Posts Tagged ‘Blackstone’

British Constitutional Theory and Blair and Cameron’s Surveillance State

November 2, 2015

Over the past few decades we’ve seen the powers of the secret state expand massively, and there are ever-increasing demands for increased powers of surveillance and data-gathering. A few days ago the government intended to pass a bill stipulating that the internet companies should keep browsing histories for a year, just in case the police or security agencies were interested. The power to look at these was to be granted by ministers, rather than judges. Cameron, however, backed down at the last minute, faced with what looks like another rebellion in the Lords.

If this is really what happened, then the Lords are right. And Cameron should know it, if he has any idea of British constitutional theory, or even a grounding in the Classics.

Which given the fact that he didn’t know what Magna Carta was, wouldn’t surprise me.

Since the Middle Ages there has been a long line of British political theorists firmly opposed to the expansion of the powers of the state to spy, prosecute and control. In the Middle Ages the percentage of criminal cases, which resulted in a conviction was low – about five per cent. Nevertheless, medieval English political theorists during the Fifteenth century considered that this was an acceptable price to pay for protecting the citizen from oppression and malicious prosecution by a tyrannical state. They compared the turbulent state of contemporary England with France. France was more peaceful, but this, they believed, had been purchased at the price of a despotic, absolute state.

This attitude continued into the 18th century. Blackstone, one of the greatest British constitutional theorists and historians, declared that it was better that ten thieves and criminals should escape, than one good man should be hanged.

And as someone, who no doubt has studied the Classics as part of their expensive education at Eton, Cameron should know very well the attitude of the Roman historians to the corrupt and brutal Roman Emperors, who ruled by fear, and had networks of spies and informers. Like Nero or Caligula.

This does not mean that there isn’t a very strong authoritarian strain in British politics. Britain became extremely authoritarian during the French Revolution, when all manner of legislation was passed against radical groups, popular assemblies and trade unions.

But this is counterbalanced by a political tradition firmly opposed to despotism, and which also stands opposed to the massive expansion of the surveillance state, which is increasingly demanding information on each of its citizens.

This is only a few sketchy thoughts on the issue at the moment. But it is an extremely worrying issue, which I intend to pursue further.

As for my own thoughts on crime and terrorism – I want criminals and terrorists to be caught and properly punished from their crimes in a court of law. I want the police to have sufficient powers to be able to do this. But I don’t want them to have more power than needed, at the expense of the liberty of ordinary people. This latter is what Cameron’s proposed reforms undermine.

And one other saying is important here: The price of freedom is eternal vigilance.

Books on British Constitutional History and Democracy: John Locke’s Two Treatises of Government

January 19, 2014

John Locke Government

This is one of the most fundamental texts for the development of modern, British constitutional government and democracy. In the first of the Two Treatises Locke attacked the traditional arguments for absolute monarchy advanced by the royalist Filmer in his Patriarchia. These stated that as the father was the head of the family, so the king had patriarchal power over the nation. Filmer used quotations from Scripture in an attempt to show that this patriarchal power had existed ever since the creation of the first human couple, Adam and Eve.

in the second Treatise Locke advanced his own theory of government. Like the other contract theorists, Locke believed that governments had been set up by the early human community in order to protect their natural rights to life, liberty and property. Locke was responsible for drafting the constitution of the new British colony of Carolina in 1669, and his belief that humans have the above fundamental rights influenced the American Founding Fathers and the declaration of the American Constitution that everyone has the right to ‘life, liberty and the pursuit of happiness’. Unlike Hobbes, he believed that power was still held by the human community, and there were natural limits to government that it could and should not exceed. The supreme power in the state was the legislature, which governed by the consent of the people. This could not transfer its powers to any other body, and can only govern through proper legislation and authorised judges. It cannot seize someone’s property without their consent, and taxes can only be raised with the consent of the people. Its fundamental duty is to govern for the people’s benefit. When it does not do so, the people have the right to dissolve it:

‘There remains still in the People a supreme power to remoave or alter the Legislative, when they find the Legislative act contrary to the Trust reposed in them’.

Locke wasn’t a democrat. His constitution for Carolina was still strongly hierarchical, with the largest landholdings reflecting the various grades of the British aristocracy, so that some of the largest were termed ‘baronies’, for example. In his discussion on the forms of government, he states that nations should be free to choose whether they are democracies, oligarchies, or elective monarchies, or mixtures of all three, as it suits them. In the case of Carolina, the franchise was still restricted to men of property, and the constitution permitted slavery. Nevertheless, Locke’s work is of vital importance for its statement that political power and authority still lies in the people, on whose behalf and by whose authority monarchs and parliaments govern, and that there must be and are constitutional limits to their power. In 1769 the constitutional theorist, Blackstone, developed this into the theory that parliament was the supreme power. His theory of the origin of political power are the basis of both American and British democracy, and the liberal view of political freedom. This is that freedom consists in the people’s right to govern themselves and make their own laws through their representatives. It is opposed to the ‘Conservative’ view of freedom, expressed by absolute monarchs like Charles I, that politics is the sole business of absolute monarchs, who should in practice interfere as little as possible in the lives of their subjects. Unfortunately, this idea of liberty is coming under increasing attack from an authoritarian Coalition, which is liberal in name only.