Answering the wrong question

Published by Tom

February 28, 2009

Continuing to liveblog the Convention on Modern Liberty, I attended the session called "Judges and politicians; who decides?" I wanted to hear an intelligent discussion about the separation of powers. In my view, that is the element of our constitution which is broken. However, it has not fractured along the line between the judiciary and the rest. The judges are doing their constitutional job (which in Britain is not very much). The part of our constitution that is not working is the separation of powers between the legislature and the executive.

In our system, Parliament is sovereign, but the wise men of our history never foresaw the day when the executive would subjugate the legislators. Sir Geoffey Bindman put his finger on it when – referring to another speaker's list of New Labour's liberty-destroying laws – he observed that the question we need to answer is "How did the Government get away with it?" The answer, surely, is that the political parties have taken control of candidate selection and eliminated all the "difficult" people who might stand up to power. Then they have taken the resulting rabble of mediocrities and whipped it mercilessly. Lord Bingham commented that Parliament is "the only watchdog" of our liberties. The watchdog, sadly, is a spoiled poodle fed and groomed by the executive.

Lord Bingham, by the way, was splendid. He spoke cogently and (by the standard of judges) quite passionately. Ex-Attorney General Lord Goldsmith contrasted very badly with him. As someone commented during lunchtime analysis at the nearby pub, it was hard to tell if he believed the nonsense he was spouting, or was just toeing the party line. I suspect he has long stopped making the distinction.

My shock at spending the morning surrounded by Guardian readers was somewhat soothed by a lunchtime drink with more libertarians than I have ever previously been able to shake a stick at. And I have DK's contribution to look forward to. If he is on form, we may hope for some apoplectic Guardianistas.

4 responses to “Answering the wrong question”

Deogolwulf

March 3, 2009

“the separation of powers . . . is the element of our constitution which is broken. . . . The part of our constitution that is not working is the separation of powers between the legislature and the executive.”
Such seperation was never strongly fixed in the first place, except perhaps in feudal times. The belief that it has properly existed in modern times is owed mostly to Montesquieu’s idealised “description” of the British constitution. The legislature and the executive has become ever less and less since the “glorious revolution” of 1688 (a year before Montesquieu was born) when parliament resumed the process of the usurpation of the monarchical (executive) power. Nowadays, the prime minister and his cabinet (the executive) are the heads of the dominant party in the legislature. Hardly seperation! (The monarch is now an historical remnant in a de facto near-republic.) Moreover, we have to suffer the persistent belief that the seperation of powers is a democratic-republican ideal. But, of course, under a democratic-republican ideal, there can be no separation of powers, since that would constitute a division and a partial opposition to the indivisible and unopposable “democratic will”.
“the wise men of our history never foresaw the day when the executive would subjugate the legislators.”
Yes they did. Again. Again. And again — from the seventeenth century even down to the beginning of the twentieth. It was a prominent fear. That most of them are now obscure names speaks much about who won; but then what avails against the democratic-republican impulse?

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Deogolwulf

March 3, 2009

Oops – should read: “The seperation between the legislature and the executive has become ever less and less . . .”

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Tom Paine

March 3, 2009

I get much more interesting comments when I am wrong. Yes, I confused the world as it is with the world as I think it should be. To my mind, democracy is a means, not an end. It is a method of selecting men and women to conduct the business of the legislature, which – properly understood – must be limited. There is a private domain, where government has no place. There are limits to useful state intervention. And then there are ethical factors. I cannot accept that a 99.99% vote in Parliament to order me hunted to death by hounds would be good law, for example. I guess, since I studied jurisprudence, I have mutated from an “American Realist” into a believer in “Natural Law”. I hope that we might agree that the legislature, executive and judiciary should be separated? And that at present the judiciary is (though not as much as I would wish according to insider friends who tell me it has been thoroughly packed with leftists in the last 11 years) but the executive is not. As to the historical aspects, I can only thank you for the correction.

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Deogolwulf

March 3, 2009

Mr Paine,
“There is a private domain, where government has no place. There are limits to useful state intervention. And then there are ethical factors. I cannot accept that a 99.99% vote in Parliament to order me hunted to death by hounds would be good law, for example.”
Here we are in complete agreement, but few would disagree, and the problem is not so much that few men want freedom, each for himself, but rather that many are either ill-disposed to guard against that which will damage it, or that they choose means to achieve it that inadvertently thwart it.
A man does not typically invite the government to enter his private domain to thwart his freedom, but to increase it, or so he believes, nor does he typically support the passing of laws that would be terrible for him. Almost everyone interprets freedom in his own terms, and would like thereby to be totally free. Factored by tens of millions, and under the aspect of an anti-authoritarian and liberating ideal, this has profound effects. Once society has been liberated from all its authorities and strictures, and when thereafter power is exercised centrally and semi-anonymously on behalf of this “free society”, it is almost inevitable that society and state will become increasingly governed as one entity. Nothing remains that can stand against this development. And each man seeks freedom from the bulk of the rest, and consequently, the degree of freedom of almost everyone is reduced. We were somewhat doomed on the very day that liberty as a political slogan first rang out. It was, of course, a cry for power. And it is an insatiable desire.
I should like to see a strict and vital government of the state, but clearly demarcated and much limited in scope. (On the ideal of the scope of centralised government, I am probably more extreme than most libertarians, but I would not myself say I am a libertarian. Indeed, I am an authoritarian. I would have dear old Charles the First back in a flash.) Government has to be visible as government, visible for what it is rather subsumed under a cloud of mendacity and deception, some of it self-imposed. The governed have to understand truly that they are governed, rather than allowing their sense of reality of that fact to be dissolved by pleasing but absurd demands for “their” government. What we see today is essentially a morbid and decadent government of the state which is bloated into all domains and which stifles the life out of everything.
As to whether the legislature, executive and judiciary should be separated, I shall say only that it is a complex question; for at least one of its factors is that “ought” implies “can”, and it is by no means obvious that power can be prevented from assuming all the functions within its domain, especially in the popular-oligarachic-managerial states of today. Nevertheless, we agree, I suspect, that it is better that power be more diffused into limited domains.
Having said all that, however, I do, of course, humbly bow to your superiority on the matter of jurisprudence, and did not mean to appear impertinent.
Yours,
D.

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