We need not go into detail about the functioning of the Supreme Court, but an essential, perhaps the essential, function is as Upholder and Protector of the Constitution. That is to say, if there is any dispute regarding interpretation of the Constitution (and its Amendments) then it is the Supreme Court who decides the matter,
Such disputes arise all the time (often on relatively minor matters) and many of these result from the complications arising from the Federal nature of the United States. The Supreme Court will typically be asked to resolve a dispute regarding the authority of either a State Government or the Federal Government to rule on a matter. The necessity for a Supreme Court was recognised by the Framers of the Constitution as without such a body clashes could occur between say the Federal Legislature and the President or between State Legislature and the Governor of the same State as to who could decide to take a certain action. Such clashes could lead to dangerous situations that could threaten stability and, worse still, the Constitution itself.
The function of the Supreme Court occurs therefore at the highest level on matters of the highest importance. Why, therefore, not subject its members to democratic elections and rotate them according to a fixed term? This would overcome the problem of controversial appointments and it would mean if its rulings were not popular members could be thrown out.
The Framers understood clearly that a democratically elected Supreme Court would be a disaster for the future of the Republic and might have lead to its demise. The Supreme Court was designed as an appointed body, i.e. as a Civil Institution, as the only type of body that could perform the task required of it.
Now the overriding reason for favouring Appointment over Democracy is that we require a quality of the Protector of the Constitution that we do not and cannot expect of elected Representatives: Objectivity. That is to say, their judgments must be made free from interference by particular interest groups and free from influence by popular feeling.
Having decided upon Appointment, the procedure for the Appointment then becomes vital to get right. A particular danger of the principle of selection by Appointment is that the goal of Objectivity, which is so vital, may be threatened if the procedure allows for a particular interest group to gain control of it so leading to a distortion of the make up of the Court.
The procedure adopted by the Framers was that although the Executive (the President) makes the Appointments, they are subject to Approval by the Upper House (the Senate) thus incorporating the principle of Checks and Balances so essential to a Republican Constitution. We may feel the procedure, as designed, is not the best possible, but this is not the place to argue this. The principle is clear:
The Appointment Procedure must provide for the selection of members of the Supreme Court that does not lead to a bias in its composition in favour of any interest group. And if Objectivity is the principle determining Appointments, along with this will go the desire only for members of the highest possible caliber who can embody the refined sense of Civic Virtue necessary to their role.
The results of using a democratic method selection instead of Appointments can easily be imagined:
- the court would be subject to domination by political factions
- rotation would mean its rulings could be reversed as rival factions gained the upper hand
- demagogues without the necessary experience could become members
- the Court would become the instrument of dominant political and financial factions in other Offices of Government
In short, partisanship and instability would mark the work of the Court. This does not mean that the above are wrong in themselves; they are simply wrong for the role of Protector of the Constitution, which is ultimately Protector of the Nation. Democracy is good when it operates in arenas that are appropriate for Democracy, for instance, where it helps to protect us from arbitrary Executive decree and enactment of laws over which we have no control. (It only helps us in these respects. Alone it cannot do the job, as experience in the UK shows.)
Now, let us consider the example of a Chartered Civil Institution - the Law Society.
Membership of the Law Society is determined by appointment following examination by a recognised board. Any individual who has the necessary qualification will be appointed subject only to their agreeing to abide by the rules of the Society. Having been appointed a member, the new lawyer will gain certain privileges that non-members cannot have, the overwhelmingly important one being the right to practice law.
What makes this right into a privilege of real value to the recipient is that non-members do not have this right, at least, not by calling themselves lawyers. Legal advice may be offered by anyone but it will not carry with it protection to the client and in practice most people will only value the legal advice of a member of the Law Society.
To give this a little more context, we might note that this is what was for Prime Minister Thatcher a "restrictive practice". During her rule, there was some slippage of this principle as she opened up house conveyance to non-lawyers. She also tried to attack the position of barristers but this attack was not successful. New Labour has continued the attack on the independence of the legal profession in its ongoing attempt to force solicitors to accept non-solicitors as owners of solicitors' practices.
With power hungry democratically elected politicians maintaining a virtual monopoly on the polity, such attacks are inevitable as they continually try to extend their own remit. With little general awareness of the theoretical basis for Civil Institutions, amongst either professionals such as lawyers or anyone else for that matter, those who see the degradation of the Civil Society that the elected politicians pursue have little defense or argument against them. Democracy rules!
The lack of understanding of an alternative to Democracy that is so vital for the maintaining of a civilised society is, of course, part and parcel of the almost near absence of any real Republican debate*.
But returning to our example of the Law Society, a member having received the privilege to practice law (after grueling studies and apprenticeship, it should not be forgotten) then is expected to uphold the law in an objective way. Of course, they are employed by a client to represent the client's interest and to this extent they are partial but their function is to make sure their client benefits to the maximum from their legal rights, an objective that does not or should not conflict with the function of upholding the law.
A shyster might misrepresent the law in order to gain the confidence of a potential client and secure an appointment, but this ultimately does no service to either the client or the law. By maintaining strict standards of objectivity both the advantage of any client and the law itself are served.
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Having gone some way to explain what Civil Institutions are, it is now worthwhile saying what they are not, by referring to types of organisations that do not qualify. In doing this we can also introduce the notion of quasi-institutions which applies to certain organisations.
A. A club is not an institution. A club has no Charter by Statute and often anyone can join who can pay the entry fee, although some clubs have appointment procedures. The description above of the bookish, cigar smoke-filled room is more likely, in fact, to apply to a club than an Institution.
Clubs can be amalgams of businesses or other types of organisations as well as of individuals. For instance, the Confederation of British Industry is a club, and Chambers of Commerce are clubs. Clubs may, however, come to qualify as Quasi Institutions (see below).
An organisation like the Freemasons could never be a Civil Institution as it does not fulfill the requirement of openness. It is really just a club. Openness is essential to Institutions in order that the public can judge whether they are performing well and properly. Society extends privileges to Institutions and so has a right to know what they are up to. Committee meetings, of course, are not expected to be public, but any actions an Institution takes within the larger society must be. Its influence if it has any must be visible and identifiable.
B. A Quango is not an Institution. A Quango does not have the Chartered Status required of a Civil Institution because it is invariably just the brainchild of the Executive. Quangos are often created without any Parliamentary process, often at the drop of a hat, by the Executive. Sometimes they have a legitimate and necessary purpose, such as regulating a privatised industry or health and safety measures, but other times they are the means of validating a dubious policy objective (for instance, CABE, the Commission for the Built Environment) or they are just window dressing to make it appear that the Government is "doing something" about a problem, such as making schoolchildren better "citizens". 6
In any case, they never have the sound basis of a Civil Institution; they are often not permanent, being subject to the whims of Ministers who then move departments; they employ people who have no commitment to them (as professionals will have to their Institution) regarding their position in the Quango as a stepping stone in an otherwise directed career path; they seldom have a rigorous Code of Practice; and they often do not have a unique function for what they do is duplicated elsewhere. All this means that they in no sense seek to cultivate any real independent spirit, their raison d'être being simply to serve their creators and masters in the Executive.
C. Registration under a law does not make a Civil Institution. A case in point here is a Trades Union. Under Trades Union legislation passed by the Thatcher government in the 1980's, unions have to register and then they are controlled under the act. This does not make them Institutions, however, as, for instance, they receive nothing in return and they have no unique function. 7 Their members may have to have certain qualifications to join, but they still resemble clubs more than institutions. A Trades Union does not satisfy the second principle on Institutions of putting the interests of society at large above that of its members. Its purpose is to represent the interests of its members before that of others.
Registered charities are more like Institutions proper, but really qualify only as Quasi Institutions (see below).
D. Private companies cannot be Civil Institutions as they do not put the interests of society above that of themselves. They generally pursue their own interests, although good, long established companies can display some of the worthy qualities of Civil Institutions.
E. Public services are not generally Civil Institutions as they are (at least at present) an arm of the Executive. There are exceptions to this of which the BBC is an example. It fulfills all the requirement of a Civil Institutions, for example, of being required to put the public's interest above its own, of having a specified unique function (as the unique public, publicly financed broadcasting service with all the advantages that brings over it "rivals") and of being required to be objective in its dealings. It draws a distinction between Employees and Members, the Members in this being the Members of the Board. The existence of the Board is essential to its qualification as an Institution for this puts it (in theory at least) at arms length from the Executive.
The Universities used to be Civil Institutions but with the changes to their status that has been pursued by successive Executives. over the last twenty years, it is doubtful whether they can still qualify. They had a great deal of independence, much to the chagrin of populist leaders like Thatcher and Blair, but now they are much more public services (no longer free to students) and so are an arm of the Executive. The reduced role of the universities in the Civil Society represents a significant downgrading of the culture overall.
F. Quasi Institutions are organisations such as the Women's Institute that in many way operate like Civil Institutions proper but are not real institutions for they have no Chartered Status. Thus they have no protection of function and are not regulated. This is not to underplay the value they have for they do constitute a part of the Civil Society that is so important for the cultivation of a sense of belonging and a sense of virtue. Political parties do not quite qualify as Quasi Institutions as their remit is not all-inclusive enough. However, there is the semi-official role of the "official" opposition (but, as it happens, no corresponding semi-official role for the party in government).
An important point to recognise about Quasi Institutions is that all Chartered Institutions start life as Quasi Institutions. For example, the Royal Institute of British Architects was a Quasi Institution long before it received its Charter.
G. Democratic Institutions are Institutions but not Civil Institutions. They do not satisfy the third principle that members must be appointed, for their members are elected by the "people" 8. They do not satisfy the eleventh principle that membership shall be for life for it is invariably subject to rotation. And, crucially, they do not satisfy the twelfth principle that they should be above the "day to day machinations of the polity". Indeed, they are the polity!
Democratic Institutions are fundamentally different from Civil Institutions for their members are not normally voted in to take long term detached views on political matters although the best of them will do this anyway. They should do this anyway, but it is too much to expect that the democratic process with its fixed terms and subjection to popular opinion can deliver this consistently. Republican Constitutions recognise this and so whilst placing a great value on Democratic Institutions know that there have to be Civil Institutions in place to balance them.
H. The Constitutional Monarchy or the Established Church can be regarded as Institutions inasmuch as they have status under the Constitution. However, they are neither Civil nor Democratic Institutions because their members are neither chosen by Appointment nor Democratic election. We can call them Archaic Institutions. Under the Republican Constitution they will in any case be disestablished. Following their disestablishment, they will probably qualify as Quasi-Institutions
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There is a tendency to think of Civil Institutions as fixed and inflexible, even stubborn and intransient. This is, however, far from being the case. If you are involved in an Institution or a Quasi Institution, you will know the truth. The everyday business of running an Institution involves reacting to events, adapting to innovation, changing chiefs and officials and even rethinking a rule or principle. Sometimes you feel you are running just to stand still.
Having said that, it is undoubtedly true that Civil Institutions represent repositories of continuing values and traditions - perhaps the best we have. They are there to provide continuity and stability and a long term view, especially within a democratic polity frequently characterised by short termism, opportunism and manipulation.
A particular recurring concern is that, because of their privileged position, they may turn malign and use their position for exploitative purposes. Whist this worry is understandable, it is seldom the case with Modern Civil Institutions either Government or Chartered or Quasi.
The key to this resides in their obligatory openness. Improprieties will be visible and reportable. Attempts to cover them up are seldom successful and provoke scandals. But, we should never forget that openness in itself is never enough, it demands a reciprocal desire on behalf of society to enquire and be vigilant. In this the role of a free and resolute press and free and resolute broadcasting media are essential and cannot be taken for granted - not to mention actions by diligent citizens.
Civil Institutions can certain be truly malign, but normally these are restricted to societies where the Civil Society has broken down or never existed.
The Soviet Communist Party and the accompanying Nomenclatura were malign in their workings. This was possible, no doubt, for a number of reasons but high on this list would be the lack of openness or a free press. Hitler's SS qualifies as an Institution but it operated in cooperation within an evil political context and so could not be otherwise than malign. The Civil Society as we know it was effectively abolished in Germany under the Nazis.
What characterises Institutions like the Nomenclatura and the SS is that they can only exist by destruction. They have no obligation to the overall society and in no sense do they contribute to its needs. Both had to stifle others and sometimes kill them as a prerequisite for their own continuing survival.
If, in present day Britain, our Institutions and Quasi Institutions are not actually rotten, and it is not clear that any of them are, they will always be able to accept criticism and change accordingly, they will be able to discipline their members themselves who might be guilty of error and they will be able to adapt to a changing society. More than that, they can be engines of change and leaders of pubic opinion.
Far from being concerned about the probity of Institutions we should recognise that in a healthy society they have a natural dynamic towards virtue even if the route there is not always smooth.
* * *
Another criticism often leveled at Civil Institutions is that they are elitist. But the force of this criticism is mostly spent if we reflect on why it is made. The accusation of elitism comes from the prophets of egalitarianism and consumerism. In other words, it comes from those who wish to support the "dumbing down" of the culture, its discourse and its taste. This movement has become an all too familiar feature of British life.
The defense against the accusation of elitism in Institutions is not that it is wrong. It is right. Institutions do foster elitism. The defense is to explain why the kind of elitism they develop is beneficial to the society at large. It is something we absolutely need, and need more of, not less.
Elitism, if based on background and money, leads to a stifling of ability, creativity, talent and hard work, for these become devalued under it. Elitism based on merit creates a classless environment where the benefits of ability, creativity, talent and hard work can be fully realised.
Does this mean a meritocracy? Yes, it does, provided we understand that this is not a fixed group of people but is open to new entrants, just as older ones may fall by the wayside.
* * *
With the establishment of the Second Republic in Britain Institutions will take on a greater role than at present. The British have always been good at building Institutions and this ability was certainly with us until recently. It presumably still is, even if, over the last twenty years, it has been swamped by a proliferation of Quangos and denied by the insistence of having virtually everything motivated by profit.
The new Republic will require new Government Institutions of which the most stately will be the Presidency. The experience of British Institution building will ensure that these new institutions have the dignity, ceremony, solidity and pride necessary to their roles.
Non-Government Civil Institutions and also Quasi Institutions will take on greater importance and greater number as the Civil Society is encouraged to flourish, after years of having to fight off constant attacks by the Executive. The role of the Universities will be reassessed as a Republican leadership inevitably takes on a less populist aspect and the real elites of which we should be appreciative and proud can assume their rightful place in the new progressive programme.
But Institutions can never be ends in themselves. They are merely the means by which individuals live together in society. They certainly outlive us. They are there to do that. But this longevity is what enables the individual to place his or her contribution in the larger context and the greater timescale. Institutions are there to magnify individuals not reduce them.
Under the Republican Constitution, the freedom and independence of Institutions will receive Constitutional safeguards putting an end to the constant meddling and eroding that has become a feature of recent successive Governments who never fail to take advantage of the existing constitutional laxity.
This Institutional freedom will allow fresh air to be blown onto the ingrained orthodoxies that so easily take root in our intellectually timid times. Economics, philosophy, evolution, art, architecture, psychology, political science are just some of the most conspicuous areas that are dominated by orthodoxies that have little rationality behind them and almost no humanity.
And outside of academia, the subject of Constitutionalism which is so vital to the way we are governed never gets a look in. It is far too dangerous to the current political establishment. In the Republic, Constitutionalism will be taught in schools as an essential subject, so that citizens understand their Government and can question it in an informed way.
Virtue is a quality of Human Beings not of Institutions. But Civil Institutions in a secular society are the means by which human virtue can be channeled and can express itself. Institutions encourage us to stand up and be counted.
The sense of virtue is what makes Civil Institutions ultimately accountable. A religious person will feel accountable to their Maker. A democratic politician will feel accountable to their Electorate. Members of worthy Civil Institutions are not just accountable to themselves, and they are only accountable to the state in a partial sense.
Ultimately they are accountable to the highest authority that a secular minded human being can be accountable to - humanity, itself. And the interests of this authority must be the ultimate check on a Civil Institution's conduct.
