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BOOK IV: On the Proliferation of the Laws - Benjamin Constant, Principles of Politics Applicable to All Governments [1815]

Edition used:

Principles of Politics Applicable to a all Governments, trans. Dennis O’Keeffe, ed. Etienne Hofmann, Introduction by Nicholas Capaldi (Indianapolis: Liberty Fund, 2003).

About Liberty Fund:

Liberty Fund, Inc. is a private, educational foundation established to encourage the study of the ideal of a society of free and responsible individuals.


BOOK IV

On the Proliferation of the Laws

  • Ch. 1. Natural causes of the proliferation of the laws. 63
  • Ch. 2. The idea which usually develops about the effects which the proliferation of the laws has and the falsity of that idea. 63
  • Ch. 3. That the principal benefit which supporters of democratic government are looking for in the proliferation of the laws does not exist. 65
  • Ch. 4. On the corruption which the proliferation of the laws causes among the agents of the government. 66
  • Ch. 5. Another drawback of the proliferation of the laws. 67

chapter one

Natural Causes of the Proliferation of the Laws

The proliferation of the laws flatters the lawmaker in relation to two natural human inclinations: the need for him to act and the pleasure he gets from believing himself necessary. Anytime you give a man a special job to do, he does more rather than less. Those who are ordered to arrest vagabonds on the main roads are tempted to look for quarrels with all travelers. When spies have not found out anything, they invent. It has been remarked that all one needed to do in a country for talk of conspiracies to be heard constantly was to create a ministry to maintain surveillance on conspirators. Those in government always want to be governing; and when, because of the division of powers, a group of them are told to make laws, they cannot imagine they could possibly make too many.

Lawmakers parcel out human existence, by right of conquest, like Alexander’s generals sharing the world.

chapter two

The Idea Which Usually Develops about the Effects Which the Proliferation of the Laws Has and the Falsity of That Idea

People normally think that when the government allows itself to multiply prohibitive and coercive laws at will, provided that the intention of the legislator is clearly expressed, provided that the laws are not in any way retroactive, provided that citizens are told in time of the rule of behavior they must follow, the [84] proliferation of laws has no drawback other than cramping individual freedoms a little. This is not the case. The proliferation of laws, even in the most ordinary of circumstances, has the bad effect of falsifying individual morality. The actions which fall within the competence of government, according to its primary purpose, are of two kinds: those intrinsically harmful which government must punish; and arrangements contracted between individuals which government must uphold. As long as government stays within these limits, it does not establish any contradiction, any difference, between legislative morality and natural morality. But when it prohibits actions which are not criminal or demands the completion of those which have not become obligatory owing to prior contract and which consequently are based only on its will, there are brought into society two kinds of crimes and two kinds of duties: those which are intrinsically such and those government says are such. Whether individuals make their judgment subservient to government or maintain it in its original independence, this produces equally disastrous effects. In the first hypothetical case, moral behavior becomes hesitant and fickle. Acts are no longer good or bad by reason of their good or bad outcomes, but according to whether law commands or forbids them, much as theology used to represent them as good because they pleased God, rather than as pleasing to God because they were good. The rule of the just and the unjust is no longer in the consciousness of man but in the will of the legislator. Morality and inner feeling undergo an unfathomable degradation through this dependence on an alien thing, a mere accessory—artificial, unstable, and liable to error and perversion. In the contrary case, in which a man—by supposition—opposes the law, the result is first of all many individual troubles for him and those whose fates depend on his. But in the second place, will he bother for very long disputing the law’s competence in matters he considers outside it? If he violates prohibitions and orders which seem to him arbitrary, he runs the same dangers as he would infringing the rules of eternal morality. Will not this unjust equality of consequences bring about a confusion in all his ideas? Will not his doubts, without distinction, touch on all the actions the law forbids or requires, and in the heat of his dangerous struggle with the institutions menacing him, do we not have to fear that he will soon not be able to tell good from bad any longer, nor law from the state of nature?1

[85] Most men are kept from crime by the feeling of never having crossed the line of innocence. The more restrictedly that line is drawn, the more are men put at risk of transgressing it, however light the infraction. Just by overcoming their first scruples, they have lost their most reliable safeguard. To get around restrictions which seem to them pointless, they use means which they could use against the most sanctified of laws. They acquire thereby the habit of disobedience, and even when they want some end which is still innocent, they go astray because of the means they are forced to follow to achieve it. Forcing men to refrain from things which are not forbidden morally or imposing on them duties which morality does not require of them, is therefore not only to make them suffer, but to deprave them.

chapter three

That the Principal Benefit Which Supporters of Democratic Government Are Looking for in the Proliferation of the Laws Does Not Exist

We said that proliferation of the laws was the sickness of states claiming to be free. The friends of democratic government have recourse to a specious argument to justify them. It is better, they say, to obey laws than men. The law must command in order that men shall not. This is no doubt true, when it is a question of obeying, and when commanding is called for. On countless matters, however, men and law alike should keep quiet, since one should not obey either.

Moreover, it is a mistake to hope the proliferation of laws will save us from the tyranny of men. In multiplying laws you necessarily create more government agents. Consequently you give a larger number of men power over their fellows and thus double the likelihood of its arbitrary misuse. This is because however precise these laws, there is always the possibility of arbitrariness, if only in the more or less severe exactness with which they are carried out.

[86] Furthermore, all written law is liable to evasion. The legislator tries in vain to provide for this with minatory precautions and detailed formalities. His expectations are always disappointed. Out of the challenge which each individual puts to the laws comes an infinite diversification of actions. A fatal struggle begins between legislator and citizen. Individual wills are irritated to find everywhere a general will which claims the right to repress them. The law subdivides, becomes more complex, multiplies: all in vain. People’s actions always manage to slip away from its proceedings. The legislator wants to defend his work just as the citizen defends his freedom. A law disobeyed calls for a tougher one. This in turn, if it is not carried out, calls for a harsher one still. The progression is endless. Finally, the legislator, tired of so many futile efforts, stops making precise laws, because experience has convinced him they are too easy to evade, however strict they may be. He makes vague laws and in this way the tyranny of men is in the final analysis the result of the proliferation of laws. It was in this way in our country that those claiming to be republicans began with hundreds of decrees—puerile, barbarous, and never carried out—against the clergy. They ended by giving five men the right to deport priests without trial.2

chapter four

On the Corruption Which the Proliferation of the Laws Causes among the Agents of the Government

Another drawback of the proliferation of the laws is that it inevitably corrupts the agents charged with making sure that [87] they are not broken or evaded. The law does not need to pay informers to make sure crimes are tracked down and punished. The individuals they hurt naturally take it upon themselves to demand reparation for them. But when laws proliferate, this is a sign that government is no longer keeping to its natural sphere; and then its activities run up against new obstacles. When, on the pretext that this is useful, the laws are aimed at things which are by their very nature not criminal, no one has any interest in denouncing transgressions which do him no harm. Government has to create an interest group; only corruption can create this. In this way, by acting outside its proper sphere, government corrupts, not only in a general way, as we saw above, those on whom it acts; it also corrupts in particular those through whom it acts. Hired ruffians, spies, and informers are men too. When the government buys them to push them to the extremities of perversity and infamy, it is dedicating a portion of the citizen-body to baseness and crime and aiming a blow at the morality of the rest, by offering everyone the example of crime rewarded.

Those in power wrongly imagine that they alone profit from the corruption of their agents. The men who sell themselves to the government by betraying others, sell themselves in the same way to others by betraying government. Such depravity is communicated to all classes of people.

Prohibitive and coercive laws are always instruments of a dangerous sort, and the danger increases as their number and complexity grow. Laws even when directed against crime are not without drawbacks, but they are legitimated by their urgent necessity. In face of the certain prospect of the whole of society falling apart, the outcome which the impunity of crimes would produce, any drawbacks in the detail must count for nothing. When, however, it is a question of usefulness only, that is, of an imprecise and shifting calculus, what could be more absurd than sacrificing to this calculus known advantages: calm, happiness, and the good morals of the governed?

These observations hold equally strongly under all forms of government. They apply especially, however, to governments affecting to be free. Some so-called lovers of freedom have for too long cherished the idea of controlling all human actions and destroying in the human heart anything going against their deliberations or resisting their theories. The laws of liberty, says Rousseau, are a thousand times [88] more austere than the tyrant’s harsh yoke.3 It is no wonder these ardent and bungling apostles have made the doctrine they preached in this way so detested. One can repeat in vain: the most indispensable condition for getting men to adopt the principles of liberty will always be, whatever one does, the possession of liberty.

chapter five

Another Drawback of the Proliferation of the Laws

Laws proliferate against the intentions and even without the knowledge of the successive generations of legislators. They pile up in various branches, fall into disuse, and are forgotten by the governed. They hover above them, even so, hidden in a cloud. “One of the worst aspects of the tyranny of Tiberias,” says Montesquieu,4 “was his abuse of old laws.”

Tiberias had inherited all the laws produced by the civil strife in Rome. Now, civil strife produces violent and harsh laws and on top of these countless detailed regulations which are destructive of all individual freedom. These things survive the storms which created them. The government which inherits this pernicious armory finds every injustice authorized in advance by the laws. For purposes of large-scale persecution, there is an arsenal of unknown laws, legitimating every iniquity. For everyday purposes there is a repertoire of controls, less odious but more routinely vexatious.

In this situation, everything favors the government and [89] imperils the citizens. The government takes it upon itself not to execute defective laws or barbarous ones. This can hardly be seen as a crime. In this way, however, it gets used to infringing its duties and soon comes to subject the whole corpus of law to its adjudication. All its actions end up being arbitrary. Nor is this all. The government does not repeal these oppressive laws, the nonenforcement of which wins public gratitude. They lie as if in ambush, ready to reappear at the first signal and fall on the citizens unawares.

I think it would be a useful safeguard in all countries if there were an obligatory periodic revision of all the laws at fixed intervals. Among those nations which have bestowed legislative powers on representative assemblies, these bodies would naturally be given this function. After all, it would be absurd if the body which votes the laws did not have the right to rescind them and if its work were to go on in uncorrected error, in spite of that body’s own judgment, and in spite of its regrets and remorse. This organization would then be like our former and detestable statutes concerning those accused of trying to emigrate. The government had the power to put people on the list but not to remove them,5 an admirable arrangement for making injustice irreparable.

In those countries with all power concentrated in the same hands, it would still be salutary to require government to let it be known periodically which laws it wants to keep. All the branches of the law contain some which governments make use of, because they find them ready-made. But they would often be ashamed to take upon themselves the public responsibility of a new approbation.

CONSTANT’S NOTES

[1. ]See Constant’s Note A at the end of Book IV.

[2. ]This is a reference first of all to the law of 20 fructidor an III (6 September 1795), then to that of 3 brumaire an IV (25 October 1795), which arranged for measures against refractory priests, and that of 7 vendémaire an IV (29 September 1795), which required priests to recognize the people’s sovereignty; and next to the law of 19 fructidor an V (5 September 1797), which effectively authorized the Directory to deport priests who would not comply. The issue is summarized in the book by Denis Woronoff, La république bourgeoise de Thermidor à Brumaire, 1794–1799, Paris, Ed. du Seuil, 1972, pp. 139–146 (Nouvelle histoire de la France contemporaine, 3). For more details, see Jean Boussoulade, L’Eglise de Paris du 9 Thermidor au Concordat, Paris, Procure générale du Clergé, 1950.

[3. ]Hofmann has not located this sentence anywhere in Rousseau’s work.

[4. ]See Constant’s Note B at the end of Book IV.

[5. ]On this jurisprudence, see Marc Bouloiseau, Etude de l’émigration et de la vente des biens des émigrés (1792–1830), Paris, Impr. nat., 1963, Deuxième Partie, Les étapes de la législation, Ch. 1, pp. 76–91.

[A. [Refers to page 64.]]Esprit des lois, XXIV, 14, “The laws which make what is unimportant be seen as necessary have as a disadvantage that they make what is necessary seem unimportant.”

[B. [Refers to page 67.]]Esprit de lois, VII, 13.