§1. In the preceding chapter we have been led to adopt a threefold division of the functions of government, as (1) Legislative, (2) Executive, and (3) Judicial;---extending the notion of legislation to include the imposition of taxes, and, accordingly, combining with it a supervision over public receipts and expenditure. A general consideration of these three classes of functions has shown us reasons why they should be, in modern states generally, performed for the most part by different organs: at the same time we have seen that this separation of functions cannot conveniently be made complete.
Both these conclusions will receive further support from the study of the construction adapted to each organ, to which we are now to proceed. I begin with the legislative organ, because we have already seen that, from the nature of its functions, the legislature must be in a certain way supreme over the other two organs, since it belongs to the legislature to lay down the general rules, which the judiciary has to apply, and in conformity to which the executive has to work; while again, so far as it regulates public finance, the legislature must exercise a general control over all the operations of government that involve expenditure. It has seemed indeed desirable---and almost necessary, if the separation of functions is to be effectually carried out---that the executive and judicial organs should have a substantial amount of independence within their respective spheres of action; and I shall hereafter consider the constitutional rules or other measures by which the required independence may be secured. Meanwhile, I shall assume that there is in any case a qualified supremacy in the legislature, from the nature of its functions; and that it will consequently be expedient to entrust the legislative organ with the function of critically supervising the action of the executive.
Let us begin, then, by considering the construction of the legislature.
If we ask---without reference to existing institutions and the habits of thought which they tend to generate---to whom should be entrusted the function of making or modifying laws, an obvious answer is that it should be entrusted to persons who are thoroughly acquainted with the laws that they are called upon to modify. As J. S. Mill justly says, ``there is hardly any kind of intellectual work which so much needs to be done not only by experienced and exercised minds, but by minds trained to the task through long and laborious study, as the business of making laws: since every provision of a law requires to be framed with the most accurate and long-sighted perception of its effect on all the other provisions: and the law when made should be capable of fitting into a consistent whole with the previously existing laws.'' Accordingly, we may lay down without hesitation that men who have that thorough knowledge of law which we can, generally speaking, only expect to find in able and experienced members of the legal profession, should have a large and responsible share in law-making. Proposed laws should be drawn up by lawyers, and any changes made in the draft should be carefully revised by lawyers before they are finally enacted by the Legislature. But, for several reasons, it does not seem desirable to entrust the substantial work of legislation entirely---or even mainly---to them alone.
Firstly, the deductive operation of applying complicated general rules accurately and faithfully to particular cases is very different from the inductive operation of collecting, comparing, estimating, the good and bad consequences of actual laws, and considering the consequences of proposed or possible measures. In either case, a knowledge of law, as it is, is required: but the use made of the knowledge, the habit of mind that it generates, the special points needful to be observed, the special difficulties that have to be faced and overcome, are obviously different in the two cases. Persons, therefore, may be highly skilled by nature and practice for the application of law, which is the habitual intellectual work of the judge and of the advocate who has to convince him, without being qualified for the modification of law which is the proper work of the legislator. Again, in the judicial administration of law, it is most needful that the judge should have a scrupulous respect for the law that has actually been laid down: that he should resist not only the coarser temptation of warping it under the influence of bribery, intimidation, party feeling, or personal affection, but also the subtler temptation to twist it in the direction of equity and utility; since, as each judge would be likely to twist it somewhat differently, the certainty of law, which is more important than any increase of equity that could be obtained in this way, would be lost: moreover, if this well-meant warping of rules were allowed, it would be indefinitely more difficult to resist the influence of sinister interests. But this scrupulous reverence for existing law, though a needful habit of mind, is likely to prevent the heads of the legal profession from being unbiassed judges of proposed improvements in law; especially as such improvements are likely to render a certain amount of their painfully gained knowledge and elaborately contrived methods useless, and to impose on them the necessity of learning new rules and new methods. We need not suppose this last consideration consciously to operate as a motive, it is sufficient if it gives an unconscious bias.
Hence, however desirable it may be to give to leading lawyers a large and responsible share in the work of constructing laws, they are commonly more qualified to be builders than architects in this work. The ideal legislator ought to know law as well as the lawyer, but he ought to know much more than law. He must have an insight, as I have said, into the actual relation of the laws to the social life of the community regulated; the manner in which they modify the conduct of the individuals whom they affect; the consequences, proximate and remote, that are likely to result from any change in them. To obtain this insight he ought to have such an acquaintance with particular facts as it is difficult to obtain otherwise than from actual experience, or at least intimate converse with men of experience: and he ought also to possess such knowledge as is obtainable of the general tendencies of social development and the effects of different social causes. Taking men as they are, we shall hardly expect to find many whose knowledge qualifies them for dealing in a statesmanlike manner with all the problems presented to a modern legislative body: if so, it becomes important in constructing our legislative organ to aim at including an adequate selection of persons who, with general ability, combine special experience in different departments of social life. This, then, is one argument for the representative system, as now applied in most countries that share West European civilisation; that the periodical election of legislators by different divisions, sufficiently numerous, of the community, tends to give us, if not ideal statesmen, at any rate a body of men who possess in the aggregate the special empirical knowledge that is most indispensable.
But this is not the sole argument for making an assembly thus chosen a main part of the legislative organ: nor is it generally thought to be the most important argument. It seems even more needful to secure in legislators a keen concern for the interests of the various elements of the community for which they legislate: and this seems likely to be attained by the system of popular election for a limited time, more effectually than by any other mode of appointing a legislative council or assembly. For, provided that the post of legislator is made adequately desirable, either by the remuneration or the power and social dignity attached to it, the desire of re-election will make it the interest of the legislator to promote at least the recognised interests of his constituents.
Here I may point out the fundamental affinity between the main principle of the civil code, as constructed on the basis of individualism, and the principle of governmental construction just laid down. We have before seen that legislation (and other governmental interference), in modern civilised societies, is mainly based on the principle that the interests of the sane adult members of the community will be best promoted if they are left to provide for themselves; owing to the combination of better knowledge with greater concern for their own interest, which may on the average be attributed to them. It is for a similar reason that, so far as legislative interference is required, an assembly chosen for a limited time by the people at large is held likely to know what the people at large want, better than any council or assembly otherwise appointed, and to be more concerned to provide it.
What has just been said of laws applies with especial force to the rules under which taxation is levied. Such compulsory taking of private property for public purposes is a part of governmental interference which governments not adequately controlled are specially tempted to overdo: and it is a procedure of which the excess is specially formidable to the governed. As we have seen, the liability to be deprived of an unknown portion of one's wealth by the tax-gatherer is an insecurity against which it is impossible to give complete constitutional protection to the individuals governed; but the insecurity is importantly reduced if the body that regulates taxation is periodically elected by the community at large and is thus effectively responsible to them.
But there is another argument of weight for appointing legislators by popular election---which, again, resembles a reason previously noted for strictly limiting the ``paternal'' interference of government---viz. that even if such election does not lead to a more wisely constructed system of laws than any other mode of appointment, it tends to render the legislation more acceptable to the governed; and therefore less likely to be evaded, or, if obeyed, to cause friction and discontent. Just as an individual is more likely to conform to the rules of a physician whom he has chosen than of one chosen for him, so a people will be less liable to be recalcitrant against laws made by a popularly elected body. Indeed the historic and current name for such a body---a House or Chamber of ``Representatives''---suggests that laws made by it will be commonly felt to have been practically made by the people ``represented'', and so to have popular weight behind them.
The argument just mentioned, however, might be used to support a different conclusion: it might be urged that if our aim is to have laws made as completely as possible in accordance with the wishes of the majority of those who have to obey them, there is no need of the intervention of representatives: it will be simpler and better to give the decision on legislative proposals to the people themselves. And, in fact, there seem to be strong reasons---which I shall discuss in a subsequent chapter---for adopting this plan to a limited extent under certain conditions: but there is a decisive objection against giving the main work of legislation to the citizens at large: viz. that they lack the requisite knowledge and trained faculties. Legislation is a difficult art, the mastery of which requires such an expenditure of time and energy as the citizens at large---even if otherwise qualified---cannot ordinarily afford. It may be said that this deficiency must equally prevent them from choosing competent legislators; since if one does not know whether a law is good or bad, one cannot tell whether the law-maker is competent or incompetent. I shall hereafter consider the exact force of this objection to the representative system, and the best way of minimising it: for our present purpose it seems sufficient to reply that, in the division of labour which civilisation has brought, ordinary members of a community organised on an individualistic basis have continually to choose experts for skilled work of which the chooser does not understand the methods: and the result is commonly accepted as tolerably satisfactory. Thus---to revert to a comparison already made---most men value highly the control that they acquire, by the free choice of their physician, over the operation of applying drugs to the cure of their diseases; though they know themselves to be wholly unable to prescribe medicines for themselves. We cannot exactly imitate this in the case of government, owing to the necessity of giving Government coercive power over all persons living within the territory governed; but we imitate it as far as we can by giving the individuals coerced a share in the appointment of the supreme organ of legislation.[Back to:]