of the House of Commons, the essentially uncreative nature of the latter's proceedings, spoke clearly their failure as useful instruments for the authoritative settlement of such questions. Something more than majorities gained at the polls and marching through the division lobbies was needed. There was needed, indeed, the introduction of a closer relationship between the law-making authority, Parliament, and the nation it was supposed to represent. There was needed a system designed to secure careful discussion and thought and acts of will based upon a probing investigation of all material evidence, the variety of possibilities, the hearing of all voices through the medium of something better than party. Indeed, the old claim of the House of Lords to the power of deciding to refer bills from the Commons to the country was a manifestation, though a particularly crude one, of this attitude to the party system as the medium of representation. All the panaceas offered just before the warreform of the House of Commons' procedure, devolution, reform of the Second Chamber,2 Proportional Representation, the resuscitation of the Royal Veto, the Referendum,3 Round Table Conferences-spoke the same language: before vital problems the old machine of party: government, upon which Parliamentary and Cabinet government rest, inaugurated by the introduction of practically universal suffrage, was breaking down.

1 Cf. Lowell, Government of England, vol. i. chap. xxii.

2 Cf. Hansard, vol. xv., 1910; H. W. Lawson, cols. 1222 to 1227; Lord Hugh Cecil, cols. 1335 et seq.; Balfour, cols. 1186 et seq.; Asquith, cols. 1165 and 1166; vol. xvi., Lyttelton, cols. 40 et seq.; and Belloc, col. 99 et seq., where a Second Chamber with suspensive powers was argued as necessary to secure a peaceful economic revolution. 3 Cf. Dicey, Law and Custom of the Constitution, ed. 8, Introd. p. xci et seq.

CHAPTER II

NEW LAMPS FOR OLD

THOSE problems were indeed fundamental. The State had become positive, or, as Dicey has it, at work under a collectivist theory. Its action, in Lassalle's phrase, as a night-watchman, had, by 1870, become merely a very pale shadow of reality. It began to serve, to foster, create, take the initiative; and the rise of a series of new Departments of State was indicative of its positive and creative attitude towards the life of the citizens it contained. Adam Smith's "invisible hand "3 theory had left too great an inheritance of misery to be re-elected as pilot of the future. The necessitarian and voluntaristic theories of law - making gave way before the sovereignty, in all political parties, of what has been aptly called the “engineering” theory of law—that is, a theory that the purposes of society may be discovered by the processes of reason, and implemented through

1 Cf. Law and Opinion in England, especially Lectures VIII. and IX.

2 E.g. New functions of Board of Trade; Ministry of Transport, 1919; Ministry of Labour, 1916; Ministry of Health, 1919; Education and Agriculture and Fisheries.

3 Let us at once be clear what this means. "He (the individual)," says Adam Smith, "generally, indeed, neither intends to promote the public interest, nor knows how much he is promoting it. By preferring the support of domestic to that of foreign industry, he intends only his own security; and by directing that industry in such a manner as its produce may be of greatest value, he intends only his own gain, and he is in this, as in many other cases, led by an invisible hand to promote an end which was no part of his intention. . By pursuing his own interest he frequently promotes that of the society more effectually than when he really intends to promote it. I have never known much good done by those who affected to trade for the public good." Cf. Wealth of Nations, Cannan's edition, vol. i. p. 421.

the enactment of statutes.1 The central political authority became (or attempted to become) "the engine of a systematic democracy. If that last phrase has meant anything to the majority of citizens and social philosophers, it has meant the Parliamentary remodelling of social and industrial institutions and processes. processes. The The purpose of such remodelling was to secure to the citizens an income giving a sufficient degree of material comfort in return for their work, and to put them in such a position in relation to their occupation and society that they should have a positive feeling of liberty in the sense of " continuous possibility of personal initiative."2 And any State action in this regard centred clearly upon the institution of private property, which in the end means practically unchecked power over the mental and physical activities of other people for private purposes. The gress of equality in this regard was one of Condorcet's factors of expectation for the perfectibility of his Tenth Epoch in the Tableau of Human Progress; it was to

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1 "We seek continually to formulate the social progress of the present in everyday law-making, and we turn continually to the legislature and invoke the aid of the legal imperative for the means of putting into action the ideas upon which we rely to bring about social progress in the future. The amount of energy expended by organized society in the performance of this function of expressing and furthering social progress through law has come to be prodigious" (p. 721). "In an age of engineering triumphs, then, why not an engineering interpretation of jurisprudence? . . The satisfaction of a maximum of wants with a minimum of sacrifice of other wants, the economizing of social effort, the conservation of social assets, the elimination of social waste, are juristic problems which may easily be stated in terms of engineering" (p. 724) (Dean Roscoe Pound, “ Law and Society,” in American Journal of Sociology, May 1917).

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2 Cf. Wallas, New Statesman, Sept. 25, 1915, p. 586, and Our Social Heritage, chap. vii., Liberty"; and Webb, Socialist Commonwealth of Great Britain, p. 100: And the object of Democracy is not merely the negative one of excluding the alternative of legislation, control and administration being exercised by individuals or classes contrary to the desires of the people at large, but also the positive one of obtaining for all the people, in the fullest degree practicable, that development of personality, and that enlargement of faculty and desire dependent on the assumption of responsibility and the exercise of will."

3 Cf. Condorcet (Caritat), Esquisse d'un tableau historique des progrès de l'esprit humain (1795), p. 309 et seq.: "Our hopes as to the future condition of the human species may be reduced to three points: the reduction of inequality between nations, the progress of equality in each single nation, and thirdly, the real improvement of man. Is the difference of knowledge, of means and of riches, hitherto observed in all the civilised peoples, between different classes of which each of them consists; is this inequality which the earliest progress of society has increased and, so to say, produced, an outcome of civilisation itself or of the mere imperfections of social art ? Must it not be weakened continually

Madison the gravamen of political conflict;1 it constituted the central purpose of some thinkers towards the Reform Bill of 1832, and later became the testament of the working class in politics.2

It is by no means a simple issue. John Stuart Mill imagined that the distribution of wealth could be interfered with freely according to social purposes. But no economist worthy of any repute can now believe in so simple a doctrine. To operate upon a society based on private property and the people whose power is built upon it, is to operate upon the most tenacious, deeprooted, defensive and intricate of instincts, and upon institutions of a truly basic character.1

The task of political institutions to-day seems to be to determine by artificial methods the course of manufactures and agriculture; it begins with a virtual denial of the continued operation of natural laws largely beyond human control, and asserts the possibility of their manipulation in accordance with a theory of social interests. Such, for instance, is the attempt sufficiently described in periodically issued Blue Books,5 to bring the decaying occupation of agriculture out of the depths into which it has fallen, owing to the competition of virgin

so as to give place to actual equality, the ultimate aim of social art, which, by diminishing even the effects of natural difference of faculties, leaves only an inequality which is to the interest of the art, because it will favour the progress of civilisation, knowledge and industry, without entailing either dependence, humiliation, or impoverishment ? In short, will men ever approach the state where they will all have the necessary knowledge for conducting themselves according to their own reason in the common affairs of life, and maintain it exempt from prejudice, so as to know their rights well, and make use of them according to their own opinion and conscience; where all will be able to obtain, through the development of their faculties, assured means of providing for their needs; and lastly, where stupidity and misery will be no more than accidents, and no longer the habitual state of a considerable portion of society?"

1 See Federalist, Essay No. 10.

2 See The Development of Parliament in the 19th Century, by G. Lowes Dickinson. 3 Autobiography, 1873, p. 231 et seq.

4 Cf. Geldart, Some Aspects of the Law of Property in England," in Property, Its Duties and Rights (Macmillan, 1922); Tawney, The Acquisitive Society, chap. v. ; Rivers, Psychology and Politics; and Graham Wallas's analysis of the property instinct and the place of property in modern society in The Great Society, p. 290 et seq.

5 E.g. Report on Equipment of Small Holdings, Cd. 6708, 1912–19; Agricultural Policy (Reconstruction Committee), 1917, Cd. 8506.

lands abroad. The process needs continual thought, continual argument, continual experience, continual supervision. It is to be dealt with successfully only by means of an extensive series of laws (and a consequent change of habits) based upon long and continuous arguments of the type of, though with better procedure than, the Coal Industry Commission of 1919. A long-continued process of sapping and petty encroachment upon the ground to be won, with previous thorough investigation, is here the only wholesome method of remodelling. The present political scheme is incapable of serving this process; and few people desire the methods of fascismo.

If the old oracles of government are fallen dumb, we may perhaps find the promise of fresh instruments which can help to the attainment of these purposes. While the old legacy of representative government has suffered attrition, there has arisen outside its organisation a veritable multitude of associations: citizens grouped for special purposes; for purposes of production (in Trade Union and professional organisations), for purposes of consumption (in Co-operative Societies, Rentpayers' Associations, Telephone Users' Associations, Season Ticket Holders' Associations), for teaching purposes, as the Workers' Educational Association, for propagandist purposes, e.g. the Divorce Law Reform Union. This is no attempt at an exhaustive enumeration or scientific classification of associations, but merely an indication of their existence and activity. The essential of these associations is this: they are usually continuous until they have achieved their purpose; their membership consists of people who join, mainly voluntarily, because they approve of the purpose and the methods taken to achieve it; the members are in the main cognisant of the conditions of their purpose, i.e. they have a sufficiently close acquaintance with the purpose to possess a pungent and vivid sense of the relations between that purpose and the wider society in which they live; they have,