Introduction to the Study of the Law of the Constitution. A. V. Dicey
that triumph of legalised wrong-doing sanctioned by the fourth section of the Trade Disputes Act,51 1906. It is however by no means to be supposed that artisans are the only class accustomed to decry a judge or the legislature when the one gives a judgment or the other passes a law opposed to the moral convictions of a particular part of the community.
Lawlessness
Till a time well within the memory of persons now living, it would have been very difficult to find any body of men or women who did not admit that, broadly speaking, a breach of the law of the land was also an act of immorality. No doubt at all times there have existed, as at the present day, a large number of habitual law-breakers, but though a cheat, a pickpocket, or a burglar does constantly break the law, there is no reason to surmise that cheats, pickpockets, or burglars maintain the doctrine that law-breaking is itself a praiseworthy
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or a moral act. Within the last thirty years, however, there has grown up in England, and indeed in many other civilised countries, a new doctrine as to lawlessness. This novel phenomenon, which perplexes moralists and statesmen, is that large classes of otherwise respectable persons now hold the belief and act on the conviction that it is not only allowable, but even highly praiseworthy, to break the law of the land if the law-breaker is pursuing some end which to him or to her seems to be just and desirable. This view is not confined to any one class. Many of the English clergy (a class of men well entitled to respect) have themselves shown no great hesitation in thwarting and breaking laws which they held to be opposed to the law of the Church. Passive resisters do not scruple to resist taxes imposed for some object which they condemn. Conscientious objectors are doing a good deal to render ineffective the vaccination laws. The militant suffragettes glorify lawlessness; the nobleness of their aim justifies in their eyes the hopeless and perverse illegality of the means by which they hope to obtain votes for women.
Whence arises this zeal for lawlessness? The following reflections afford an answer, though only a partial answer, to this perplexing inquiry:
In England democratic government has already given votes, if not precisely supreme power, to citizens who, partly because of the fairness and the regularity with which the law has been enforced for generations in Great Britain, hardly perceive the risk and ruin involved in a departure from the rule of law. Democratic sentiment, further, if not democratic principle, demands that law should on the whole correspond with public opinion; but when a large body of citizens not only are opposed to some law but question the moral right of the state to impose or maintain a given law, our honest democrat feels deeply perplexed how to act. He does not know in effect how to deal with lawlessness which is based upon a fundamental difference of public opinion.52 For such difference makes it impossible that on a given topic the law should be in reality in accordance with public opinion. Thus many Englishmen have long felt a moral
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difficulty in resisting the claim of a nationality to become an independent nation, even though the concession of such a demand may threaten the ruin of a powerful state and be opposed to the wishes of the majority of the citizens thereof. So the undoubted fact that a large number of Englishwomen desire parliamentary votes seems, in the eyes of many excellent persons, to give to Englishwomen a natural right to vote for members of Parliament. In each instance, and in many other cases which will occur to any intelligent reader, English democrats entertain a considerable difficulty in opposing claims with which they might possibly on grounds of expediency or of common sense have no particular sympathy. The perplexity of such men arises from the idea that, at any rate under a democratic government, any law is unjust which is opposed to the real or deliberate conviction of a large number of citizens. But such a conviction is almost certain to beget, on the part of persons suffering under what they deem to be an unjust law, the belief, delusive though it often is, that any kind of injustice may under a democratic government be rightly opposed by the use of force. The time has come when the fact ought to be generally admitted that the amount of government, that is of coercion, of individuals or classes by the state, which is necessary to the welfare or even to the existence of a civilised community, cannot permanently co-exist with the effective belief that deference to public opinion is in all cases the sole or the necessary basis of a democracy. The justification of lawlessness is also, in England at any rate, suggested if not caused by the misdevelopment of party government. The rule of a party cannot be permanently identified with the authority of the nation or with the dictates of patriotism. This fact has in recent days become so patent that eminent thinkers are to be found who certainly use language which implies that the authority or the sovereignty of the nation, or even the conception of the national will, is a sort of political or metaphysical fiction which wise men will do well to discard. Happily, crises arise from time to time in the history of any great state when, because national existence or national independence is at stake, the mass of a whole people feel that the authority of the nation is the one patent and the one certain political fact. To these causes of lawlessness honesty compels the addition of one cause
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which loyal citizens are most anxious not to bring into prominence. No sensible man can refuse to admit that crises occasionally, though very rarely, arise when armed rebellion against unjust and oppressive laws may be morally justifiable. This admission must certainly be made by any reasoner who sympathises with the principles inherited by modern Liberals from the Whigs of 1688. But this concession is often misconstrued; it is taken sometimes to mean that no man ought to be blamed or punished for rebellion if only he believes that he suffers from injustice and is not pursuing any private interest of his own.
COMPARISON BETWEEN THE PRESENT OFFICIAL LAW OF ENGLAND AND THE PRESENT DROIT ADMINISTRATIF OF FRANCE 53
The last thirty years, and especially the fourteen years which have elapsed since the beginning of the twentieth century, show a very noticeable though comparatively slight approximation towards one another of what may be called the official law of England and the droit administratif of France. The extension given in the England of to-day to the duties and to the authority of state officials, or the growth, of our bureaucracy,54 to use the expression of an able writer, has, as one would naturally expect, produced in the law governing our bureaucrats some features which faintly recall some of the characteristics which mark the droit administratif of France. Our civil servants, indeed, are as yet not in any serious degree put beyond the control of the law Courts, but in certain instances, and notably with regard to many questions arising under the National Insurance Act, 1911, something very like judicial powers have been given to officials closely connected with the Government.55 And it may not be an exaggeration to say that in some directions the law of England is being “officialised,” if the expression may be allowed, by statutes passed under the influence of socialistic ideas. It is even more certain that the droit administratif of France is year by year becoming more and more judicialised. The Conseil d’État, or, as we might term it, the Council, is
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(as all readers of my seventh edition of this work will know) the great administrative Court of France, and the whole relation between the judicial Courts and the Council still depends, as it has depended now for many years, upon the constitution of the Conflict Court,56 which contains members drawn in equal numbers from the Council of State and from the Court of Cassation. It would be idle to suppose that the decisions of the Council itself when dealing with questions of administrative law do not now very nearly approach to, if indeed they are not in strictness, judicial decisions. The Council, at any rate when acting in a judicial character, cannot now be presided over by the Minister of Justice who is a member of the Cabinet.57 Still it would be a grave mistake if the recognition of the growth of official law in England and the gradual judicialisation of the Council as an administrative tribunal led any Englishman to suppose that there exists in England as yet any true administrative tribunals or any real administrative law. No doubt the utmost care has been taken in France58 to give high authority to the Council as an administrative tribunal and also to the Conflict Court. Still the members of the Council do not hold their position by anything like as certain a tenure as do the judges of the High Court in England, or as do the judges (if we may