is a solution, further, which is inevitable both because of psychological necessity and for reasons of economic expediency.

It is upon this fundamental distinction of governmental functions that Montesquieu's famous theory of the separation of powers is based. In his Esprit des Lois (Book XL, Chap. VI.) he distinguished three powers of government which he called respectively the legislative, executive, and judicial. This differentiation of three rather than two governmental functions was probably due to the fact that Montesquieu's theory was derived very largely from a study of English institutions. England was almost the only country of the civilized world which, at the time he wrote, made a clear distinction in its governmental organization between the executive and judicial authorities. This was made, it will be remembered, by the Act of Settlement passed in 1701, which prevented the Crown from removing the judges without the concurrent action of Parliament. It was only natural that Montesquieu should find, in the independence of the judiciary, the recognition of a judicial power separate from and independent of the executive power.

If, however, Montesquieu had carried his researches further, he would have seen that the existence of this third function of government, i.e. the judicial function, could not be predicated from the mere fact of the independence of the judges. A study of the powers of the judges of the higher courts, and particularly of the powers of the justices of the peace, would have shown conclusively that English political ideas were not reconcilable with the existence of three powers of government. Parliament, it is true, made the law, but so did the courts in their power of deciding concrete cases. The laws also were enforced by authorities which at the same time administered justice.

Montesquieu's theory of the existence of three powers of government is not, finally, accepted by the modern political philosophy of his own country. As one of the great writers on French administrative law, M. Ducrocq, says: "The mind can conceive of but two powers : that which makes the law, and that which executes it. There is no place therefore for a third power by the side of the first two."¹

Montesquieu's theory involved, however, not merely the recognition of separate powers of functions of government, but also the existence of separate governmental authorities, to each of which one of the powers of government was to be intrusted. This part of his theory has had an enormous influence on the governmental organizations which have been established since Montesquieu wrote his Esprit des Lois.

This theory was, as to this point, carried much further than its author would have considered proper, and in its extreme form has been proven to be incapable of application to any concrete political organization. American experience is conclusive on this point.²

At the time our early constitutions, including the national Constitution, were framed, this principle of the separation of powers with its corollary, the separation of authorities, was universally accepted in this country. It was therefore with its corollary made the basis of these instruments. Judge Miller of the United States Supreme Court says :¹ " It is believed to be one of the chief merits of the American system of written constitutional law that all powers intrusted to governments, whether state or national, are divided into the three grand departments of the executive, the legislative, and the judicial; that the functions appropriate to each of these branches of government shall be vested in a separate body of public servants; and that the perfection of the system requires that the lines which separate and divide these departments shall be broadly and clearly defined. It is also essential to the successful working of the system that the persons intrusted with power in any one of these branches shall not be permitted to encroach upon the powers confided to the others, but that each shall by the law of its creation be limited to the ex...

Table of contents

• Cover Page
• Halftitle Page
• Title Page
• Copyright Page
• Library of Liberal Thought
• Content Page
• Transaction Introduction
• Preface
• Chapter I The Primary Functions of the State
• Chapter II The Function of Politics
• Chapter III Central and Local Politics
• Chapter IV The Function of Administration
• Chapter V The Effect of the Administrative System on the Relations of Politics and Administration
• Chapter VI The Influence of the Governmental and Particularly of the Administrative System on the Position of the Political Party
• Chapter VII Popular Government
• Chapter VIII The Boss
• Chapter IX Responsibility of Parties and Party Leaders
• Chapter X Conclusions