Rights And Power

Rights And Power: We reach here a problem perhaps as difficult as any in the realm of political science.  A government, I have argued, is limited by the purposes that it serves. It has no moral authority to act ultra vires those purposes. It has no authority, for instance, to invade the right to freedom of speech, to protect the employer who enforces impossibly long hours upon his workers. But how can its acts, whether of omission or of commission, be adequately scrutinised ?

Is the remedy, as in the United States, to postulate fundamental rules in a written constitution, and to make them difficult to change by the temporary holders of power? Is it necessary, as in Australia and the United States, to make the judiciary the guardian of constitutional right, and to confer upon it, as in those countries, the power to declare void such acts of the legislature as seem to infringe it ? Or is the answer that of Mr. Cole, who would, as it seems, construct a special organ for the exercise of coercive jurisdiction, and find, somehow, a place therein for the representatives of functions other than the State ?

The attempt to weigh the respective advantages of what Lord Bryce has called “flexible” and “rigid ” constitutions is an impossible one. The balance of merit depends always upon factors in the State tradition which are inapplicable elsewhere. The advantages of rigid constructions are very great. They enable us to define with some exactness the limits of legislative power. They prevent some sudden gust of public opinion from overturning what it is, on a long view, important to maintain. They enable the nature of institutions to be more easily apprehended by the mass of men. They emphasis in a striking manner the things that are deemed of fundamental import. I and even when, as with the First Amendment to the American Constitution, the thing of decisive import suffers serious invasion, the fact that it is postulated as urgent both mitigates the attack it might otherwise suffer, and allows its supporters a valuable basis in tradition for their plea of sanctity.

Yet in actual historic experience the safeguards afforded by a written constitution are not so straightforward as they might appear. Things that appear fundamental to one age appear unnecessary to another; yet the fact of their appearance in the framework of the constitution acts as a serious lever against what may well be desirable change. The constitution, Secondly, will need interpretation. If that is left, as in France and Belgium, to the legislature, it is in fact merely confided to the holders of power. If it is left, as in the United States, to the judiciary, five out of nine judges have actual control of the constitution and the death of a single Judge may well shift the whole balance of interpretation.

Certainly the Supreme Court of the United States has been amazingly divided on what is meant by the first and the fourteenth amendments and the use of the latter to prevent the enactment of a minimum wage suggests that there is a stage at which judicial interpretation means in fact political pronouncement. The American system means, in short, that the ethos of legislation depends on the character of those appointed to the Supreme Court. It does not seem that this safeguard of tights is necessarily less frail than that of a legislative assembly which is checked by the action of an alert public Opinion outside.

Not, indeed, that a flexible system is not open to serious criticism. If we take the British Constitution as the chief today almost the sole-example of flexibility, some obvious considerations emerge. The English constitution is built upon the unlimited sovereignty of Parliament. It knows no such thing as fundamental laws, the statutes which govern the succession to the throne are changed in the same way as statutes which regulate the sale of intoxicating liquors.

The system of limitations upon the power of government, inferentially, therefore, of the State, cannot be gleaned at a single view. Sometimes, as in the Habeas Corpus Act, they are embodied in a statute sometimes, as in Entick v. Carrington, they are embodied in a judicial decision. The absence, that is to say, of a single center of reference makes the grasp of the meaning of authority a difficult task in a flexible constitution. The maintenance there of an ideal system of rights will depend supposing that the State in fact embodies such a system upon the existence in the community of one of two conditions. Political power must rest with a minority that is both upright and educated  citizens must be able, while retaining supreme power, to choose rulers who are anxious to observe the theoretic end of the State. In fact, for the most part, the second only of these conditions is immediately practicable in Great Britain.

But it is at once obvious that such a power as it implies is a matter beyond positive institutions altogether though positive institutions may be important. The quality of rulers is always a function of the general social character of a people and, whatever the checks and balances we may invent, it is the pressure of the total forces in a community which will determine that character. The State, in other words, reflects the complete environment it encounters, and not merely a section of that environment.

It is easy to invent ways and means of limiting authority, it is even easy as in the new constitution of the German commonwealth-to postulate magnificent ideals as the purpose at which its. But no amount of institution making will accomplish t e achievement of that purpose unless the general mass of the people is educated to appreciate, and therefore to enforce, its meaning unless, also, there is in the community approximate equality of economic power. If those conditions generally obtain, the system of rights is likely to be realized. Short of them, no rights of a positive nature can find security of an institutional kind.

We cannot, for instance, so frame the nature of self government in industry as to make it a right capable of being used as the test of statutes. Nor can that be achieved with a right like the right to work. The mechanisms of their protection must be sought, not in the State itself, but, as I shall show later, in the pressure brought to bear upon the State by other institutions.

That is not, however, the case with rights of which the x essence is a matter of outline rather than of detail. We can safeguard things like the right to the franchise and the right to freedom of speech at least to the point where revolution Supervenes to make all rights temporarily cease. Take, for example, the Habeas Corpus Act of 1679. Everyone agrees that its presence upon the statute book is the chief protection against, for instance, such an access of terror as Pitt displayed in the French Revelation. It is possible to make especially important statutes of that kind capable of suspension by special procedure.

They might be a matter for such a majority as the Senate of the United States now demands for treaties. T here might be a period of compulsory delay between their passage and their application, If they are Passed, a special administrative court might be created to deal with the problems to which they give rise. The penalties for the invasion of such rights might be so mined as to make the habit of Acts of Indemnity rigorously difficult of access by the executive.

I do not think it likely that a referendum would be of much assistance in this issue. With the weapons at the disposal of the interests which control a State, the average population is only too likely to be stampeded into panic by executive pronouncements. The real needs are two. There must be an interval in ,which criticism of authority can make itself heard. There must be a certainty that the mere possession of a majority in the legislative assembly is not the basis of an abuse of power. Beyond these checks, the main safeguards against abuse lie in the temper induced by the standard of popular education and the power of organized groups other than the State effectively to protest against unwarranted invasion of rights.

The view urged by Mr. Cole is not without a real attractiveness. To postulate a unified interest in the State as an attainable ideal is one thing to postulate modem States as representing that unified interest is not only another, but also without basis in fact. So long as men share with such vast inequality in the gain of living, it is obvious that there is a basic disharmony of interest and the legal institutions of the modern State, especially its laws of,property, might well seem devised to maximize that disharmony.

It is natural, therefore, to seek, as Mr. Cole seeks, an organ for the exercise of the coercive power of the community which prevents its legal concentration in political institutions. I agree with Mr. Cole that, in the present phase of social development, the concentration of coercive power is bound to act as a hindrance to the transformation of the State. I agree also that in the State as it now is we have an institution which cannot make good its claim equally to represent the interests of its members. It is, frankly, weighted against the poor in favour of the rich.

But I do not think that a joint Congress of the supreme bodies representing each of the main functions in Society  will really solve the problem we confront. For the real issue is not the paper-construction of such an organ, but Weighting the functions which compose it. Mining is an essential function so also is medicine. How are we to desire on the number of members each is to have in such a Congress?

How are we to weigh the interests of men as members of a given neighborhood, for instance, in search of an efficient , system of main drainage against men as members of the different professions they practice in and out of their neighborhood life? The adventure, as I argued earlier, is an impossible one. It means that the aspect of man in which his needs as consumer are broadly identical with his fellow’s must be selected as the ground upon which co-ordination takes place. That does not mean the preeminence of that aspect in the sense that it is entitled to a special allegiance. It does not mean that it is, so to say, invested, with the power compulsorily to arbitrate between the various functions of men. It means only that, for the purpose of convenience, the administration of the general rules of the community are probably better managed by a simple than by a complex institution, granted the necessary safeguards.

The thing, in fact, at which Mr. Cole aims the wide dispersion of authority can be achieved in simpler fashion than he is prepared to admit. The organ of registration may remain a legislative assembly. Its power may be mitigated, as I have suggested,

  1. By decentralization at once functional and territorial.
  2. By building about it organs of prior and compulsory consultation.
  3. By making the invasion of such rights as freedom of speech an adventure of ti highest difficulty.

These, in the background of an adequate educational system and a revised property system, afford as full a guarantee of natural rights as it is likely that positive institutions can affect. It is not necessary, in our anxiety to prevent the present perversion of the territorial principle, to sacrifice the obvious administrative convenience it contains.

What is necessary is that territorial unity shall not destroy functional independence and individual freedom. A State is not made responsible merely by the subtraction from it of coercive power. That still leaves the problem open of the principle upon which coercive power shall be exercised. That principle will, in fact, be variously interpreted and parties will arise to support and maintain the most antithetic views.

It is, I think, significant that none of Mr. Cole’s discussions of this issue contain a reference to the problem of party and the reason, I think, will be found to lie in the fact that his edifice IS inaccessible to an electoral scheme with the two vital merits of simplicity and intelligibility. A State is made responsible by informing its coordinating power with notions of justice. It is made to play its due part in the communal synthesis by making it directly accessible to the, interests which compose that synthesis. It then becomes a one which partakes of the nature of a many because the many enter into it and transform it.

All this, of course, is only to assert, as Alexander Hamilton insisted, that the raw materials of an adequate theory must be found in human nature. We ought probably to assume that hour best-devised schemes will only produce a small portion of the beneficent results we expect. We ought certainly to insist that in seeking to transform the present system we shall bring into play factors which make possible adjustments we can not now foresee. But, at least, for the immediate future it seems clear that we must surround the administrative self determination of functional units with the territorial control of the State. It is, of course, true that territorial propinquity is no longer coincident with community of interest.

A Bolton weaver has more in common with a weaver in oldham than he has with a doctor in Bolton. But it is as a weaver that he has more iii common. As a person to whom the drains and schools of Bolton are important he has more in common with the doctor than with his fellow weaver. We must supply the territorial function with its means of response no less than the vocational function. That means, put briefly rights conceived in territorial, as well as rights conceived in vocational terms, it means that Bolton must be a basis of representation as well as the weaver’s union.

Nor must we forget that the doctor has an interest in good weaving, as the weaver has an interest in the existence of a competent medical profession. While each naturally desires a dominant administrative control over the interests of his special vocation, it is obvious that there is also a mutual interest which requires an institution to maintain it. That mutual interest is the sphere within which the large outlines of a system of rights must be defined. I have argued here that the territorial State is the unit within which, under adequate safeguards, they are most likely to receive effective definition.

Any system of rights, therefore, has three essential aspects from which it must be regarded. There is the interest of the individual, always, at least ultimately,family isolated from his fellow men. There is the interest of the various groups in and through which his personality finds channels of expression. There is the interest of the community which is the total result of the whole pressure of social forces. We cannot leave the groups within the community to define their rights by conflict, any more than we can permit individuals so to determine their rights

We must live by common rules. We must build an organ which enforces and interprets those common rules. We must so build it that both group and individual are safeguarded in their freedom and their equality so far as institutions can provide a safeguard. For it is well to realize at once that no system will ever fail to be weighted in some special interest. There will always be either powerful individuals or powerful groups who make their way against others less apt to assertiveness. Our effort must be a search to the compromise which allows to the largest possible number a life that is worthy of our resources.

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