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mental authority, is itself dependent upon the express or implied approval of Parliament. Parliament, therefore, is in reality the supreme administrative authority; for through it alone in the form of public or private Acts—can the State express its will and prescribe a course of policy to local authorities either severally or collectively. But this form of parliamentary control is mainly exercised in response to the petitions and demands of local authorities in town, district, and county, or of private corporations like railway companies and gas companies. Parliament also exercises its supremacy by way of its executive committee-the Cabinet-and by motions made and questions raised with regard to the conduct of administration. Thus, so far as regards the rules and principles upon which it must proceed, local administration in England may be said to be almost completely centralised in Parliament. But this, as we have shown, is a very different thing from administrative centralisation as understood on the Continent. Within the limits prescribed by Parliament, every local representative body-itself a little Parliament and Cabinet rolled into one-manages its affairs as it likes, with only so much administrative supervision as is absolutely necessary to secure uniformity and prevent the general interests of the nation suffering from local eccentricity. The sovereignty of parliamentary law and of parliamentary government is perfected and crowned by the position of the Courts. Parliament makes the law, and Parliament, through the Cabinet, controls its execution; but the decisions of the Judges and Justices limit and direct the operation of the law, fit new statutes into their proper context, and set limits upon the activity of the local authorities, so that they may neither fail to perform their duties nor strain the powers assigned to them by Parliament. As Parliament is in history and theory the sole creator, so the English judicature is the sole interpreter of a sovereign law. Thus the system of local government, created and continually regulated by Parliament, is under the uniform control of the ordinary Courts which interpret and enforce the rules of administration prescribed in public and private Acts.

BOOK III

CRITICAL

BOOK III

THE THEORY AND CRITICISM OF ENGLISH
LOCAL GOVERNMENT

CHAPTER I

GENERAL AND INTRODUCTORY

THE descriptive and expository parts of our work are now finished, and all that remains is to consider theoretically and critically the conclusions which have been reached. And in this task we shall be concerned almost exclusively with German writers, for reasons already explained in the introduction.

The Science of Public Law,' as understood and expounded by German jurists, cannot be said to exist, much less to flourish in England. To the English mind the rights of the State are not generically different from the rights of its individual members. Constitutional law is a part of the whole law of the land, and can only be expounded as such. For constitutional freedom broadened, pari passu with the freedom of the individual "slowly down from precedent to precedent." Many principles of constitutional law were established, or at least enunciated by the Courts. Others again belong to the customs of Parliament, and demand a study of parliamentary history and parliamentary procedure. From these sources, even more than from parliamentary statutes, must a theoretical knowledge of the law and custom 1 Staatsrecht wissenschaft (droit public).

Practical character of

and law.

of the English constitution be drawn. Abstract doctrines about the State and its Right, about the relation of law to ordinance, about the existence and limitations of "subjective public rights," dogmatical excursions upon "State-government" and "Self-government," upon statutory rules and statutory commands, fine-spun controversies as to whether the State should be regarded as a person, as an organism, or better still perhaps as a legal apparition,—all these are favourite topics of German jurisprudence; but few are intelligible to English lawyers, and even those few are seldom discussed. The reason may well be that Englishmen have English politics never really felt it necessary to find a philosophic basis for their rights and their polity, least of all in modern times. English politicians and learned men have never paid their addresses to the metaphysic of law and government; for centuries past they have preferred to treat questions about the rights of the State as practical problems of politics or of law. In all their great constitutional struggles both sides have handled the controversy as if it were dry law. And so the admirable but far from voluminous literature in which Englishmen of learning have handled their own constitution has been wholly devoted to practical aspects of law and government. To speak of modern times only, Dicey's brilliant work, so often cited in these pages, and the writings of Todd, Erskine May, Hearn, Bagehot, and Anson, all excellent in their way and degree, are examples of the general tendency. True, by the side of this practical constitutional law there has sprung up in England a certain sort of political science, which may serve as a set-off to the political erudition of a German university. To this English literature of political philosophy belong to speak again only of modern writings-the works of Mill and his friends, of T. H. Green, Lecky, Bryce, Frederic Harrison, Henry Sidgwick, Seeley, Pollock, and other younger men, who, however, almost invariably criticise political institutions and ideas from the standpoint of the utilitarian, the moralist, or the sociologist.1 Of an abstract legal theory about the State, England, as has been said, remains uninformed; and accordingly, as the greater includes the less, English juris

1 Of those above mentioned, Green is nearest to the German or metaphysical school; Sidgwick is the most academic.

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