Policy in United Kingdom

The Relation between Government and Laws (History)

It might be supposed that, if any general proposition could be established about government, it would be one establishing some constant relation between the form of a government and the character of the laws which it enforces. The technical language of the English school of jurists is certainly of a kind to encourage such a supposition. The entire body of law in force in a country at any moment is regarded as existing solely by the fiat of the governing power. There is no maxim more entirely in the spirit of this jurisprudence than the following:

“The real legislator is not he by whom the law was first ordained, but he by whose will it continues to be law.” The whole of the vast repertory of rules which make up the law of England—the rules of practice in the courts, the local customs of a county or a manor, the principles formulated by the sagacity of generations of judges, equally with the statutes for the year, are conceived of by the school of Austin as created by the will of the sovereign and the two Houses of Parliament, or so much of them as would now satisfy the definition of sovereignty. It would be out of place to examine here the difficulties which embarrass this definition, but the statement we have made carries on its face a demonstration of its own falsity in fact.

There is probably no government in the world of which it could be said that it might change at will the substantive laws of the country and still remain a government. However well it may suit the purposes of analytical jurisprudence to define a law as a command set by sovereign to subject, we must not forget that this is only a definition, and that the assumption it rests upon is, to the student of society, anything but a universal fact.

From his point of view the cause of a particular law is not one but many, and of the many the deliberate will of a legislator may not be one. Sir Henry Maine has illustrated this point by the case of the great tax-gathering empires of the east, in which the absolute master of millions of men never dreams of making anything in the nature of a law at all. This view is no doubt as strange to the English statesman as to the English jurist. The most conspicuous work of government in his view is that of parliamentary legislation.

For a large portion of the year the attention of the whole people is bent on the operations of a body of men who are constantly engaged in making new laws. It is natural, therefore, to think of law as a factitious thing, made and unmade by the people who happen for the time being to constitute parliament. It is forgotten how small a proportion the laws actually devised by parliament are of the law actually prevailing in the land. No European country has undergone so many changes in the form of government as France. It is surprising how little effect these political revolutions have had on the body of French law. The change from empire to republic is not marked by greater legislative effects than the change from a Conservative to a Liberal ministry in England would be.

These reflections should make us cautious in accepting any general proposition about forms of government and the spirit of their laws. We must remember, also, that the classification of governments according to the numerical proportion between governors and governed supplies but a small basis for generalization. What parallel can be drawn between a small town, in which half the population are slaves, and every freeman has a direct voice in the government, and a great modern state, in which there is not a single slave, while freemen exercise their sovereign powers at long intervals, and through the action of delegates and representatives? Propositions as vague as those of Montesquieu may indeed be asserted with more or less plausibility. But to take any leading head of positive law, and to say that monarchies treat it in one way, aristocracies and democracies in another, is a different matter.(1)

Resources

Notes and References

1. Encyclopedia Britannica (1911)

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Further Reading