The Elements of Politics

Henry Sidgwick

Chapter 3

General Principles of Legislation

§1. In the preceding chapter we have been concerned with the general conception of Law, in the strict political sense,---the ``law of the land'', which judges and magistrates are appointed to administer and enforce; as distinct from other kinds of recognised rules of conduct,---such as those contained in the moral code, the code of honour, the code of social behaviour,---which are also in a looser sense called moral laws, laws of honour, social laws. Law, in the sense in which we are primarily concerned with it, is a body of rules intended to control the conduct of members of a political society, for the violation of which penalties may be expected to be inflicted by the authority of the government of that society; and which, therefore, may be regarded as imposed by government. For, though they may not have actually been laid down by any existing person or body of persons whose orders are habitually obeyed by the rest of the community, there is always some possible combination of persons and bodies which is recognised as competent to modify them; and any resistance to them may be expected to be overborne by the force which the habitual obedience of the community places at the disposal of government. This general definition of law is of course applicable not specially to laws as they ought to be, but to good and bad laws alike: it states the characteristics which, in accordance with usage, we agree to consider essential to the right application of the term ``law'', in its special political sense. Hence the discussion of this definition belongs to the study of actual laws as they are and have been, no less than to the study of the principles on which an ideal system of legislation ought to be constructed: it forms, in fact, a region common to the two studies. At the same time, though the definition carefully avoids any implication that the law spoken of is good, right, or just, it does not altogether exclude an ideal element from the conception of law, and of the community to which the law belongs: for it assumes that the orders of government, whether good or bad, are habitually obeyed by the bulk of the community: whereas in many communities at many times the greatest practical difficulty and the most urgent practical need has been not to get the (so-called) government to issue good orders, but to get them generally obeyed when they have been issued. When, however, the commands of persons attempting to govern are widely disobeyed with impunity, though such persons are still by courtesy commonly called a government, we do not come into serious conflict with common sense by affirming that they do not really govern, and that their impotent commands are not really laws: and it is in the stricter sense of this affirmation that I shall generally use these fundamental terms.

Bearing, then, in mind that the political community we are considering is assumed to be orderly and not anarchical, so that government is able to bring irresistible physical force to crush any open disobedience to law; let us now proceed to consider on what principles laws ought to be established and administered. First, however, it will be convenient for the present to take a narrower view of the Law for which we are to lay down principles, than that given in my definition; by excluding any rules which relate to the appointments and duties of persons exercising governmental functions, such as the rules issued to the subordinate officers of government in (e.g.) the Home Office, or any similar departments of the executive. Such rules would not ordinarily be called ``laws'', except so far as they are laid down by Parliament: but in any case they do not form part of the law that is primarily the subject of our present investigation: for we are considering the establishment and maintenance of Law as a main part of the work which government should be constructed to do: whereas these administrative rules relate to the manner in which the complex instrument for performing governmental work should be constituted and kept in action. The Law then, for determining which we have now to lay down principles, should be conceived as a body of rules intended to control the conduct of private persons, so far as they are subjects but not in a narrower sense servants of government.

Accordingly, in considering the rights that a good system of legislation ought to secure to such persons, I shall for the present omit rights that correspond to obligations imposed not on other private persons, but on members of the government itself. It is important to note this, because among what are commonly recognised in free countries---or countries struggling towards freedom---as ``fundamental rights of individuals'',---there are several important cases in which the obligation that constitutes the other aspect of the right is a governmental obligation. Such, for instance, are the right to freedom of speech and of the press, the right to freedom of assembly, free exercise of religion. In any country where these rights are not completely realised, it is through the action of government that they are withheld or impaired: hence it is convenient to distinguish these as constitutional rights from the civil rights with which we are now primarily concerned. Whether the governmental obligation corresponding to such a constitutional right is strictly legal, or only moral or quasi-legal, depends on conditions which will be appropriately considered in the second part of the treatise; in which I shall examine the structure of the different organs of government, and the relations of government to the governed. I will here only observe that the establishment and the maintenance of such rights do not form part of the ordinary work of Government---regarded as a harmonious whole---in the same sense in which the enforcement of legal obligations on private citizens forms part of its work; but only in the negative sense that it is bound not to encroach upon such rights.

There are, however, other governmental duties of a positive kind, which have a closer connection with civil rights, as they are directly required for the effective realisation of the latter: I mean especially, the work to be done by governmental officials---judges, magistrates, policemen, and others---for the prevention or reparation of wrongs to individuals. These will be most appropriately considered later on: after we have discussed the civil rights, of which the actual or threatened violation gives occasion for the exercise of these preventive or reparative functions, of Government. For somewhat similar reasons, I reserve the consideration of the obligations that it is expedient to impose on ordinary members of the community in the interest---so to say---of government, i.e. in order to enable government to perform its work efficiently;---as, for instance, the general obligation imposed on male adults to assist, when occasion arises, in the repression of crime and the maintenance of order. At present, I wish to concentrate attention' on the rules by which the mutual relations of private members of the community---as contrasted with their relations to the government---should be determined, so far as these rules require the aid of governmental force to secure their adequate observance.

But again, when we examine those rights of private individuals that correspond to obligations imposed on other private persons, we find that one class of these also only come into operation in consequence of the violation of other rights; such as the right to compensation for injury wilfully or carelessly inflicted, and the right to repel violence by violence. Such remedial rights are obviously to be regarded as secondary and subordinate to the antecedent rights, the violation of which renders them necessary: they only come into operation because law is imperfectly obeyed---or perhaps in some cases imperfectly defined. The rights which we may distinguish as primary, and which we should begin by determining, are rights which would be established and operative if the law was perfectly defined and perfectly obeyed.

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