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After reading this article you will learn about the functions of government and their organs.
The word ‘function’, in its political application, may be said to have two senses. It has the sense of purpose or aim, as when we say that the function of government is the maintenance of a scheme of law, or the service of rights, or some other such purpose or aim.
It has also the sense of a particular mode of action, or a special kind of activity, by means of which a government seeks to fulfill its general purpose; and from this point of view we speak of the legislative, the judicial, and the executive function.
In the first of these senses, that of purpose, the course of the argument has led to the conclusion that the fundamental function of government is that of the service of Right. If we look at Right as ‘objective’, and as expressed in the external form of a body of general rules, we shall say that it is the function of government to render service to Right by translating social thought about the right order of human relations into a system of recognized and enforced law.
If we look at Right as ‘subjective’, and as expressed in the form of rights which belong to persons or ‘subjects’ as their shares in objective Right, we shall say that it is the function of government to render service to rights by adjusting them to one another and removing obstacles to their enjoyment.
In either case, and whether we regard the function of government as the service of Right or the service of rights, we shall say that the function of government is limited; limited by, and to, a service which it cannot transcend, a service which is the cause of its existence and the justification of all its action.
On the other hand, just because it is service, and limited to being service, the function of government is also constantly growing. Since social thought about the right order of human relations is growing thought; since, in consequence of that growth, the system of Right and the rights of persons necessarily grow; since, in consequence of that growth, the service owed by government to securing the enjoyment of rights also necessarily grows; it follows that the function of government, even while it is limited to service, must be a growing function.
All that has hitherto been said, about the extension of rights of persons involves a consequent and connected extension of the function of government.
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Turning now to the second of the senses of the word ‘function’ in its political application, the sense of a mode of action or a kind of activity, we may begin by laying it down that there is always one great and general mode of action which government is bound to follow. It is the mode of proceeding by general rules of declared law backed by enforcement.
Here again we may notice in passing that government is limited; limited by its general mode of action as well as by its general purpose; limited to acting by the one method of enforceable general rules, and limited therefore to acting in that sphere of acts of external conduct in which alone it is possible to enforce a general rule by means of an act of external compulsion.
But within this great and general mode of action, to which government is limited, and by which it is limited, we may now proceed to distinguish particular modes of action, or special kinds of activity. They are commonly held to be three: the legislative, the judicial, and the executive.
At this point, however, there emerges something of a confusion of terms. Sometimes the three are described as ‘functions’; sometimes they are described as ‘powers’ (pouvoirs); sometimes they are regarded and described as ‘organs’. Before we attempt to consider them, or to discuss in what sense and to what extent they are or ought to be separate, and in what sense, and to what extent, they merge or should merge into one another, we shall do well to clarify our terms. What do we mean when we speak of the legislative, the judicial, and the executive, and what is the noun we imply when we use these adjectives?
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We may identify, for our purposes, the term ‘function’ and the term ‘power’. A mode of acting, which is the specific sense of ‘function’, is nothing very different from a faculty of acting, which is the specific sense of ‘power’. But we must distinguish both of these terms from the term ‘organ’. A function or power, such as vision, is one thing: an organ, such as the eye, is another.
On this basis we may proceed to argue that while we may sometimes, or even generally, use one organ for one function and one function only, yet there is nothing to prevent us from using one organ for a number of functions, provided that it can perform them, and provided again that they are best performed by being held together and interconnected in that one organ. This may seem to be an abstract and even irrelevant argument.
In fact it has a definite and practical bearing on the political doctrine and practice which goes by the name of ‘separation of powers’ (la separation des pouvoirs). This was a doctrine expounded by Montesquieu: it was also an axiom incorporated in the French Declaration of Rights of 1789, which lays it down that ‘a society in which the separation of powers is not fixed has no constitution’.
But what is this ‘separation of powers’? Does it only mean and involve a distinction of modes of action, and is that its essence? Or does it also mean and involve a distinction of organs of action; and, if so, is each of the different organs confined and limited to one mode of action, so that none of them can possibly act except in a single mode, and each of them is entirely debarred from acting in the mode or entering the province of the others?
Separation of powers must certainly mean a distinction of modes of action. There is a mode of action for legislation, which is a distinctive mode with its own technique; a mode at once deliberate and deliberative; a mode which proceeds slowly and proceeds by debate, with ‘reading’ succeeding to ‘reading’ and one chamber succeeding to another.
There is a mode of action for jurisdiction, which again is a distinctive mode, with its own peculiar technique and its own particular rules of procedure; a mode which is critical rather than deliberative; a mode which mainly depends on a critical appreciation of the relevant rules of law, a critical sifting of evidence, and a critical weighing of the arguments tendered by the rival advocates.
Finally there is the executive mode, which is similarly a distinctive mode; a mode which proceeds with rapidity (at any rate in comparison with both the legislative and the judicial mode), and proceeds by way of decisions and instructions intended to follow out (exsequi) and give effect to the results of the legislative and judicial modes.
This distinction of modes is clear; and whether each mode has its own separate and special organ, assigned to it and confined to it, or whether there is less separation of the organs and less confining of each to a single mode, the distinction of modes remains. The legislative mode, with its separate technique, is one thing: the judicial is another: the executive another still.
But even if there is thus plurality of modes, there is also, we have to remember, a great and general mode of action which is common to the whole of government, and which blends the different modes in a unity of operation. Whatever the government does, and in whatever particular mode it acts, it always follows the general mode of acting by general rules of law formally declared and regularly enforced.
The fact of this unity stands behind the difference of particular modes; and it is obvious that this unity may affect and qualify the extent to which difference and specialization can properly be carried in the general conduct of government.
If ‘separation of powers’ thus means a distinction of modes of action, it also means, in any modern system of government, some sort of distinction of the organs of government. In early communities there may exist a single undifferentiated organ (the Anglo-Norman Curia Regis was of that order), acting in all the different modes, and simultaneously serving as a legislature, a judicature, and an executive. But in any developed community there will be a plurality of organs.
There will be a legislative organ, which may not, indeed, be wholly and solely confined to the legislative mode of action, but will certainly be primarily and mainly concerned with that mode; there will equally be a judicial organ, primarily and mainly concerned with the judicial mode of action, but not necessarily confined to that mode; and there will similarly be an executive organ, which may, however, be concerned with other modes of action beside the executive.
In a word we shall find three organs corresponding to the three different modes of action; but we may find none of the organs so absolutely specialized in its mode of action, or so entirely separate in its province, that it cannot also act in the mode and enter the province of the others.
It may be urged that the system just described, which combines a separation of modes of action (or ‘functions’ or ‘powers’) with a competence of each organ to act in more than one mode, is simply an inheritance from the past which is destined to disappear. On this view there has been an evolution from a primitive homogeneity, with little differentiation of modes and none of organs, towards heterogeneity and differentiation.
That evolution has brought an increasingly clear differentiation of modes; but it has still left, as a sort of historical relic, a considerable confusion of organs, with each organ still showing signs of an old undifferentiated past. There may be some truth in this view; but it may also be urged, with even more justice, that a system in which each organ proceeds by more than one mode, and is concerned with more than one function, is inherent in the general unity of the operation of government, and is thus far more than a relic.
In any case it is certain that such a system is still embedded in modern government; and it is also certain that, far from diminishing, it is constantly tending to increase. Instead of moving towards greater heterogeneity we are actually moving in the reverse direction.
The more complicated government becomes, and the greater the service which it has to render, the greater becomes the trend to a unity of operation, and the more each organ of government tends to proceed by more than one mode of action.
The judicial organ perhaps shows this tendency less than the other two. Indeed it may be said that the judicial organ is a critic rather than an example of the tendency; in particular it is a critic of what some of its members regard as the encroachments and ‘the new despotism’ of the executive organ, now reverting, in their view, to the antiquated practice of medieval monarchy, by which the King in Council was a judicial and even a legislative as well as an executive organ.
It is natural that a professional feeling should animate the legal profession, and should lead its members to vindicate the principle that a specific function is specifically reserved for the judicature and should not be exercised by other organs. ‘The Law’, in the sense of the Bar and the Bench, thus becomes the peculiar custodian of the doctrine of separation of powers, at any rate against executive encroachment.
But we have already had reason to notice that the judicature itself is an organ which is something more than judicial in the strict sense of that word. In addition to interpreting the law it also in some measure declares it: it has acted in the past, and it still acts in the present, by the legislative mode.
Just as the judicature may thus be said to exercise more than one function, so too may the legislature. The legislative organ in England was originally a body of mixed legislative and judicial competence, proceeding indifferently by both modes; and either House of Parliament is still a Court, if in different ways and different degrees.
Moreover, though the legislature does not act as an executive, or by the executive mode, it is everywhere brought into intimate contact with the executive, and it affects, if it does not control or determine, the action of the executive organ.
This is not only true—though it is true to a greater extent—in countries which have adopted and follow the cabinet system of responsible government, under which the executive organ is generally answerable to the legislature and dependent on its confidence; it is also true, if in a less measure, in countries in which the executive is independent of the legislature.
Finally, just as the legislature has been increasingly brought into contact with the executive by the modern evolution of government, and has come increasingly to exercise an influence on executive policy and action, so, conversely, the executive has also increased its scope, and has moved, or been drawn, into action proceeding not only by the executive, but also by the legislative and even by the judicial mode.
The development of the executive into what may be called a multi-functioning organ (or, in other words, an organ proceeding by all the three modes) is one of the most notable features of modern government.
If the growth of the legislative organ, in consequence of the development of the cabinet system, was the notable feature of the eighteenth century, it may be said that the growth of the executive organ, in consequence of the extension of rights and the corresponding extensions of services which mostly fall to the lot of the executive, is the notable feature of the twentieth.
Today the executive is not only an executive: it is also, at the same time, a legislature, and that in a double sense. On the one hand it suggests and guides the process of law-making by the legislative organ. It does so even under the American system of division of functions between the executive President and the legislative Congress; and it does so even more under cabinet systems such as the British.
On the other hand, the executive, apart from and in addition to its work of suggesting and guiding the process of law-making by the legislative organ, also acts itself as a legislature, when it issues supplementary rules of law in the form of ‘regulations’ and ‘orders’.
This power of the executive organ to issue supplementary rules of law is particularly evident in the sphere of the social services, and in matters such as housing and insurance; and it is to be noted that the power is often, and indeed mainly, exercised in virtue of a delegation of legislative power, made by the legislature itself, in a law which specifically authorizes an executive minister or ministers to supplement in detail its own more general prescriptions.
The same extension of services (and particularly social services), which has largely caused the growth of this executive legislation, in order to cope with all the detail necessarily involved, has also caused the growth of executive jurisdiction. But such executive jurisdiction, while it is similar to, is also different from, executive legislation. It is similar, in so far as it owes its origin to a similar act of legislative authorization.
A law about housing, for instance, which orders the clearing of slums, and therefore entails a decision, in any case of dispute, whether a given property belongs to the category of a slum and is therefore liable to clearance, may authorize an executive minister, as the person most likely to be familiar with the nature of the problem, to act judicially and give a decision.
On the other hand, executive jurisdiction is different, in one respect, from executive legislation. When the legislative organ confers a measure of legislative power upon the executive, it takes something away from itself; but when it confers upon the executive a measure of judicial power, it is diminishing not itself, but an organ other than itself. That is one reason, though not the only reason, why the growth of executive jurisdiction is a more serious matter than is the growth of executive legislation.
The notable tendency of the executive organ to become more and more multi-functioning is itself sufficient to disprove the idea that the evolution of government is in the direction of a greater heterogeneity and an increasing differentiation of the various organs of government.
On the contrary, the modern tendency would rather appear to be setting in the reverse direction. But though this tendency is a fact, it is also a problem, or a cause of problems. If the various organs overlap, and if some of them may enter the province and proceed by the modes of action which, primarily at any rate, belong to other organs, how is it possible for them to act amicably, without incessant disputes about boundaries and spheres?
Again, if the executive, takes to itself, or induces the legislative to allow it to take, both legislative and judicial powers in addition to its primary executive power, will not the rights of persons suffer from an authority so triply armed, and will not the principle of liberty be endangered by an overgrown and over-mighty executive?
It may be argued that the system works, and that the overlapping organs are able to act in unison, because one of these organs, the organ which is primarily concerned with the primary function of law-making, is the dominant and therefore the coordinating organ.
In other words the legislature, as being the immediate sovereign under the constitution and therefore possessing the sovereign power of making final adjustments, is able to determine boundaries and spheres between the executive and the judicature, and between them both and itself.
It may thus be said to secure a unity of operation in a system of different overlapping organs. But there is another factor which must also be present, in addition to the coordinating and adjusting activity of the legislature, if a system of multi-functioning organs is to work without friction and without detriment to liberty.
Each of the organs, when performing a function or proceeding by a mode additional to its own specific function or mode, should act in the way and according to the technique appropriate to the function or mode thus added. If the executive, for example, is vested with judicial power, and accordingly performs the judicial function and proceeds by the judicial mode, it must really and actually proceed by that mode; and discarding the technique of executive action it must adopt and follow, as far as possible, the proper and peculiar technique of judicial action.
It must accept the procedure of a public hearing, with a proper confrontation of witnesses according to the regular rules of evidence: it must publish its decision and the reasons for its decision: it must also admit, if it possibly can, the possibility of appeal.
The result will be that the distinction of modes will still be observed, even if there is not a separation of organs; and the executive organ, when acting judicially, will cease to follow the executive mode and adopt instead the judicial.
Granted these two conditions—the coordinating and adjusting activity of the sovereign legislature, and the observance of the distinction of separate modes even when the distinction of separate organs ceases to be observed—we may accept the contemporary tendency towards the confusion or overlap of multifunctioning organs.
But this is not to deny the justice and the propriety, for its time and under its conditions, of the eighteenth- century doctrine of the separation of powers. That doctrine was developed by Montesquieu in reference to French conditions.
It was relative to the contemporary French facts of an overgrown royal executive organ; of the suspension of any legislative organ, and the substitution of executive decrees for legislative enactments; of the subordination of the judicial organ (the parlement of Paris) to the sovereign appearance of the King in person when he sat in a lit de justice.
Under these conditions Montesquieu could argue, fairly enough, that with the executive claiming to do all things, confusing all the modes, and making its will the canon of Right and controller of rights, it was only possible to clarify confusion and to vindicate rights by asserting the titles of two other organs, the legislative and the judicial, to a separate existence and a separate power of acting independently by their own proper modes.
In favour of such an assertion he could also plead, fairly enough (even if he was necessarily unaware of the nascent English system of responsible or cabinet government, and of the close connexion thereby established between the executive and the legislature), that the government of England was an example of the principle of separation of powers.
The case is altered today; but if the facts are different, the principle, in its essence, remains. There is bound to be confusion, and there is bound to be a menace to rights, if it is not, in some way, observed. But that way, under our conditions, is now a different way.
Today we have in all countries, at any rate formally if not always in fact, the three separate organs which Montesquieu desired. But we have also something more than, and something different from, what he desired. There is in Britain (and there is also in other countries, in various ways and different degrees) an overlapping and an interlacing of the separate organs of government.
The legislature does something more than legislation; the judicature does something more than adjudication; and the executive, in particular, does something more than executive action.
But we get a co-ordination of what might seem to be confusion by the action of a dominant and sovereign legislature; we preserve a distinction of modes even if we do not maintain a clear separation of organs, and by that distinction of modes we preserve liberty and the rights of persons; and, finally, lest it succumb to the corruption of absolute power, we set bounds which it cannot overpass even to the sovereign legislature.
These bounds of the sovereign legislature are many and various. Some of them need only be summarized here. In the first place, the legislature, by its nature, is simply an organ of the legal association, or in other words the State; but besides the State and its legislature there is also Society and its social organs, with all the general play of voluntary social activity which proceeds, in the main, independently of the State.
Secondly, the legislature, like the whole of government, is limited both by the purpose it fulfils and by the mode of action it follows: the purpose of serving Right and the rights which issue from Right, and the mode of action which consists in proceeding by general rules of law relative to and enforceable in the sphere of external conduct.
Thirdly, the legislature is an organ of government acting in and under a general system of democracy, which proceeds by the method of discussion and thus reflects and repeats, at the political level, a process of debate which is already at work in the social area.
Being an organ in such a system it may be said to be doubly limited, first by the play of social debate and the growth of common conviction which are precedent to its own action, and secondly by the existence of other forces and foci of discussion (party and the electorate on the one hand, and the cabinet on the other) which are concurrent with its action, and to which its action must be adjusted in some sort of balance and with some measure of mutual respect.
But there is a still further limit on the legislature which demands our consideration. This is the limit imposed by the development and the activity of political parties. The legislature has not only to respect the system of political parties as a force and focus of discussion parallel to and concurrent with itself. It has also to respect the system as something within itself; something by which its motion is internally affected and qualified.
The democratic method of government, being as it is in its essence a method of government by discussion, necessarily requires a plurality of parties as a condition and sine qua non of discussion.
The legislature, as a representative body reflecting in its own composition the plurality of parties in the national community, is inherently limited by the fact of that plurality, and is bound by the necessity, which arises from it, of attaining such measure of common agreement as is required for any united action proceeding from the whole body.
It may be objected that no common agreement is required; that the majority party, or combination of parties, can simply overbear the minority and force it to acquiesce; and that a majority-vote is thus sufficient to ensure the united action of the legislative body. The objection does not hold; and the operation of a representative legislative based on a plurality of parties is more than a matter of counting votes and then doing a sum in subtraction.
Whether the parties are only two, or more than two, they generally arrange themselves in two sides (there may be many parties, but there can be only two sides)—the side of the party or combination of parties which supports the executive government or cabinet, and the side of the party or combination of parties which opposes that government.
The government side, under normal conditions, does not simply outvote and overbear the opposition side; nor is the opposition side always waging a war in which it is always defeated. The two sides are indeed engaged in the conflict of debate; but they are also engaged in the co-operation of managing the nation’s business together.
The conflict is public: the cooperation, which is unacknowledged and may even be unconscious, is hidden in the background. But it is always there. The two sides must, at the least, attain some agreement about the conduct of the current business of legislation. They must, in a grave emergency, whether of peace or of war, attain some agreement about the conduct of the general business of the nation.
But even without an emergency, and even in normal conditions, they must always attain some agreement which goes beyond the conduct of current business and the routine of daily procedure.
They must, in regard to all major measures of proposed legislation, endeavour to achieve some sort of compromise which is likely to command the general consent and to be endorsed by the common conviction of the whole community, and which is therefore likely to last even after a change of government, and even when the government side has been succeeded in office by the side now in opposition. This is the price of continuity, and continuity, in its turn, is the price of peaceful progress.
We may accordingly say that the legislature is two as well as one, and that it is inherently limited by the fact that the two have to act as one. In other words a joint effort—an effort of construction on the one side and of constructive criticism on the other; an effort which combines contradiction with co-operation—is involved in the double nature of the legislative body.
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The necessity of this joint effort is an internal limit; and the separation of the two sides of the legislature, thus at once opposed and conjoined, is the return in a new and different form of the old eighteenth-century system of separation des pouvoirs.
We do not indeed now separate, or seek to oppose and balance, the executive and legislative organ: on the contrary we unite them together in a system of responsible government which brings the executive into the legislature and enables either to affect the other in a constant interaction. But within this union and interaction we retain separation and maintain a balance.
We retain a separation of two sides and the leaders of the two sides (the head of the Government and the leader of the Opposition): we maintain a balance in the sense that we require both sides and their leaders to adjust their claims and accommodate their policies in a compromise which eventually may command our general consent.
Thus the end of the argument on the functions of government is at once in favour of union and in favour of separation. You may unite the executive with the legislature; but when you have done so you must provide some element of separation and balance within that union.
Again, and from another point of view, you may set your executive organ to act not only by the executive mode of action, but also by the judicial (in the exercise of executive jurisdiction) and in addition by the legislative (in the shape of executive legislation); but again when you have done so, and when you have thus united three modes in a single organ, you must ensure that there is also separation, and that the one organ uniting the modes nevertheless acts separately, and acts by a separate procedure, in each of the different modes. Union, but also separation—such is the rule which, in this way or that, is always imperative in the discharge of the functions of government.