After reading this article you will learn about the State as a legal association and the scope of its legal purpose.
The State exists for the great, but single, purpose of law. The question may be asked, ‘But what of the idea, as old as the age of Aristotle, that the State exists for the sake of the general good lite of its members?’
The further question may also be asked, ‘Does not the State, apart from ideas, and as a plain matter of fact, actually regulate issues other than legal issues?’ A review of history is sufficient to show that the State in its time has touched many issues and played many parts; and it still continues today to be multifarious in its activity.
It has acted in the religious field, by measures ranging from the establishment of a State-Church to the regulation of the trust deeds under which free churches own their property and manage their daily concerns. It has acted, and it acts increasingly, in the economic field: in our own history the long line of its acts runs from the Elizabethan Statute of Artificers (and even earlier statutes) to the contemporary statutes which ‘nationalize’ some of the staple industries.
It has acted in the field of the intellect, by a succession of Education Acts: it has acted in the field of conscience, and in the name of social justice, by the institution of a system of public social services: it has acted in matters of the body, as well as in matters of the intellect and of conscience, and what it has done for public health and physical fitness is not the least of its doings. Can all these labours be comprehended under the rubric of law, or ascribed to a single ‘legal purpose’?
The answer is that the term ‘legal’ does not denote a set of things in a separate compartment, comparable to but separable from other sets of things (religious or economic or intellectual or moral) in other similar compartments. Life is not only a matter of compartments: it is also a matter of modes.
The term ‘legal’ connotes a mode, if it also serves to denote a compartment; and what it connotes is of more importance than what it denotes. Considered as a mode, the term ‘legal’ means a method or process of action, irrespective of the field of action or the content of the field.
Legal action—we may also call it ‘political’, for, the political is also the legal, since the State is essentially law—legal action is a mode of treating things in general, things of all sorts and descriptions, religious or moral or educational or economic or whatever they may be, so far as they can be brought under a rule of law and thus made a matter of compulsory uniformity.
Law touches and treats all acts—so far as lets are amenable to its touch and treatment. But it is only external acts which are amenable to such treatment. A rule of law is an order (ultimately issued, by the community itself, but immediately issued by some organ which declares and enforces the sense of the community), to do, or to abstain from doing, a defined and definite external act: an order enforced, in the last resort, by another external act of physical coercion.
From this point of view the State may order its members, as it did in 1559 by the Elizabethan Act of Uniformity, ‘all and every … to resort to their parish church … upon every Sunday and other . . . holy days … upon pain that every person so offending shall forfeit for every such offence twelve-pence’.
This is a legal order to perform an external act of physical attendance at public worship: an order enforced, in the event of contravention, by another external act of physical coercion which takes twelve pence from the pocket of the offender.
In a sense this is not a regulation of the religious life, which is a matter of the inward mind: it is a regulation of external acts performed in connexion with religious life. But the crux of the matter lies in the word ‘connexion’; and the enforcement by the authority of the State of an act so intimately connected with religious life as to be a symbol of inward conviction, and to be regarded in that light by the agent and enjoined with that intention by the authority, is something which is ultra vires and beyond the power of law.
The long struggle and the ultimate triumph of English Nonconformity, vindicating the principle that ‘in matters of the mind there is no compulsion’, has recalled the State to its bounds. We recognize today that true religion is a matter of the mind, to be sought and found in voluntary’ cooperation with others of like mind, and therefore to be sought and found in the area of Society. But we also recognize that the State cannot be excluded wholly from the field of religion.
Religion means organization as well as inward conviction. Organization involves financial and other external consequences; and those consequences come within the ambit of law, and therefore of the State. Wherever the legal mode is needed, that mode must necessarily enter. Wherever it cannot act—wherever, that is to say, compulsory uniformity is impossible—the mode is necessarily precluded.
The argument which applies to the religious field applies equally to the moral and the intellectual; it applies even to the economic. The economic process is indeed particularly immersed in financial and other consequences of a legal order which bring it particularly and peculiarly within the ambit of law and the supervision of the State.
But so far as it is a process which requires for its operation factors that cannot be ‘reduced to the one’—the irreducible inward factors of spontaneity of individual initiative and free variety of individual experiment— so far, and to that extent, it escapes, and will always escape, the net of legal regulation.
Here, as in every other field, the argument brings us to two conclusions. The first is that there is no set of things, and no compartment of issues, about which you can say to law and the State, ‘You shall not enter; you have nothing to do with it: this is a reserved compartment’. The second is that for every set, and in every compartment, all that law and the State can do is to secure external acts of obedience under the sanction of otherwise applying external acts of coercion.
The first conclusion will lead us to say that the State and its law exist for the sake of the general good life. The second will lead us to say that all they can do for the general good life is to secure, by the ultimate sanction of force, the uniform doing of external acts, and to erect thereby an external framework for the inward movement of a good life which proceeds by its own proper motion.
There is no salvation in the State: there is only a sovereign safeguard. Salvation lies in ourselves, and we have to win it ourselves—in the shelter of the sovereign safeguard. We may dream of a State which itself is an institute of salvation. We only dream; and our dream is one which denatures the State and un-spheres law.
The State of reality is by its nature a sovereign safeguard—no more, but also no less; and the sphere of law is obligatory rules of external action—no more, but also no less. Even if we ourselves, as members of the legal association, are makers and motors of the safeguard, it is only a safeguard, and not an institute of salvation, that we make and move, in that capacity of ourselves.
Even if we ourselves, acting directly or through an organ appointed by us for the purpose, are the declarers and enforcers of law, it is only law—a set of compulsory uniform rules of external action—which we declare and enforce.
There remains a large sphere of activity which lies outside the State. It is the sphere, in a word, of the inward movement of the good life. That movement is not only a matter of the ‘individual’, acting as an individual.
It is a matter of ‘individuals’ – but how much, and how often, do individuals act in groups, or as groups—in families (the innermost cells of our life), in schools (which are free societies of the mind in their inward operation, whatever their external framework may be), in churches and chapels, in professions and occupations, in ‘clubs’, ‘societies’, and ‘associations’ of every sort and description?
The inward movement of the good life is at least as much social as individual; and voluntary social co-operation is one of its greatest channels. Nor is such co-operation limited to the inward life. It has also helped, and it still helps, in making the external framework, and securing the external conditions, necessary for a good life.
The State is indeed the sovereign maker of the external framework; but it is not the only maker. There has always been, and there still remains, a space for social activity in the provision of the framework. In the first place, the State will always be, as it were, behind in the provision which it makes.
There will be external conditions which it has not, as yet, secured, because there is not, as yet, a general conviction of their necessity; and the laboratory of social invention, engaged in pioneer’s work, has to go ahead in planning and contriving voluntary expedients, and even systems, which at a later stage may be generally adopted and incorporated.in the general framework.
Secondly, even when the State has itself secured external conditions in this or in that field, it has only secured them (it can do no more by its very nature) in the shape of a uniform rule, which is the same for all indifferently and without respect of persons. But persons are different; and some of them will need their special conditions, over and above, or diverging from, the conditions secured by a uniform rule.
Here social activity enters once more, not as a pioneer going on ahead, but as a ‘mate’ or collaborator standing by the side of the State to make some necessary adjustment or to add some necessary complement. The State, for example, may give unemployment benefit, and even add to it public assistance, by uniform rule; but there will still be special cases, and there will still be room for social action to meet such cases.