The Functionalist Style in Public Law

Abstract

Introduction In the early decades of the twentieth century, a division emerged within liberal philosophy between what might be called 'classical liberalism' and 'new liberalism.' Classical liberalism was individualistic in orientation, restricted state action to the prevention of harm, and argued that the best method of improving human well-being was to promote freedom of trade, freedom of contract, and individual responsibility.1 Although its influence on nineteenth-century British thought was immense, by the end of the century its authority was diminishing, and this type of liberal thought was being eclipsed by what is commonly called 'new liberalism.'2 New liberalism, which might otherwise be referred to as progressivism or social democracy, presented itself as a more amorphous or disparate phenomenon. At its core, however, new liberalism stood in opposition to the social atomism of classical liberalism, claiming that humans were intrinsically social creatures and that 'real' freedom could not be realized without collective action on a significant scale. These two aspects of a broadly conceived liberal philosophy profoundly disagreed on the nature of the relationship between the individual and the state. Although the particular debates may have been played out differently in particular regimes, this tension between the two variants had significant parallels across a range of advanced industrial societies at this time, the newer versions being exemplified in the emergence of solidarism in France,3 social democracy in Germany,4 and Woodrow Wilson's 'new [End Page 361] freedom' Democrats in the United States.5 This perhaps is not surprising, since the gathering forces of industrialization and urbanization had caused the disintegration of many of the traditional arrangements of social and economic ordering and thrown up widespread problems of urban poverty, trade union militancy, and a concentration of economic power that presented common governmental challenges. Of necessity, the relationship between state and society came to be viewed in a new light. These material changes, together with the emergence of a more scientific disposition amongst the intellectual class, led to extensive discussion about the new social and political order that was to be fashioned in the twentieth century. And as the most industrialized, urbanized, and class-stratified society in the world, these debates exercised a particular hold over British social commentators. These late-Victorian and Edwardian debates over matters of philosophy and politics informed certain disagreements that erupted during this period over ways of conceptualizing the relationship between law and government. That statement could have been transcribed more concisely as 'disagreements over the nature of public law.' But this would be inaccurate, since part of the problem concerned the question of whether or not the English system recognized any notion of public law.6 Arising from these various debates on legal/constitutional questions there emerged a distinctive approach to this issue, which may be called the functional style in public law.7 This approach has been most closely associated with the writing of Harold Laski, Ivor Jennings, and William Robson, though it also had Commonwealth offshoots – most notably Jethro Brown in Australia and John Willis in Canada – and also many American parallels. It might therefore be viewed as a common law version of a general jurisprudential movement of the period. As it emerged in the early decades of the twentieth century, the functionalist style in public law presented itself in direct opposition to the prevailing orthodoxy of analytical legal positivism, underpinned by the political values of classical liberalism and exemplified in the work of A.V. Dicey. The functionalist style offered an alternative way of addressing the issues that were presenting themselves for resolution as matters of public [End Page 362] law. It was therefore a practical, reformist approach, offering solutions to a variety of legal challenges facing modern government and spanning the range from institutional reforms to alternative modes of interpretation and methods of legal reasoning. This practical program of law reform was directly tied to the broader political movement encompassed under the broad heads of new liberalism...