Lectures on the Relation between Law and Public Opinion in England during the Nineteenth Century

Lecture VIII. Period of Collectivism

lecture viii The Period of Collectivism this lecture deals with two topics: first, the principles of collectivism, as actually exhibited in, and illustrated by English legislation during the later part of the nineteenth century; and, secondly, the general trend of such legislation. (A) Principles of Collectivism The fundamental principle which is accepted by every man who leans towards any form of socialism or collectivism, is faith in the benefit to be derived by the mass of the people from the action or intervention of the State even in matters which might be, and often are, left to the uncontrolled management of the persons concerned. This doctrine involves two assumptions: the one is the denial that laissez faire is in most cases, or even in many cases, a principle of sound legislation; the second is a belief in the benefit of governmental guidance or interference , even when it greatly limits the sphere of individual choice or liberty. These assumptions—the one negative, the other positive—are logicallydistinguishable , and, as a matter of reasoning, belief in the one does not of necessity involve belief in the other.1 1. A thinker may without inconsistency repudiate the faith of individualists in the unlimited benefits to be conferred on mankind by the extension of individual freedom, and yet rate very low the advantages which any community can derive from the action of the State. A doctor may have little trust in the recuperative power of nature as a cure for a serious malady, and yet may warn the sufferer that popular nostrums will hasten instead of arresting the progress of the disease. But statesmen or reformers can never permanently hold this attitude of balanced and unsanguine scepticism. 184 / Lecture VIII This fundamental doctrine, however, is of too abstract a nature to tell much upon the course of legislation, at any rate where the law-makers are Englishmen. The importance of its general, even though tacit, acceptance lies, as regards the development of English law, in the support which it has given to certain subordinate principles or tendencies which immediately affect legislation. These may conveniently be considered under four heads: the Extension of the idea of Protection; the Restriction on Freedom of Contract; the Preference for Collective as contrasted with Individual Action , especially in the matter of bargaining; the Equalisation of Advantages among individuals possessed of unequal means for their attainment. A given law, it should be remembered, may easily be the result of more than one of these tendencies, which indeed are so closely inter-connected that they ought never, even in thought, to be separated from one another by any rigid line of demarcation. The extension of the idea and the range of protection. The most fanatical of individualists admits the existence of persons, such as infants or madmen, who, because they are incapable of knowing their own interest, and, in the strictest sense, unable to protect themselves, need the special protection or aid of the State. The most thoroughgoing Benthamites , moreover, not only acknowledge, but strenuously insist upon2 the principle that for certain purposes all persons need State protection, e.g. for the prevention of assault by robbers, or for the attainment of compensation for injuries done to them by the breaker of a contract or by a 2. The State often falls short, in the eyes of an individualist, of affording to a citizen all the protection which is justly due to him. If X breaks a contract made with A, or libels A, the latter is clearly entitled, assuming that he himself has done nothing unlawful, to compensation , as complete as possible, for the injury he has suffered. He ought to be paid damages, first, for the loss arising from, e.g. the breach of contract; next, for the costs he has incurred in bringing an action against X; and, lastly, for the loss of time and trouble involved in bringing the action. Under English law he may possibly recover, though he rarely does, complete compensation for the damage arising from the breach of contract; he never, or hardly ever, recovers the whole of the costs actually incurred in bringing the action; he receives no compensation for the loss of time and the trouble incurred in the assertion of his rights. The antiquated, though not even yet quite obsolete idea, that the law ought to discourage litigation, means in reality that a law-abiding citizen who has suffered an injury from the...