The action of the state, or sovereign power, or government in a
civilized community shapes itself into the threefold functions of
legislation, judicature and administration. The two first are perfectly
well-defined, and the last includes all the kinds of state action not
included in the other two. It is with reference to legislation and
administration that the line of permissible state-action requires to be
drawn. There is no doubt about the province of the judicature, and that
function of government may therefore be dismissed with a very few
observations.
The complete separation of the three functions marks a high point of
social organization. In simple societies the same officers discharge all
the duties which we divide between the legislator, the administrator and
the judge. The acts themselves are not consciously recognized as being
of different kinds. The evolution of all the parts of a highly complex
government from one original is illustrated in a striking way by the
history of English institutions. All the conspicuous parts of the modern
government, however little they may resemble each other now, can be
followed back without a break to their common origin. Parliament, the
cabinet, the privy council, the courts of law, all carry us back to the
same _nidus_ in the council of the feudal king.
_Judicature._--The business of judicature, requiring as it does the
possession of a high degree of technical skill and knowledge, is
generally entrusted by the sovereign body or people to a separate and
independent class of functionaries. In England the appellate
jurisdiction of the House of Lords still maintains in theory the
connexion between the supreme legislative and the supreme judicial
functions. In some states of the American Union certain judicial
functions of the upper house were for a time maintained after the
example of the English constitution as it existed when the states were
founded. In England there is also still a considerable amount of
judicial work in which the people takes its share. The inferior
magistracies, except in populous places, are in the hands of private
persons. And by the jury system the ascertainment of fact has been
committed in very large measure to persons selected indiscriminately
from the mass of the people, subject to a small property qualification.
But the higher functions of the judicature are exercised by persons whom
the law has jealously fenced off from external interference and control.
The independence of the bench distinguishes the English system from
every other. It was established in principle as a barrier against
monarchical power, and hence has become one of the traditional ensigns
of popular government. In many of the American states the spirit of
democracy has demanded the subjection of the judiciary to popular
control. The judges are elected directly by the people, and hold office
for a short term, instead of being appointed, as in England, by the
responsible executive, and removable only by a vote of the two Houses.
At the same time the constitution of the United States has assigned to
the supreme court of the Union a perfectly unique position. The supreme
court is the guardian of the constitution (as are the state courts of
the constitution of the states: see UNITED STATES). It has to judge
whether a measure passed by the legislative powers is not void by reason
of being unconstitutional, and it may therefore have to veto the
deliberate resolutions of both Houses of Congress and the president. It
is admitted that this singular experiment in government has been
completely justified by its success.
_Limits of State Interference in Legislation and Administration._--The
question of the limits of state action does not arise with reference to
the judiciary. The enforcement of the laws is a duty which the sovereign
power must of absolute necessity take upon itself. But to what conduct
of the citizens the laws shall extend is the most perplexing of all
political questions. The correlative question with regard to the
executive would be what works of public convenience should the state
undertake through its own servants. The whole question of the sphere of
government may be stated in these two questions: What should the state
do for its citizens? and How far should the state interfere with the
action of its citizens? These questions are the direct outcome of modern
popular government; they are equally unknown to the small democracies of
ancient times and to despotic governments at all times. Accordingly
ancient political philosophy, rich as it is in all kinds of suggestions,
has very little to say that has any bearing on the sphere of government.
The conception that the power of the state can be and ought to be
limited belongs to the times of "government by discussion," to use
Bagehot's expression,--to the time when the sovereign number is divided
by class interests, and when the action of the majority has to be
carried out in the face of strong minorities, capable of making
themselves heard. Aristotle does indeed dwell on one aspect of the
question. He would limit the action of the government in the sense of
leaving as little as possible to the personal will of the governors,
whether one or many. His maxim is that the law should reign. But that
the sphere of law itself should be restricted, otherwise than by general
principles of morality, is a consideration wholly foreign to ancient
philosophy. The state is conceived as acting like a just man, and
justice in the state is the same thing as justice in the individual. The
Greek institutions which the philosophers are unanimous in commending
are precisely those which the most state-ridden nations of modern times
would agree in repudiating. The exhaustive discussion of all political
measures, which for over two centuries has been a fixed habit of English
public life, has of itself established the principle that there are
assignable limits to the action of the state. Not that the limits ever
have been assigned in terms, but popular sentiment has more or less
vaguely fenced off departments of conduct as sacred from the
interference of the law. Phrases like "the liberty of the subject," the
"sanctity of private property," "an Englishman's house is his castle,"
"the rights of conscience," are the commonplaces of political
discussion, and tell the state, "Thus far shalt thou go and no further."
The two contrasting policies are those of _laissez-faire_ (let alone)
and Protection, or individualism and state-socialism, the one a policy
of non-interference with the free play of social forces, the other of
their regulation for the benefit of the community. The _laissez-faire_
theory was prominently upheld by John Stuart Mill, whose essay on
_Liberty_, together with the concluding chapters of his treatise on
_Political Economy_, gives a tolerably complete view of the principles
of government. There is a general presumption against the interference
of government, which is only to be overcome by very strong evidence of
necessity. Governmental action is generally less effective than
voluntary action. The necessary duties of government are so burdensome,
that to increase them destroys its efficiency. Its powers are already so
great that individual freedom is constantly in danger. As a general
rule, nothing which can be done by the voluntary agency of individuals
should be left to the state. Each man is the best judge of his own
interests. But, on the other hand, when the thing itself is admitted to
be useful or necessary, and it cannot be effected by voluntary agency,
or when it is of such a nature that the consumer cannot be considered
capable of judging of the quality supplied, then Mill would allow the
state to interpose. Thus the education of children, and even of adults,
would fairly come within the province of the state. Mill even goes so
far as to admit that, where a restriction of the hours of labour, or the
establishment of a periodical holiday, is proved to be beneficial to
labourers as a class, but cannot be carried out voluntarily on account
of the refusal of individuals to co-operate, government may justifiably
compel them to co-operate. Still further, Mill would desire to see some
control exercised by the government over the operations of those
voluntary associations which, consisting of large numbers of
shareholders, necessarily leave their affairs in the hands of one or a
few persons. In short, Mill's general rule against state action admits
of many important exceptions, founded on no principle less vague than
that of public expediency. The essay on _Liberty_ is mainly concerned
with freedom of individual character, and its arguments apply to control
exercised, not only by the state, but by society in the form of public
opinion. The leading principle is that of Humboldt, "the absolute and
essential importance of human development in its richest diversity."
Humboldt broadly excluded education, religion and morals from the
action, direct and indirect, of the state. Mill, as we have seen,
conceives education to be within the province of the state, but he would
confine its action to compelling parents to educate their children.
The most thoroughgoing opponent of state action, however, is Herbert
Spencer. In his _Social Statics_, published in 1850, he holds it to be
the essential duty of government to _protect_--to maintain men's rights
to life, to personal liberty and to property; and the theory that the
government ought to undertake other offices besides that of protector he
regards as an untenable theory. Each man has a right to the fullest
exercise of all his faculties, compatible with the same right in others.
This is the fundamental law of equal freedom, which it is the duty and
the only duty of the state to enforce. If the state goes beyond this
duty, it becomes, not a protector, but an aggressor. Thus all state
regulations of commerce, all religious establishments, all government
relief of the poor, all state systems of education and of sanitary
superintendence, even the state currency and the post-office, stand
condemned, not only as ineffective for their respective purposes, but as
involving violations of man's natural liberty.
The tendency of modern legislation is more a question of political
practice than of political theory. In some cases state interference has
been abolished or greatly limited. These cases are mainly two--in
matters of opinion (especially religious opinion), and in matters of
contract.
The mere enumeration of the individual instances would occupy a
formidable amount of space. The reader is referred to such articles as
ENGLAND, CHURCH OF; ESTABLISHMENT; MARRIAGE; OATH; ROMAN CATHOLIC
CHURCH, &c., and COMPANY; CONTRACT; PARTNERSHIP, &c. In other cases
the state has interfered for the protection and assistance of definite
classes of persons. For example, the education and protection of
children (see CHILDREN, LAW RELATING TO; EDUCATION; TECHNICAL
EDUCATION); the regulation of factory labour and dangerous employment
(see LABOUR LEGISLATION); improved conditions of health (see
ADULTERATION; HOUSING; PUBLIC HEALTH, LAW OF, &c.); coercion for moral
purposes (see BET AND BETTING; CRIMINAL LAW; GAMING AND WAGERING;
LIQUOR LAWS; LOTTERIES, &c.). Under numerous other headings in this
work the evolution of existing forms of government is discussed; see
also the bibliographical note to the article CONSTITUTION AND
CONSTITUTIONAL LAW.