CHAPTER I

LIBERTY

IN THE

MODERN STATE

_By

HAROLD J. LASKI_

_Professor of Political Science

in the University of London_

1930

PUBLISHERS

_HARPER & BROTHERS_

NEW YORK AND LONDON

LIBERTY

IN THE

MODERN

STATE

_Copyright, 1930,

by Harold J. Laski.

Printed in the

United States._

FIRST EDITION

TO

FRIDA

AND

DIANA

_CONTENTS_

I. THE NATURE OF LIBERTY 1

II. FREEDOM OF THE MIND 80

III. LIBERTY AND SOCIAL POWER 195

IV. THE OUTLOOK FOR LIBERTY 279

LIBERTY IN THE MODERN STATE

CHAPTER I

THE NATURE OF LIBERTY

I

I mean by liberty the absence of restraint upon the existence of those

social conditions which, in modern civilization, are the necessary

guarantees of individual happiness. I seek to inquire into the terms

upon which it is attainable in the Western world, and, more especially,

to find those rules of conduct to which political authority must

conform if its subjects are, in a genuine sense, to be free.

Already, therefore, I am maintaining a thesis. I am arguing, first,

that liberty is essentially an absence of restraint. It implies power

to expand, the choice by the individual of his own way of life without

imposed prohibitions from without. Men cannot, as Rousseau claimed,

be forced into freedom. They do not, as Hegel insisted, find their

liberty in obedience to the law. They are free when the rules under

which they live leave them without a sense of frustration in realms

they deem significant. They are unfree whenever the rules to which they

have to conform compel them to conduct which they dislike and resent. I

do not deny that there are types of conduct against which prohibitions

are desirable: I ought, for instance, to be compelled, even against

my wish, to educate my children. But I am arguing that any rule which

demands from me something I would not otherwise give is a diminution of

my freedom.

A second implication is important. My thesis involves the view that if

in any state there is a body of men who possess unlimited political

power, those over whom they rule can never be free. For the one assured

result of historical investigation is the lesson that uncontrolled

power is invariably poisonous to those who possess it. They are

always tempted to impose their canon of good upon others, and, in the

end, they assume that the good of the community depends upon the

continuance of their power. Liberty always demands a limitation of

political authority, and it is never attained unless the rulers of a

state can, where necessary, be called to account. That is why Pericles

insisted that the secret of liberty is courage.

By making liberty the absence of restraint, I make it, of course, a

purely negative condition. I do not thereby mean to assume that a man

will be the happier the more completely restraints are absent from the

society to which he belongs. In a community like our own, the pressure

of numbers and the diversity of desires, make necessary both rules and

compulsions. Each of these is a limitation upon freedom. Some of them

are essential to happiness, but that does not make them for a moment

less emphatically limitations. Our business is to secure such a balance

between the liberty we need and the authority that is essential as to

leave the average man with the clear sense that he has elbow-room for

the continuous expression of his personality.

Nor must we confound liberty with certain other goods without which

it has no meaning. There may be absence of restraint in the economic

sphere, for example, in the sense that a man may be free to enter any

vocation he may choose. Yet if he is deprived of security in employment

he becomes the prey of a mental and physical servitude incompatible

with the very essence of liberty. Nevertheless, economic security is

not liberty though it is a condition without which liberty is never

effective. I do not mean that those who can take their ease in Zion are

thereby free men. Once and for all, let us agree that property alone

does not make a man free. But those who know the normal life of the

poor, its perpetual fear of the morrow, its haunting sense of impending

disaster, its fitful search for beauty which perpetually eludes, will

realize well enough that, without economic security, liberty is not

worth having. Men may well be free and yet remain unable to realize the

purposes of freedom.

Again, we live in a big world, about which, at our peril, we have

to find our way. There can, under these conditions, be no freedom

that is worth while unless the mind is trained to use its freedom. We

cannot, otherwise, make explicit our experience of life, and so report

the wants we build upon that experience to the centre of political

decision. The right of the modern man to education became fundamental

to his freedom once the mastery of Nature by science transformed the

sources of power. Deprive a man of knowledge, and the road to ever

greater knowledge, and you will make him, inevitably, the slave of

those more fortunate than himself. But deprivation of knowledge is

not a denial of liberty. It is a denial of the power to use liberty

for great ends. An ignorant man may be free even in his ignorance. In

our world he cannot employ his freedom so as to give him assurance of

happiness. A compulsory training of the mind is still compulsion. It is

a sacrifice of some liberty to a greater freedom when the compulsion

ceases.

Two other preliminary remarks are important to the thesis I am urging.

Everyone knows the danger to freedom which exists in any community

where there is either special privilege on the one hand or what is

termed the tyranny of the majority on the other. John Stuart Mill

long ago pointed out that in the early history of liberty it was

normally and naturally conceived as protection against the tyranny

of the political rulers. The latter disposed of a power to which its

subjects were compelled to conform; and it became vital in the interest

of freedom to limit that power either by the recognition of special

immunities or by the creation of constitutional guarantees. But even

in the modern state the underlying substance of the argument may not

be neglected. Power as such, when uncontrolled, is always the natural

enemy of freedom. It prevents the exercise of those capacities which

are released for activity by the absence of restraint. Wherever it is

possessed in excess, it tilts the balance of social action in favour

of its possessors. A franchise limited to the owners of property means

legislation in the interests of that class. The exclusion of a race

or creed from a share in citizenship is, invariably, their exclusion

also from the benefits of social action. In any state, therefore, where

liberty is to move to its appointed end, it is important that there

should be equality.

Now equality is not the same thing as liberty. I do not, indeed,

agree with Lord Acton’s famous dictum that the ‘passion for equality

makes vain the hope of freedom’;[1] liberty and equality are not so

much antithetic as complementary. Men might be broadly equal under

a despotism, and yet unfree. But it is, I think, historically true

that in the absence of certain equalities no freedom can ever hope

for realization. The acute mind of Aristotle long ago saw that the

craving for equality is one of the most profound roots of revolution.

The reason is clear enough. The absence of equality means special

privilege for some and not for others, a special privilege which is

not, so to say, in nature but in a deliberate contrivance of the

social environment. Men like Harrington and Madison and Marx all

insisted, and with truth, that whatever the forms of state, political

power will, in fact, belong to the owners of economic power. We need

not argue that our happiness depends upon the possession of political

power; we can argue that exclusion from it is likely to mean exclusion

from that which largely determines the contours of happiness. And it

follows that the more equal are the social rights of citizens, the more

likely they are to be able to utilize their freedom in realms worthy

of exploration. Certainly the history of the abolition of special

privilege has been, also, the history of the expansion of what in our

inheritance was open to the common man. The more equality there is in a

State, the more use, in general, we can make of our freedom.

Here, perhaps, it is worth while for a moment to dwell upon the meaning

of equality. Nothing is easier than to make it a notion utterly devoid

of all common sense.[2] It does not mean identity of treatment. The

ultimate fact of the variety of human nature, our differences of both

hereditary capacity and social nurture, these are inescapable. To

treat men so different as Newton and Byron, Cromwell and Rousseau,

in a precisely similar way is patently absurd. But equality does not

mean identity of treatment. It is an insistence that there is no

difference inherent in nature between the claims of men to happiness.

It is therefore an argument that society shall not construct barriers

against those claims which weigh more heavily upon some than upon

others. It shall not exclude men from the legal profession because they

are black or Wesleyans or freemasons. It shall not deny access to the

Courts to men of whose opinions society in general disapproves. The

idea of equality is obviously an idea of levelling. It is an attempt

to give each man as similar a chance as possible to utilize what

powers he may possess. It means that he is to count in the framing of

decisions where these affect him, that whatever legal rights inhere

in any other man as a citizen, shall inhere in him also; that where

differences of treatment are meted out by society to different persons,

those differences shall be capable of explanation in terms of the

common good. It means the recognition of urgent need in all--food,

for instance, and clothing, and shelter--before there is special

recognition of non-urgent claims in any.

Equality, so regarded, seems to me inescapably connected with freedom.

For equality, so regarded, seems, in the first place, to mean the

organization of opportunities; and, in the second place, it means

that no man’s opportunities are sacrificed, except on terms of social

principle, to the claims of another. In the view I am taking, no child

could be deprived of education that another might receive it; but in a

choice of men say for a post in the Treasury, one might be preferred to

another on the ground of ability or character or training. The idea

of equality, in a word, is such an organization of opportunity that no

man’s personality suffers frustration to the private benefit of others.

He is given his chance that he may use his freedom to experiment with

his powers. He knows that in his effort to attain happiness no barriers

impede him differently from their incidence upon others. He may not

win his objective, but, at least, he cannot claim that society has so

weighted the scale against him as to assure his defeat.

It is often argued that a theory of liberty which starts from the

effort of the individual to attain happiness must break down because

it fails to remember that society also has rights, and that these are

necessarily superior to those of its component parts. Any organization,

it is said, is more than the units of which it is composed. A

nation-state like America or England is not merely a body of Englishmen

or Americans, but something beyond them. It has a life and a reality,

needs and purposes, which are not exhausted by the sum of the needs

and purposes of its individual members. The liberty of each citizen

is born of, and must be subordinated to, the liberty of that greater

whole from which his whole meaning is derived. For the rights of each

of us depend upon the protective rampart of social organization. It is

because the State enforces our rights as obligations upon others that

we have the opportunity to enjoy them. We are free, it is said, not

for ourselves but for the society which gives us meaning. Where our

interests conflict with the obviously greater interest of the society,

we ourselves must give way.

It is, I think, true to say that an individual abstracted from society

and regarded as entitled to freedom outside its environment is devoid

of meaning. None of us is Crusoe or St. Simeon Stylites on his pillar.

We are born to live our lives in London or New York, Paris or Berlin

or Rome. Our liberty has to be realized in a welter of competing and

co-operating interests which only achieve rational co-ordination by

something not unlike a miracle. The need to give way to others, to

accept, that is, restraint upon our right to unfettered activity

is inherent in the nature of things. But the surrender we make is a

surrender not for the sake of the society regarded as something other

than its members, but exactly and precisely for men and women whose

totality is conveniently summarized in a collective and abstract

noun. I do not understand how England, for instance, can have an

end or purpose different from, or opposed to, the end or purpose of

its citizens. We strive to do our duty to England for the sake of

Englishmen; a duty to England separate from them, and in which they did

not share, is surely inconceivable.

Or, at least, would be inconceivable, were it not that perhaps the most

influential theory of the state in our own time has been built upon it.

What is termed the idealist theory of the state is broadly the argument

that individual freedom means obedience to the law of the society to

which I belong. My personality, it is said, is simply an expression of

the organized whole to which I belong. When I say that I am seeking

to realize myself, I mean in fact that I am seeking to be one with

the order of which I am a part. I am not independent of, or isolated

in, that order, but one with it and of it. As it realizes itself, so

am I also realized. The greater and more powerful it becomes, the

greater and more powerful do I become as a consequence. The more

fully, therefore, I serve it, the more fully do I express myself. True

liberty is thus so far from being an absence of restraint that it

is essentially subordination to a system of rational purposes which

receive their highest expression in the activity of the state. To be

one with that activity may well then be regarded as the highest freedom

a citizen can know.

In the whole history of political philosophy there is nothing more

subtle than the skill with which the idealist school has turned the

flank of the classic antithesis between liberty and authority. From

the Greeks to Rousseau it was always conceived that a man’s freedom is

born of a limitation upon what his rulers may exact from him; since

Rousseau, and, more particularly, since Hegel, it has been urged that

conformity to a code, and even compulsory obedience to it, is the

very essence of freedom. So startling a paradox needs, at the least,

explanation. Liberty, it argues, is not a mere negative thing like

absence of restraint. It is rather a positive self-determination of the

will which, in each of us, seeks the fulfilment of rational purpose

as this lies behind, and gives unified meaning to, the diversified

chaos of purposes in each of us. We desire freedom, that is to say,

in order that we may be ourselves at our best. The right object of

our wills, the thing which, did we know all the facts, we would truly

desire, this is clearly that for which we would seek freedom. This is

our real will, and the highest part of ourselves. This will, moreover,

is the same in each member of society; for, at bottom, the real will

is a common will which finds its highest embodiment in the state. In

this view, therefore, the state is the highest part of ourselves. For

it represents, in its will, what each of us would seek to be if the

temporary, the immediate and the irrational, were stripped from the

objects we desire. Its object is what alone we should aim at were we

free to will only our permanent good. It is, so to say, the long and

permanent end that, in the ultimate analysis, we come individually to

will after private experience of wrong direction and erroneous desire.

The more intimately, therefore, we make our will one with that of the

state, the more completely are we free. The nature of the social bond

makes service to its demands the very essence of freedom.

Before I seek to analyse this view, I would point out how simply this

argument enables us to resolve the very difficult problem of social

obligation. When I obey the state, I obey the best part of myself.

The more fully I discover its purposes the more fully, also, there is

revealed to me their identity with that at which, in the long view, I

aim. So that when I obey it, I am, in fact, obeying myself; in a real

sense its commands are my own. Its view is built upon the innumerable

intelligences from the interplay of which social organization derives

its ultimate form; obviously such a view is superior in its wisdom

to the result my own petty knowledge can attain. My true liberty is,

therefore, a kind of permanent tutelage to the state, a sacrifice of my

limited purpose to its larger end upon the ground that, as this larger

end is realized, so I, too, am given realization. I may, in fact, be

most fully free when I am most suffused with the sense of compulsion.

To me, at least, this view contradicts all the major facts of

experience. It seems to me to imply not only a paralysis of the will,

but a denial of that uniqueness of individuality, that sense that each

of us is ultimately different from our fellows, that is the ultimate

fact of human experience. For as I encounter the state, it is for me a

body of men issuing orders. Most of them I can obey either with active

good will or, at least, with indifference. But I may encounter some one

order, a demand, for instance, for military service, a compulsion to

abandon my religious faith, which seems to me in direct contradiction

to the whole scheme of values I have found in life. How I can be the

more free by subordinating my judgment of right to one which directly

changes that judgment to its opposite, I cannot understand. If the

individual is not to find the source of his decisions in the contact

between the outer world and himself, in the experience, that is, which

is the one unique thing that separates him from the rest of society, he

ceases to have meaning as an individual in any sense that is creative.

For the individual is real to himself not by reason of the contacts

he shares with others, but because he reaches those contacts through

a channel which he alone can know. His true self is the self that

is isolated from his fellows and contributes the fruit of isolated

meditation to the common good, which, collectively, they seek to bring

into being.

A true theory of liberty, I urge, is built upon a denial of each of

the assumptions of idealism. My true self is not a selected system

of rational purposes identical with those sought by every member of

society. We cannot split up the wholeness of personality in this way.

My true self is all that I am and do. It is the total impression

produced by the bewildering variety of my acts, good and bad and

indifferent. All of them go to the formation of my view of the

universe; all of them are my expression of my striving to fulfil my

personality. Each, while it is, is real, and each, as real, must give

way only in terms of a judgment I make, not of one made for me by some

other will, if I am to remain a purposive human being serving myself as

an end. This attempt, in a word, at the extraction of a partial self

from the whole of my being as alone truly myself not only denies that

my experience is real, but, also, makes me merely an instrument to the

purpose of others. Whatever that condition is, surely it cannot be

recognized as freedom.

But we can go further than this. I see no reason to suppose that this

assumed real will is identical in every member of society. The ultimate

and inescapable fact in politics is the final variety of human wills.

There is no continuum which makes all of them one. Experience suggests

common objects of desire, but each will that wills these common

objects is a different will in every sense not purely metaphorical. We

all have a will to international peace. But the unity these make is not

in the will but in the fusion of separate wills to the attainment of a

common purpose. And we must remember that in every society the objects

of wills cannot, in some mystic fashion, be fused into a higher unity

somehow compounded of them all. I see no meaning, for instance, in the

statement that the antithetic purposes of Jesuits and Freemasons are

somehow transcended in a higher purpose which resumes them both; that

is to say that a Jesuit or a Freemason is most truly himself when he

ceases to be himself, which, frankly, seems to me nonsense. A member of

the Praesidium of the Third International, whose will aims supremely

at the overthrow of capitalism, is not somehow at one with the will

of the President of the British Federation of Industries to whom all

the purposes of the Third International are anathema. Both, doubtless,

will the good; but the point is that each wills the good as he sees

it, and each would regard the fulfilment of the other’s ideal of good

as a definite destruction of his own. There is, therefore, no single

and common will in society, unless we mean thereby the vague concept,

entirely useless for political philosophy, that men desire the good.

Each of us desires the good as he sees it; and each of us sees a good

derived from an individual and separate experience into which no other

person can fully enter. Our connection with others is, at the best,

partial and interstitial. Our pooling of experiences to make a common

purpose somewhere is in no case other than fragmentary. We remain

ourselves even when we join with others to attain some common object

of desire. The ultimate isolation of the individual personality is the

basis from which any adequate theory of politics must start.

I reject, therefore, the idea of a real will, and, still more, the

idea that there is a common will in society. It is a logical inference

therefrom that I should reject also the doctrine that all state-action

is, at bottom, the exercise of the real will of society. For, first

of all, I see no reason to suppose that social life is ultimately the

product of a single and rational mind organizing its activities in

terms of a logical process. To speak of the “mind of society”, seems to

me merely a metaphorical way of describing a course of action which is

made valid by translation into fact. There are no governing principles

in social life deliberately emerging from the interplay of its myriad

constituent parts. Governing principles emerge; but they emerge through

the wills of individual minds. And the state is magnified to excess

when it is regarded as embodying a unified will. The state is a complex

of rulers and subjects territorially organized and seeking, by the

conference of power upon those rulers, effective co-ordination of

social activities. They exercise the right to use force, if necessary,

to that end. But no one, I think, can examine the course of history and

say that the experience of any state indicates a permanent embodiment

of the highest good we know in the purpose of the state. Our rulers,

doubtless, aim at the good as they see it. Yet what they see as good

may not be so recognizable to us, and may well provoke in us the sense

that life would not be worth living if their view was to prevail. The

unity of the state, in a word, is not inherently there. It is made by

civic acceptance of what its rulers propose. It is not necessarily

good because it is accepted; it is not necessarily right because it

is proposed. Obedience ought always to be a function of the substance

contained in the rules made by government; it is a permanent essay in

the conditional mood.[3]

Here, of course, the idealist retorts that he is dealing not with the

states of history, but with the state as such; he is concerned with

the “pure” instance and not with deviations from the ideal.[4] But it

is with actual states that we have to deal in everyday life as we know

it, with states the policy of which is directed by men who are human

like ourselves. The policy they announce must, obviously, be subject

to our scrutiny; and the result of our judgment is necessarily made

out of an experience not identical with, even though it be similar to,

theirs. I cannot believe that a theory fits the facts of history which

assumes that this policy is going to be right, whatever it is; and

that freedom will be found only in acceptance of it. I do not believe

that the Huguenot of 1685 was made the more free by accepting, against

his conscience, the Revocation; nor do I believe that Luther would

have been more free had he accepted the decrees of Rome and abandoned

his protest. Man is a one among many obstinately refusing reduction

to unity. His separateness, his isolation, are indefeasible; indeed,

they are so ultimate that they are the basis out of which his civic

obligations are builded. He cannot abandon the consequences of his

isolation which are, broadly speaking, that his experience is private

and the will built out of that experience personal to himself. If he

surrenders it to others, he surrenders his personality. If his will is

set by the will of others, he ceases to be master of himself. I cannot

believe that a man no longer master of himself is in any meaning sense

free.

II

If we reject a view which, like that just considered, seeks to dissolve

the reality of the individual into the society of which he is a part,

what are we left with as the pattern within which a man seeks freedom?

Let us try to draw a picture of the place of man in a community like

our own. He finds himself involved in a complex of relationships out

of which he must form such a pattern of conduct as will give him

happiness. There are his family, his friends, the church to which he

may belong, his voluntary association, trade union, or employers’

association or whatever it may be, and there is the state. All of

these, save the state, he may in greater or less degree avoid. A man

may cut himself off from family or friends; he may refuse membership of

a church or vocational body; he cannot refuse membership of the state.

Somewhere or other, he encounters it as a body of persons issuing

orders, and he is involved in the problem of deciding whether or no he

will obey those orders. Every order issued is, in a final analysis,

issued by a person or persons to another person or persons. When we

say that, in such a complex of relationships as this, that a man is

free, what do we mean? We know that if his Church issues an order to

him of which he disapproves, he can leave his church; so, too, with all

other bodies save the state. The latter can, if he seeks evasion of its

commands, use compulsion to secure obedience to its orders. It makes,

we say, the law, and a member of the state is legally compelled to obey

the law.

But he is not free merely because he obeys the law. His freedom, in

relation to the law, depends on the effect of any particular order

upon his experience. He is seeking happiness; some order seems to him

a wanton invasion of that happiness. He may be right or wrong in so

thinking; the point of fact is that he has no alternative but to go by

his own moral certainties. Now freedom exists in a state where a man

knows that the decisions made by the ultimate authority do not invade

his personality. The conditions of freedom are then those which assure

the absence of such invasion. The citizen who asks for freedom is

entitled to the conditions which, collectively, are the guarantees that

he will be able to go on the road to his happiness, as he conceives it,

unhindered. Neither conditions nor guarantees will ever be perfect; nor

will they ever cover all upon which happiness depends. The state, for

instance, may say that I may marry the woman I love; it cannot say that

she will marry me if I so desire. The freedom it secures to me is the

absence of a barrier in the way of marriage if I can win her consent.

From this angle, liberty may appropriately be resolved into a system

of liberties. There are realms of conduct within which, to be free,

I must be permitted to act as I please; to be denied self-expression

there, is to be denied freedom. What we need to know is, I suggest,

first what those realms of conduct are, and, second, what my duty as a

citizen is when I am, in any one of them, prohibited from acting as I

please. The difficulty here, of course, it is impossible to exaggerate.

It is the problem of knowing when a man ought deliberately to make up

his mind to break the law or to refuse obedience to it. In the idealist

theory, this problem does not arise; it is answered _a priori_ by the

definition of freedom as obedience to the law. But because we have

rejected this view, we have to admit that there will be occasional

disobedience, at the least, and that this may be justified. We have to

discover the principles of its justification.

Liberty may be resolved into a system of liberties; and from this angle

it may be said that it is the purpose of social organization to see to

it that this system is adequately safeguarded. How can the state, which

charges itself with the function of supreme co-ordination, properly

fulfil this task? How can it guarantee to me such an environment to my

activity that I do not suffer frustration in my search for happiness?

There have been many answers to this question, some of them of the

highest interest and importance. One or two I wish to consider partly

because of their significance in themselves, and partly because,

from that consideration, I wish to make the inference that no merely

mechanical arrangements will ever secure freedom in permanence to the

citizens of a state. While there are certain constitutional forms

which are, as I think, essential to freedom, their mere presence as

forms will not, of themselves, suffice to make men free. I shall seek,

further, to draw the conclusion that, whatever the forms of social

organization, liberty is essentially an expression of an impalpable

atmosphere among men. It is a sense that in the things we deem

significant there is the opportunity of continuous initiative, the

knowledge that we can, so to speak, experiment with ourselves, think

differently or act differently, from our neighbours without danger to

our happiness being involved therein. We are not free, that is, unless

we can form our plan of conduct to suit our own character without

social penalties. Freedom is in an important degree a matter of law;

but in a degree not less important it is a matter, also, of the _mores_

of the society outside the sphere within which law can operate.

You will observe that I am still, from the angle of political

organization, thinking of liberty as a safeguard of the individual

against those who rule him. I do so for the best of reasons. Whoever

exerts power in a community is tempted to the abuse of power. Even in

a democracy, we must have ways and means of protecting the minority

against a majority which seeks to invade its freedom. Mankind has

suffered much from the assumption that, once the people had become

master in its own house, there was no limit to its power. You have

only to remember the history of racial minorities like the negroes,

of religious or national minorities like Jews and Czechs, to realize

that democracy, of itself, is no guarantee of freedom. This raises

the larger question of whether freedom in the modern state can ever

be satisfactorily secured by internal sanctions, and whether, in

fact, it is ever durably possible save in the terms of a strong and

stable international organization. For, clearly, we must not think of

freedom as involving only an individual set over against the community;

it involves also the freedom of groups, racial, ecclesiastical,

vocational, set over against the community and the state; it involves

also the relation of states to one another, as, for instance, in the

problem of annexation. No Englishman would think himself free if his

domestic life were defined for him by another state; and no German but

has had a bitter sense of unfreedom during the foreign occupation of

the Rhineland. Our generation, at least, is unlikely to under-estimate

the problem of what limits may be set to the demand for freedom by a

national group.

III

Everyone who considers the relation of liberty to the institutions of

a state will, I think, find it difficult to resist the conclusion that

without democracy there cannot be liberty. That is not an over-popular

thesis in our time. A reaction against democratic ideals is the

fashion, and the dictatorships which proliferate over half Europe

are earnest in maintaining their obsolescence. Yet consider, for a

moment, what democracy implies. It involves a frame of government in

which, first, men are given the chance of making the government under

which they live, in which, also, the laws that government promulgates

are binding equally upon all. I do not think the average man can be

made happy merely by living in a democracy: I do not see how he can

avoid a sense of continuous frustration unless he does. For if he does

not share in making the government, if he cannot, where his fellows

so choose, be himself made one of the rulers of the state, he is

excluded from that which secures him the certainty that his experience

counts. To read the history of England before the enfranchisement of

the wage-earner is to realize that however small is the value of the

franchise it still assures the attention of government to grievance.

The right, therefore, to the franchise is essential to liberty; and

a citizen excluded from it is unfree. Unfree for the simple reason

that the rulers of the state will not regard his will as entitled to

consideration in the making of policy. They will do things for him, but

not those things he himself regards as urgent; as Parliament a hundred

years ago met the grim problem of urban want by building more churches

to the glory of the Lord. Whatever is to be said against the democratic

form of state, it seems to me unquestionable that it has forced the

needs of humble men on the attention of government in a way impossible

under any other form.

To be free a people must be able to choose its rulers at stated

intervals simply because there is no other way in which their wants, as

they experience those wants, will receive attention. It is fundamental

to the conference of power that it should never be permanent. If it

is so, it ceases to give attention to the purposes for which it is

conferred and thinks only of the well-being of those who can exercise

it. That has been, notably, the history of monarchy and aristocracy,

and in general, of the practice of colonial dominion. Power that

is unaccountable makes instruments of men who should be ends in

themselves. Responsible government in a democracy lives always in the

shadow of coming defeat; and this makes it eager to satisfy those with

whose destinies it is charged.

That is a general principle which, stated as baldly as this, does not

adequately illustrate the substance it implies. The history of the

struggle for popular freedom has given us knowledge of certain rules

in the organization of a state the presence of which is fundamental

to freedom. It can, I think, be shown that no citizen is secure in

liberty unless certain rights are guaranteed to him, rights which the

government of the state cannot hope to overthrow; and unless, to secure

the maintenance of those rights, there is a separation of the judicial

from the executive power.

The citizens of a state choose men to make the laws under which they

are to live. It is urgent that they should be binding upon all without

fear or favour; that I, for instance, should be able to live secure

in the knowledge that they will not apply to me differently from

their incidence upon others. Clearly enough, in the modern state, the

application of law to life demands a vast body of civil servants to

administer it. Not the least important problem of our time is that

which arises when the legality of their administration is in question.

In Anglo-Saxon communities it has been regarded as elementary that

the interpretation of law should be entrusted to an independent body

of officials--the judges--who can arbitrate impartially between

government and citizens. That view I take to be of the first importance

to freedom; and its acceptance involves considerations which we must

examine in some detail.

The business of a judiciary, broadly speaking, is the impartial

interpretation of the law as between government and citizen, or between

classes of citizens who dispute with one another. The government, for

instance, charges a man with treason; obviously he is deprived of

something essential to his freedom if the law is strained so as to make

of treason something it in fact is not in order to cover the acts which

the government seeks to have accepted as treason. Here, obviously, the

judge must be assured that his independence may be maintained with

safety to himself. He must not suffer in his person or position because

of the view he takes. It must not be within the power either of the

government or other persons to deprive him of his authority because, as

best he may, he applies the law. This, as I think, makes it essential

that all judicial appointments should be held during good behaviour.

There may be an age-limit of service, of course; but, this apart,

nothing should permit the removal of a judge from the bench except

corruption or physical unfitness. I do not, therefore, believe that a

judicial system founded upon popular election is a satisfactory way of

choosing judges, the more so if submission to re-election is involved;

and the system, abandoned in England in 1701, of making judicial

appointment dependent upon the pleasure of government is equally

indefensible. Once a man has been appointed to judicial office nothing

must stand in the way of his complete independence of mind. Election,

re-election, a power in the government to dismiss, are all of them

incompatible with the function the judge is to perform. They will not,

as a general rule, either give us the men we want, or enable us to keep

them when we have found them.

But we must, I think, go further than this. Judicial independence is

not merely a matter of mechanical technique; it is also psychological

in character. The judge whose promotion is dependent upon the will of

the executive, even more, the judge who may look to a political career

as a source of future distinction, neither of these is adequately

protected in that independence of mind which is the pivot of his

function. No less a person than Mr Chief Justice Taft has told us

that he appointed a predecessor to that eminent position at least

partly because he approved of one of his decisions.[5] No one could,

I think, have confidence in the Bench if it were known that decisions

pleasing to a given political party might lead either to promotion or

to choice as either a presidential candidate or as Lord Chancellor.

It seems to me, therefore, that we must so organize the method of

judicial promotion as to prevent the executive from choosing men of its

own outlook, and, further, see to it that appointment to the Bench is

definitely taken as the end of a political career. These are problems

of detailed technique into which I cannot now enter;[6] here I am only

concerned to point out that the problem of independence which they

raise is one that it is necessary to meet with frankness.

But the judge’s authority as a safeguard of our freedom is in the

modern state threatened in another way. Modern legislation is so

huge both in volume and extent that the average assembly has neither

time nor energy to scrutinize its details. The modern habit is,

therefore, to pass Acts which confer a general power, and to leave the

filling in of details to the discretion of the department concerned.

To this, I think, no one can really take exception. The state must

do its work; and it must develop the agencies necessary to that end.

But I think we have grave reason for fear when the growth of this

delegated legislative authority is accompanied with, or followed by,

the conference of powers upon government departments themselves to

determine the question of whether the powers they take are legal or

no. I regard the growth of delegated legislation as both necessary and

desirable; but if it is not gravely to impair our freedom, it should, I

think, be developed only under the amplest safeguards.

Decisions, for instance, like that on the _Fu Toy_ case[7] in the

United States, and in _Arlidge_ v. _Local Government Board_[8] in

England, are clearly a real menace to the liberty of the subject. They

suggest a type of executive justice for which the methods of the Star

Chamber are the nearest analogy. No body of civil servants, however

liberal-minded they may be, ought to be free both to make the law and

to devise the procedure by which its legality may be tested; and that,

be it remembered, without a power of appeal from their decision. It

may be taken for granted that the modern state needs an administrative

law; in matters, for instance, like rate-fixing in public utilities,

in workmen’s compensation cases, in matters concerning public health,

the views of a body of experts in a public department are generally

at least as valid as that of the judicial body. But one wants to be

certain that in arriving at his decision the expert has been compelled

to take account of all the relevant evidence; that the parties to his

decision have had their day in court. This seems to me to involve the

organization of a procedure for all administrative tribunals which

takes account of the lessons we have learned both from the procedure

of ordinary courts and from the history of the law of evidence; and it

involves an appeal from administrative tribunals to the ordinary courts

on all questions where denial of proper procedure is held to involve a

denial of proper consideration. Something of this, if I understand the

matter aright, has been granted to the American citizen by the Supreme

Court in _McCall_ &c. v. _New York_;[9] and I should feel happier about

the future of administrative law if I were certain that the principles

of that decision applied to all governmental activities of the kind.

Another safeguard is not less essential. We agree, for the most part,

in ordinary legal matters that the opinion of a single judge, even

when reinforced by the verdict of a jury, ought not to be final in

either criminal or civil cases. I should like to see that agreement

extended to the sphere of administrative law. Where, that is to say,

a departmental tribunal has rendered its decision I should like an

appeal to lie to a higher administrative tribunal composed not only of

officials, but, also, of laymen of experience in the matters involved

who could be trusted to bring an independent mind to the settlement

of the matter in dispute. English experience of tribunals like the

civil service division of the Industrial Court, and the Commissioners

of Income Tax, convinces me that the common sense of a good lay mind

is, in this realm, an immense safeguard against departmental error. And

we must remember that, however great be the good will of the public

services, what, to them, may seem a simple matter of administrative

routine, may be to the citizens involved a denial of the very substance

of freedom. Certainly a case like _ex parte O’Brien_[10] makes one

see how real would be the threat to public liberty if departmental

legislation grew without proper judicial scrutiny at every stage of its

development.

The problem, however, does not merely end here. There are two other

sides of administrative action in which the uncontrolled power of the

state is an implicit threat to civic freedom. Of the first, I would

say here only a word, since I have treated it fully elsewhere.[11] The

modern state is a sovereign state and, as such, there are large realms

of its conduct where wrong on its part cannot imply the invocation by

the citizen of penalty. The right to sue the state in tort seems to me

quite fundamental to freedom. The modern state is in essence a public

service corporation. Like any other body, it acts through servants who

take decisions in its name. I can see no reason in the world why, like

any other body serving the public, it should not be responsible for

the torts of its agents. If I am run over by the negligent driver of a

railway truck, I can secure damages: I do not see why I am not equally

entitled to damages if the truck is the property of, and is driven for,

the Postmaster-General of His Majesty.[12]

But, still in the context of administration, the needs of liberty

go yet further. There has accreted today about the departments of

state a type of discretionary power which seems to me full of danger

unless it is exercised under proper safeguards. Examples of it

are the power of the Postmaster-General in the United States over

the mails and of the Home Secretary in England over requests from

aliens for naturalization. An alien applies to the Home Secretary

for naturalization. He answers innumerable questions, and presents

certificates of good character from citizens who testify on oath to his

standing. He has resided in the country for at least five years and he

will not, of course, normally venture to apply unless his record is

adequate. A request is published in the press for any information about

him and, after a due interval, the Home Secretary makes a decision

about his case. He has, of course, pursued his own inquiries, and he

has, presumably, received information about the applicant upon which

his action is based. Now the point that disturbs me is the fact that

where a certificate of naturalization is refused, the grounds for

rejection are never, even privately to the applicant, made known. He

is refused privileges which may be vital to him and his family in

the background of accusations which may, doubtless, be true, but may

also be completely without foundation and capable, were opportunity

afforded, of being immediately and decisively refuted. And so great is

the discretionary power of the Minister that he may even substitute his

own will for that of the legislature: the Act, for instance, demands a

five-year period of residence. The late Home Secretary, Lord Brentford,

announced that while he was in office he would grant no certificate

unless the applicant had resided in England continuously for a period

of thirteen years. It seems to me that this power to deny admission

to citizenship, as it is exercised, is a complete denial of natural

justice. No person ought to be condemned by accusations he is not given

the opportunity to refute. Anyone who wishes to give testimony in a

case of this kind ought surely to prove his _bona fides_ by submitting

to cross-examination by the applicant or his representative. I should

like, therefore, to see the possibility of an appeal from the decision

of the Home Secretary to a judge in chambers where the latter would, on

a case stated by the Department, hear such evidence as the applicant

chose to bring for its refutation and then only make a final decision.

Anything less than this seems to me a wanton abuse of freedom; and,

_mutatis mutandis_, this type of safeguard seems to me urgent wherever

a Minister is given a discretionary power which affects the liberty of

the subject.

I accept, therefore, the traditional notion that the separation of

the judicial from the executive power, the right of the former to

determine the legality of executive decision, is the basis of freedom.

I do not, however, believe that the separation of the executive from

the legislature is either necessary or desirable. The origin of

the idea, as you know, is in the historic misinterpretation of the

British Constitution by Montesquieu;[13] and this, in its turn, was

due to his misapplication of certain classic dicta of Locke.[14] The

fact is that a separation in this realm results in a complete and

undesirable erosion of responsibility. The British system, in which the

executive, as a committee of the legislative, formulates its plans for

acceptance or rejection, has, I think, the clear advantage of showing

the electorate exactly where responsibility for action must lie. Where

mistakes are made, where there is corruption, or dishonesty, or abuse,

it can be brought home forthwith to its authors. In the American

system, that is not the case. The President is neither the master nor

the servant of the legislature. The latter can make its own schemes;

where its views, more, where its party complexion, are different from

his, there is a constant tendency to paralysis of administration. Each

can blame the other for failure. No clear policy emerges upon which

the electorate can form a straightforward judgment. Independence makes

for antagonism and antagonism, in its turn, makes for confusion. Such

a separation means, almost invariably, the construction of a separate

quasi-executive in the legislature, which has an interest of its own

distinct from, and often hostile to, that of the President.[15] I can

see no necessary safeguard of liberty in this. On the contrary, the

British system, where the executive may be at any moment destroyed by

the legislature as a penalty for error or wrong, where, also, there

lies always the prospect of an immediate and direct appeal to the

people as the ultimate and only arbiter of difference, seems to me far

more satisfactory.

IV

Another institutional mechanism for the safeguarding of freedom is that

of a Bill of Rights. Certain principles, freedom of speech, protection

from arbitrary arrest, and the like, are regarded as especially sacred.

They are enshrined in a document which cannot, constitutionally, be

invaded either by the legislature or the executive, save by a special

procedure to which access is difficult. The first Amendment to the

American Constitution, for example, lays it down that Congress shall

pass no law abridging freedom of speech; and any Act of Congress which

touches upon the matter can be challenged for unconstitutionality

before the Supreme Court. The Amendment, moreover, cannot be attacked

save by the usual process of constitutional change in America; and

that means that, except in the event of an American Revolution, it is

unlikely ever to be directly attacked at all.

My own years of residence in the United States have convinced me that

there is a real value in Bills of Rights which it is both easy, and

mistaken, to under-estimate. Granted that the people are educated to

the appreciation of their purpose, they serve to draw attention, as

attention needs to be drawn, to the fact that vigilance is essential in

the realm of what Cromwell called fundamentals. Bills of Rights are,

quite undoubtedly, a check upon possible excess in the government of

the day. They warn us that certain popular powers have had to be fought

for, and may have to be fought for again. The solemnity they embody

serves to set the people on their guard. It acts as a rallying-point in

the state for all who care deeply for the ideals of freedom. I believe,

for instance, that the existence of the First Amendment has drawn

innumerable American citizens to defend freedom of speech who have no

atom of sympathy with the purposes for which it is used. A Bill of

Rights, so to say, canonizes the safeguards of freedom; and, thereby,

it persuades men to worship at the altar who might not otherwise note

its existence.

All this, I think, is true; but it does not for a moment imply that

a Bill of Rights is an automatic guarantee of liberty. For the

relationship of legislation to its substance has to be measured by the

judiciary. Its members, after all, are human beings, likely, as the

rest of us, to be swept off their feet by gusts of popular passion.

The first Amendment to the American Constitution guarantees freedom of

speech and peaceable assembly; the fourth Amendment legally secures to

the citizen that his house shall not be searched except upon a warrant

of probable cause; the eighth Amendment legally secures him against

excessive bail. Yet you will remember how, in one hysterical week in

1919, the action of the executive power rendered all these amendments

worthless;[16] and you will not forget that the fifteenth Amendment,

which sought political freedom for the coloured citizens of the South,

has never been effectively applied either by the executive or by the

Courts.

The fact is that any Bill of Rights depends for its efficacy on the

determination of the people that it shall be maintained. It is just

as strong, and no more, than the popular will to freedom. No one now

doubts that the Espionage Acts were strained so as to destroy almost

all that the first Amendment was intended to cover; that most of the

charges preferred under it were, on their face, ludicrous. Yet you

will remember that, in _Abrams_ v. _United States_,[17] two judges

stood alone in their insistence that the first Amendment really meant

something; the judgment of the others was caught in the meshes of war

hysteria. No principle is better established than the right of the

citizen, under proper circumstances, to a writ of _habeas corpus_;

that is, perhaps, the ark of the covenant in the Anglo-American

conception of freedom. But who can ever forget the noble and pathetic

words of Chief Justice Taney, in _ex parte Merryman_,[18] where he

insists that the applicant is entitled to the writ and that, in view

of President Lincoln’s suspension of it--a suspension entirely illegal

in character--he could not secure to Mr Merryman his due rights? And

let us remember, also, that even where the judge is prepared to do his

duty, he cannot, in a period of excitement, count upon public opinion.

Nothing is clearer than the fact that those who hanged Mr Gordon during

the Jamaica riots were guilty of murder. The opinion of Chief Justice

Cockburn could not have made the issue more clear; it is a landmark in

the judicial history of freedom. Yet the jury at once, in its despite,

acquitted the accused. There have been, further, many occasions when

breaches of fundamental principles of freedom, breaches which, on

any showing, have been quite indefensible, have been followed at

once by Acts of Indemnity. I know only of one case in England in the

last hundred years in which such an Act has been refused. Yet it

is, I think, obvious that unless such breaches are definitely and

deliberately punished, they will always occur on critical occasions.

At such times, it is impossible to trust those who are charged with

the exercise of power; and only the knowledge that swift and certain

punishment will follow its abuse will make our rulers attentive to the

needs of freedom.

I speak the language of severity; and I am anxious that you should

not think that the language of severity is that of the extremist.

I invite you, as the proof of what I say, to read, in the light of

cold reason a decade after the close of the war, the history of the

tribunals in England which were charged with examining conscientious

objectors to military service and on the military authorities to whom

some of those objectors were handed over.[19] No one can go through

the record without the sense that some of the tribunals deliberately

evaded the purposes of the exemption clause; and it is clear that in

the administration of punishment for refusal to obey orders, there was

wanton cruelty, a deliberate pleasure in the infliction of pain, for

which no words can be too strong. Nor is that all. The record shows

occasions when Ministers of the Crown, when responding to questions in

the House of Commons, used evasions of a kind which showed a complete

contempt of truth;[20] and they were supported in their attitude by

the majority of the members there. I note, also, at least one occasion

when a number of conscientious objectors were taken from England to

France for the purpose of execution by the military authorities; and it

was only the accident that Professor Gilbert Murray was able to appeal

on their behalf to the Prime Minister, which prevented the sentence

from being carried out.[21] These are worse than the methods of the

Inquisition; for, at least, the members of that tribunal believed that

they were rescuing their victims from eternal damnation. Those of whom

I speak had no excuse save ignorant prejudice and the blindness of

passion.

You will see, therefore, why I cannot believe that constitutional

expedients alone, however substantial, will prevent the invasion of

liberty. They will work just so long as people are determined they

shall work, and no longer. They are valuable because, since they have

been consecrated by tradition, their invasion tends to awaken, at

least in some of us, a prejudice to which we have become habituated.

But to keep them active and alive, requires a deliberate and purposive

effort it is by no means easy to make when the result of doing so

conflicts with some other object keenly desired. That is, I think,

capable of a simple demonstration. No class of men is so carefully

trained as the judiciary to the habit of a balanced mind. Yet if you

examine the observations of judges in cases where their passions are

deeply involved you will note how great is the effort they have to

make to show tolerance to antagonistic views. Nor do they always

succeed. In most of the classic English blasphemy cases, for example,

the judge has too often been, either consciously or unconsciously, an

additional counsel for the prosecution.[22] In many of the American

Espionage Acts cases what chiefly emerges from the summing up of the

judge is a desire, at all costs, to see that the prisoner does not

secure an acquittal.[23] Recent injunction cases in America show a

desire, no doubt unconscious, on the part of the Court, to lend aid and

countenance to a social philosophy of which it happens to approve.

I conclude, therefore, that in general we shall not allow, as a

society, the mechanisms of the state to serve the cause of freedom

unless we approve the objects at which freedom aims. In a time

of crisis, particularly, when the things we hold most dear are

threatened, we shall find the desire to throw overboard the habits of

tolerance, almost irresistible. For those habits are not in Nature,

which teaches us that opinions we deem evil are fraught with death.

They come from our social heritage, and are part of a process the value

of which we must relearn continuously if we are to preserve it. That is

the meaning of the famous maxim that eternal vigilance is the price of

liberty. It is why, also, it becomes necessary in each age to restate

the case for freedom, if it is to be maintained.

V

There is one other general part of this political aspect of liberty

that I wish to consider before I turn to a different portion of my

theme. I have argued that resistance to the encroachments of power is

essential to freedom because it is the habit of power continuously,

if it can, to enlarge the boundaries of its authority. Is there any

specific rule by which men can be trained to such resistance? Is there,

that is, a way in which the average citizen of the modern state can be

persuaded that it is in his interest to be vigilant against those who

would invade his rights? Can it, further, be shown that such a temper

in the citizen is likely, as it grows, to confer benefit upon the

community as a whole?

Broadly speaking, I think the answer to these questions is in the

affirmative. I hazard the generalization that the more widespread

the distribution of power in the state, the more decentralized its

character, the more likely men are to be zealous for freedom. That is,

of course, a large statement to make. It is the thesis that, in terms

of historic experience, good government is always, in the end, both

less valuable and less efficient than self-government. I mean that, in

general, rules imposed upon a society from above for its benefit are

less effective to the end that they seek than rules which have grown

naturally from below. I believe that to be true both of the individual

and the group in society. Its full realization is, of course, an

impossibility since it would make the uniformities we need in social

life unattainable. But the greater the degree in which we can realize

it, the better for the community to which we belong.

I do not mean to imply that there is any rigid principle which enables

us to mark off the lines of demarcation between what is individual and

what is social, between what belongs to the group and what belongs

to the state, between the sphere of central, and the sphere of local

government. The only possible approach to that problem is a pragmatic

one, as anyone can see who tries to make common sense out of John

Stuart Mill’s famous attempt, with its list of exceptions[24] by which

he reduced it to something like absurdity. Most of us, I think, could

draw up lists of governmental subjects in which central and local

topics could be demarcated without undue disagreement. We should fairly

universally say that foreign policy and defence, fiscal technique and

commercial regulation were naturally within the sphere of the central,

and playing fields, were within the sphere of the local, authority. We

should agree that crime is a matter for the state, and sin a matter for

the churches. We should admit that there must be uniform regulations

for marriage and divorce, but that individuals only could make up their

minds when, within the regulations, either to marry or divorce.

This, I think, is pretty straightforward. The points I wish to

emphasize are different. They are, first, that in the making of public

decisions, it is desirable that as many persons as possible who are

affected by the result should share in reaching it; and, secondly,

that whenever the decision to make some rule of conduct a matter of

governmental regulation arouses widespread and ardent dissent, the

probability is that the case against the decision is stronger than the

case in its favour.

My first point I may perhaps best make by the statement that all

creative authority is essentially federal in character. The purpose for

which authority is exercised is the maximum satisfaction of desire. To

achieve that end, it is in the long run vital to take account of the

wills of those who will be affected by the decision. For, otherwise,

their desires are unexplored, and there is substituted for the full

experience that should be available, the partial experience, perhaps

suffused with a sinister interest, which is able to influence the

legal source of decision. Maximum satisfaction, in other words, is a

function of maximum consultation; and the greater the degree in which

the citizen shares in making the rules under which he lives, the more

likely is his allegiance to those rules to be free and unfettered. Nor

is this all. The process of being consulted gives him a sense of being

significant in the state. It makes him feel that he is more than the

mete recipient of orders. He realizes that the state exists for his

ends and not for its own. He comes to see that his needs will be met

only as he contributes his instructed judgment to the experience out

of which decisions are compounded. He gains the expectation of being

consulted, the sense that he must form an opinion on public affairs.

He learns to dislike orders which are issued without regard being paid

to his will. He comes to have a sense of frustration when decisions are

made arbitrarily, and without an attempt to build them from the consent

of those affected. He learns vigilance about the ways of power. Those

who are trained to that vigilance become the conscious guardians of

liberty.

For they will protest against what they regard as the invasion of

their rights, and tribute will have to be paid to their protest. In

any community, fortunately for ourselves, power is always upon the

defensive; and when men are vigilant to expose its encroachments it

is urgent to seek their good opinion. Those active-minded enough to

fight for their rights will, doubtless, be always in a minority; but

they prick the indifferent multitude into thought and they thus act as

the gadflies of liberty. The handful of American lawyers who protested

against the methods of the Department of Justice in 1920 forced its

officials to a change of their ways. The little group of men who, in

season and out of season, have protested that the white man’s burden

ought not, in justice, to be borne by the black, have the Mandates’

system of the League of Nations to their credit: what E. D. Morel did

for the Congo, what H. W. Nevinson did for Portuguese Angola, these

are lessons in the service of citizenship to liberty. And it is the

peculiar value of this habit of mind that it grows by what it feeds on.

To accustom the average man to regard himself as a person who must be

consulted is, in the long run, to assure him, through consultation, of

satisfaction. For the holders of power are always desirous of finding

the convenient routine; and if they are driven by pressure to give the

people freedom, they will discover that this is the object they have

set before themselves.

Into the institutional pattern which such a federalization of

authority requires I cannot here enter.[25] It must suffice to say

that it makes totally inadequate the traditional forms even of the

democratic state. For the notion that, when the citizen has chosen his

representatives for Parliament or his local authority, he can sit back

in the comfortable knowledge that his wants are known, his interests

safeguarded, has not one jot of evidence to support it. We need, of a

certainty, a much more complex scheme. We have not only to provide for

more adequate relationships between Parliament and the administrative

process; we have also to integrate the latter with the public it serves

on a much ampler scale than any we have hitherto imagined. I have

elsewhere tried to show how vital in this context is the device of the

advisory committee. Its value both as a check upon bureaucracy, and

as a means of making decision genuinely representative in character,

becomes the more clear the wider our experience of its functioning.

But even this is not enough. There will never be liberty in any state

where there is an excessive concentration of power at the centre. The

need for a wide conference of authority away from that centre becomes

more obvious with the growth of our experience. If the decisions to

be made are to embody the needs of those affected by them, the latter

must have major responsibility for their making. All of our problems

are not central problems; and to leave to the central government the

decision of questions which affect only a portion of the community is

to destroy in that portion the sense of responsibility and the habit of

inventiveness. The inhabitants of any given area have a consciousness

of common purposes, a sense of the needs of their neighbourhood,

which only they can fully know. They find that the power to satisfy

them of themselves gives to them a quality of vigour far greater in

the happiness it produces than would be the case if satisfaction were

always provided by, or controlled from, without. For administration

from without always lacks the vitalizing ability to be responsive to

local opinion; it misses shades and expressions of thought and want

which are urgent to successful government. It lacks the genius of

place. It does not elicit creative support from those over whom it

rules. It makes for mechanical uniformity, an effort to apply similar

rules to unsimilar things. It is too distant from the thing to be done

to awaken interest from those concerned in the process of doing it.

Centralized government in local matters may be more efficient than a

decentralized system; but that superior efficiency will never, as Mill

long ago pointed out, compensate for an inferior interest in the result.

I believe, therefore, that, with all its difficulties and dangers, the

area of local government should be as little circumscribed as possible.

The German system, of laying down what a local authority may not do,

and leaving it free to experiment outside that realm of prohibition,

seems to me superior both in principle and result to its Anglo-American

antithesis. Thereby we gain not only the knowledge which comes

from varied social experiment, but the freedom born of citizenship

trained in the widest degree to think for itself and to solve its own

problems. Most imposed solutions of a uniform character only succeed

where their material is genuinely uniform. That is rarely the case

in these matters. And even the impatient reformer ought sometimes to

think whether, say, forcing a child-labour law on Georgia by federal

amendment will lead to a genuine and whole-hearted application of its

terms; whether, in fact, it will not persuade to hatred of the law,

even contempt for the law, by encouraging evasion of it. Successful

legislation is almost always legislation for which the minds of men are

anxious; the channels of assent to it can rarely be dug too deep.

All, moreover, that I am saying of territorial locality, seems to me

to apply, with no less emphasis, to what may be termed functional

areas also. Everyone acquainted with the history of churches realizes

the necessity of leaving them free to develop their own internal

life. On matters like ecclesiastical government, dogma, ceremonial,

interference by the state is almost invariably disastrous in its

results. What is true of churches is true also, _mutatis mutandis_,

of other associations. Bodies like the legal and medical professions

are much better able to direct their own internal life than to have it

directed for them by the state. It is necessary, of course, to prevent

them from developing into monopolies; and to that end it is essential

to devise a framework of principle within which they must work, to

retain, also, the right to its revision from without from time to time.

But that said, few would, I think, deny that what we call professional

standards, the jealousy for the honour of the profession, the sense

of _esprit de corps_, the realization that its members owe to the

community something more than the qualities for which payment can be

exacted, these things are born of the large degree of freedom to define

their own life the professions enjoy.

It is, I think, important to extend that notion of self-government

beyond the professions. We ought to learn to think of industries like

cotton and coal as entities not less real than Lancashire or New

York, as capable, therefore, of being organized for the purpose of

government. Most of the plans as current today for national economic

councils are not, in my judgment, of great value; the satisfactory

weighting of the different elements is really insoluble, and any

problem that concerns industry as a whole seems to me at once civic

in its nature and, therefore, the proper province of the legislative

assembly of the state.[26] But these considerations do not apply to

industries taken individually, or linked together at special points

of intimate contact. It does not seem to me inconceivable that we

should create a Parliament for the mining industry, in which capital,

management, labour and the consumer, should each have their due

representation, and to which should be confided the determination of

industrial standards on the model of professional self-government.

I should give to this Parliament a power of delegated legislation

which would enable it to frame rules of conduct binding upon all the

members of the industry. Thus, while Georgia might refuse to pass a

child-labour law, a particular industry in Georgia might refuse to

allow its members to engage child labour in field or factory. There

might be developed in this way a body of industrial legislation and

jurisprudence growing naturally out of the experience of those who

participate in the operation of the industry, and imposed with a real

sense of freedom because it has been developed from within and is not

the outcome of an external control. The help this system would give

to the creative-minded employer, on the one hand, and the adventurous

trade-union, on the other, needs no emphasis from me. Something of what

it might effect, if planned in a wholesale way, the experiments of the

Amalgamated Clothing Workers and the Baltimore and Ohio Railroad have

amply demonstrated. They show clearly, I venture to suggest, that an

authority born of consent is always definitely superior to an authority

born of coercion. And the reason is the simple but vital one that

creative energy is liberated only in the atmosphere of freedom.

VI

In all that I have so far said there is implied a theory of the nature

of law upon which, perhaps, I ought to say a word. The view I am

taking suggests that law is not simply a body of commands justifiable

by virtue of their origin. Laws are rules seeking to satisfy human

desires. They are the more certain of acceptance the more fully they

seek to inquire what desires it is urgent to satisfy, and the best

way of inquiry is to associate men with each stage of the process of

law-making. For men, in fact, will not obey law which goes counter to

what they regard as fundamental. Their notion of what is fundamental

may be wrong, or unwise, or limited; but it is their notion, and they

do not feel free unless they can act by their own moral certainties. It

is useless to tell them that an assumption on their part that they are

entitled to forgo obedience will result in anarchy. Every generation

contains examples of men who, in the context of ultimate experience,

deliberately decide that an anarchy in which they seek to maintain

some principle is preferable to an order in which that principle must

be surrendered. The South in 1861, Ulster in 1914, the Communist in the

context of a capitalist society, these are but variations on the great

theme of Luther’s classic _Ich Kann nicht anders_. They illustrate the

inescapable truth that law must make its way to acceptance through the

channel of consenting minds.

Let me put this in a different way. Law is not merely a command; it

is also an appeal. It is a search for the embodiment of my experience

in the rule it imposes. The best way, therefore, to make that search

creative is to consult me who can alone fully report what my experience

is. There can be no guarantee that law will be accepted save in the

degree that this is done. Legal right is so made as the individual

recipient of a command invests it with right; he gives it his sanction

by relating it successfully to his own experience. When that relation

cannot be made, the authority of law is always in doubt. And it is in

doubt because, by contradicting the experience of those whom it seeks

to control, it seems to them a frustration of their personality. To

accept the control would be to become unfree.

An extreme way of putting this view would be to say that law is made by

the individual’s acceptance of it, that the essence of the law-making

process, is the consent of interested minds. At points of marginal

significance, that is, I think, true; and the consequences of the

truth are obviously important. Authority, if my view is right, is

always acting at its peril. It lives not by its power to command but

by its power to convince. And conviction is born of consent for the

simple reason that the real field of social action is in the individual

mind. Somewhere, inevitably, the power to coerce that mind to ways of

thoughts of which it does not approve, breaks down; man, as Tyrrell

said, is driven on “to follow the dominant influence of his life even

if it should break the heart of all the world”. That is the stark fact

which conditions the loyalty any authority seeks to secure. At some

point, it cannot be imposed but must be won from us. And the greater

the degree in which it springs from that persuasion, the greater, also,

is the success of authority in imposing its solutions. No power can

ever hope for successful permanence, no power, either, is entitled to

it, which does not make its way, in vital matters, through the channels

of consent.

From this two conclusions seem to me to flow. Ours is not a universe

in which the principles of a unified experience are unfolded. It is

a multiverse embodying an ultimate variety of experiences, never

identical, and always differently interpreted. There is enough

similarity of view to enable us, if we have patience and goodwill, to

make enough of unity to achieve order and peace. But that similarity

is not identity. It does not entitle us to affirm that one man’s

experience can be taken as the representation of another’s. It does not

justify the inference that I shall find what I most truly desire in

the desire of another. I am not a part of some great symphony in which

I realize myself only as an incident in the _motif_ of the whole. I

am unique, I am separate, I am myself; out of these qualities I must

build my own principles of action. These are mine only, and cannot

be made for me, at least creatively, by others. For their authority

as principles comes from the fact that I recognize them as mine.

Into them, as principles, I pour my personality, and life, for me,

derives its meaning from their unique texture. To accept the forcible

imposition of other principles upon me, which I do not recognize as

the expression of my experience, is to make of me who might be free,

a slave. I become an instrument of alien purposes, devoted to an end

which denies my self-hood. Law, therefore, as coercion is always

an invasion of personality, an abridgement of the moral stature of

those whom it invades. To be true to its purpose, it must reduce the

imperative element to a minimum if it is to release creativeness and

not destroy it.

The individual, therefore, is entitled to act upon the judgment of

his conscience in public affairs. He is entitled to assume that he

will not find the rules of the conduct he ought to pursue objectified

in any institution or set of institutions. I agree that, for most of

us, conscience is a poor guide. It is perverse, it is foolish, the

little knowledge it has is small alongside the worth of the social

tradition. But perverse, foolish, ignorant, it is the only guide we

have. Perverse, foolish, ignorant, it is at least ours; and our freedom

comes from acting upon its demands. We ought, doubtless, to convince

ourselves that the path it indicates is one we have no alternative but

to follow. We ought to seek the best possible means for its instruction

and enlightenment. We should remember that civilization is, at best,

a fragile thing, and that to embark upon a challenge to order is to

threaten what little security it has. It may even be wise, as T. H.

Greene once put it, to assume that we should approach the state in fear

and trembling, remembering constantly the high mission with which it is

charged.

All this may be true, and yet it seems to me to leave the individual no

option but to follow conscience as the guide to civic action. To do

otherwise is to betray freedom. Those who accept commands they know to

be wrong, make it easier for wrong commands to be accepted. Those who

are silent in the presence of injustice are in fact part-authors of it.

It is to be remembered that even a decision to acquiesce is a decision,

that what shapes the substance of authority is what it encounters. If

it meets always with obedience, sooner or later it will assume its own

infallibility. When that moment comes, whatever its declared purpose,

the good it will seek will be its own good and not that of those

involved in its operations. Liberty means being faithful to oneself,

and it is maintained by the courage to resist. This, and this only,

gives life to the safeguards of liberty; and this only is the clue to

the preservation of genuine integrity in the individual life.

If it is objected that this is a doctrine of contingent anarchy,

that it admits the right of men to rebellion, my answer is that the

accusation is true. But is its truth important? Order, surely, is

not the supreme wrong. Power is not conferred upon men for the sake

of power, but to enable them to achieve ends which win happiness for

each of us. If what they do is a denial of the purpose they serve;

if, as we meet their acts, there appears in them an absence of

goodwill, a blindness to experience alien from their own, an incapacity

imaginatively to meet the wants of others, what alternatives have we

save a challenge to power or a sacrifice of the end of our life? We

do not condemn Washington because there came a moment in his career

when he was compelled to recognize that the time for compromise with

England had passed. We do not, even more notably, condemn those early

Christians who refused to offer incense to the Gods. We have to act

by the dictates of our conscience knowing, as Washington knew, as

the early Christians recognized, that the penalties of failure are

terrible. But we can so act, also, knowing that there is a sense in

which no man who serves his conscience ever fails.

For by that service he becomes a free man, and his freedom is a

condition of other men’s freedom. There is immense significance in the

fact that those who fought for religious liberty were the unconscious

progenitors of civil liberty also. When they demanded the right to

worship the God they knew, in their own mind they were insisting that

in one sphere, at least, of human experience, their own perception must

count as ultimate. They consecrated freedom to the service of God. But

that, after all, is only one aspect of freedom. Its consecration to

the service of man is, for some of us, not less vital and pervasive.

To fight for the assurance that a man may do his duty as he conceives

it is not only to fight for freedom, but for all the ends which the

emancipation of mankind seeks to attain. I do not know whether liberty

is the highest objective we can serve. I do assert that no other great

purpose is possible of achievement save in the terms of fellowship with

freedom.