§7. It will be seen that the same general considerations which have led us to regard the executive as normally standing to the legislature in a relation of subordination, also tend to show that the subordination should not go so far---even in matters of internal administration---as to make the legislature practically the supreme executive. For, if this were the case, then the security against oppression, given by its critical supervision of the executive, would be lost: another independent organ would be required to watch and criticise the legislature.
It may perhaps be asked, why should not, in any case, the danger of oppression by the legislature be as formidable and call for as vigilant precautions, as the danger of oppression by the executive? I should answer, first, that the need of guarding against legislative oppression undoubtedly exists, and is---as we shall hereafter see---recognised as a fundamentally important consideration in determining the constitution of the legislature. At the same time the legislative danger seems to be less perpetual and pressing: since, as G. C. Lewis says, ``there is a great difference between deliberate, universal, and avowed, and unpremeditated, particular, and casual rapacity and injustice. Many governments which habitually act towards their subjects in the most oppressive manner would be ashamed to reduce the maxims by which they are in fact guided into the form of a law, and to publish it to their subjects and the whole civilised world.''
It seems then desirable that the executive organ should be not only distinct from the legislature---or at least from that part of the legislature that exercises the function of critical supervision---but also in some degree independent of it: though, as we shall hereafter see, it is a somewhat difficult problem to determine how far this independence should go, or by what means it may best be secured. Similarly, the expediency of keeping the judicial organ separate from and independent of the executive may be inferred from what has been already said of the importance of keeping the executive within the restraints of law: since such restraints can hardly be expected to be effective unless the question whether acts done by executive officials are or are not illegal can be referred---in the last resort---to the judicial decision of some organ distinct from the executive. Whether this organ should be an ordinary law court, or whether a special court should be established to deal with charges brought against executive officials, will be considered in a subsequent chapter (XXIV.).
The expediency of making the judicial organ distinct from and independent of the legislature is no less obvious, so far as the ordinary legislature is bound to conform to constitutional laws which can only be modified by an extraordinary legislature: since in this case---no less than in that of the executive---the obligation of conforming to law cannot be effectually enforced, unless there is a judicial body independent of the legislature, competent to pronounce on the validity of legislation. How far such constitutional limitations on the authority of the ordinary legislature are necessary or desirable will be hereafter considered. Where there are no such limitations---or none having legal force---the need of separating legislative and judicial functions is less obvious. Still, even in this case, it seems clear that if the two functions are given to the same organ, there will be a certain danger of confusion between them, tending to blur the fundamental distinction between the law as it is and the law as it ought to be. It is also important for justice that law should be applied according to an established and impartial method of interpretation: and this result is more likely to be secured if those who apply the law are not responsible for laying it down. Moreover, an independent judiciary gives a security that equal justice will be done in disputes between legislators and private persons. Also the advantages of ``division of labour'' are an important consideration: the work of the judiciary, in an advanced society with a complicated system of law, must require a concentration of energy which will hardly be maintained if the business of legislation is superadded. It may be added, anticipating the result of subsequent discussions, that the kind of organ which, according to the received view in modern States, is best adapted for legislative functions is not well adapted for judicial---or indeed for executive---functions; partly from its size and complexity, partly from its mode of composition.[Back to:]