Liberty in the modern stateLaski, Harold J. (Harold Joseph)
Science
Liberty in the modern state
Laski, Harold J. (Harold Joseph)
Liberty; Political science
Another safeguard is not less essential. We agree, for the most part,
in ordinary legal matters that the opinion of a single judge, even
when reinforced by the verdict of a jury, ought not to be final in
either criminal or civil cases. I should like to see that agreement
extended to the sphere of administrative law. Where, that is to say,
a departmental tribunal has rendered its decision I should like an
appeal to lie to a higher administrative tribunal composed not only of
officials, but, also, of laymen of experience in the matters involved
who could be trusted to bring an independent mind to the settlement
of the matter in dispute. English experience of tribunals like the
civil service division of the Industrial Court, and the Commissioners
of Income Tax, convinces me that the common sense of a good lay mind
is, in this realm, an immense safeguard against departmental error. And
we must remember that, however great be the good will of the public
services, what, to them, may seem a simple matter of administrative
routine, may be to the citizens involved a denial of the very substance
of freedom. Certainly a case like _ex parte O’Brien_[10] makes one
see how real would be the threat to public liberty if departmental
legislation grew without proper judicial scrutiny at every stage of its
development.
The problem, however, does not merely end here. There are two other
sides of administrative action in which the uncontrolled power of the
state is an implicit threat to civic freedom. Of the first, I would
say here only a word, since I have treated it fully elsewhere.[11] The
modern state is a sovereign state and, as such, there are large realms
of its conduct where wrong on its part cannot imply the invocation by
the citizen of penalty. The right to sue the state in tort seems to me
quite fundamental to freedom. The modern state is in essence a public
service corporation. Like any other body, it acts through servants who
take decisions in its name. I can see no reason in the world why, like
any other body serving the public, it should not be responsible for
the torts of its agents. If I am run over by the negligent driver of a
railway truck, I can secure damages: I do not see why I am not equally
entitled to damages if the truck is the property of, and is driven for,
the Postmaster-General of His Majesty.[12]
Public-domain text, read in full here on John Shaqi.
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