June 22, 2011

Why lawyers make good MPs

How should MPs be trained? That sounds an odd question does it not. An MP, according to Jim Hacker, is a job for which you need no qualifications, there are no hours of service etc. Modern MPs are selceted on the basis of their ideology, their adherance to their party and their experience. All of these things are relevant and they are legitimate bases to chose a modern MP upon: I do not want to question them here- just to suggest that the job of an MP has changed down the years. For evidence I want to consider something that Blackstone made clear in his lectures in Oxford in the 1750s- when you read this think to yourself about how far Blackstone's idea of an MP differs from ours. Whereas we think of our MPs as servants of their constituents and partakers in a public debate: Blackstone seems to have had something else in mind. MPs for him were partakers in public reason- that reason being defined as public law and the task of an MP, for him, was that of a superior magistrate.

He described the privilege of being an MP thus:

They are not thus honourably distinguished from the rest of their fellow-subjects, merely that they may privilege their persons, their estates or their domestics; that they may list under party banners; may grant or with hold supplies; may vote with or against a popular or unpopular administration; but upon considerations far more interesting and important. They are the guardians of the English constitution; the makers, repealers and interpreters of English laws, dedicated to watch, to check and to avert every dangerous innovation, to propose, to adapt and to cherish any solid and well weighed improvement.
Pause for a second before you assent to the wonderful prose and just think about what Blackstone means here: what he is saying is completely at odds with what almost every one of us believes today. His argument is that the central duty of an MP is not to be a loyal member of a party, not to vote on budgets (supplies is the archaic English Parliamentary word- still in use for budgetry measures) nor even to bring down governments: their job is to make or rather consider making law. Note as well that in this action of making law what they are doing is repealing or adding to an existing body of law- not creating new measures but refining old measures. The function of an MP is, for Blackstone, not as a representative (no words about the people here), nor as a creator of an executive, but as a leglislator and one that would choose to do very little.

So what did such a partaker in public law require. Blackstone had examples before him of what such a person might need. He cites Cicero to that effect. He might have cited Sir Edward Coke who famously derided the lack learning Parliament of the 14th Century for its lack of lawyers and hence of mastery of the law. Blackstone believed that to be an MP you had to have a knowledge of a public reason: he cites the rebuke of Quintus Mutius Scaevola, 'the oracle of Roman law' to Servius Sulpicius to make his point. Blackstone quotes Scaevola as saying that 'it was a shame for a patrician, a nobleman and an orator of causes, to be ignorant of that law in which he was so particularly concerned'. What we see here is a dual movement- on the one hand the assertion that the law was a subject, on the other that it was the political subject into which all others fed. Leglislators require this knowledge: Blackstone goes further and expands on the fact that he believes all bad laws in England during the eighteenth century are the product (not as we might argue of bad government or ideologically incorrect government) but of bad lawmaking:
almost all the perplexed questions, almost all the niceties, intricacies and delays... owe their origin not to the common law itself, but to innovations that have been made in it by Act of Parliament; 'overladen (as sir Edward Coke expresses) with provisoes and additions nad many times on a sudden penned or corrected by men of none or very little judgement in law.
Blackstone's case is antique- after all Parliamentary draughtsmen are supposed to deal with this problem. But it is interesting because it demonstrates quite how different his concept of an eighteenth century MP was from ours. No doubt he did believe in representation and in election and in government- but for him expertise in the law was another facet of what made a good MP. In that sense he and Coke and Cicero stand at odds with our politics. For all of them perhaps something of the aristocratic clung to the notion of an MP: they sensed the role as being an honorific one as well as a representative one- the movement between the 18th Century and the 20th may be a movement from the honorific role of election to the representative.

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