E. Belfort Bax

The “Collective Will” and Law

(December 1897)

From Social Democrat, December 1897, pp.368-371.
Reprinted in E. Belfort Bax, Essays In Socialism, New & Old, 1907, pp.201-205.
Transcribed by Ted Crawford.
Marked up by Einde O’Callaghan for the Marxists’ Internet Archive.

That the will of the majority is necessarily worthy of all acceptation is a proposition much affected by democrats in general, and is often opposed to the incoherent dreams of Anarchists, who think that in an organised society the individual will can assert its supremacy. Now, while in the main accepting the doctrine as urged against the atomistic theory of Anarchism, I am bound to enter a caveat against the too drastic, or rather uncritical, application of the formula in question. In the first place, what is the will of society, or of the majority? Is it the expressed will or the implied will, and, if so, how much of expression or of implied will goes to constitute the valid will as such? Is a bare majority sufficient? Is every act of a Parliament, lasting, say, for seven years, and passing measures anent questions upon which the constituencies have never been consulted, and many of which, in the hurry of modern life, are passed by unknown, unnoticed by the vast bulk of the population, to be regarded as representing the will of “society”? Then, again, is the will of the majority, even if it be really such – if, for example, it has expressed itself unmistakeably in an initiative or referendum which necessarily only reflects public opinion at a particular moment, possibly under the influence of panic – is such an expression, I ask, to be taken as a valid will, before which our deepest moral impulses as to justice and injustice must go under? I set aside such a monstrosity as decision, or judge-made law, such an important ingredient in the laws under which Englishmen live, as that is obviously a case in which society, or the “majority,” is not consulted at all, though it is not so very different from the other case alluded to above of the measure passed by Parliament as to which the electors have had no voice. In either case the measure, or decision, is incorporated into the established order of things, and is allowed to remain there, not by the will expressed, or even necessarily implied, of the majority, but by the will-lessness, the apathy, of society as a whole. The majority might even disapprove, if questioned on the subject; but the law remains law, because the bulk of society is too indifferent or cannot afford time to getting it repealed. The only alternative remains, if we reject these definitions of the will of the majority, to fall back upon the arbitrary, but scarcely satisfactory, one by which everything which manages to get established is, by virtue of that circumstance, to rank as expressing the collective will.

Barring the last-mentioned solution, we are clearly confronted with more than one difficulty. We have to decide what degree of positive acceptance on the part of the majority constitutes a declaration of “will.” This extends from a definite referendum or plebiscite, which, although it only expresses the will of the majority at a given moment, yet undoubtedly does so at that moment, down to a judicial decision, which probably expresses the will of only “three persons” (judges), with not even one god thrown in by way of makeweight.

If we decline to accept as authoritative anything short of a referendum, it is plain we shall rule out the enormous bulk of the laws and customs under which all civilised people live. While, on the other hand, if we accept the judge’s “decision” as authoritatively representing the will of the nation, we may as well accept the ukase of any despot who by fraud, force or favour has attained to power, as being equally so. But if, once more, we refuse either alternative, and try to strike a middle course, the line we draw must, I submit, as things are to day, be purely arbitrary, not to speak of the difficulties in which we are still involved anent all laws or customs falling outside the line.

The result to which we must come would seem to be that the will or decision of the majority of the people cannot be effectively invoked in any but a few cases, that even under the most favourable circumstances it can only represent a passing phase of the will of the people, and therefore that this will, as expressed in any given manner, has no absolute, but only a very relative validity. But of what nature is this merely relative validity? It is clear that the end of all “just” political and social action is the welfare through progress of the whole – the commonweal. Now, to the Social-Democrat in the vast majority of issues, the verdict of the majority, fairly given, clumsy though it may be, as an instrument, is the best and indeed only possible one. But its validity can in no case be so absolute as that the individual conscience may not conceivably override it. Its verdict should be final for all democrats where it does not conflict with a deeper conviction before which the individual has the right, if he can, to make even the public opinion of the hour, bow. For example, I suppose there are few Socialists who would not be prepared to communise the means of production by force, and establish a collectivist regime even, against the will of the majority if that were possible. Again, there might easily be certain vindictive criminal laws in a moment of public panic receive the consent of the majority, and yet it might be the duty of the minority who disapproved of them to use every possible weapon at hand to render them inoperative. Strength of conviction in a matter seriously affecting the welfare of mankind and involving deep and decisive issues of right and wrong cannot under all circumstances bow even to the majority. For example, few would hold the judge guiltless who nowadays sentenced a witch or a heretic to be burned, notwithstanding that he might be merely carrying out the law in so doing. Yet it is held to be the correct thing to exonerate a judge on the ground of his office from blame in carrying out unjust laws, only when not so flagrant, and this is being done every day.

And here we come to an important point. Ought the “administrator and executor” of a law admitted to be against right and justice to be morally and materially exonerated on the ground of his being merely the agent for the carrying out of the collective will as supposed to be represented by that law There is no doubt that a bad law can be rendered inoperative if there is no one willing to carry it into effect. “Your majority has many faithful servants in this city of Bayonne, but not one executioner.” The old theory of the English bench was that the judge was only bound to give effect to a statute if it were not against his conscience. This old theory has, of course, long lapsed in favour of the convenient doctrine that the judge can do no wrong, that his position, so far as responsibility is concerned, is that of an automaton. For those of us who decline to accept the assumption that any man can divest himself of moral responsibility for his personal actions, at will, this conventional doctrine is scarcely a satisfactory solution of the difficulty. The only logical alternative is to make the judge who puts in execution a bad law, notably where it seriously affects the life and liberty of citizens, liable, not merely morally, at the hands of public opinion, but civilly or criminally, for the act done in the performance of his so-called “duty.” He is the principal agent in the wrong inflicted. “You can’t indite a nation.” You can seldom bring to book the makers of a law (except, of course, in the case of decision-law.) Hence it is the more urgent in the interests of true justice, that the proximate cause of the wrong, the judicial actualiser of the law, should suffer for it, where the law is subsequently recognised as unjust. If it be said that the judge himself may have honestly believed in the justice of the law and of his sentence I reply that that does not alter the criminality of his act. The Anarchist may conscientiously believe that all statesmen and police functionaries are scoundrels whose blood justice demands. Yet if he proceeds to mete out to them the just penalties of their crimes as he and his fellows conceive them, he is, nevertheless, in spite of his conscientious belief in the righteousness of what he has done, deemed fairly amenable to punishment. So with the judge. The recognition of the injustice of a criminal law ought to carry with it, in the minds of those who do so recognise it, the demand of merely for its abolition but for the punishment of those who from the secure position of the judicial bench have carried its provisions into effect. The middle-classes of France after the “terror” guillotined Fouquier Tinville and the jurors of the “Revolutionary tribunal” for having given effect in their official capacities to a law passed by the Convention, i.e., established by the then Government of France, thereby recognising the principle here put forward. That they were justified in so doing is to me perfectly clear. The right of no man ought to be admitted to divest himself of the personal responsibility attaching to his personal acts. No man is compelled to be a judge or executioner against his will, or being such, to remain a judge or executioner. He personally elects to put a law into execution, and as such ought to be prepared to abide by the possible consequences to his own person of his own act. There is no special sanctity in “law” merely as law, which may indeed be the expression of a lasting public opinion, but also may not. The administrator of the law in refusing to execute a bad law involving injury to his fellow citizens is performing a great public service. It at least gives “pause.” If the administrator has been mistaken in his refusal others will undoubtedly be found to execute it, but in any case he himself is exonerated. If time shows he is right he may well have been the means of rendering an unjust law nugatory.

In conclusion, we may ask ourselves, is there any case in which the expressed will of a majority, certainly a large proportional majority, if not a final arbiter of right, would at least approach to this condition in an infinitely greater degree than any majority that does, or is supposed to, impose its will on the world in the present day. I think there is, and that it is to he found, and found only in a democracy where certain well-defined general principles are universally recognised as lying at the basis of all social life as to the reciprocal rights and duties of individual and community. This condition, it is scarcely necessary to say, has never been realised as yet. It can only obtain in anything approaching a complete form under a Social-Democracy, in which a self consistent theory of moral and social life has grown up, and in which any intrenchment on its principles in the old direction of personal coercion will be impossible. In these circumstances the will of the majority as expressed in a referendum or initiative in matters lying outside the moral and social “canon,” as we may term it, would be (for practical purposes), absolutely binding on all citizens.


E. Belfort Bax


Last updated on 14.1.2006