Originally,
all these powers belonged to the organic society and were put into force mainly
by various natural devices of a
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loose and entirely customary character, such as the
Indian panchayet or village jury, the jurisdiction of guilds or other
natural associations, the judicial power of the assembly or con- vocations of
the citizens as in the various Roman comitia or large and unwieldy
juries chosen by lot or otherwise as in Rome and Athens, and only to a minor
extent by the judicial action of the king or elders in their administrative
capacity. Human societies, therefore, in their earlier development retained for
a long time an aspect of great complexity in their judicial administration and
neither possessed nor felt any need of a uniformity of jurisdiction or of a
centralised unity in the source of judicial authority. But as the State idea
develops, this unity and uniformity must arrive. It accomplishes itself at
first by the gathering up of all these various jurisdictions with the king as
at once the source of their sanctions and a high court of appeal and the
possessor of original powers, which are exercised sometimes as in ancient India
by judicial process but sometimes in more autocratic polities by ukase - the latter especially on the
criminal side, in the awarding of punishments and more particularly punishments
for offences against the person of the king or the authority of the State.
Against this tendency to unification and State authority there militates often
a religious sense in the community which attaches as in most countries of the
East a sacrosanct character to
its laws and customs and tends to keep the king or State in bounds; the ruler
is accepted as the administrator of justice, but he is supposed to be strictly
bound by the law of which he is not the fountain but the channel. Sometimes
this religious sense develops a theocratical element in the society, a Church
with its separate ecclesiastical authority and jurisdiction, a Shastra in the
keeping of Brahmin jurists, a law entrusted to the Ulemas. Where the religious
sense maintains its predominance, a solution is found by the association of
Brahmin jurists with the king or with the judge appointed by him in every State
tribunal and by maintenance of the supreme authority of the Pundits or Ulemas
in all moot judicial questions. Where, as in Europe, the political 'instinct is
stronger than the religious, the ecclesiastical jurisdiction comes in time to
be subordinated to the State's and finally disappears.
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Thus
eventually the State or the monarchy -
that great instrument of the transition from the organic to the rational
society - becomes the head of the law as well as the embodiment of public order
and efficiency. The danger of subordinating the judiciary entirely to an
executive possessed at all of arbitrary and irresponsible powers is obvious;
but it is only in England - the
one country always where liberty has been valued as of equal importance with
order and not considered a lesser necessity or no necessity at all- that there
was a successful attempt from an early period to limit the judicial power of
the State. This was done partly by the firm tradition of the independence of
the tribunals supported by the complete security of the judges, once appointed,
in their position and emoluments and partly by the institution of the jury
system. Much room was left for oppression and injustice, as in all human
institutions social or political, but the object was roughly attained. Other
countries, it may be noted, have adopted the jury system but, more dominated by
the instinct of order and system, have left the judiciary under the control of
the executive. This, however, is not so serious a defect where the executive
not only represents but is appointed and con- trolled by the society as where
it is independent of public control.
Uniformity of the law develops on different
lines from the unity and uniformity of judicial administration. In its beginnings,
law is always customary and where it is freely customary, where, that is to
say, it merely expresses the social habits of the people, it must, except in
small societies, naturally lead to or permit considerable variety of custom. In
India, any sect or even any family was permitted to develop variations of the
religious and civil custom which the general law of the society was bound
within vague limits to accept, and this freedom is still part of the theory of
Hindu law, although now in practice it is very difficult to get any new
departure recognised. This spontaneous freedom of variation is the surviving
sign of a former natural or organic life of society as opposed to an
intellectually ordered, rationalised or mechanised living. The organic group-life
fixed its general lines and particular divergences by the general sense and.
instinct or intuition of the group-life rather than by the stricter structure
of the reason.
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The first marked sign of a rational evolution is the
tendency of code and constitution to prevail over custom. But still there are
codes and codes. For first there are systems that are un- written or only
partly written and do not throw themselves into the strict code form, but are a
floating mass of laws, decreta, precedents, and admit still of a large
amount of merely customary law. And again there are systems that do take the
strict code form, like the Hindu Shastra, but are really only an ossification
of custom and help to stereotype the life of the society but not to rationalise
it. Finally, there are those deliberately ordered codes which are an attempt at
intelligent systematisation; a sovereign authority fixes the cadres of
the law and admits from time to time changes that are intelligent
accommodations to new needs, variations that do not disturb but merely modify
and develop the intelligent unity and reasonable fixity of the system. The
coming to perfection of this last type is the triumph of the narrower but more
self-conscious and self-helpful rational over the larger but vaguer and more
helpless life-instinct in the society. When it has arrived at this triumph of a
perfectly self-conscious and systematically rational determination and
arrangement of its life on one side by a fixed and uniform constitution, on the
other by a uniform and intelligently structural civil and criminal law, the
society is ready for the second stage of its development. It can undertake the
self-conscious, uniform ordering of its whole life in the light of the reason
which is the principle of modern social- ism and has been the drift of all the
Utopias of the thinkers.
But before
we can arrive at this stage, the great question must be settled, who is to be
the State? Is the embodiment of the intellect, will and conscience of the
society to be a king and his counsellors or a theocratic, autocratic or
plutocratic governing class or a body which shall at least seem to stand
sufficiently for the whole society, or is it to be °a compromise between some
or all of these possibilities? The whole course of constitutional history has
turned upon this question and to all appearance wavered obscurely between
various possibilities; but in reality, we can see that throughout there has
been acting the pressure of a necessity which travelled indeed through the
monarchical, aristocratic and other stages, but had to debouch in the end in a
democratic form
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of government.
The king in his attempt to be the State –
an attempt imposed on him by the impulse of his evolution - must try indeed to become the fountain
as well as the head of the law; he must seek to engross the legislative as well
as the administrative functions of the society, its side of efficient thought
as well as its side of efficient action. But even in so doing he was only
preparing the way for the democratic State.
The king,
his council military and civil, the priesthood and the assembly of freemen
converting itself for the purposes of war into the host, were perhaps everywhere,
but certainly in the Aryan races, the elements with which the self-conscious
evolution of society began: they represent the three orders of the free nation
in its early and elementary form with the king as the key- stone of the
structure. The king may get rid of the power of the priesthood, he may reduce
his council to an instrument of his will or the nobility which they represent
to a political and military support for his actions, but until he has got rid
of the assembly or is no longer obliged to convoke it, -like the French
monarchy with its States-General summoned only once or twice in the course of
centuries and under the pressure of great difficulties, - he cannot be the chief, much less the sole legislative
authority. Even if he leaves the practical work of legislation to a non-
political, a judicial body like the French Parliaments, he is bound to find
there a centre of resistance. Therefore the disappearance of the assembly or
the power of the monarch to convoke it or not at his pleasure is always the
real mark of his absolutism. But when he has got rid of or subordinated to
himself all the other powers of the social life, there at that point of his
highest success his failure begins; the monarchical system has fulfilled its
positive part in the social evolution and all that is left to it is either to
hold the State together until it has transformed itself or else to provoke by
oppression the movement towards the sovereignty of the people.
The reason
is that in engrossing the legislative power the monarchy has exceeded the right
law of its being, it has gone beyond its Dharma, it has undertaken functions
which it cannot healthily and effectively fulfil. Administration is simply the
regulation of the outward life of the people, the ordered maintenance
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of the external activities of its developed or
developing being, and the king may well be their regulator; he, may well fulfil
the function which the Indian polity assigned to him, the upholder of the
"Dharma". But legislation, social development, culture, religion,
even the determination of the economic life of the people are outside his
proper sphere; they constitute the expression of the life, the thought, the
soul of the society which, if he is a strong personality in touch with the
spirit of the age, he may help to influence but which he cannot determine. They
constitute the national Dharma, - we must use the Indian word which alone is
capable of expressing the whole idea; for our Dharma means the law of our
nature and it means also its formulated expression. Only the society itself can
determine the development of its own Dharma or can formulate its expression;
and if this is to be done not in the old way by a naturally organic and
intuitive development, but by a self-conscious regulation through the organised
national reason and will, then a governing body must be created which will more
or less adequately re- present, if it cannot quite embody, the reason and will
of the whole society. A governing class, aristocracy or intelligent theocracy
may represent, not indeed this but some vigorous or noble part of the national
reason and will; but even that can only be a stage of development towards a
democratic State. Certainly, democracy as it is now practised is not the last
or penultimate stage; for it is often merely democratic in appearance and even
at the best amounts to the rule of the majority and works by the vicious method
of party government, defects the increasing perception of which enters largely
into the present-day dissatisfaction with parliamentary systems. Even a perfect
democracy is not likely to be the last stage of social evolution, but it is
still the necessary broad standing-ground upon which the self- consciousness of
the social being can come to its own1 Democracy and Socialism are, as we
have already said, the sign that that self-consciousness is beginning to ripen
into fullness.
1
It
does not follow that a true democracy must necessarily come into being at some
time. For man individually or collectively to come to a full self-consciousness
is a most difficult tangle. Before a true democracy can be established, the
process is likely to be overtaken by a prematurely socialistic endeavour.
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Legislation may seem at first sight to
be something external, simply a form for the administration, not part of the
intimate grain of the social life like its economic forms, its religion, its
education and culture. It so appears because in the past polity of the European
nations it has not been like oriental legislation or Shastra all-embracing, but
has confined itself until recently to politics and constitutional law, the
principles and process of administration and so much only of social and
economic legislation as was barely necessary for the security of property and
the maintenance of public order. All this, it might seem, might well fall
within the province of the king and be discharged by him with as much
efficiency as by a democratic government. But it is not so in reality, as
history bears witness; the king is an inefficient legislator and unmixed
aristocracies are not much better. For the laws and institutions of a society
are the framework it builds for its life and its Dharma. When it begins to
determine these for itself by a self-conscious action of its reason and will
within whatever limits, it has
taken the first step in a movement which must inevitably end in an attempt to
regulate self-consciously its whole social and cultural life; it must, as its
self-consciousness increases, drive towards the endeavour to realise something
like the Utopia of the thinker. For the Utopian thinker is the individual mind
forerunning in its turn of thought the trend which the social mind must
eventually take.
But as no
individual thinker can determine in thought by his arbitrary reason the
evolution of the rational self-conscious society, so no executive individual or
succession of executive individuals can determine it in fact by his or their
arbitrary power. It is evident that he cannot determine the whole social life
of the nation, it is much too large for him; no society would bear the heavy
hand of an arbitrary individual on its whole social living. He cannot determine
the economic life, that too is much too large for him; he can only watch over
it and help it in this or that direction where help is needed. He cannot deter-
mine the religious life, though that attempt has been made; it is too deep for
him; for religion is the spiritual and ethical life of the individual, the
relations of his soul with God and the intimate dealings of his will and
character with other individuals,
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and no monarch or governing class, not even a theocracy
or priesthood, can really substitute itself for the soul of the individual or
for the soul of a nation. Nor can he determine the national culture; he can
only in great flowering times of that culture help by his protection in fixing
for it the turn which by its own force of tendency it was already taking. To
attempt more is an irrational attempt which cannot lead to the development of a
rational society. He can only support the attempt by autocratic oppression
which leads in the end to the feebleness and stagnation of the society, and
justify it by some mystical falsity about the divine right of kings or monarchy
a peculiarly divine institution. Even exceptional rulers, a Charlemagne, an
Augustus, a Napoleon, a Chandragupta, Asoka or Akbar, can do no more than fix
certain new institutions which the time needed, and help the emergence of its
best or else its strongest tendencies in a critical era. When they attempt
more, they fail. Akbar's effort to create a new Dharma for the Indian nation by
his enlightened reason was a brilliant futility. Asoka's edicts remain graven
upon pillar and rock, but the development of Indian religion and culture took
its own line in other and far more complex directions deter- mined by the soul
of a great people. Only the rare individual Manu, Avatar or prophet who comes
on earth perhaps once in a millennium can speak truly of his divine right, for the
secret of his force is not political but spiritual. For an ordinary political
ruling man or a political institution to have made such a claim was one of the
most amazing among the many follies of the human mind.
Yet the
attempt in itself, and apart from its false justifications and practical
failure, was inevitable, fruitful and a necessary step in social evolution. It
was inevitable because this transitional instrument represented the first idea
of the human reason and will, seizing on the group-life to fashion, mould and
arrange it according to its own pleasure and power and intelligent choice, to
govern nature in the human mass as it has already learned partly to govern it
in the human individual. And since the mass is unenlightened and incapable of
such an intelligent effort, who can do this for it, if not the capable
individual or a body of intelligent and capable individuals? That is the whole
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religion is an artificial monstrosity, although a
national religion may well be a living reality; but even that, if it is not to
formalise and kill in the end the religious spirit or prevent spiritual
expansion, has to be tolerant, self-adaptive, flexible, a mirror of the deeper
soul of the society. Both these devices, however seemingly successful for a
time, are foredoomed to failure, failure by revolt of the oppressed social
being or failure by its decay, weakness and death or life in death. Stagnation
and weakness such as in the end overtook Greece, Rome, the Mussulman nations,
China, India, or else a saving spiritual, social and political revolution are
the only issues of absolutism. Still it was an inevitable stage of human
development, an experiment that could not fail to be made. It was also fruitful
in spite of its failure and even by reason of it; for the absolutist
monarchical and aristocratic State was the father of the modem idea of the
absolutist socialistic State which seems now to be in process of birth. It was,
for all its vices, a necessary step because only so could the clear idea of an
intelligently self-governing society firmly evolve.
For what
king or aristocracy could not do the democratic State may, perhaps with a
better chance of success and a greater security, attempt and bring nearer to
fruition, - the conscious and organised unity, the regularised efficiency on
uniform and intelligent principles, the rational order and self-governed perfectioning of a developed society. That is the idea and, however
imperfectly, the attempt of modem life; and this attempt has been the whole
rationale of modern progress. Unity and uniformity are its principal trend; for
how else are the incalculable complexities of the vast and profound thing we
call life to be taken hold of, dominated, made calculable and manageable by a
logical intelligence and unified will? Socialism is the complete expression of
this idea. Uniformity of the social and economic principles and processes that
govern the collectivity secured by means of a fundamental equality of all, and
the management of the whole social and economic life in all its parts by the
State; uniformity of culture by the process of a State education organised upon
scientific lines; to regularise and maintain the whole a unified, uniform and
perfectly organised government and administration that will represent and act
for the whole social
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being, this is the modern Utopia which in one form or
another it is hoped to turn, in spite of all extant obstacles and opposite
tendencies, into a living reality. Human science will, it seems, replace the
large and obscure processes of Nature and bring about perfection or at least
some approach to perfection in the collective human life.
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