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PUBLISHED ON THE FOUNDATION

ESTABLISHED IN MEMORY OF

THEODORE L. GLASGOW



6 114 14



AUTHORITY IN THE
MODERN STATE



BY
HAROLD J. LASKI

SOMETIME EXHIBITIONER OF NEW COLLEGE, OXFOHD:

OF THE DEPARTMENT OF HISTORY IN

HARVARD rNlVEHSITY




NEW HAVEN
YALE UNIVERSITY PRESS

LONDON • HUMPHREY MII.FORD • OXFOHD tTNIVERSITY PRESS

MDCCCCXIX'



S^^T^



Copyright, 1919, by
Yale University Press



First published, March, 1919
Second printing, November, 1919



c
U33



a.



THE

THEODORE L. GLASGOW

MEMORIAL PUBLICATION EUND



The present volume is the tii-st work published by the
Yale Uuiversity Press on the Theodore L. Glasgow Memorial
Publication Fund. This Foundation was established Septem-
ber 17, 1918, by an anonyniotis gift to Yale University in
memory of Flight Sub-Lieut. Theodore L. Glasgow, R. N.
He was born in Montreal, Canada, May 25, 1898, the eldest
son of Eobert and Louise C. Glasgow, and was educated at
the University of Toronto Schools and at the Royal Military
College, Kingston. In August, 1916, he entered the Royal
Naval Air Service and in July, 1917, went to France with the
Tenth Squadron attached to the Twenty-Second Wing of the
Royal Flying Corps. A month later, August 19, 1917, he was
killed in action on the Ypres front.



TO
MR. JUSTICE HOLMES

AND
FELIX FRANKFURTER

THE TWO YOUNGEST OF MY FRIENDS



I AM tempted to believe that what we call necessary in-
stitutions are often no more than institutions to which we
have grown accustomed, and that in matters of social
constitution the field of possibilities is much more exten-
sive than men living in their various societies are ready

to imagine.

Recollections of de Tocqueville,
Page 101.



PREFACE

THIS volume is in some sort the sequel to a book on the
problem of sovereignty which I published in March,
1917. It covers rather broader ground, since its main
object is to insist that t he pr oblem of s;u\-er(>ignty is only a
special ease of the problem of authority, and to indicate what I
shmiTd regard as the main path of approach to its solution.
Where, therefore, the previous studies were, in the main, nega-
tive and critical, this book is positive and constmictive. In the
main, the evidence upon which its conclusions are based is
French. That is because an earlier study of de Maistre con-
vinced me that it is in France, above all, that the ideals I have
tried to depict are set in the clearest and most suggestive light.
I had originally intended to follow this volume by a third
essay on the political theory of the ConciUar Movement. But
it now seems to me more useful to attempt a definitely con-
structive analysis of politics in the perspective set by the first
chapter of this present volume. Accordingly I have planned
a full book on the theory of the state which I hope to have
ready within a reasonable time.

For so modest a volume this book, like its predecessors, has
debts too immense to go without acknowledgement. Among
the dead, I would like to emphasise how very much I have
learned from Acton and Maitland; their writings have been
to me a veritable store-house of inspiration. Among living
men, I owe much to Professor Duguit of Bordeaux, to Dr.
Figgis, and, in spite of, and perhaps because of, our differences,
to Professor Dicey. My old tutor, Mr. Ernest Barker of New
College, is the unconscious sponsor of this, as of my earlier
book. Indeed, if it has merit of any kind, it is to the teaching
of politics in the Modern History School at Oxford that I would
ascribe it.

Friends have been generous in their counsel. My colleagues.
Dean Pound and Professor McIIwain, have been untiring in
their constant encouragement; and from Dean Pound's own



14 PREFACE

writings, soon, one may hope, to be collected in some more
permanent form, I learned the value of a j)ragmatic theory of
state-function. My friends of the New Republic, particularly
Mr. Francis Hackett, and Mr. Herbert Croly, have given me
generous assistance. Mr. Graham Wallas has lent me great
aid by friendly and suggestive counsel; and I found his "Great
Society" an invaluable guide to many difficult paths. To an
unknown critic in the London Times I owe the debt that keen
comment must always create.

But the great obligation of the book is to Mr. Justice Holmes.
It goes too deep for words; and I can only emphasise my con-
sciousness that I shall never know how much I have in these
years learned from the talks we have had and the letters he has
written. They are things that come but once or twice in a
lifetime.

One more personal word the reader will perhaps allow me.
I began my other book with a sense that it might give pleasure
to my friend A. R. Herron. He was killed before I could finish
it. This book would have gone to my friend Frank Haldinstein,
scholar, of Christ Church and captain in the Royal Engineers.
But his name, too, has been added to the list on which the
Oxford of my generation will, with undying pride, write those
of Arthur Heath, of Nowell Sievers, and of A. D. Gillespie —
all of them of New College. When I look back on certain magic
nights at Oxford and re-read these pages in the light of their
memory, I realise how halting they are compared to the things
they would have said. But I take it that for them the one
justification of this conffict would have been the thought that
we who are left are trying in some sort to understand the
problems of the state they died to make free. To have known
them was an education in liberty.

Lastly, as also firstly, every page of this book has in it the
help my wife has given me. But to do more than mention that
is unnecessary for either of us.

HAROLD J. LASKL

April 21, 1918.

Harvard University.



CONTENTS



Chapter One: AUTHORITY IN THE MODERN STATE

I. The Origins of the Modern State

II. State and Government

III. The Nature of Obedience

IV. The Limitations of Power
V. The Attack on the Secular State

'' W. The Division of Power

Vn. The Organisation of Power

VIII. The Significance of Freedom

IX. The Direction of Events

X. Conclusion



Chapter Two: BONALD

I. The Implication of Theocracy

II. The Basis of Traditionalism

III. The Political Theory of Bonald , .

IV. The Attack on the Individual
V. Implications of the Attack .

^ VI. The Religious Aspect of the State

u VII. Criticisms ....

VIII. The Revival of Traditionalism

IX. The Traditionalism of M. Brunetiere

X. The Traditionalism of M. Bourget

XI. The Significance of Variety

Chapter Three: LAMENNAIS

I. The Problem of Lamennais

II. The Church in the Napoleonic Age

III. Early Ultramontanism

IV. The Glorification of Rome .
i V. The Attack on the Secular State

VI. The Transition to Liberalism

VII. The Foundation of L'Avenir

\lll. The Appeal to Rome .

IX. The Condemnation

X. The Red Cap on the Cross .



16


CONTENTS




XL


Implications .....


. 259


XII.


The Inheritance ....


267


XIII.


Conclusion .....


280


Chapter Four: ROYER-COLLARD




I.


The Significance of the Restoration


281


II.


The Theory of the Charter .


287


.III.


Necessary Freedoms . . , .


293


IV.


Implications .....


301


V.


Ethics and Politics ....


310


Chaptek


Five: ADMINISTRATIVE SYNDICALISM IN




FRANCE




I


The Right of Association


321


II.


The Complaints of the Civil Service


326


III.


The Claims of the Civil Service .


. 336


IV.


Implications .....


. 342


V.


The Attack of the Jurists


. 353


VI.


The Attack of the Politicians


. 365


VII.


The Movement Towards Reform


376



Appendix: NOTE ON THE BIBLIOGRAPHY OF LA-
MENNAIS . . . .388



Index



391



AUTHORITY IN
THE MODERN STATE



CHAPTER ONE

AUTHORITY IN THE MODERN STATE

I. THE ORIGINS OF THE MODERN STATE

M AN is a community-building , anim al : it is by reverent
contact with Aristotle's fundamental observation that
every political discussion must now begin. We start
with the one compulsory form of human association — the state —
as the centre of analysis. Yet there are few subjects upon
which enquiry is so greatly needed as upon the mechanisms
by which it lives. Outside our state-context we are, after all,
largely uninteUigible, must be, as Aristotle so scornfully pro-
claimed, beasts or gods who defy interpretation. Even in
birth we inherit the qualities of unnumbered generations so
that a bias is present before ever it has obtained expression.
This emphasis upon state-life has become more vital as the
scale of existence has become progressively greater. To the
unity of interdependence, at least, the world has been reduced,
so that, today, the whim of a New York milUonaire may well
affect the lives of thousands in the cotton-mills of Bombay.^
Not that state-history can in any adequate sense be made
the biography of great men. We can even less today accept
the epic-theory of Carlyle than that so characteristically con-
tributed by Bolingbroke to Voltaire when he found in the
interplay of personal fantasy the true source of events. Not,
of course, that history will ever be an exact science in the
sense that exactness belongs to mathematical enquiry. It is
only magnificent sciolists like Machiavelli who dare to look
upon history as an endless cycle. For most it will mainly
be what Thucydides strove to make of it — the great store-
house of political wisdom. For all history that is not merely
annalistic must lead to the formulation of conclusions. It has
in it the full materials for a state-philosophy simply because

1 G. Wallas, "The Great Society," p. 3 f.



20 AUTHORITY IN THE MODERN STATE

the evidence we possess so largely relates to political life.
From Aristotle down to our own time the one constant eJRfort
has been the determination of the conditions upon which that

^ life should be lived. And, where the effort has been most
"fruitful, it has been induction from experience. Systems have
helped us little enough. The vague ideal of a revolution, the
chance phrase of an orator, the incisive induction of some
thinker more deeply-seeing than the rest — it is upon these
that, for the most part, our creeds have been builded. The
sources of our principles are as varied as human experience
simply because there has, from the outset, been no large tract
of human life with which the state has not concerned itself.

Certainly the state has about it the majesty of history; and
it is old enough to make its present substance seem permanent
to the mass of men. It has become so integral a part of our
lives that the fact of its evolution is no longer easy to re-
member.2 It has almost passed beyond the region where
criticism may enter by reason of the very greatness of its

^mission. Aristotle's formula for the expression of its purpose

' has lent it a great, if specious aid. The realisation of indi-
vidual virtue in the common good^ is a conception fine enough,

^^ in all conscience, to suffuse with a glamour of which the treach-
ery is too late discovered the processes by which it moves along
its way. The conception is yet inadequate becaase it fails to
particularise those upon whom it is intended that benefit shall
be conferred. Aristotle himself had certainly what the modern
age would regard as an impossibly narrow conception of citizen-
ship f and Plato's virtue is so confined to the special experiences
to which it is annexed as to limit to but few the full enjoyment
of capacities.^ The nature of the state, moreover, has become

^ A book that would do on the grand scale what Mr. Edward Jenks so
briUiantly attempted in his "Short History of Politics" is badly needed;
but it would need the learning of Lord Acton combined with the large
vision of Mr. Graham Wallas to write it.

»Cf. T. H. Green, " Collected Works," Vol. II, pp. 550-1.

^"Pohtics," II, 5. 12G4b.

^ Cf. the admirable remarks of Mr. Barker in his "I'oUtical Thought
of Plato and Aristotle," p. 113. I think his argument is even more strongly
reinforced when the attcmjjt of the Meno to specialise apery] into a purely
functional quality is remembered.



AUTHORITY IN THE MODERN STATE 21

so intimately involved with that of society that we tend, like
Hegel, to speak of it less in terms of logic than of rhapsody.^

Yet the very fact that it has a history should surely make
us cautious. The state is no unchanging organisation. It is
hardly today either in purpose or in method what it was to the
Greek philosophers, or to the theologians of the medieval time.
The medieval state is a church; and the differentiation of civil
from religious function is a matter of no slight difficulty.' In
the form in which it becomes immediately recognisable to our-
selves the modern state is, clearly enough, the offspring of the
Reformation, and it bears upon its body the tragic scars of
that mighty conflict. What it is, it has essentially become by
virtue of the experience it has encountered. Upon its face is
written large the effort of great thmkers to account for the
unique claims it has made upon the loyalties of men. Nor is
their thought less clearly present, even if it be but by impli-
cation, in the policy of those who have directed political
destinies.

The modern state, we urge, is the outcome of the religious-
struggle of the sixteenth century; or, at least, it is from that
crisis that it derives the qualities today most especially its own.
The notion of a single and universal authority commensurate-
with the bounds of social life was utterly destroyed when Luther
appealed to the princes in the interests of religious reform.
External unity was destroyed to be replaced by a system of
separate unities and the weapon of divine right was the instru-
ment he forged to that end.^ What, virtually, he did was to
assume the sacredness of power, and thus, by implication, the
eternal rightness of its purposes. He builded better than he
knew. The religious disruption synchronised with the full

« Cf . " Philosophy of Right " (trans. Dyde), p. 278. The very brilliant
paper of Mr. Bosanquet printed in the International Crisis, p. 132 f.,
hardly speaks a different language. Cf. also the amazing citation from
Sir Henry Jones in J. A. Hobson, "Democracy after the War," p. 118.

^ As Dr. Figgis has very brilliantly shown, " Churches in the Modern
State," Appendix B.

^ Or perhaps rediscovered. The political theory of the early fathers
never, of course, dissented from the sacredness of secular power. It is only
in the excitement of the investure controversy that its indirect derivation
began to be seriously urged.



22 AUTHORITY IN THE MODERN STATE

realisation of national consciousness in Western Europe, and
the modern state is clearly visible as a territorial society divided
into government and subjects. The great preamble to the
Statute of Appeals^ — the one statutory example of Enghsh
Byzantinism — is no more than official announcement that the
Enghsh state permits no question of Henry's complete sover-
eignty. Government, for the most part, was roysd ; for over the
free towns of Germany, and the Italian cities, was cast the du-
bious cloak of imperial suzerainty, Holland had not yet arisen
to suggest the problems of a sovereign republic.

But state and society are not yet equated. That is the work
of the thinkers of the Counter- Reformation. The church might,
as in England, assume a national form; but rehgious difference
went deep enough to limit state-absorptiveness. France learned
a partial toleration from the misery of civil war; and almost a
century of social and economic confusion was necessary before
Germany took a similar road. Not that this early toleration is
at all complete; it is bcrn too painfully for that. It is, at most,
the sense of the French politiques that the state must not perish
for religion's sake. It admits the impossibility of maldng men
sacrifice their consciences upon a single altar. The task of con-
viction was no easy one, and the lesson was only partially learned.
Europe, in what at least the medieval thinkers deemed most
fundamental, had become accustomed to unity of outlook.
Unity of outlook was secured by reference of power to a single
centre. The partition of Western civilisation into a medley of
religious systems developed problems of the first importance.
A man might owe allegiance to Rome in one set of opinions and
to London in another. He might think as Pius V bade him in
matter of transubstantiation, and in those great political ques-
tions of 1588 take the fleet into the English channel against the
papally-approved might of Spain. Your Catholic might be a
member of the English state, but there was always, for him a
power outside. For some, it might preside over all indirectly;^"
for others it might only in its own sphere be supreme. But,
where conflict came, men like Parsons would show that to

9 25 H. VIII, c. 19.

^o As the Jesuits argued. Cf. Figgis, "From Gerson to Grotius" (2d ed.),
p. 203 f.



AUTHORITY IN THE MODERN STATE 23

attack the state was not an onslaught on the fabric of society."
• Thus, from the outset of its modern history, the problem is
raised as to the authority to be possessed by the state. Not
Romanists alone doubt Its absoluteness. Archbishop Whitgift
set the keynote to the temper that is turned into theory. He
was by nature inapt to grasp the niceties of political meta-
physics, and a Presbyterian theory which, like that of Cart-
wright, struck at the root of state-omnipotence aroused him to
fierce anger. ^^ From the threshold of the seventeenth century
what the state demands is the whole of man's allegiance lest,
in seeking less, it should obtain nothing. James I had at least
a logician's mind. Aiming at supreme power for the state he
deemed himself to personify, he could not doubt that Presby-
terian structure was subversive of his whole position. If the
ultimate seat of authority were not with himself, he seemed
already on the threshold of anarchy. The only difference be-
tween Parliament and the Stuarts was as to the place in which
that supreme power resided; and Parhament made the Civil
War the proof of its hypothesis. Hobbes only got his volume
printed under the Commonwealth because it conveniently
applied to any form of despotism.

The medieval worship of unity,^^ in fact, is inherited by the
modern state; and what changes in the four centuries of its
modern history is simply the place in which the controlling
factor of unity is to be found. To the Papacy it seemed clear
in medieval times that the power to bind and loose had given
it an authority without hmit or question. The modern state
inherits the papal prerogative. It must, then, govern all; and
to govern all there must be no hmit to the power of those instru-
ments by which it acts. Catholic and Nonconformist are alike
excluded from citizenship simply because they denied, as it
deemed, the fulness of state authority. They refuse absorption
by its instruments, and the penalty of refusal is exclusion.'^ The

" Cf . Prof. Mcllwain's brilliant introduction to his edition of the "Political
Works of James I" (Harvard University Press, 1918).

12 Strype, "Life of Whitgift," II, 22 ff.

'3 Cf. my "Problem of Sovereignty," p. 2.

" This is what Mr. Seaton, in his admirable book, calls the second stage
of religious persecution. "Toleration under the Later Stuarts," p. 6 f.



24 AUTHORITY IN THE MODERN STATE

representatives of the state must be sovereign, and if the Stuarts
abuse their prerogative, the result is, not its Hmitation but its
transference to Parhament. Always the stern logic of theory
seems to imply that the dominating institution is absolute.
Locke, indeed, saw deeper, and argued to a state that thought
it had already won its freedom that power must be limited by
its service to the purposes it is intended to accomplish. ^^ But
the accident of foreign rule gave that power a basis in what
could, relatively at least to continental fact, be termed popular
consent. Thenceforth the sovereignty of Parliament became
the fundamental dogma of English constitutionalism. With-
out, there might be the half articulate control of public opimon;
but that, as Rousseau said,^^ was free only at election time. Its
control was essentially a reserve-power, driven to action only at
moments of decisive crisis. "A supreme, irresistible, uncontrol-
lable authority, in which the jura summa imperii or rights of
sovereignty reside"" is, as Blackstone says, the legal theory
which Ues at the root of the English State. For practical pur-
poses, that is to say, the sovereignty of the English state means
the sovereignty of the King in Parliament. ^^

France travelled more slowly, but, always, it was in the same
direction she was travelling. Her earliest political speculation
was, as Bodin bears witness, already of a sovereign state; and
it is, as he emphasises, a state which boasts a royal organ to
declare its sovereign purposes. Bossuet makes it clear that the
centralising efforts of her three great ministers had not been
vain; and it was not merely Voltaire's acid humor that made
him equate the sovereignty of France with the will of Louis XIV.
But, sooner or later, abuse involves disruption. The atmos-
phere of the eighteenth century was not favourable to the
retention of a belief in divinities. The profound speculation of
Montesquieu, the unanswerable questions of Rousseau, herald
a transference of power similar to that of England. The people
becomes master in its own house, and the dogma of national

" Second treatise, Ch. XI, Sec. 14 f.
16 "Contrat Social," Bk. Ill, Ch. XV.
1' Comm. I, 48.

1' I think this would express, somewhat differently, the point made by
Professor Dicey in the famous first chapter of his "Law of the Constitution."



AJtLJTJELQ-BJLJX-Y IN THE MODERN STATE 25

>«T. - , I. I- — »- ^___

sovereignty becomes the corner stone of the reconstructed
edifice.^* But as in England, the sovereign people is too large
for continuous action. Its powers become delegated to the
complex of institutions we call government. Thenceforth, for
general purposes, it is through this channel that the state-will
is expressed. Parliament is the nation, and its sovereignty is
there given adequate fulfil ment.^" Only on rare occasions, as
in 1830 and in 1848, is there sign of clear dissent from govern-
mental purposes. Only then, that is to say, can we argue a
revocation of powers.

Nor is American evolution at all different, though here there
are more checks upon the exercise of the governmental power.^^
The people is ultimately sovereign in the sense that, sooner or
later, it may, through proper reforms, or, in the last resort,
through revolution, get itself obeyed. There is no immediately
sovereign body, as in England or in France. Certain limitations
upon state and federal government are taken as fundamental
and continuous expressions of popular desire; and the rights
thus enshrined in the constitution it is the business of the
Supreme Court to maintain. Yet, even here, it is, for most
purposes, a governmental will that we at each moment en-
counter. The problem of authority may ultimately resolve
itself into a question of what a section of the American people,
strong enough to get its will enforced, may desire.^^ But such
continuous resolve as the business of state daily requires one
hundred million people cannot directly undertake. What here
becomes essential is the device of representation. Sovereignty,
therefore, in America, as elsewHere, is the acts of government
as the people and the Supreme Court acquiesce in their enforce-
ment. The multiplicity of governmental powers demanded by
the federal system makes no difference ; it is merely a question

i« Cf. the suggestive brochure of Hauriou, "DuSouveraineteNationale."

2" The reader can get a clear idea of this article by comparing the speeches
of M. Barthou, March 19, 1909; of M. Ribot, May 14, 1907; of M.
Deschonel, May 2d, 1907; and of M. Clemenceau, March 13, 1908— all
in the Chamber of Deputies. I have discussed them below in the chapter
on administrative syndicalism.

21 Cf. the interesting remarks of Boutmy, "Studies in Constitutional
Law" (trans. Dicey), p. 159 f.

^"^ As in the Civil War.



26 AUTHORITY IN THE MODERN STATE

of administrative convenience. The fundamental fact is that
when we speak of acts done by America the actor is a govern-
ment of which the subjects are more or less inert instruments.
In that sense American evolution, though superficially different
in form is, in substantial character, similar to the development



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