Comma for either/or — dharma, courage. Spelling forgiving — corage finds courage.

    Lectures on the Relation between Law and Public Opinion in England

    (D): Counter-Currents and Cross-Currents of Legislative Opinion from the Beginning of the Twentieth Century

    A. V. Dicey

    In the atlas

    28 min

    The progress of the more or less dominant collectivism of 1914, or in popular language of socialism, will certainly be delayed, and quite possibly be arrested, by different though closely interconnected counter-currents of opinion.

    First Counter-current.—The surviving belief in the policy of laissez faire.

    The exaggerated faith once placed in the wisdom of leaving things alone, has brought laissez faire into discredit. Yet a candid observer will note that the distrust of State interference is still entertained by the mass of English citizens. It is not my business to argue that this sentiment never produces bad results. My sole contention is that it has still a very strong hold upon Englishmen, whether rich or poor. Benthamite liberalism owed half of its triumph to its coincidence with the individualism of the common law, and independently of the belief in any philosophic theory, the dogma of laissez faire has commended itself, and does commend itself to hundreds of Englishmen, and for very obvious reasons. It has stimulated energy of action. It has left room for freedom of thought and individuality. It has fostered the trust in self-help. It has kept alive emphatically the virtues of the English people. But at this point trust in individual liberty runs into and forms part of a second counter-current, which deserves separate examination.

    Second Counter-current.—The inconsistency between democracy and collectivism.

    In England a democrat is nowadays more than half a socialist, and a collectivist, or in popular language a socialist, is generally a democrat. As a democrat each of them holds that the best form of government Edition: current; Page: [lxxii] for any civilized country, and certainly for England, is a constitution under which the wish of the majority of the citizens ultimately determines the course of legislation. Popular government, in short, means to such a man, even though he be more or less a socialist, government in accordance with popular opinion. This democratic conception of government contains the important truth that it is impolitic if not impossible, at any rate in a civilised State, to found institutions or to enforce laws which the citizens thereof detest. It is further true that honest representative government is the best arrangement hitherto invented for averting legislation which the people of a given country are unwilling to accept. This is the strength of the democratic creed. But it is also true that a modern democracy, while it protects the people from unpopular laws, gives inadequate security for the passing of laws which are in themselves wise and good. So much as to the creed of a thorough-going English democrat who looks, as do most of our Radicals, with some favour upon socialism. A socialist who is secondarily, so to speak, a democrat, believes that any civilised country, and certainly England, should be governed in accordance with socialistic principles, as being the principles which tend to promote the welfare of the people. Now the strength of socialism is that a socialist is saved from the delusion which, though childish, is not uncommon, that whatever the people desire is, because they wish for it, right and wise; and that the granting of such wish will Edition: current; Page: [lxxiii] always conduce to the welfare of a country. Most persons further, though not all, will concede that the socialistic ideal contains in itself some elements of truth, and also is the expression of an honest and laudable wish to better the position of the wageearners in every civilised country. This concession, however, does not involve the belief that law can benefit the people as much as does the maintenance of personal freedom. The weak point of the socialistic ideal is that it is a dogmatic or authoritative creed and encourages enthusiasts who hold it to think lightly of individual freedom, and suggests the very dubious idea that in a democracy the wish of the people may often be overruled for the good of the people. The ideal of democracy, in short, is government for the good of the people by the people, and in accordance with the wish of the people; the ideal of collectivism is government for the good of the people by experts, or officials who know, or think they know, what is good for the people better than either any non-official person or than the mass of the people themselves. Each of these two ideals contains something of truth, but each of these ideals may sooner or later clash with each other. This conflict may take various forms. But beliefs marked by essential inconsistency are certain to give rise to most serious and, it may be, very practical and embittered dissension.

    In England our socialistic democrat or our democratic socialist is, naturally enough, blind to this inconsistency. He is convinced that socialism will promote the welfare of England. He therefore assumes that socialism when put into practice will become popular. Edition: current; Page: [lxxiv] He sees that the progress of democracy has for the last thirty years coincided with the passing of socialistic laws. He forgets that the existence of a democracy prevents any sagacious collectivist from pressing upon English electors any law which is not, apparently at least, beneficial to the poor. The Old Age Pensions Act certainly offers a pecuniary benefit to most wageearners. Whether the working men of England will ultimately gain by relying on the State for their support in old age, is a question which you can hardly expect men who have been able to save nothing for the wants of their declining years to consider. A country labourer will never be offended by the offer of the nation to give him five shillings a week from the day he has reached the age of 70. The inconsistency between democracy and socialism will never be fully recognised until earnest socialists force upon the people some law which, though in conformity with socialistic principles, imposes some new burden upon the mass of the voters.

    My aim is to prove that even now such inconsistency exists. Look at things passing before our eyes. A collectivist never holds a stronger position than when he advocates the enforcement of the best ascertained laws of health. Disease inflicts injuries upon men of all classes. Its appearance gives the most striking example of the way in which different members of the community are bound together by that mutual interdependence for which French writers use the term “solidarity.” One would have thought it therefore impossible that a large body of Englishmen should be found to resist measures commended by sound knowledge for the resistance to the spread of Edition: current; Page: [lxxv] disease. That vaccination, if rigidly enforced, would banish small-pox from England is believed by the vast majority of experts competent to form an opinion on such a matter. Yet the Radicals of Leicester, in the name of freedom or of conscience, claim the right and, with the connivance of politicians who are fishing for votes, exercise the power to propagate small-pox. We have here, at any rate for the moment, an instance of conflict between democratic and socialistic enthusiasm. Take again the Mental Deficiency Act, 1913. It approved itself to both Houses of Parliament; it approves itself to almost every person throughout the United Kingdom who possesses the not always united qualities of humanity and of good sense, still it met with strenuous opposition from ardent democrats.

    Take quite a different instance of the opposition between democracy and socialism. No one until recent times has disputed that democratic institutions are strengthened by the existence of a large number of small and independent landowners. Whether it be possible to create anew a body of yeomen in a country where, mainly from economical causes, such yeomen have disappeared is a question which need not here receive any answer. No man, however, can dispute that the existence of such a territorial democracy contributes in Switzerland, in France, and in the United States to the prosperity and the effectiveness of popular institutions. But the modern socialist does not desire the maintenance or the production of a large class of independent yeomen. He desires property, and especially property in land, to be owned by the State. He perceives, truly enough Edition: current; Page: [lxxvi] from his own point of view, that the existence of a large number of independent landowners, each of whom can call a comparatively small piece of land his own, will be a serious and possibly an insuperable obstacle to the nationalisation of land. The peasant proprietors of France in 1848 rallied round Louis Napoleon because he promised protection against socialists. In truth the opposition between the democratic desire for an independent yeomanry and the socialistic passion for the nationalisation of land is not accidental. The owners of small estates feel more strongly than any other class the joy of ownership. It is among them that the possession of property exercises the magical effect attributed to it by Arthur Young. But a sincere socialist condemns the passion for individual ownership. He wishes to substitute for it the passion for common ownership by the State. Here again the democratic ideal as understood by Englishmen is inconsistent with the ideals of socialism.

    Another difference between the ideals of an English socialist and an English democrat is to be found in the attitude which they respectively take up towards scientific experts. The socialist’s ideal is a State ruled by officials or experts who are socialists. The democrat’s ideal is a State governed by the people in conformity with the broad common sense he attributes to ordinary citizens. Hence the socialist escapes the folly of idolising the people. But it were foolish to suppose that democratic suspicion of experts or officials always originates in popular ignorance. Respect for experts ought always to be tempered by the constant remembrance that the Edition: current; Page: [lxxvii] possessors of special knowledge have also their special weaknesses. Rarely indeed does reform come from even the best among professional men. Bentham gained the ear of some eminent lawyers, but the conception of Benthamite reform did not come from the leaders of the Bar, nor generally from the judges. Pasteur was no doctor, and the doctors of France for a long time slighted his discoveries and resisted his suggestions. Lister showed, what no one doubts, that professional eminence is not inconsistent with originality and genius, but he was attacked with vehemence by one among the most famous of Scottish physicians, and for many years could not gain the credence or the support of some eminent English surgeons. And this blindness of experts is no accident. A man’s minute knowledge and interest in a certain class of facts, however important in themselves, is, owing to limitations of the human intellect, often balanced by ignorance, in no way disgraceful, of other facts which though they may have a direct bearing upon the prosperity of mankind, do not happen to interest or perhaps to be known to our scientific expert. Canning, we are told by a very distinguished man of science, did not learn till late in life that tadpoles turned into frogs, and thought that a schoolboy who gave him that information was fooling him. This “portentous ignorance” suggests to our scientific instructor that a man capable of it is disqualified from safely exercising high functions of statesmanship. It is happy for England that the unscientific Englishmen of the early nineteenth century had not adopted any such disqualifying dogma. The insight, the foresight, and, above all, the rapid resolution of Canning achieved Edition: current; Page: [lxxviii] for England a deliverance from danger hardly less important than the security conferred upon her by the victory of Trafalgar. Our democrat, if he is a man of sense, ought to have one inestimable virtue. He may lack the knowledge possessed by the ablest of specialists; but he knows and feels that the prosperity of men and of nations has its source in self-help, energy, and originality. He is thus saved from that belief in formulas which has now and again wrecked the plans of enthusiastic socialists.

    Let us examine the opposition between democracy and socialism from a slightly different point of view. It will then be seen that some of the most energetic movements of the day are closely connected with beliefs which, whether true or false, are naturally adopted by democrats and not easily accepted by socialists. Take, for instance, the agitation in favour of giving parliamentary votes to women. Many arguments worth consideration may be adduced in support of this movement. But its real strength lies in the acceptance of the dogma, that every human being of full age has prima facie an innate or natural right to the full political powers of a citizen. This doctrine is congenial to democrats who at times have treated the claim to manhood suffrage as a natural right. Its fallaciousness has indeed been proved again and again by Burke, by Bentham, and by Comte. It is opposed also to the assumption always latent in socialistic teaching that the will of the people may be overruled by socialists for the people’s good. No existing institution, again, is more democratic, and may possibly turn out more conservative, than the referendum. It lies at the very basis of popular Edition: current; Page: [lxxix] government in Switzerland; but the intelligent socialist fights very shy of the referendum, for he fears, not without reason, that the vote of the people might be adverse to a policy of socialism. On no point, again, is public opinion more divided than on the question of divorce. With the theological beliefs which give special bitterness to this controversy we need not here concern ourselves. The noticeable fact for our present purpose is that the difference of opinion as to the terms, if any, on which divorce ought to be allowed, arises from the difference between the individualistic, or democratic, and the socialistic view of life. If marriage be looked upon mainly as a contract between man and wife it is obviously reasonable to put an end to a marriage of two persons when it causes deep unhappiness to both, or when it causes misery to the one party and gives very little happiness to the other. This consideration seems to many democrats all but conclusive in favour of allowing divorce. Hence in every democratically governed country divorce is made year by year more easily obtainable. But if divorce be looked upon mainly from the point of view of a sane collectivist, the question whether divorce should be facilitated becomes an inquiry far more difficult to answer. Marriage, he will argue, when treated as a union which hardly admits of dissolution, confers great benefits upon the State. The interest of the community therefore is the only test which can decide whether the right to divorce should be extended or restricted; the relief which divorce may give to an individual suffering from an unhappy marriage cannot to socialistic thinkers be a decisive consideration.

    Such thinkers are certainly themselves coming to perceive the possible conflict between democratic and socialistic ideals. The devices by which they try to explain away this opposition are sometimes more startling than reassuring. One writer maintains that the whole misery of modern life consists in the conflicting interests of classes, and that when the State substitutes for the existence of different classes one uniform class of citizens all the members whereof are equally governed with equity and in accordance with the principles of enlightened socialism, selfishness and the conflicting interests it produces will disappear. To an ordinary man who knows something of history, and has not shut his eyes to human nature as it actually exists, it must seem that the love of self, whether justifiable or unjustifiable, is due to causes deeper than any political or social reform will ever touch. A nation or a State means, conceal it as you will, a lot of individual selves with unequal talents and in reality unequal conditions, and each of these selves does—or rather must—think not exclusively, but primarily of his own self. The old doctrine of original sin may be totally disconnected from the tale of Eve and her apple, or any other religious tradition or theological dogma, but it represents an undeniable fact which neither a statesman nor a preacher can venture to ignore. It is urged again that the need for individuality or originality, which is fostered by democratic freedom, is of trifling importance, and that civilisation owes much less to creative genius than to the collective endeavours of mankind. This is the grossest of blunders. Tarde Edition: current; Page: [lxxxi] in his Lois de l’imitation has emphasised with extraordinary subtlety and vigour the debt which we all owe to human imitativeness, but he never overlooks the fact that unless for the occasional appearance of a genius and an inventor, there would be little in existence worth imitation. The very ablest of socialistic or semi-socialistic jurists removes the conflict between the power of the State and the freedom of the individual by, at the same time, thrusting into prominence the notion of solidarity, and asserting in language, which might almost be taken from John Mill, the duty of the State to foster individuality of character. He, however, confers upon the State the right of compelling an individual to take any course of action whatever which the State deems conducive to the welfare of the citizens whereof it is composed. Englishmen will readily acknowledge that there are many cases in which the interference of the State really increases the personal liberty of a citizen, but, to any one brought up under the influence of John Mill and Tocqueville, it will be very difficult to believe that it is possible to deny that there may be, and in a socialistic state always will be, a conflict between the freedom necessary for the full development of individuality and the power of a government which has to enforce upon individuals deference to the principles of authoritative socialism. Despotism may continue to be tyranny, even though it may have become both popular and benevolent.

    From whichever side the topic is approached, there will appear to be a real inconsistency between democratic government, i.e. the government of Edition: current; Page: [lxxxii] public opinion, and the rule of socialism, i.e. the enforcement of principles which, whether true or false, will sometimes assuredly conflict with the public opinion of the time.

    A Cross-current.—The opposition to the expensiveness or the financial burdens of collectivism.

    Socialistic government is expensive government. And this is no accidental characteristic. For the true collectivist or socialist does not leave a penny which he can help to “fructify in the pockets of the people.” The reason of this is clear. Our socialist believes that money not taken hold of by the State fructifies, if at all, in the pockets of the rich, such as millionaires and Dukes, and that it never reaches the overworked and underpaid wage-earner until it is seized by the tax-collector and dealt out to the worthy poor—and the poor are always worthy—by the action of the State. This line of reasoning or of feeling, of course, leads to the collection of huge revenues to be used for profuse expenditure directed by the superhuman wisdom of Government to the benefit of wage-earners.

    The following statements are meant to show the immense increase in the amount of taxation imposed upon the tax-payers and rate-payers of England (including Wales):

    The Burden of Taxation.—The tax-payers and rate-payers of England bear the weight of a double system of taxation.

    (1) National Taxation, or Taxes, in the Strict Sense of that Term.—Such taxation is imposed directly by Act of Parliament and falls upon all the tax-payers of the United Kingdom. The whole revenue of the Edition: current; Page: [lxxxiii] United Kingdom, in so far as it is raised by taxation, for each of the five years 1908-1909 to 1912-1913, inclusive, may be thus stated:

    In other words, the revenue raised by taxes has increased during the last five years (1908-1909 to 1912-1913) by £29,203,000.

    Now the meaning of these facts is made clearer by a comparison of the revenue of the United Kingdom to-day with the revenue of the United Kingdom in 1885-1886. In 1885-1886 the revenue raised by taxation was £74,927,000, whereas the revenue for 1912-1913 was £154,753,000. In twenty-seven years taxation has increased by £79,826,000, that is to say, it has increased, on an average, of slightly under £3,000,000 a year. The revenue, in short, from taxation was in 1912-1913 at least double the revenue in 1885-1886.

    The date 1885-1886 is noticeable. The last great Act of Parliamentary reform was passed in 1884, and established democratic government based on Household Suffrage throughout the whole of the United Kingdom. From 1885 it is possible to trace the gradual increase in the revenue raised by taxation, though this increase does not become very noticeable till some ten years later. The contrast between the £74,927,000 raised in 1885-1886 and the £154,753,000 raised in 1912-1913 is noteworthy. It can hardly be overlooked, whatever may be the inference which is rightly drawn from it. But, as already pointed out, the inhabitants of England are taxed not only as tax-payers but also as rate-payers.

    (2) Local Taxation or Public Rates.—Such taxation is imposed directly by some of the numerous local bodies authorised in England by Act of Parliament to impose rates. If we want to see the weight of taxation imposed upon Englishmen by the national taxes with which we have already dealt, and by public rates, it will be convenient to add together the national Edition: current; Page: [lxxxv] taxes and the public rates for the following four years, 1907-1908, 1908-1909, 1909-1910, 1910-1911. In such a comparison it will be best to omit altogether from our computation of the amount raised for the national revenue any non-tax revenue. Hence the following results:

    In 1907-1908 the burden of taxes and rates together amounted to £189,947,577, in 1908-1909 to £186,768,203, in 1909-1910 to £168,491,164, and in 1910-1911 to £240,233,131.

    As there is not as yet available any complete return of the rates collected in England since 1910-1911, it is impossible to state authoritatively, how much the rate-payers of England have paid by way of local taxation or rates, in addition to payment of public taxes, in the years 1911-1912 and 1912-1913. If, however, we assume that the rates imposed for the year 1912-1913 were not greater than the rates collected for the year 1910-1911, that sum at least must be added to the amount raised as taxes for that year, with the result that the taxes and rates together amounted to at lowest the sum of £218,013,940. But it may be taken as morally certain that the rates for 1912-1913 will turn out to exceed the rates for 1910-1911 by more than a million, Edition: current; Page: [lxxxvi] and hence the whole amount of taxes and rates for 1911-1912 will come to at least £220,826,131. From the huge amount drawn from tax-payers and rate-payers some inferences may at any rate be drawn with a good deal of probability.

    Thus the burden of taxes is gradually forming an immense restriction upon individual freedom, for it must always be remembered that a tax, whatever its form, is always levied upon definite assignable persons with whose means of free action it interferes. The old liberalism of sixty years ago meant cheap government, and encouraged the individual energy which is the life-blood of true democratic government. Then again heavy taxes are a source of public danger. In the case of a foreign invasion an over-taxed England might be found in the course of a very few months to be, even if well provided with Dreadnoughts, an indefensible England. This peril would be greatly increased if the mass of the people and of the voters had come more and more to depend for their prosperity on the aid of the State. A recent Life of Cobbett records that the Peace of Amiens (1803) was so popular with the London mob that they drew the carriage of the French envoy in triumph to his house. No one can doubt that it might be very difficult to carry on even a strictly defensive war, if it became necessary to cut down the amount of old age pensions or of insurance and unemployment benefit. But here we come across the consideration that quite possibly the gradually increasing dislike to excessive taxation might bring not only the richer classes, but also the large middle class of tradesmen and skilled artisans who may feel that they are being Edition: current; Page: [lxxxvii] pressed down under the load of taxes into the ranks of the strictly poor, to cry halt to any further socialistic and costly experiments. Thus patriotism and imperialism may well reinforce impatience of excessive taxation, and in effect create new cross-currents of opinion hostile to the progress of socialism. Englishmen of wisdom and public spirit may well forbid the squandering upon even benevolent experiments of resources which ought always to be preserved for the defence of our national greatness and independence.