thereof. So the undoubted fact that a large number of Englishwomen desire parliamentary votes seems, in the eyes of many excellent persons, to give to Englishwomen a natural right to vote for members of Parliament. In each instance, and in many other cases which will occur to any intelligent reader, English democrats entertain a considerable difficulty in opposing claims with which they might possibly on grounds of expediency or of common sense have no particular sympathy. The perplexity of such men arises from the idea that, at any rate under a democratic government, any law is unjust which is opposed to the real or deliberate conviction of a large number of citizens. But such a conviction is almost certain to beget, on the part of persons suffering under what they deem to be an unjust law, the belief, delusive though it often is, that any kind of injustice may under a democratic government be rightly opposed by the use of force. The time has come when the fact ought to be generally admitted that the amount of government, that is of coercion, of individuals or classes by the state, which is necessary to the welfare or even to the existence of a civilised community, cannot permanently co-exist with the effective belief that deference to public opinion is in all cases the sole or the necessary basis of a democracy. The justification of lawlessness is also, in England at any rate, suggested if not caused by the misdevelopment of party government. The rule of a party cannot be permanently identified with the authority of the nation or with the dictates of patriotism. This fact has in recent days become so patent that eminent thinkers are to be found who certainly use language which implies that the authority or the sovereignty of the nation, or even the conception of the national will, is a sort of political or metaphysical fiction which wise men will do well to discard. Happily, crises arise from time to time in the history of any great state when, because national existence or national independence is at stake, the mass of a whole people feel that the authority of the nation is the one patent and the one certain political fact. To these causes of lawlessness honesty compels the addition of one cause
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which loyal citizens are most anxious not to bring into prominence. No sensible man can refuse to admit that crises occasionally, though very rarely, arise when armed rebellion against unjust and oppressive laws may be morally justifiable. This admission must certainly be made by any reasoner who sympathises with the principles inherited by modern Liberals from the Whigs of 1688. But this concession is often misconstrued; it is taken sometimes to mean that no man ought to be blamed or punished for rebellion if only he believes that he suffers from injustice and is not pursuing any private interest of his own.
COMPARISON BETWEEN THE PRESENT OFFICIAL LAW OF ENGLAND AND THE PRESENT DROIT ADMINISTRATIF OF FRANCE 53
The last thirty years, and especially the fourteen years which have elapsed since the beginning of the twentieth century, show a very noticeable though comparatively slight approximation towards one another of what may be called the official law of England and the droit administratif of France. The extension given in the England of to-day to the duties and to the authority of state officials, or the growth, of our bureaucracy,54 to use the expression of an able writer, has, as one would naturally expect, produced in the law governing our bureaucrats some features which faintly recall some of the characteristics which mark the droit administratif of France. Our civil servants, indeed, are as yet not in any serious degree put beyond the control of the law Courts, but in certain instances, and notably with regard to many questions arising under the National Insurance Act, 1911, something very like judicial powers have been given to officials closely connected with the Government.55 And it may not be an exaggeration to say that in some directions the law of England is being “officialised,” if the expression may be allowed, by statutes passed under the influence of socialistic ideas. It is even more certain that the droit administratif of France is year by year becoming more and more judicialised. The Conseil d’État, or, as we might term it, the Council, is
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(as all readers of my seventh edition of this work will know) the great administrative Court of France, and the whole relation between the judicial Courts and the Council still depends, as it has depended now for many years, upon the constitution of the Conflict Court,56 which contains members drawn in equal numbers from the Council of State and from the Court of Cassation. It would be idle to suppose that the decisions of the Council itself when dealing with questions of administrative law do not now very nearly approach to, if indeed they are not in strictness, judicial decisions. The Council, at any rate when acting in a judicial character, cannot now be presided over by the Minister of Justice who is a member of the Cabinet.57 Still it would be a grave mistake if the recognition of the growth of official law in England and the gradual judicialisation of the Council as an administrative tribunal led any Englishman to suppose that there exists in England as yet any true administrative tribunals or any real administrative law. No doubt the utmost care has been taken in France58 to give high authority to the Council as an administrative tribunal and also to the Conflict Court. Still the members of the Council do not hold their position by anything like as certain a tenure as do the judges of the High Court in England, or as do the judges (if we may use English expressions) of the French common law Courts. A member of the Council is very rarely dismissed, but he still is dismissible. It must be noted further that the Minister of Justice is still the legal President of the Conflict Court, though he does not generally preside over it. When, however, the members of the Conflict Court are equally divided as to the decision of any case, the Minister of Justice does preside and give his casting vote. It is indeed said that such a case, which must almost necessarily be a difficult and probably an important one, is in truth again heard before the Minister of Justice and in effect is decided by him. A foreigner without practical acquaintance with the French legal system would be rash indeed were he to
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form or express an assured opinion as to the extent to which the decisions of the Council or the Conflict Court are practically independent of the wishes and the opinions of the Ministry of the day. Hesitation by a foreign critic is the more becoming, because it is certain, that Frenchmen equally competent to form an opinion would differ in their answer to the inquiry, whether the Council and the Conflict Court ought to be still more completely judicialised. The constitution of the Council of State and of the Conflict Court may suggest to a foreign critic that while neither of these bodies may be greatly influenced by the Ministry of the day, they are more likely to represent official or governmental opinion than are any of our English tribunals. It must further always be remembered that under the French Republic, as under every French government, a kind of authority attaches to the Government and to the whole body of officials in the service of the state (fonctionnaires) such as is hardly possessed by the servants of the Crown in England,59 and especially that proceedings for the enforcement of the criminal law are in France wholly under the control of the Government. The high repute of the Council and, as it seems to a foreigner, the popularity of administrative law, is apparently shown by the success with which the Council has of recent years extended the doctrine that the state ought to compensate persons who suffer damage not only from the errors or faults, e.g. negligence, of officials, but also for cases in which the law is so carried out that it inflicts special damage upon individuals, that is damage beyond what is borne by their neighbours.60 The authority again of the Council is seen in the wide extension it has given to the principle that any act done by an official which is not justified by law will, on its illegality being proved, be declared a nullity by the Council. It ought to be noted that this extension of the liability of the state must, it would seem, in practice be a new protection for officials; for if the state admits its own liability to pay compensation for damage suffered
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by individuals through the conduct of the state’s servants, this admission must induce persons who have suffered wrong to forego any remedy which they may have possessed against, say, a postman or a policeman, personally, and enforce their claim not against the immediate wrong-doer but against the state itself.
One singular fact closely connected
