An Introduction to Politics (Works of Harold J. Laski)

Harold J. Laski

• Publisher: Routledge
• Year: 2014
• ISBN:
  9781317586708
• Edition: 1
• Topic: Politics & International Relations
• Subtopic: Politics
• Index: Politics & International Relations

This volume distils the themes expounded in A Grammar of Politics for the non-specialist reader. It is the best outline of Laski's views in his transitional period.

CHAPTER THREE

The Organisation of the State

THE problem of the organisation of a state is that of the relationship between its subjects and the law. They may share in its making, in which case, in varying degree, the state is a de-mocracy; or it may be imposed upon them without such participation, in which case, again in varying degree, the state is an autocracy.

Neither type of organisation can exist in a pure form. A complete democracy would consult all of its citizens upon all matters which arose for decision; and a pure autocracy would itself both elaborate and apply the whole system of legal imperatives in the state. With communities of the modern size, it is materially impossible for either type to operate upon this basis.

What we actually encounter in ordinary life is a mixed form of state. In some communities, as in France or Great Britain, the democratic element tends to predominate; in others, as in Russia or Spain, the autocratic element is more obviously emphasised. Every possible combination occurs. A democratic legislation may be flanked by an executive with quasi-autocratic powers. A legislature, itself controlled by the electorate, may, as in Switzerland, almost wholly dominate the executive. Or, as in the United States, the competence of both legislature and executive may be determined by the judiciary, the power of which is, in its turn, subject to constitutional amendment.

The forms of any actual state are determined by its historical traditions; and the nice shades of peculiar emphasis which the experience of a people contributes to their life makes it impossible to insist that any given system of categories is superior to any other. We can argue only that, on general grounds, the democratic form is more suitable than the autocratic, at least to the habits of Western civilisation. For democracy, with all its weaknesses, enables the widest body of demand to be taken into account in shaping the legal imperatives of a state. It makes criticism of their operation the basis of their life. It increases initiative by widening the sense of responsibility. It gives the citizen not merely the sense of sharing in decision, but the actual opportunity to influence its substance. Granted, as experience seems to suggest, that a democratic system is bound to work more slowly than its alternative, simply because the variety of wills it encounters is so much greater, there is no other system which has the same merit of meeting, as an institutional scheme, the theoretical end that the state must serve.

But to say that a state requires democratic form is not to settle the institutions through which that form receives expression; for, broadly speaking, it is not untrue to say that democracy has not, in any certain fashion, discovered its appropriate institutions. Any analysis of a system of legal imperatives seems to disclose the need for three types of authority: (I) We require bodies which lay down general rules applying either to the whole citizen-body, or to such a part of it as possesses a well-defined interest obviously distinct from that of the whole. Such bodies are legislative in character. They may either, as with the King in Parliament, be the supreme legislature, or, as with the City Council of Manchester, be a non-sovereign lawmaking body the competence of which is fixed by the statute from which its authority derives. (II) We require bodies the duty of which is to carry out the objects of the rules laid down by the legislature under which they work. The essence of such bodies is that they do not, as a general rule, determine their own competence. The principles under which they live are set for them by the legislature to which they are normally answerable. The perspective of their operations must lie within the ambit of the rights laid down by such a legislature. Their business is the execution of the legal imperatives which shape the contours of political life. (III) We require bodies, further, which settle two forms of dispute. There are disputes between the citizen and the executive; the former claims, for example, that some act of the executive goes beyond the competence it possesses. Obviously, if the executive could determine its own competence, it would, in fact, be the master of the legal imperatives by which it lives. By entrusting the decision of such disputes to a body outside the executive, an independent assessment of validity can be obtained. There arc, secondly, disputes between citizens. A claims to have been wronged by B. It is necessary to decide whether the conduct of which A complains is in fact prohibited by the legal imperatives of the state; if it is so prohibited, it is necessary also within the terms of the law, to settle upon an appropriate penalty.

At least since the time of Aristotle, it has been the constant postulate of political philosophy that in every well-ordered state these three types of body should be separated from one another both as to the function they perform and the persons who arc their members. Some thinkers, Montesquieu for example, have even gone so far as to claim that their separation is the secret of political freedom.

We can hardly accept so rigorous a view. On the ground of pure theory, in the first place, the judicial function can, most logically, be regarded as the province of the legislature; since no body can more appropriately be held to know the meaning of the law than that which makes it. In practice, moreover, it is impossible to maintain any rigorous separation. Legislatures could not properly fulfil their task unless they were able both to interfere in the execution oflaw, and also, on occasion, to over-rule by statute the decisions of judges the results of which are widely felt to be unsatisfactory. An executive is bound, in applying the law, to clothe general principle in the garment of detail; and, in the modern state, this function covers so wide an ambit that it is often difficult to distinguish it from the work of the legislature. The judiciary, finally, which settles either the competence of the executive (in which case it determines the substance of legislative will) or a dispute between two citizens (in which case it extends the legal imperatives of a state to cover new ground or denies that the ground involved comes within the ambit of those imperatives) is in fact performing a function which is legislative in character. In England and America, for example, what is called, and rightly, judge-made law probably covers an area wider than that of statute; and, in America, the fact that all legislatures are non-sovereign in character, since their authority is derived from written constitutions which they cannot change, gives to the judges who interpret those constitutions, as in cases where the authority either of a statute or an executive is challenged, a power that is greater than that of the legislature itself, since the judicial will is the chief factor in deciding the limits of legislative competence.

Two further principles of a general kind it is necessary to discuss before we turn to the separate analysis of individual institutions. Every well-ordered state possesses a constitution which determines the ultimate way in which its legal imperatives are made. Such constitutions may be divided in two ways. They may be written or unwritten; and they may be flexible or rigid. The Constitution of the United States, for example, is a document which settles the mutual relationships of legislature, executive, and judiciary; and none of these is competent to act save as it can prove the derivation of the power it proposes to take from the clauses of that document. The British Constitution, on the other hand, consists of a mass of statutes, judicial decisions, and unwritten conventions, the real relationship of which is formally determined by the fact that the King in Parliament has the power to alter them as he thinks fit; in technical terms, ordinary legislation and constitutional legislation are on the same footing. The Congress of the United States, for example, is powerless to alter the functions of the president; but the King in Parliament can alter the power of the British executive whenever he thinks fit.

In the modern world, the written constitution is increasingly the general rule; it is felt that the distribution of power in a state is a matter so important that it needs the precision which such an instrument provides. On the whole, experience suggests that there is real weight behind this view; for some constitutional principles are so important that their supremacy cannot be too strongly emphasised. On the other hand, it is highly undesirable that any constitution should be rigid in character. The needs of a community change, and the formal structure it requires changes with an alteration of those needs. The rigidity of the American Constitution, for example, is notorious; it can be changed only by a resolution of two-thirds of each House of Congress, assented to, in a period of seven years, by three-fourths of the constituent states of the American federation. Experience has shown that to make the power to amend a process so difficult to operate means a failure to secure necessary adjustments when they become clearly desirable. The original distribution of powers in the United States makes it almost impossible, for example, to secure that uniformity in labo r legislation and marital arrangements which are essential in the modern world. In a backward state of the federation, the reactionary employer is unduly advantaged; and the ‘full faith and credit’ clause of the Constitution involves, in practice, divorce facilities for the rich wnich are not at the disposal of the poor. The conclusion of experience seems to be the desirability of a written constitution which can be amended by a direct and simple process. On the whole, it is probable that the best method is to require the legislature to amend the Constitution, but to insist that a specially high proportion of the members shall support any change that is proposed.

It is sometimes argued that a democratic system requires the embodiment of the initiative and the referendum in the constitution. A people, it is said, does not really control its own life if its only direct participation in the business of making legal imperatives is confined to choosing the persons responsible for their substance. By the initiative, the popular will can take positive form; and by the referendum, the people can prevent action by its representatives with which it is not in agreement. Direct government, it is claimed, provides a necessary supplement to a representative system; otherwise, as Rousseau said of the English people, it is free only at election-time.

But this is, it may be suggested, both to mistake the nature of the problems which have to be decided, and the place at which popular opinion can obtain the most valuable results in action. In all modern states, the size of the electorate is necessarily so large that the people can hardly do more, as a whole people, than give a direct negative or affirmative to the questions direct government would place before them. Legislation, however, is a matter not less of detail than of principle; and no electorate can deal with the details of a measure submitted to it for consideration. Direct government, in fact, is too crude an instrument for the purposes of modern government. It fails to make discussion effective at the point where discussion is required; and it leaves no room for the process of amendment. One might, it is true, leave certain broad questions of principle to popular vote, whether, for instance, the supply of electricity should be a national or a private service. But all other questions arc so delicate and complex that the electorate would have neither the interest nor the knowledge, when taken as an undifferentiated electorate, to arrive at adequate decisions.

Nor is this all. Not only can most questions not be framed in a way which can make direct government effective; the secondary results of the system are also unsatisfactory. It is hardly compatible, for instance, with the parliamentary system since it places the essential responsibility for measures outside the legislature. Such a division of responsibility destroys that coherence of effort which enables a people adequately to judge the work of its representatives. It assumes) further, that public opinion exists about the process of legislation, as well as about its results. But the real problem of government is not forcibly to extract from the electorate an undifferentiated and uninterested opinion upon measures about which it is unlikely to be closely informed. It is rather to relate to the law-making process that part of public opinion which is relevant to, and competent about, its substance before that substance is made a legal imperative. This involves not direct government, but a method of associating the relevant interest-units of the community with the making of the measures which will affect their lives. A referendum, for example, on a national scheme of health insurance would give far less valuable results than a technique of consultation in which the opinions of doctors, trade-unions, and similar associations were given a full opportunity to state their views before the scheme was debated in the legislative assembly. Effective opinion for the purpose of government, in a word, is almost always opinion which is organised and differentiated from that of the multitude by the possession of special knowledge. Popular opinion, as such, will rarely give other than negative results; and it seems to be the lesson of experience, very notably on the record of Switzerland, that it is so firmly encased in traditional habit, as to make social experiment difficult when it is a reserve-power-outside.

II

The legislature of a state needs, under modern conditions, to be based on universal suffrage if it is to speak with proper authority to its constituents. It must be large enough to enable its members to keep in effective touch with the electorate, and small enough to enable genuine discussion to take place; in a body, for instance, as large as the Congress of the Russian Soviet Government all individuality in debate is lost, and the assembly becomes a mere organ of registration for the will of the dominant party-machine. It must submit itself for re-election to the citizens at the end of a given term the length of which it is itself unable, under normal conditions, to alter. This term must be long enough to secure two results: The legislature must be able to make itself responsible for an ample programme, and its members must have time enough thoroughly to acquaint themselves with the operation of its procedure. But the term, also, must be short enough to make it certain that the legislature does not lose touch with its constituents. The system which obtained in England, before 1911, of a seven-year period between elections was too long because it gave the legislature a life too little affected by the flow of public opinion; on the other hand, the two-year period of the House of Representatives in the United States is too short, because as soon as the member has been elected, his re-election begins to dominate his mind, and he can rarely hope to learn, in so short a period, his way about its legislative methods. On the whole, it appears that a life of about five years corresponds to these requirements.

Normally, a member of the legislative assembly will be elected to it as the supporter of a party. In the modern state, the electorate is so large, the number of interests so varied, that it is necessary to organise them for the purpose of arriving at decisions. This is the function which parties perform in the state; they act as the brokers of ideas. They choose the principles which they think most likely to secure acceptance from the electorate and take their stand upon those principles which they promise, so far as possible, to translate into legislation. Broadly speaking, the party-system is the necessary basis of representative government. Without it, we could not secure either a coherent programme of measures, nor the necessary volume of organised support for them in the legislative assembly to enable them to reach the statute-book. With all their defects, they represent the articulate expression of a way of life which has grown out of effective civic demand.

The division of parties does not, of course, directly correspond to the division of opinion among members of the state. Upon this...

Table of contents

• Cover
• Half Title
• Title Page
• Copyright Page
• Original Title Page
• Original Copyright Page
• Dedication
• Table of Contents
• I. The Nature of the State
• II. The Place of the State in the Great Society
• III. The Organisation of the State
• IV. The State and the International Community
• A Note on Books