Text 4 “hollowed-out government”

The election of the Conservative government in 1979 led to a return to individualistic ideology perhaps generated by the growing awareness that the welfare state cost more than the UK's declining economy could support. Most of the nationalised industries and also water supply and sewage services were privatized. The central government increased its powers of control over local authorities to prevent them from retaining the communitarian orthodoxy. The central government attempted to confine itself to the roles of coordinator and regulator by devolving the delivery of services to a range of miscellaneous bodies both public and private and within its own apparatus set up quasi-autonomous agencies. It has been argued that although central government retains formal control, for example through powers to make appointments, to lay down policy guidelines and to regulate these dispersed bodies, it has neither the resources nor the will to co-ordinate its increasingly dispersed progeny.

This is an aspect of a wider development which raises doubts about the role of the state and about representative democracy. The traditional state has been attacked both from without and within. The “global economy” is a fashionable idea. It will be recalled that the origins of the state were military as a method of defending a community against foreign aggression. Until the Second World War the international community was regarded as a Hobbesian state of nature where the rule of law operated within state boundaries, the state being the guarantor of welfare, the stage-manager of the economy and the protagonist in the international arena. However the Second World War persuaded the international community to develop common principles regulating the economy and also concerning “crimes against humanity” such as genocide and torture, a process that has steadily developed through a series of treaties some of which, for example the European Convention on Human Rights and the Torture Convention (1984), have been incorporated into UK law.

Technology has speeded up communications to such an extent that states have become economically interdependent, allegedly to a greater extent than before, and large international firms are wealthier than many states. Governments have lost levers of power such as control over flows of money and other information. These economic developments are reflected by the growth of international bodies such as the World Trade Organisation and the EU, albeit the latter might be regarded as the last gasp of old-fashioned statism with its claim to a “European” identity. The balance of power that concentrated military efforts on perceived threats from overseas was destroyed in the 1980s by the collapse of the Soviet Union. This released many local pressures within the old state boundaries based on ethnic, religious and racial conflicts and led to an increased concern for human rights both of individuals and minority groups to which state boundaries are largely irrelevant.

These developments do not make the state redundant. Indeed sentiments about globalisation and the obsolescence of the nation state, similar to those expressed today, were prevalent in the nineteenth and early twentieth centuries until the dream was interrupted by the First World War. Territorial units of government may be an essential requirement of the human species. The state remains vital as a guarantor of order, a major contributor to economic well-being and a last resort for the vulnerable. It is unlikely that the more radical predictions that the state's functions will be entirely superseded by international bodies, local communities and private companies, will be realised in the foreseeable future.

TASK I Compare the following definitions of state and determine in which meaning the word is used in the text:

State – A sovereign and independent entity capable of entering into relations with other states and enjoying international legal personality. To qualify as a state, the entity must have: (1) a permanent population; (2) a defined territory over which it exercises authority; (3) an effective government. Oxford Dictionary of LAW

State – (a) Independent country; semi-independent section of a federal country (such as the USA); (b) government of a country. P.H. Collin Dictionary of LAW

TASK II Read the following and analyse the given approaches to state:

Broadly speaking the state means the supreme government within a community, but the term is also used to describe an independent country within the international community, the term “state” derives from “status” or “estate” and originally meant rank or position. The modern nation state, based on a concept developed in ancient Rome, emerged throughout Europe in the sixteenth century for military purposes following the collapse of the unifying authority of the Catholic Church. The seventeenth century civil war between the Crown and Parliament arose out of the Stuart kings” radical claim that the monarch embodied the state. The victory of Parliament in 1688 under the banner of the traditional constitution helps to explain why, during an era of great political change, Britain did nit follow the model of other European countries, most of which were absolute monarchies until the nineteenth century.

The state can be regarded as merely a body of people issuing orders, its function being to provide services for the public. What is special about the state is the Hobbesian notion that the state must be accepted by the community as having a monopoly of physical force either directly or indirectly, as when it permits the use of force by others in selfdefence.

The terms “state” and “nation” overlap. The state is a legal and political concept. A nation is a cultural, political and historical idea signifying a homogenous geographical community represented possibly but not necessarily by a common language, religious or political tradition.

In English law the terms “Queen”, “Crown” and “State” are used fairly indiscriminately. For example references are made to secretaries and ministers of state but also to ministers of the Crown. Thus there are state schools, state papers and state secrets on the one hand and National Insurance and the National Health Service on the other. The courts are the Queen’s courts, law are made by the Queen in Parliament but civil servants are servants of the Crown. Central government property is Crown property unless it is owned by an incorporated government department such as the Ministry of Defence. There are H.M. prisons, H.M. Post Office, H.M.Ships but the Crown Prosecution Service.

In “statist” constitutions such as those of France and Germany, the various departments of government, and indeed the law itself, emanate from a single monolithic state created by law and whose powers are defined and limited by the law (rechtstaat). All public officials are servants of the state. In statist theory a constitution arises from the act of a “constituent power” which might for example be a revolution or a referendum of people. The constituent power creates the constitution which in turn creates the state and authorizes the enactment of ordinary laws in a logical self-contained hierarchy.

By contrast, English law does not recognize the state as a legal entity in its own right, but regards government as comprising a number of different legal entities, Parliament, the Crown, local authorities, the police etc. each of which is linked to the others by pragmatic rules and practices. The common law is said to derive from community values rather than the will of the state, although today, with the law dominated by the legal profession with its network of links with government, this may be unreal.

The term “state” is sometimes used in UK legislation where its meaning depends on the particular context. Sometimes state means the executive arm of government, sometimes the government as a whole, and sometimes the “sovereign power”.

Lord Devlin described the state as “the organs of government of a national community”. Lord Reid on the other hand thought that “the organised community” was as close to a definition as one can get. There is a crucial ambiguity here as to whether “the interests of the state” are taken to be the interests of the government as such or include the broader interests of the people, usually expressed by the term “public interest”.