Page:Harvard Law Review Volume 32.djvu/508

472 472 HARVARD LAW REVIEW What is here argued is the simple thesis that this is legally un- necessary and morally inadequate. It is legally unnecessary be- cause, in fact, no sovereignty, however conceived, is weakened by Uving the Ufe of the law. It is morally inadequate because it exalts authority over justice. It would not persist but for the use of antiquarian termi- nology. The Crown is a noble hieroglyphic; and it is not in the Law Courts that effort will be made to penetrate the meaning of its patent symbolism. Crown in fact means government, and government means those innumerable ofl&cials who collect our taxes and grant us patents and inspect our drains. They are human beings with the money-bags of the state behind them. They are falUble beings because they are human, and if they do wrong it is in truth no other derogation than the admission of their human fallibiHty to force responsibility upon the treasury of their principal. To avoid that issue results not merely in in- justice. It makes of authority a category apart from the life that same authority insists the state itself must hve. By its sanctifi- cation of authority it pays false tribute to an outworn philos- ophy. "Whatever the reasons for establishing government," said James Mill,"^ "the very same are reasons for establishing se- ciurities," It is this absence of safeguards that makes inadequate 'the legal theory our courts to-day apply. Nor has it even the merit of consistency; for the needs of administration have neces- sitated governmental division into parts that may or may not be sovereign or irresponsible without regard to logic. The cause of this moral anachronism may be imbedded in history; but we must not make the fatal error of confounding antiquity with ex- perience. We live in a new world, and a new theory of the state is necessary to its adequate operation. The head and center of practical, as of speculative effort, must be the translation of the facts of hfe into the theories of law. The effort to this end is slowly coming; but we have not yet taken to heart the burden of its teaching. The ghost of old Rome, as in Hobbe's masterpiece of phrase, still sits in triumph upon rxiins we might fashion anew into an empire. Harold J. Laski. Harvard University. "^ Essays reprinted from the Encyclopedia Britannica, 5.