Essential Functions of Government
A mature society must distinguish between the essential and discretionary functions of government
The 9th of June 1983, forty years ago today, was an important moment for me. Through my teens and early twenties I’d been very cynical about politics and government and hadn’t engaged at all in any previous elections. But, in the run-up to the General Election on that day, I’d decided I had no right to be critical of the system if I didn’t even deign to vote. So I’d promised myself I would.
I didn’t give much thought to who I should vote for: the alliance between the Liberal party and the SDP (the refugees from the Labour party who had become the Social Democrat Party) was promising to ‘break the mould’ of British politics, so they were the clear choice for me. I didn’t even feel any need to read the leaflets from the various candidates that dropped through the door.
I didn’t throw them away immediately, though. So I still had them when I came home from work on election day and … well, ‘I suppose I should at least read them’. That was depressing: the Alliance candidate was clearly cut from exactly the same cloth as the Tory and Labour candidates — so much for ‘breaking the mould’. Why was there so little difference between them?
In the end, I couldn’t bring myself to vote for any of them. I decided there must be something fundamentally wrong with the whole system and, to release myself from my earler promise, I made a new one: to understand what was wrong with the existing system and work out an alternative that I could respect.
I didn’t know it at the time but that promise was in fact a vow and, in that moment, jurisprudence became my vocation.
Forty years on, I feel that I’ve finally arrived at a satisfactory understanding of the essential principles of democratic governance — some of which currently are, at best, treated as desirable optional extras and, at worst, wilfully ignored.
I’ve done a certain amount of thinking about the philosophical underpinnings but my primary concern, throughout that time, has been how we in Britain might arrive at a political settlement fit for a mature democracy. For that to happen I think we must first understand the core functions of government and the essential purpose of constitutional laws.
Core functions of government
It’s sometimes said that the primary function of government is protection — of society as a whole against external enemies, and of individual members against those who are stronger1 . To my mind, though, this overlooks the fact that there are functions of government which are intrinsic to the very existence of a coherent society, functions without which there can be no sense of community. These functions are more fundamental than 'protection' because, if they’re done badly, or if they're compromised by higher level functions, then the community starts to disintegrate2.
As I see it, at the core of every organised society is a basic framework of laws which determine how conflicts of interest are resolved; those fundamental laws don't deal primarily with the relationship between the strong and the weak — they deal with the relationship between approximate equals. It's only once those laws are in place that a society can develop its own sense of identity; until then it’s merely a collection of individuals who are not bound together by anything other than their instinctive drives. It’s only then, therefore, that the concept of external threats has any social meaning, and only then that a community can afford to look after the weak.
In examining the relationship between different functions of government, it’s worth remembering that, historically, democratic government emerged from mightful government: first, the might of the individual as the dominant force in society was superseded by the might of organised groups; subsequently, the rules by which those groups organised themselves evolved to become more inclusive and more egalitarian. As a result, democratic government inherited the institutional framework that mightful government had established.
For that reason, the lens of history can be a hindrance to understanding the essential nature of democratic government. To understand the different functions of democratic government and the relationship between them, I find it helpful to imagine how government might emerge among a relatively small community of rational near-equals who have come together spontaneously on a remote island.
As I see it, the only governance necessary in that situation would be conflict resolution. Initially this would happen anarchically through the whole community coming to an informal ad hoc decision about any conflict that arose — i.e. the whole community exercising a judicial function. The first step towards formal government would be a decision by the whole community to delegate that judicial function, in order to remove the need for the whole community to be involved in resolving every conflict. From this perspective, the primary function of formal government is determinative: identifying the location and boundaries of judicial authority.
At this stage, there are no formal rules and no formal enforcement mechanism. However, in order to pre-empt conflict, members of the community would adapt their behaviour in the expectation that future conflicts would be resolved in the same way past ones were. That pre-emptive behaviour would then become a consideration in judicial decisions. This would lead the judicial authorities to establish rules binding themselves to precedents they have created in the past. From this perspective, the legislative function of formal government emerges from the judicial function.
Bearing in mind, that this scenario involves a small community of rational near-equals, there would be little need, at this stage, for explicit executive government. As I see it, that need only arises when the community is large enough that informal enforcement of judicial decisions by the whole community becomes impractical.
A society’s ability to ensure its government operates with integrity is also affected by size. In a small community it’s relatively easy for people to know when the designated authorities step outside their remit, and relatively easy to bring them back into line. In larger communities it quickly becomes significantly harder and the task of monitoring and holding to account the officials performing the judicial, legislative and executive functions needs to be delegated to representatives.
From that perspective, the need for determinative, judicial and legislative functions of formal government are inherent in all but the tiniest communities but the executive and representative functions only become necessary in larger ones.
But who watches the watchers? The fact that the people responsible for the representative function might also neglect their duties or step outside their remit, creates a need for a reactive function — some mechanism whereby the whole society can re-activate the determinative function.
Constitutional implications
From the analysis outlined above I conclude that there are six essential functions of democratic government: the three familiar active functions (judicial, legislative and executive); a (passive) representative function; and determinative and reactive functions which are normally dormant.
The determinative and reactive functions operate outside the ordinary course of events and their purpose is to create – and, when necessary, amend – a constitutional framework for normal government to operate within. Implicit in this is that any change to this framework can only happen as part of the determinative function, i.e. through an extra-ordinary process of some kind.
Creation and amendment of this constitutional framework involves:
identifying the location of ultimate decision-making authority;
defining the basic institutional structure of government;
determining the boundaries within which the legislative, judicial and executive authorities operate; and
establishing criteria for how and when the determinative function itself should be activated.
Conclusion
I don’t know whether a fully-developed constitution would include anything more than this. However, it does seem to me that, until we are wholly confident that this primary purpose is being properly fulfilled, it would be a mistake to treat anything else as sacrosanct.
In my next post I’ll be looking, in the light of the above analysis, at how the different branches of the British government relate to each other, and exploring what reforms might be necessary to ensure the system operates with integrity.
My ideas on the core purpose of government first crystallised when I read a piece by Martin Wolf in the Financial Times, in August 2010, where he said "The core purpose of the state is protection. This view would be shared by everybody, except anarchists ...".
I'm not suggesting that there was any significant gap, historically, between the development of the basic framework of laws and the higher-level function of protection; what I'm saying is that there is a clear difference in importance (even if it's not obvious where the boundary lies).