SOURCE: "The Nature of the State and Political Power," in The Political Ideas of Harold J. Laski, Columbia University Press, 1955, pp. 13-33.

[In the following excerpt, Deane explores Laski's changing views on the state and the legitimacy of its political power.]

Laski's earliest political writings are a constant polemic against what he terms "mystic monism"¹ in political thought—the conception that the state is to political theory what the Absolute is to metaphysics, that it is mysteriously One above all other human groupings, and that, because of its superior position and higher purpose, it is entitled to the undivided allegiance of each of its citizens. Laski believes that the main prop of this monistic theory of the state is the concept of state sovereignty, elaborated by Bodin and Hobbes in the sixteenth and seventeenth centuries and given modern form in John Austin's definition of the legal sovereign as the "determinate human superior, not in a habit of obedience to a like superior," who receives "habitual obedience from the bulk of a given society."² He therefore attempts to destroy the monistic view by concentrating his critical fire on the concept of sovereignty.

Following Figgis's analysis,³ Laski argues that with the breakup of feudalism and the rise of the modern state, the state assumed for itself the plenitudo potestatis that medieval Popes and their apologists had claimed for the Papacy. The state was trying to counter the claims of older feudal loyalties and, more important, it was endeavoring to answer, on their own ground of "right," theories—whether Protestant or Catholic—that insisted on the right to disobey the state in the name of conscience and thereby threatened to destroy the social fabric in an unending series of civil and religious wars. The state therefore claimed for its ruler or rulers an absolute right to the complete obedience of all individuals and groups within the society. When, in the eighteenth and nineteenth centuries, the magic of monarchy faded, the theory of state sovereignty was buttressed by the new notion of popular sovereignty; Rousseau argued that the state as the embodiment of the general will had absolute power over the individual's actions and beliefs and over all groups and associations in the society. In England Bentham and Austin set forth the theory of the legal omnicompetence and sovereignty of the state's will as expressed by Parliament, while in Germany Hegel and some of his disciples maintained that since the state is the highest manifestation of Reason its will has moral pre-eminence over the wills of individuals or inferior social groups. For Laski, the result of this whole process of magnifying the authority of the state has been "the implicit acceptance of a certain grim Hegelianism which has swept us unprotestingly on into the vortex of a great All which is more than ourselves. .. . So the State has become a kind of modern Baal to which the citizen must bow a heedless knee."⁴

Laski's attack on the concept of sovereignty is doublebarreled. He insists, first, that if we look at the modern state in its relations with its citizens we find nothing that resembles Austinian sovereignty. He believes that this conclusion follows from the obvious fact that citizens do not always obey the commands of the state, that when the state comes into conflict with a church or a trade union the latter sometimes wins the obedience of its members. Defenders of the traditional theory retort, of course, that the fact that men do not always obey the law does not constitute a refutation of the Austinian theory. The theory does not assume that obedience is perfect; if it were, there would be no need for courts and police. Nor does the theory assume that disobedience is ethically wrong or immoral; it simply asserts that it is illegal. Laski himself seems to recognize this when he says, "Legally, no one can deny that there exists in every state some organ whose authority is unlimited. But that legality is no more than a fiction of logic."⁵ He maintains that while Parliament may be the legal sovereign in Great Britain, there are, in fact, many things that it cannot do. His conclusion is that the idea of parliamentary sovereignty and the view that law is the command of the sovereign are so absurd as to be useless as working hypotheses in any adequate political theory. This criticism rests on a blurring of the distinction between sovereignty as a legal and as a political concept; Laski's attack demonstrates only that the Austinian analysis does not constitute an adequate political theory since it overstresses the legal aspect of the state and pays insufficient attention to the social and political forces that determine the content of law and shape the manner of its application to specific cases.⁶

His second criticism is that the idea of the sovereignty of the state is ethically indefensible. "The Austinian theory of sovereignty," he argues, "ungenial enough even in its abstract presentation, would as a fact breed simple servility were it capable of practical application."⁷ The repeated surrender of the judgment of the individual's conscience, necessarily involved in unquestioning obedience to the dictates of the state, stunts the development of each citizen's personality and moral stature. Laski here seems to be confusing the Austinian concept, which makes no assumption about the moral Tightness of legal imperatives or about the immorality of disobeying the law, with the argument of those idealists, such as Hegel, Treitschke, or Bosanquet, who argue that the moral supremacy of the state over individuals and groups gives it the right to the obedience of its citizens.

To add to this confusion, Laski fails to distinguish between his two lines of attack on the traditional concept of sovereignty—its inadequacy as a description and explanation of the processes by which political power is exerted in any community and its indefensibility on moral grounds. Sometimes he argues that there is no such thing as political sovereignty;⁸ at other moments he defines the sovereignty of the state as the degree of consent that its actions can win from its citizens and objects to the orthodox theory because it ignores this factor of consent in its equation of law with the sovereign's fiat.⁹ In the latter case, his argument seems to be that no government is in fact sovereign and that the state cannot and should not be regarded, a priori, as sovereign since its sovereignty rests on the consent of each of its members. The sovereignty of the state thus becomes an "ideal limit," approached as the extent of popular consent to a given state action approaches universality, but, given the inevitable diversity in the beliefs and judgments of the members of a society, never actually attained.¹⁰ Even if we agree that this is what Laski means by "sovereignty," we may conclude that he should have abandoned the term altogether in his own exposition; he succeeds only in bewildering his reader by both attacking the concept and seeking to retain it with an altered meaning.

Laski's redefinition of state sovereignty obviously implies a clear demarcation between state and society and between state and government. He criticizes idealists such as Bosanquet for their identification of state and society; the identification ignores the fact that there are social relationships which are as primary as the individual's relationship to the state and that these relationships cannot be expressed through the state. We must, he says, reaffirm the old truth that "the allegiance of man to the state is secondary to his allegiance to what he may conceive his duty to society as a whole."¹¹ He also condemns the idealists for their failure to make a clear differentiation between state and government. Idealism, he argues, "asserted, and with justice, that right and truth ought to prevail; but its actual result, in the hands of its chief exponents, was to identify right and truth merely with the decisions of the governmental authority legally competent to make them."¹² He maintains that the state is always divided into the government, the small number of men who exert power, and the subjects, the great mass of citizens who, for the most part, acquiesce in the decisions that are made. In his eagerness to discredit the traditional state theory, Laski virtually scraps the distinction between state and government that he emphasizes so strongly in his criticism of the idealists; what we term state action is, in actual fact, action by government. The policy of the government becomes state action only after it has been carefully scrutinized by the citizens and generally accepted by them as a fulfillment of the state's purpose.¹³ In view of the inertia and passive acquiescence of the average citizen, there is very little, if any, genuine state action in our society.

Laski continues: "We lend to government the authority of the state upon the basis of a conviction that its will is a will effecting the purpose for which the state was founded. The state, we broadly say, exists to promote the good life, however variously defined; and we give government the power to act for the promotion of that life."¹⁴ This statement implies an acceptance of a broad view of the nature and purpose of the state that is not compatible with his attack upon the state. Further, he attempts to combine with this view of the state's function a radically individualistic theory of obedience,¹⁵ in which he holds that only the individual can judge whether a given act of government does serve the end for which the state exists and so is indeed a state act. This is his solution to what he calls the real problem of democratic government—the discovery of the means whereby the interest of the people as a whole may secure supremacy over the interest of any special portion of the community and, in particular, over the self-interest of the rulers.

In Laski's strong distrust of political power and of those who wield it, we can hear echoes of Lord Acton's famous dictum on the corrupting effects of power. His desire to prevent the force of the state from being concentrated at any single point within it leads him to attack the idea of the state's sovereignty;¹⁶ he wants to see power split up, divided, set against itself, and thrown widespread among men by various devices of decentralization, and he wants to be certain that the civil, economic, and social rights of individuals and groups are ensured against the encroachments of those who exercise power. What, we may ask, is the motive that leads him to emphasize the dangers inherent in political power, particularly when it is concentrated? Why does he place so much stress on the divergence of interests between rulers and subjects? And, finally, what lies behind his extended polemic against state sovereignty? We cannot answer these questions simply by referring to the influence of the ideas of Gierke, transmitted to Laski by Figgis and Maitland. The fundamental problem remains—why did he find these ideas, rather than others, attractive and persuasive? Nor is it sufficient to refer to the reaction against the idealist theory of the state that occurred in England after the outbreak of war in 1914. Laski's antistatism is not a simple reflection of the view that saw in the nationalism, imperialism, and militarism of Imperial Germany the fruits of a Hegelian over-emphasis on the majesty of the state and the moral pre-eminence of its commands.¹⁷

We must remember the thesis that Laski constantly reiterates—although, in theory, a state may exist to secure the highest life for its members, in actuality the good maintained is that of a certain section and not that of the community as a whole.¹⁸ Normally the will that gets registered is the will of those who operate the machine of government. And since government is, for the most part, in the hands of those who wield economic power, it is clear that political power is the handmaid of economic power.¹⁹ Laski assures us: "It is today a commonplace that the real source of authority in any state is with the holders of economic power. The will that is effective is their will; the commands that are obeyed are their commands."²⁰ The motive underlying his attack on the concept of state sovereignty is laid bare when he states that the theory "assumes that the government is fully representative of the community without taking account of the way in which the characteristics of the economic system inevitably perverts [sic] the governmental purpose to narrow and special ends."²¹ The state that Laski seeks to discredit is, he argues,

in reality the reflexion of what a dominant group or class in a community believes to be political good. And, in the main, it is reasonably clear that political good is today for the most part defined in economic terms. It mirrors within itself, that is to say, the economic structure of society. It is relatively unimportant in what fashion we organise the institutions of the state. Practically they will reflect the prevailing economic system; practically also, they will protect it.²²

The power of the contemporary state is thus predominantly used to promote the interests of the capitalist class and to hinder the interests of labor. "For the social order of the modern state is not a labour order but a capitalist, and upon the broad truth of Harrington's hypothesis it must follow that the main power is capitalist also. That will imply a refusal on labour's part to accept the authority of the state as final save where it is satisfied with its purposes."²³ Laski makes it very clear that his fundamental objection is to the capitalist state, and not the sovereign state, when he says: "No one would object to a strong state if guarantees could be had that its strength would be used for the fulfilment of its theoretic purposes."²⁴ To endow the state with omnicompetence and sovereignty is to leave it at the mercy of any group powerful enough to exploit it, that is, the small group that wields economic power. "The only way out of such an impasse," Laski concludes, "is the neutralisation of the state; and it cannot be neutralised save by the division of the power that is today concentrated in its hands."²⁵ It may be observed that this interpretation of Laski's attack upon the state enables us to link his early pluralistic writings with the radically different views that he later advocated. For, on the basis of his early thesis, it is clear that if the labor movement should cease to be a minority group struggling against the power of a hostile behemoth and if the social order could be transformed from a capitalist to a labor order, there would be no hindrance to the fulfillment by the state of its theoretic purposes and, consequently, no reason for objecting to a strong, or even a sovereign, state.

It is significant that Laski cites Harrington rather than Marx when he argues that political power is the handmaid of economic power. At this stage he is critical, as we shall see, of Marx's economics and theory of history.²⁶ Indeed, he is suspicious of all dogmatic and simple theories of history and politics; his temper is rationalistic, but it is also marked by scepticism of final truths and by a consistently pragmatic and realistic bias. Telling us that "an admission of vast complexity is the beginning of wisdom in political philosophy,"²⁷ he warns that "the price we pay for militant certitude in social affairs is always the establishment of a despotism."²⁸ He criticizes traditional political thought for its concentration on Staatslehre at the expense of politik, for its oversimple assumptions about human nature, and for its penchant for deductive reasoning. He says: "The simple a priori premises of Hobbes or Locke, the intriguing mysticism of Rousseau's general will, eloquence about the initiative of men and its translation into terms of private property, are no longer suited to a world that has seen its foundations. in flame because to its good intentions an adequate knowledge was not joined. What we need .. . is the sober and scientific study of the conditions of social organization."²⁹ Repeatedly he calls for a new inductive political philosophy, centered less on political principles than on administrative functions, and based on a realistic social psychology that will do more justice to the complex character of human personality and motivation than does the psychology of Aristotle or Machiavelli or Hobbes. The new political theory, seeking an institutional structure that will offer opportunities for the creative expression of the diverse impulses of men more adequate than those provided by the sovereign state, must be grounded in a satisfactory knowledge of the motives and desires of men.

Each man must be encouraged to realize his own personality, while the state must be so organized as to give scope to the individual's sense of spontaneity and his creative impulses, thereby fostering the emergence of a wide diversity in the desires, attitudes, and values of its citizens.³⁰ Since he is primarily concerned with the preservation and promotion of individuality and spontaneity, Laski rejects order and unity as final values.³¹

All that men are willing to sacrifice to society is the lowest and not the highest common factor of their intimate beliefs. For they are not simply members of a herd; they are something more. They are individuals who are interested passionately in themselves as an end, and no social philosophy can be adequate which neglects that egocentric element.³²

He frequently cites William James's dictum that "we live in a multiverse and not a universe"; as James endeavored to expel the demons of absolutism and monism from philosophy, so Laski aims to drive them from the precincts of political thought.

His choice of the term "pluralist" to describe his new political theory is testimony to the influence that the pluralist and instrumentalist currents in American thought exerted on him during his stay in North America from 1914 to 1920. In the pluralistic and pragmatic philosophies of James and Dewey he found a point of view that was extremely congenial to his own opposition to idealism and monism and to his conviction, which marks him as heir to the utilitarian tradition of Bentham and the Mills, that the state is to be judged in the light of its actual contributions to the well-being of its citizens. His pluralist theory, which insists that the state, in common with every other association, must prove itself by what it achieves rather than by the methods it uses or the purposes it claims to serve, is, he says, what Dewey calls "consistently experimentalist" in form and content.³³ "It does not try to work out with tedious elaboration the respective spheres of State or group or individual. It leaves that to the test of the event. It predicates no certainty because history, I think fortunately, does not repeat itself."³⁴ The test of the validity of state action is thus a pragmatic test—how successful is it in achieving its purpose, the promotion of the good life for its citizens? "Political good," he asserts, "refuses the swaddling-clothes of finality and becomes a shifting conception. It can not be hegelianised into a permanent compromise. It asks the validation of men and actions in terms of historical experience."³⁵ Viewed in this instrumentalist fashion, the sovereign state becomes what Duguit calls "a great public service corporation," no more than the greatest of public utilities. Like every such institution, it is to be judged by the adequacy of the service that it renders to its public.

Typical of Laski's pragmatic approach to politics is his analysis of the law as an instrument for satisfying social needs, as opposed to a formal theory of law as a selfcontained logical system.³⁶ This sociological and pragmatic approach to law, though it derives immediately from the new jurisprudence of Duguit, Pound, and Justice Holmes, is clearly compatible with the tradition of British utilitarianism. Laski maintains, for example, that the only valid explanation of the doctrine of vicarious liability, by which the employer is held responsible for his servant's torts even if he is himself without fault, is that "in a social distribution of profit and loss, the balance of least disturbance seems thereby best to be obtained."³⁷ This sociological view of the function of law is also the basis for his insistence that the doctrine of vicarious liability must be made applicable to corporations and unincorporated associations as well as to individuals, and that, in general, the law should apply to group action the same canons of judgment that it uses in dealing with the actions of individuals. Echoing Holmes's reminder that the life of the law is not logic but experience, Laski says: "We have to search for the mechanisms of our law in life as it actually is, rather than fit the life we live to a priori rules of rigid legal system."³⁸ He concludes: "We come once more to an age of collective endeavor. We begin the re-interpretation of law in the terms of our collective needs. .. . It is our business to set law to the rhythm of modern life. It is the harmonization of warring interests with which we are concerned. How to evolve from a seeming conflict the social gain it is the endeavor of law to promote—this is the problem by which we are confronted."³⁹

What are the essential features of the pluralist view of the state that Laski proposes to substitute for the "outmoded" monistic theory of state sovereignty? He tells us that just as the essence of James's philosophic pluralism was his insistence that things are "with" one another in many ways, but that there is no Absolute, nothing which includes everything or dominates everything, so the core of his political pluralism is the proposition that the parts of the state are as real and as self-sufficient as the whole and that the state is "distributive" and not "collective."⁴⁰ The state is only one of the many forms of human association; there is no fundamental difference between its nature and the nature of any other association, such as a baseball club.⁴¹ The state is not to be eliminated as it is in anarchism or in some varieties of pluralism,⁴² but Laski denies that it is inherently entitled to primacy over other groups. "It is not necessarily any more in harmony with the end of society than a church or a trade-union or a freemasons' lodge."⁴³ The state has only that pre-eminence—and no more—to which on a particular occasion of conflict of its will with the will of another group, its possibly superior moral claim may entitle it.⁴⁴ As we have already noted, the sovereignty of the state, for Laski, is merely its ability to get its commands accepted by its members; it does not, therefore, differ from the power of a church or a trade union, for their power, too, is a function of the degree to which their commands are accepted by their members.⁴⁵

Laski's pluralism is an extremely individualistic doctrine; men belong to many groups, including the state, and "a competition for allegiance is continuously possible. . . . Whether we will or no, we are bundles of hyphens. When the centers of linkage conflict a choice must be made."⁴⁶ The theory leaves to the individual the decision whether in a particular conflict he will give his allegiance to the state or to the church or the union. At a later point we shall have to give detailed consideration to this theory of obedience.⁴⁷ Here we need only note Laski's thesis that since society is essentially federal in nature, it is impossible and unwise to attempt to confine sovereignty to the state or to any of the coordinate groups that constitute society; "the paramount character of the state is ipso facto denied."⁴⁸ Power no longer needs to be concentrated at a given point in the social structure; as a good pragmatist, Laski argues that it can and should go where it can be most wisely and effectively utilized for social purposes. In every society we confront a wide variety of functional and territorial interests. The pluralistic state will abandon the vain attempt of the monistic state to apply uniform and equal solutions to things neither uniform nor equal; it will be a federal state in which sovereignty will be distributed among the various functional groups and associations as well as the geographical subdivisions of the society.⁴⁹ Whereas the structure of the sovereign state is hierarchical, that of the pluralistic state will consist in "a series of coordinate groups the purposes of which may well be antithetic."⁵⁰

There are serious difficulties and confusions in Laski's pluralism. How, for instance, can anyone who insists, as he does, on a sharp distinction between state and society refer to the associations of men—their clubs, churches, and trade unions—as parts of the state that are as real and primary as the whole? Even if we explain away this difficulty as a mere verbal slip, we are left with the major problem—the nature of the relationship between the state, even the pluralistic state, and these other associations. The latter, he tells us, "are, it may be, in relations with the state, a part of it; but one with it they are not. They refuse the reduction to unity."⁵¹ Assuredly, but is it not also obvious that the state is essentially different from a group such as a baseball club? All the members of the society are members of the state, state membership is compulsory in a manner that differs significantly even from the union membership of a worker employed in a "closed shop," and the state has a monopoly of the exercise of final coercive power in the society. These peculiar characteristics of the state, taken together with its function of regulating the relationships and, particularly, the conflicts among other social groups, imply that in case of a conflict, for example, between the state and a trade union, there is some prima-facie reason for the individual to give greater weight to his allegiance to the more inclusive group.

If we are to take literally Laski's theory of the "polyarchism" of coordinate groups in the pluralistic state, the state will have no power to regulate the actions of other associations or their relationships. Unless we assume a natural law of harmony among social groups—and Laski never explicitly makes or defends this assumption—we are faced with a succession of struggles between competing groups and interests in the course of which social order and peace will be destroyed. And the outcome of each such clash between opposing interests is likely to depend far more on the naked power that the various groups can muster than on rational decisions of individuals about the superiority of the moral claim of the state to that of a group, or of one group over another. This pluralistic ideal of a society made up of free and "coordinate" groups engaged in eternal conflict and, it is hoped, compromise, with no one group enjoying primacy over the others, reminds us of Pope Gelasius I's Doctrine of the Two Swords, wherein the Church and the Empire were described as two coordinate and cooperating institutions ordained by God for the proper governance of human society. We know how often this Gelasian attempt at a compromise between the claims of temporal and sacerdotal jurisdiction broke down; the unstable equilibrium of two coordinate powers tended to resolve itself into an assertion of the primacy of the imperial power in the writings of a Dante or a Marsiglio, or into a claim of plenitude potestatis for the Papacy in the Dictatus Papae of Gregory VII or in Boniface VIII's Unam sanctam. The vastly more complicated equilibrium of the multi-group pluralistic state would doubtless be even more difficult to maintain. The anarchy that would result if group conflicts were uncontrolled by the state might well lead the federation of trade unions, the association of employers' groups, or some other powerful social or economic organization to make a bid to assume supreme coercive power in the society.

Laski claims that his destruction of the sovereign state and his proposal to place all associations, including the state, on an equal footing follow as necessary conclusions from the doctrine of the real personality of groups, developed by Gierke and promulgated in England by Maitland and Figgis.⁵² Gierke maintained, in opposition to the fiction and concession theories, that the group is a real entity with a life, a consciousness, and a will of its own; the group is a real person whose existence is independent of the state and the law—groups are born and exist before they are recognized by the law and they cannot be created or destroyed by legal fiat. In their legal theories Gierke and Maitland stressed the fact that organized groups are in fact "persons" with rights and duties whether or not the state has endowed them with legal personalities, and they called for a more realistic treatment of groups by the law. It should be noted that Gierke did not argue, as does Laski, that acceptance of the theory of the real personality of groups necessarily involves the denial of the state's sovereignty. The state, he says, is sovereign where general interests demanding the exertion of power for their maintenance are concerned. The will of the state is the sovereign general will and the state is the highest Machtverband.⁵³

Figgis used Gierke's theory of group personality to defend the freedom of the church as a corporate body in the modern state. Contending against all forms of Erastianism and insisting that the church's corporate freedom must be recognized to the end that she may fulfill her divine mission, Figgis denied that the church was a mere creature of the state. Indeed he claimed that it was a societas perfecta, a society no less perfect in form and constitution than the state. He did not deny, however, that the state had a distinctive function and a superior authority as an agency of coordination of the various groups in society; he concedes that "it is largely to regulate such groups and to ensure that they do not outstep the bounds of justice that the coercive force of the State exists."⁵⁴ Figgis described the state as a communitas communitatum, akin to the medieval empire; he believed that he had solved the knotty problem of the proper relationship between the state as the organ of coordination and the corporate persons within its territory by the dictum that the state should leave the church free from control where the church's actions concerned only its own affairs, while it might regulate those acts of the church that impinged on persons outside the group. This attempted compromise, analogous to J.S. Mill's attempt to demarcate the area of individual liberty by making a distinction between the self- and other-regarding actions of individuals, is no more satisfactory than Mill's principle, for it leaves unsolved the basic problem—who is to decide when the activities of the church cease to be of concern to itself alone and begin to affect persons outside the group. Moreover, as Barker has pointed out,⁵⁵ the theory of the state as a communitas communitatum implies that there is an ascending hierarchy of groups and that there is an ultimate group, the state, which serves to regulate the less extensive groups; it also suggests that in a crucial situation the broadest group commands—or should command—the highest loyalty. Whatever the value of the concept may be, its implications seem to be distinctly unfavorable to pluralism; they point, rather, to a monistic view of the state, and it is surprising that Laski should borrow from Figgis the phrase communitas communitatum as a description of the pluralistic state that he advocates.⁵⁶

In his early works Laski applies Figgis's ideas in a series of historical studies of great conflicts between the state and various churches.⁵⁷ In these essays he displays his sympathy with the anti-Erastians and their "tremendous and brilliant plea for ecclesiastical freedom that is clearly born from the passionate sense of a corporate church."⁵⁸ He rejects the lawyers' concession theory of corporate personality and derides the legal fiction that the unincorporated association, often clad in the legal garment of the trust, has no personality.⁵⁹ Following Gierke and Maitland, he says: "Societies are persons as men are persons. They have . . . their ethos, character, nature, identity. They are born to live within the pale of human fellowship."⁶⁰ "It is purely arbitrary," he argues, "to urge that personality must be so finite as to be distinctive only of the living, single man."⁶¹ He seems unaware that this ascription to the group of a real personality, as distinct from a legal personality, and the acceptance, as a consequence, of the concepts of group mind and group will lead to difficulties as great as or greater than those involved in the lawyers' concession theory or their interpretation of the corporation as a persona ficta. As Barker asks,⁶² what is the nature of this transcendent group will or group mind that is distinct from the wills or minds of the members of the group, and where is it located? Further, as MacIver has observed,⁶³ it is a logical error to seek to interpret the unity of a whole, such as a state or a society or a voluntary association, as though it were exactly correspondent to the unity of each of its components, that is, the unity of a person.

In any event, the theories of Gierke and Figgis demonstrate that the acceptance of the idea of the real personality of groups does not necessarily lead to the rejection of the traditional theory of the sovereignty of the monistic state. It may even be argued that the doctrine is more compatible with the orthodox view of the state, especially in its idealist form, than it is with Laski's projected pluralism. For, as he concedes, if we view other groups and associations as real persons whose personality is the result of collective action, we are forced to admit that the state, too, is a real personality, with a will and a mind of its own.⁶⁴ "States," he says, "are persons as men are persons. . . . They are born to live a life in the fellowship of nations as men are born to live in the fellowship of men. They are subject to the rules of conduct which the process of human experience has developed. They may be wrong as men and women are wrong; then they must be so judged."⁶⁵ Even if we waive the vexing question—can or should a state be held to exactly the same rules of conduct that are applied to individuals—it is apparent that other conclusions, less pleasing to Laski and far less consonant with his views of the nature of the state, also follow from this admission that the state is a person with a will and a mind of its own. Like other persons it must be viewed as an end in itself, existing in its own right, concerned with its own welfare, and entitled to strive for its greatest possible self-fulfillment. This conception of the state, which is a part of the idealist theory that Laski has rejected, implies that the state has an intrinsic value and a goal or purpose beyond the purposes of its citizens. It cannot be reconciled with his utilitarian view of the state as a public-service corporation.

Although Laski undertakes a number of historical studies of church-state conflicts, he is not personally interested, as was Figgis, in the right of a particular church to lead its corporate existence free from state control. He is, rather, concerned with what he takes to be the essence of such anti-Erastian movements as Tractarianism—"the plea of the corporate body which is distinct from the State to a separate and free existence."⁶⁶ This essential principle of the doctrine of the real personality of groups he applies to the association whose role in modern society he believes to be crucial and whose independence from state interference he is anxious to protect—the trade union.⁶⁷ Since, as we shall see, he believes that labor regards the trade union as "the single cell from which an entirely new industrial order is to be evolved,"⁶⁸ he tends to read "trade union" wherever Figgis wrote "church." Indeed, in discussing the problem of the personality of associations, he asserts: "Nothing has brought into more striking prominence the significance for practical life of this controversy than the questions raised in the last decade and a half by trade-union activity."⁶⁹ Readers of his later works may be amazed to find the Laski of 1916 defending the principles of the Taff-Vale decision,⁷⁰ which he later describes as a vicious attack upon the unions by the capitalist interests in control of the state. In 1916 he agrees with the Court's judgment that the union may be held responsible for the tortious acts of its agents, since this finding accords with his view that the union is a real person endowed with a group will; we must, he maintains, "treat the personality of our group persons as real and apply the fact of that reality throughout the whole realm of law."⁷¹ On the other hand, he regards the decision in the Osborne case⁷² as a reactionary step because the Court there held that a union's support, as a group, of the Labor Party was illegal because the action was political and not industrial in its scope. His comparison between the Osborne case and the Gorham judgment of 1850 shows how completely he has assimilated his studies of the churches' struggles for freedom to his concern with the efforts of the trade unions to secure recognition of their corporate integrity and autonomy: "The experience of the Privy Council as an ecclesiastical tribunal might herein have given a lesson to the House of Lords. There was it sternly demonstrated that the corporation of the English Church—a corporation in fact if not in law—will not tolerate the definition of its doctrine by an alien body. The sovereignty of theory is reduced by the event to an abstraction that is simply ludicrous. It may well be urged that any similar interference with the life of trade unions will result in a not dissimilar history."⁷³

Finally, we must survey briefly Laski's proposals for translating his pluralistic conception of the state into political institutions. Centralized authority, he asserts repeatedly, is baffled by the range and complexity of the tasks it has assumed; it seeks to apply wide generalizations that are usually irrelevant to specific situations, and it stifles experiment and variety. Thus control from a single center necessarily becomes narrow, despotic, and overformal in character.⁷⁴ His remedy is a large measure of decentralization of power. The federalism that he advocates is to be functional as well as territorial; the state must recognize that individuals tend increasingly to look to private groups and, particularly, to economic associations such as trade unions and professional societies for the promotion of their interests and the satisfaction of their needs. These professional and industrial associations are becoming self-governing and sovereign in the sense that the rules they draw up and impose on their members are recognized by the state as the authoritative answers to the problems they have to meet.⁷⁵ His criticism is that "on the one hand, no real effort has been made to relate that economic federalism to the categories of the political structure, and, on the other, within each function there is no adequate representative system."⁷⁶ The failure to give these functional associations a legitimate place in the structure of government has meant that they have had to exert their power by such indirect methods as lobbying, informal access to department heads and civil servants, and politically motivated strikes. The only solution to this problem, according to Laski, is to make these economic groups, especially the trade unions, politically real, that is, responsible, by giving them definite social functions to perform and the powers necessary to carry on those functions.

While Laski stresses functional decentralization rather than territorial devolution of power, since he believes that geographical areas no longer coincide with the foci of men's major interests and problems, he is prepared to defend territorial federalism as found in the United States on the ground that it is more consonant with political facts than the theory of the unitary state. He criticizes those American progressives who argue that state governments and local opinions must be overridden by Federal power if progress is to be made. The passage in which Laski emerges as an ardent "states-righter" is worth quoting if only for comparison with his later views. He asks whether

America will not gain more from the slow self-struggle of New York to intelligence, than from the irritating imposition from without of a belief to which it has not been converted. I can not avoid the emphatic opinion that in this, as in other matters, nature is not salutatory. Politically we probably gain more from the slow, and often painful erosion of prejudice by education, than when we attempt its elimination by more drastic methods. It is, of course, annoying for those of us who consider we have found the truth; but if we are to have democratic government we must bear with the inconveniences of democracy. .. . I am a frank medievalist in this regard. It seems to me admirable that a country which, in certain aspects, is one, should yet adapt its governance to suit the severalty which is no less characteristic of other aspects. In a democracy, the surest guaranty of civic responsibility seems to lie in the gift of genuine functions of government no less to the parts than to the whole. . . . Only thus can we prevent Washington from degenerating into Dublin Castle. In the end, maybe, the ways of attainment will be as different as the objects at which they aim; but the good of the universe is manifold and not single. We are as travellers breasting a hill, and we reach its summit by a thousand devious paths.⁷⁷

Laski does not advocate a federal structure for England; the country is so much an economic unit that a measure of decentralization is the most that can be hoped for. Indeed in his discussion of English local government, he not only advocates greater use of the grant-in-aid, a technique whose use increases the control of the central authority over local bodies, but argues that what is needed is not so much new powers for the local authorities as the requirement by the central government that they meet higher standards of attainment in carrying out their present functions.⁷⁸ These suggestions hardly seem to be leading us to a pluralistic state in which sovereignty will be partitioned and the present hierarchical state structure destroyed. Even if we ignore these details and concentrate on Laski's general proposals for decentralization, it is difficult to see how his program of devolving certain governmental functions and powers to inferior territorial and functional units bears any adequate relationship to his idea of a pluralistic society in which the state is no longer sovereign over other groups. The example of the United States shows that a federal structure is compatible with the existence of a state possessing legal sovereignty. Even in a federal state, and, therefore, a fortiori, in a decentralized state, there are areas of action in which the central government is supreme, and the powers of the constituent states or local units of government are subject to the overriding authority of the central government or of the constitutional instrument that defines the proper spheres of the various governmental units.

Laski's concrete proposals for changes in the British political structure would leave the government at Westminster the all-important financial weapon of control, the grant-in-aid, and the responsibility for defining the scope of the functions and powers of local authorities and for determining and enforcing minimum standards of accomplishment in such fields as housing and education. His suggestions for decentralization on functional lines indicate that the central government would not only determine the powers to be granted to the industrial and professional associations, but also retain the power to alter the range of subjects to be dealt with by such bodies, together with the authority to override any action taken by them. Under such conditions the authority of the state would be greater than that of any other group or association, and it would still retain its principal functions—regulation of the relationships among the various groups in the society and their members and control of certain aspects of the relationships between each association and its members. The institutional changes that Laski proposes would not result in the creation of his ideal pluralistic state; the state would still possess legal sovereignty, hierarchical structure would not be replaced by a series of "coordinate groups," and the parts of the state would in no sense be as "primary" and as "self-sufficing" as the whole.

NOTES

¹Studies in the Problem of Sovereignty (New Haven: Yale University Press, 1917), hereinafter cited as SPS, p. 3; see also "The Personality of the State," The Nation, CI (July 22, 1915), 115.

² John Austin, Lectures on Jurisprudence (2d ed., London: John Murray, 1861), p. 170.

³ See J. N. Figgis, The Divine Right of Kings (2d ed., Cambridge: Cambridge University Press, 1914) and Studies of Political Thought from Gerson to Grotius (2d ed., Cambridge: Cambridge University Press, 1916).

⁴ SPS, p. 208.

⁵The Foundations of Sovereignty and Other Essays (New York: Harcourt, Brace and Co., 1921), hereinafter cited as FS, p. 236.

⁶ See Francis W. Coker, "Pluralistic Theories and the Attack upon State Sovereignty," in Charles E. Merriam and H. E. Barnes, eds., A History of Political Theories-Recent Times (New York: Macmillan Co., 1924), p. 110.

⁷ SPS, p. 273.

⁸ See FS, p. 230.

⁹ See SPS, pp. 14 and 262; FS, p. 244; and Authority in the Modern State (New Haven: Yale University Press, 1919), hereinafter cited as AMS, p. 165.

¹⁰ See SPS, p. 206.

¹¹ AMS, p. 122.

¹²The State in the New Social Order, Fabian Tract No. 200 (London: The Fabian Society, 1922), p. 8.

¹³ See AMS, p. 30; FS, p. 136; and SPS, p. 14.

¹⁴ AMS, p. 28.

¹⁵ See below, chap. 2.

¹⁶ See AMS, p. 120.

¹⁷ But note his statement that nineteenth-century Germany "etherealized the principles of Machiavelli, and erected them into an ethical system. Hegel gave to them a philosophic, and Treitschke a quasi-historical justification." "A Philosophy Embattled," The Dial, LXII (Feb. 8, 1917), 96.

¹⁸ See SPS, p. 15.

¹⁹ See his comment: "No political democracy can be real that is not as well the reflection of an economic democracy; for the business of government is so largely industrial in nature as inevitably to be profoundly affected by the views and purposes of those who hold the keys of economic power. That does not necessarily mean that government is consciously perverted to the ends of any class within the state. . . . But when power is actually exerted by any section of the community, it is only natural that it should look upon its characteristic views as the equivalent of social good." AMS, p. 38. See also Holmes-Laski Letters, 1916-1935, ed. by Mark DeWolfe Howe (2 vols., Cambridge: Harvard University Press, 1953), I, 76 (April 5, 1917).

²⁰ FS, p. 62. See also his statement: "Those who hold power will inevitably feel that the definition of good is the maintenance, in some fashion, of the status quo. . . . The business of government has, for the most part, been confided to the middle class; and the results have largely reflected the aptitudes and purposes of that class." Ibid., p. 63.

²¹Ibid., Preface, p. vi.

²² AMS, p. 81.

²³Ibid., p. 88; see also "Democracy at the Crossroads," Yale Review, n.s., IX (July, 1920), 797.

²⁴ AMS, p. 374.

²⁵Ibid., p. 385.

²⁶ See below, chap. 3, section 2.

²⁷ "Democracy at the Crossroads," Yale Review, n.s., IX (July, 1920), 803.

²⁸ "Lenin and Mussolini," Foreign Affairs, II (Sept., 1923), 54; see also "The Temper of the Present Time," The New Republic, XXI (Feb. 18, 1920), 335-38.

²⁹ "Democracy at the Crossroads," Yale Review, n.s., IX (July, 1920), 802-03. See also Holmes-Laski Letters, I, 15 and 105 (Sept. 6, 1916 and Oct. 21, 1917).

³⁰ See SPS, pp. 24-25 and 235-37; AMS, p. 279; and FS, p. 86.

³¹ See the statement: "however valuable may be the benefits of order, they are useless so long as they stifle the spontaneity of the human mind." AMS, p. 320.

³²Ibid., p. 177.

³³ See SPS, p. 23; AMS, pp. 68-69, 177, and 375; "Democracy at the Crossroads," Yale Review, n.s., IX (July, 1920), 803; The State in the New Social Order, p. 15; and the Introduction to Léon Duguit, Law in the Modern State, tr. by Frida and Harold Laski (New York: B. W. Huebsch, 1919), p. xxxiii.

³⁴ SPS, p. 23.

³⁵ AMS, p. 166.

³⁶ See FS, pp. 260-61, 272-73, and 284.

³⁷Ibid., p. 261; see the entire article, "The Basis of Vicarious Liability,". ibid., pp. 252-91.

³⁸Ibid., p. 261.

³⁹Ibid., p. 291.

⁴⁰ See SPS, pp. 9-10; FS, p. 169.

⁴¹ See "The Personality of the State," The Nation, CI (July 22, 1915), 116; see also his statement: "The state is an organized group actuated by a particular idea, and men belong to it because they believe in the goodness of that idea." Ibid.

⁴² See, e.g., G. D. H. Cole, Guild Socialism Re-stated (London: L. Parsons, 1920), p. 124: "Coordination is inevitably coercive unless it is self-coordination, and it must therefore be accomplished by the common action of the various bodies which require coordination."

⁴³ AMS, p. 65.

⁴⁴ See SPS, p. 19.

⁴⁵Ibid., p. 270.

⁴⁶ FS, pp. 169-70.

⁴⁷ See below, chap. 2.

⁴⁸ AMS, p. 74.

⁴⁹ See FS, Preface, p. viii.

⁵⁰ AMS, p. 84.

⁵¹ FS, p. 169.

⁵² Otto von Gierke, Das deutsche Genossenschaftsrecht (3 vols., Berlin: Weidmann, 1868-1913). F. W. Maitland translated a part of Vol. III of this work as Political Theories of the Middle Age (Cambridge: Cambridge University Press, 1900); see his Introduction to this translation. See also H. A. L. Fisher, ed., The Collected Papers of Frederic William Maitland (3 vols., Cambridge: Cambridge University Press, 1911), especially "Moral Personality and Legal Personality" (1903), III, 304-20. For the views of Figgis, see The Divine Right of Kings, Studies of Political Thought from Gerson to Grotius, and Churches in the Modern State (London: Longmans, Green and Co., 1914).

⁵³ See "Die Grundbegriffe des Staatsrechts und die neuesten Staatsrechtstheorien," Zeitschrift für die gesammte Staatswissenschaft, XXX (1874), as cited and discussed by Francis W. Coker, "Pluralistic Theories and the Attack upon State Sovereignty," in Merriam and Barnes, eds., A History of Political Theories—Recent Times.

⁵⁴ J. N. Figgis, Churches in the Modern State, p. 49.

⁵⁵ See Ernest Barker, "The Discredited State," Political Quarterly, No. 5 (Feb., 1915), pp. 101-21.

⁵⁶ See SPS, p. 274; and "Democracy at the Crossroads," Yale Review, n.s., IX (July, 1920), 796.

⁵⁷ See SPS, where he discusses the secession from the Established Church of Scotland in 1843, the Oxford Movement in the 1830's and 1840's, the Roman Catholic revival in nineteenth-century England, and Bismarck's Kulturkampf; and AMS, where he presents a long essay on Lamennais, pp. 189-280.

⁵⁸ SPS, p. 94.

⁵⁹ See FS, pp. 139-45; and AMS, p. 84.

⁶⁰ SPS, p. 208.

⁶¹ FS, p. 157.

⁶² Barker, "The Discredited State," Political Quarterly, No. 5 (Feb., 1915).

⁶³ See Robert M. Maclver, The Modern State (London: Oxford University Press, 1926), p. 452: "A grove of trees is not a tree, nor a colony of animals itself an animal.... The very thing we are seeking after, the social nexus, disappears if we identify the relationship with the nature of the objects to be related. We want to know how minds are related, and we are told that the system of relationships is itself a mind.... No unity of like elements can possibly be described as equivalent in structure to that of its own elements."

⁶⁴ See "The Personality of the State," The Nation, CI (July 22, 1915), 115-17.

⁶⁵ "The Apotheosis of the State," The New Republic, VII (July 22, 1916), 303.

⁶⁶ SPS, p. 108.

⁶⁷ See AMS, p. 83; SPS, p. 270; and FS, pp. 77-78.

⁶⁸ AMS, p. 87.

⁴⁹ FS, p. 165.

⁷⁰ 1901, A.C. 426; see FS, p. 165.

⁷¹ FS, p. 168.

⁷² 1910, A.C. 87; see FS, pp. 165-66.

⁷³ FS, p. 166

⁷⁴ See AMS, pp. 75-81.

⁷⁵ See ibid., pp. 384-85. Laski argues, e.g., that even though the state retains formal control by enacting into law a medical code drafted by the medical association, it is clear that the substance of authority has passed from the state to the technically competent professional group.

⁷⁶ FS, p. 91. He notes: "What we have to do is rather to make our political system mirror the sectional economic interests within itself and try to work out a harmony therein." Holmes-Laski Letters, I, 76 (April 5, 1917).

⁷⁷ SPS, pp. 282-85; see this entire essay, "Sovereignty and Centralisation." See also his defense of American federalism against the criticisms of eager reformers and his opposition to the Child Labor Amendment, Holmes-Laski Letters, I, 721 (March 14, 1925).

⁷⁸ See FS, pp. 46-47 and 57-59.