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chapter three: That the Principal Benefit Which Supporters of Democratic Government Are Looking for in the Proliferation of the Laws Does Not Exist - 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.


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

[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.