The Realisation Of Rights

The Realisation Of Rights: So armed, the citizen might hope to confront the State with at least the prospect of self-realisation. But it, is, of course, one thing to postulate these rights as essential, it is another thing to ensure their realisation. And that raises the central issue of the position of the State in the community. Legally, it is inescapable that there must be in every organization of men some body which enforces the acceptance of the common rules.

Those rules, as the previous discussion has sought to show are concerned with the erection of a minimum basis of civilization for the members of the community. They seek to make them conscious of the art of life. But it is one thing to urge that there must be a body enforcing the acceptance of the common rules, it is another thing to urge that this body is the State.

For the State is, for the purposes of practical administration, the government in England, that is, the State in its daily appearance is the King in Parliament. If it is legitimately to exercise its functions, it must be upon the basis that it moves consistently to the realisation of rights. It sets the conditions within which other associations move only because its mission is to enable the citizen, through those associations, to be that best self of which he is capable.

It is hot exercising unlimited power. It is exercising a power conceived within the terms of a definite function. It is protecting the plane upon which the interests of men, and there fore their rights, are, broadly speaking, identical. It coordinates the activities of other groups with a view to that end.

In this aspect there clearly comes into view a State which is not identical with the community. It is a State, for instance, which can prevent the Roman Catholic Church putting a man to death for heresy, but it cannot force the Roman Catholic Church to surrender the dogma of papal infallibility.

It could prevent Jones from prating in the education of his children the belief that ignorance is bliss, out it could not refuse education, say on the ground of expense, to any class or section of its members. It could not pass legislation which relieved itself of the obligation to provide either direct or indirectly, work or maintenance for its members. It could not invade the activities of any other association unless it could show in a court of law that such activities were directly maintain.

The State fulfills a function in the community just hostile to the system of rights it was its own business to like every other association, its powers are set by the nature of that function. It is not, therefore, the reserve-power in society. Its will(which means in effect the will of the central legislature) is not a will charged with special or preeminent authority. To release, therefore, any system of rights such as I have outlined, it is necessary to work out with care the conditions under which the authority of the State is exercised.

These conditions are, generally, three in number. The State must be a decentralized State. The organs which exercise power must not be concentrated at a single point in the body politic. Local questions must imply local control, There may be the duty of central inspection, but the problems of which the decision predominantly concerns Lancashire whether, for instance, it shall have art-galleries must be settled in Lancashire and not in Whitehall.

It is, moreover, urgent that the local authority shall exert a power which is general in nature and not limited by specified delegation from the central government. If the London County Council, for instance, desires to spend money on taking the children in its schools to see Shakespeare’s plays, its own resolution to do so should be sufficient legal warrant.

Obviously, the exercise of local originality must not involve invasion of a sphere that is obviously central the list of legal poisons must, for example, be unified in Whitehall and not drawn differently in Aberdeen or Aberyswyth. But it is the outstanding virtue of decentralization that not only does it prevent the application of uniform solutions to different things it also, by multi plying the centers of the administrative act, ensures a fuller participation in the responsible business of government.

Responsibility, in other words, is born of a definite share in the exercise of power. To concentrate power at any point where it can, without danger to the system of rights, be diffused, is to open the door to the abuse of authority. And it must be remembered that it is the nature of authority to abuse its power unless it is consistently surrounded by the mechanisms of control.

It is necessary, in the second place, to surround the central government in particular with bodies it is compelled to consult. That does not mean merely the consultation of the legislative assembly by the executive. It means the organized and prior consultation of all interests which are affected by a decision it is proposed to take. It means, for example, that a government which proposes to alter the pay of teachers must first submit its proposals for scrutiny to the bodies which represent those teachers.

It is important, also, to insist that consultation ought not to mean selective consultation. An executive can always secure a biased expression of opinion by the careful choice of biased representatives. Consultation means eliciting opinions from representatives nominated by the bodies concerned. If a government, for instance, wishes to appoint a commission to inquire into the advisability of a protective tariff, the representative of the cotton industry ought to be chosen by the cotton industry and not nominated therefrom because he is a tariff reformer.

If a Labour government desires to examine a proposal for a capital levy, it ought not to select a banker already in its favour, but to ask the Institute of Bankers to name its representative. And the corollary of consultation is, at some stage of action, publicity. A government which embarks upon a policy must offer the means of judging that policy. The opinions it has elicited by organized inquiry are fundamental to that end. The evidence it has collected, the facts at its disposal, can never be refused to its subjects if it is to build its opinion in ,the reasoned judgment of its citizens.

Not less integral to the proper control of its powers is the limitation upon its authority to intervene in the internal life of other associations. That power must be circumscribed by the principle that intervention is built upon the infraction by the association of a right that is essential to citizenship. The best field from which illustrations of illegitimate intervention may be taken is that of the relationship between Church and State. It ought never to be competent for the State to intervene in the settlement of ecclesiastical doctrine.

It ought never to be competent for the interpretation of ecclesiastical trusts to be left to the secular courts. That has always involved an attempt by the lawyers to reduce a church to a body of associated beneficiaries  and to refuse to its members the power to change their opinions. A church is never a body of men bound by an unalterable contract to the worship of certain doctrines its purposes have a life embodied in the wills and opinions of its members. If the latter change, the purpose changes also and the disposal of the property which supports the doctrine is clearly and unmistakably a matter for the constituted authorities of the Church.

That, at least, is clear so far as property derived from the dead is concerned  to rule as the English courts have ruled is to refuse to a church the right to move outside the four corners of its original title-deeds. Similarly, too, with industrial bodies. If trade unions choose to devote their funds to maintaining their members in the political legislature, the State has no right to intervene.

Associations, in brief, do not act ultra vires so long as what they do is demonstrably the act of the association and leaves untouched the rights the State is to protect  and the question of what is an act of the association is a question to be answered, not by the scrutiny of doctrinal purposes, but by examination of the organ that is competent to act in its name.