Liberty in the modern stateLaski, Harold J. (Harold Joseph)
Science
Liberty in the modern state
Laski, Harold J. (Harold Joseph)
Liberty; Political science
That is a general principle which, stated as baldly as this, does not
adequately illustrate the substance it implies. The history of the
struggle for popular freedom has given us knowledge of certain rules
in the organization of a state the presence of which is fundamental
to freedom. It can, I think, be shown that no citizen is secure in
liberty unless certain rights are guaranteed to him, rights which the
government of the state cannot hope to overthrow; and unless, to secure
the maintenance of those rights, there is a separation of the judicial
from the executive power.
The citizens of a state choose men to make the laws under which they
are to live. It is urgent that they should be binding upon all without
fear or favour; that I, for instance, should be able to live secure
in the knowledge that they will not apply to me differently from
their incidence upon others. Clearly enough, in the modern state, the
application of law to life demands a vast body of civil servants to
administer it. Not the least important problem of our time is that
which arises when the legality of their administration is in question.
In Anglo-Saxon communities it has been regarded as elementary that
the interpretation of law should be entrusted to an independent body
of officials--the judges--who can arbitrate impartially between
government and citizens. That view I take to be of the first importance
to freedom; and its acceptance involves considerations which we must
examine in some detail.
The business of a judiciary, broadly speaking, is the impartial
interpretation of the law as between government and citizen, or between
classes of citizens who dispute with one another. The government, for
instance, charges a man with treason; obviously he is deprived of
something essential to his freedom if the law is strained so as to make
of treason something it in fact is not in order to cover the acts which
the government seeks to have accepted as treason. Here, obviously, the
judge must be assured that his independence may be maintained with
safety to himself. He must not suffer in his person or position because
of the view he takes. It must not be within the power either of the
government or other persons to deprive him of his authority because, as
best he may, he applies the law. This, as I think, makes it essential
that all judicial appointments should be held during good behaviour.
There may be an age-limit of service, of course; but, this apart,
nothing should permit the removal of a judge from the bench except
corruption or physical unfitness. I do not, therefore, believe that a
judicial system founded upon popular election is a satisfactory way of
choosing judges, the more so if submission to re-election is involved;
and the system, abandoned in England in 1701, of making judicial
appointment dependent upon the pleasure of government is equally
indefensible. Once a man has been appointed to judicial office nothing
Public-domain text, read in full here on John Shaqi.
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