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chapter two: On Obedience to the Law - 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).

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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 two

On Obedience to the Law

Resistance can be of two kinds, negative disobedience or disobedience to the law, positive resistance or active opposition to government.

Let us deal first with negative resistance, a less complicated question [477] and less dangerous to examine than that of positive resistance. It has nevertheless its own particular difficulty.

The authority of government can be limited in a precise way, because law can limit it. The limitation is external. It is easy to see if it is transgressed. It is not the same with the jurisdiction of the law, however. The law being the only written rule which can exist, it is much less easy to say what constitutes a transgression in it.

Pascal,1 Chancellor Bacon,2 and many others like them have cut short the discussion, by positing that in principle one must obey the law without questioning because it is the law. To refute this assertion, we need only identify its strict meaning.

Is the claim that the name “law” always suffices to enforce obedience? If a number of men or even one man with no official function call the expression of their individual wills the law, are the other individuals in society obliged to conform to this? An affirmative answer is absurd, but a negative one implies that the title “law” does not impose a duty to obey and that this duty supposes an anterior identification of the source from which that law derives.

Is the claim that questioning is permitted, when it is a matter of establishing that what is presented to us as law derives from a legitimate authority; [478] but that this last point being cleared up, examination has no further place regarding the actual content of the law?

In the first place, if we wish always to allow for the inevitable abuse of all the faculties man has been granted, the examination of the legitimacy of legislative authority will open the way to disturbances just as great as examination of the law itself.

Secondly, an authority is legitimate only in virtue of the function given to it. A municipality and a police court magistrate are legitimate authorities. They would cease to be such, nevertheless, if they assumed the right to make laws. In all systems, therefore, individuals must be granted the use of their intelligence, whatever the system, not only for the understanding of the characters of the authorities but for judging their actions. This means the content of law must be examined, along with its sources.

We see therefore that Pascal’s proposition is illusory, once we do not want it to lead to absurdity.

Man has the right to use his learning, for it is the only instrument of understanding he has, to evaluate the source of a law. If you refuse him this, you lay yourself open to his stabbing you at the will of the first brigand calling himself a lawmaker.

Moreover, man possesses the right to examine the content of a law, since it is only in terms of the content that he can determine the legitimacy of its source. If you challenge his right here, you allow the most subaltern of authorities endless and disorderly encroachments on all existing authority.

Note that the very people who declare implicit obedience to the laws to be strictly binding always make an exception to the rule of what touches them. Pascal excepted religion. He absolutely did not bow to civil authority in religious matters; and he braved persecution for his disobedience in this respect.

[479] Driven by the determination not to recognize any natural law, Bentham necessarily had to maintain that law alone created offenses, that any action prohibited by law became a crime;3 and in this way pigheadedness kept this writer, who, it must be added, stands out on every page against the mistakes and encroachments of government, back in the ranks of the apologists of the most absolute and servile obedience.

Fortunately, he refutes himself in his definition of offenses. “An offense,” he says, “is an act from which ill results.”4 But does the law which forbids an action from which no ill results create an offense? Yes, he replies, for in attaching a penalty to that action, it ensures that an ill results.5 On this reckoning, the law can attach a penalty to my saving my father’s life, to my not killing him. Would this suffice to make filial devotion a crime, and parricide an obligation? And this example, horrible though it be, is not an empty speculation. Have we not seen the condemnation, in the name of the law, in a thousand political revolutions, of fathers for having saved their children, of children for having succored their father?

Bentham refutes himself much better, when he speaks of imaginary offenses.6 If the law created offenses, no offense created by the law would be imaginary. Anything the law had declared criminal would be such.

The English author makes use of a comparison very apt for clarifying the question. Certain actions innocent in themselves, he says, are ranked among the offenses, just as among certain peoples healthy foods are treated as poisons or unclean things.7 Does it not follow that, just as the mistake of these peoples does not turn into poison the healthy food they envisage as such, the law’s mistake does not convert into offenses the innocent actions [480] it declares guilty? It endlessly happens that when we are talking abstractly about law, we assume it is what it ought to be. When we are practically concerned with what it is, we find it to be quite other. Hence the endless contradictions in theories and terms.

The word “law” is as vague as the word “nature.” To abuse the latter is to overthrow society. To abuse the former is to tyrannize individuals. If we have to choose between the two, at least the word “nature” evokes an idea virtually the same for all men. The word “law” can be applied to entirely opposite ideas.

When our orders have included murder, informing, and spying, these orders have not been in the name of nature. Everyone would feel that there was contradiction in the terms; these have been demanded of us in the name of the law, so there was no longer a contradiction.

To wish to leave nature entirely out of account in a legislative system is to take away from the laws simultaneously their sanction, their basis, and their limit. Bentham even goes so far as to say that any action, however neutral, being liable to prohibition by law, then we must owe to the law the freedom to sit down or stand upright, to enter or leave, to eat or not eat, because the law could forbid us these.8 We owe this freedom to the law, just as the vizier who gave thanks every day to his highness that his head was still on his shoulders was indebted to the sultan for not having been beheaded.9 But any law which pronounced on these unimportant actions would have pronounced illegitimately; it would not have been a law.

[481] Obedience to the law is without doubt a duty; but this duty is not absolute, but relative. It rests on the supposition that the law flows from its natural source and is confined within legitimate limits. This duty does not cease absolutely when the law deviates from this rule only in a few respects. Public peace is worthy of many sacrifices. We would be morally blameworthy if through too inflexible an attachment to our rights, we resisted all the laws which seemed to us to threaten them. No duty, however, binds us to these so-called laws, whose corrupting influence menaces what is noblest in our being, to these laws which not only restrain our legitimate freedoms and stand in the way of actions they have no right to forbid, but require from us ones contrary to the eternal principles of justice and pity, ones man cannot adhere to without being false to his nature.

The political theorist we have refuted above himself agrees with this truth.10 If the law, he says, is not what it ought to be, should it be obeyed or violated? Should we stay neutral between the law which requires evil and morality which forbids it? We have to see whether the probable ills of obedience are less than the probable ills of disobedience. He recognizes in this passage the rights of individual judgment he denies elsewhere.

The doctrine of boundless obedience to the law has perhaps been the cause of more evil than all the other errors which have led men astray. The most execrable passions have dug in behind this convention, on the surface impassive and impartial, and indulged in every excess. Do you want to bring together under a single viewpoint the consequences of your doctrine of blind and implicit obedience to the law? Remember that the Roman emperors made laws, that Louis XI made laws, that Richard III made laws, that the Committee of Public Safety made laws! There exists no natural sentiment that a law has not forbidden, no duty whose fulfillment a law has not prohibited, no virtue a law has not proscribed, no affection a law has not punished, no treason a law has not remunerated, no heinous crime a law has not ordered. It is therefore necessary to put [482] limits on this alleged duty of obedience. It is necessary to identify those characteristics which mean that a law is not a law.

Retrospective operation is the first of these. Men have consented to the fetters of law only in order to attach to their actions definite consequences, according to which they might direct and choose the line of behavior they wished to follow. Retroactivity robs them of this benefit. It violates the terms of social agreement. It conceals the price of the sacrifice it has imposed. Governments, having neglected the safeguards they should have taken, often think they can make good their fault by extending the influence of laws which experience has shown them to be necessary over the past itself. The atrocious aspect of a crime, the indignation it incites, the fear that a guilty person’s going unpunished, as he takes advantage of the law’s silence, may encourage other guilty people, even after the law has pronounced, these sometimes lead wise men to justify this extension of government. This is the annihilation of all justice, making the governed pay the penalty for the lack of foresight of their governors. Better to let a man guilty of the most odious crime escape than to punish an action not prohibited by an existing law.

A second feature of illegality in the laws is the prescription of immoral actions. Any law demanding informing or denunciation is not a law. Any law which interferes with the propensity of man to give refuge to anyone asking for shelter is not a law. Government is instituted to oversee things. It has the means of accusation, pursuit, exposure, handing over, and punishment. It does not have the right to make these duties, necessary but painful, fall on the individual, who occupies no official position. It must respect that sensibility in citizens, the most precious part of our being, which leads us to unquestioning pity and help for the weak oppressed by the strong.

It is to make individual pity inviolable that we have made the authority of government commanding. We wanted to conserve in ourselves feelings of sympathy, by charging government with the severe duties which might have wounded or withered these feelings. I make an exception, nevertheless, of crimes against which even sympathy itself rises up. There are actions so atrocious that all men are disposed to agree on their punishment. [483] Then the prosecution of guilty people is not repugnant to their affections, nor does it dull their sensibilities, nor diminish their moral sense. But these actions are very few. We can positively rank in this category only criminal assaults against human life. Attacks on property, although very criminal, do not at all rouse in us sufficient indignation to stifle all pity. As for misdemeanors which we might call artificial, in the sense that they are misdemeanors only because they infringe certain positive laws, to force individuals to support prosecution of these is to harass and degrade them. I have sometimes wondered what I would do if I were trapped in a town where it was forbidden under pain of death to give shelter to citizens accused of political crimes. My answer to myself was that if I wanted to make my life secure, I would give myself up to imprisonment as long as that measure was in force.

Any law which divides the citizens into groups, which punishes them for what is not within their control, which makes them responsible for other actions than their own, any such law is not a law.

It is not, let us repeat, that the resort to resistance, always dangerous, is to be recommended. It puts society in peril. Let it be forbidden, not out of deference to a usurping government, but out of consideration for the citizens who are deprived of the benefits of living in society by continual struggle. As long as a law, although bad, does not tend to deprave us, as long as the encroachments of government demand only sacrifices which render us neither base nor savage, we can acquiesce in them. We compromise only on our own behalf. If the law demands, however, that we trample on our affections or duties, if, on the absurd pretext of a gigantic and false devotion to what it by turns calls monarchy or republic, or prince, or nation, it forbids us fidelity to friends in need, if it demands from us treachery to our allies, or even the persecution of vanquished foes, then anathema and disobedience to this corrupting government and to the drafting of injustices and crimes which it decorates with the name of law.

[484] A positive duty, general and unreserved, whenever a law seems unjust, is not to become its executor. This passive resistance entails neither upheavals, nor revolutions, nor disorders. It would be a fine spectacle to see a criminal government in vain drafting sanguinary laws, mass banishments, and deportations and finding in the vast and silent nation trembling under its power no executor of its injustices, no accomplice of its heinous crimes.

Nothing excuses the man who lends assistance to a law he believes wicked, the judge who sits in a court he believes illegal or pronounces a sentence of which he disapproves, the minister who gets a decree carried out against his conscience, the satellite who arrests a man he knows to be innocent to hand him over to his executioners. Under one of the most oppressive governments which has ruled France, a man seeking a post exonerated himself from this move by saying that his only alternative was between obtaining a position or stealing on the public highway. But if the government refuses your requests, someone replied to him, will you take to stealing then?

Terror is no more valid an excuse than all the other base passions. Woe betide those eternally compromised men, on their own say-so, tireless agents of all the present tyrannies, and posthumous denunciators of all those overthrown ones.

We have innumerable proofs of this. These men never get over the dishonor they have accepted. Their broken spirit never regains an independent outlook. We pretend in vain, whether out of calculation, or kindness, or pity to listen to their wretched, faltering excuses. In vain we seem to be convinced that by some inexplicable marvel they have suddenly regained their long since vanished courage. They themselves do not believe it. They no longer have the ability to hope on their own behalf. [485] They drag after them the profound memory of their inexpiable opprobrium, and their heads, bent under the yoke they have carried, stoop by habit, and helplessly so, to receive another yoke.

They tell us that they serve as executors to unjust laws only to lessen their severity, that the government whose depositories they agree to become would do worse ill still if it were remitted to less pure hands. Mendacious dealings which open the way to a boundless career for all crimes. Each man trades with his conscience and for each level of injustice the tyrants find worthy executors. I do not see why, on such arguments as these, one should not become the executioner of innocence, on the grounds that one would strangle it more gently. It is a thousand times better that atrocious laws should be carried out only by obviously criminal men.

These dubious though as yet untainted men lessen the odium of the most horrible institutions in the eyes of the people, who thus become accustomed to putting up with them. Without them, without the prestige of their overvaunted names, the institutions would be overthrown from the start by public indignation. Then, when the evil gets to a pitch, these worthy souls withdraw, leaving the field free to scoundrels. In this fashion, the service they do us is to cover assassins who are still weak with a shield, to give them time to become the strongest kind.

[1. ]Constant is probably thinking of the Pensées, Fragment No. 60, where the author declares, for example: “Custom is the whole of equity, just because it is received. This is the mystical basis of its authority. Whoever seeks to reduce it to principles, destroys it. Nothing is so faulty as these laws which redress errors. Whoever obeys them because they are just, obeys what he imagines to be justice, but not the essence of the law. Law is all of a piece. It is the law and nothing more. He who seeks its reasons will find them feeble and slight. . . .” Blaise Pascal, Oeuvres complètes, editing and annotation by Louis Lafuma, Paris, Le Seuil, 1963, p. 507, (L’Intégrale).

[2. ]See Constant’s Note A at the end of Book XVIII.

[3. ]See Constant’s Note B at the end of Book XVIII.

[4. ]Jeremy Bentham, op. cit., t. I, p. 158.

[5. ]Constant, it seems, basing himself on what Bentham says, ibid., t. II, pp. 382–383, imagines what the latter’s response would be on “the ill which a penal law produces.”

[6. ]See Constant’s Note C at the end of Book XVIII.

[7. ]Jeremy Bentham, op. cit., t. II, pp. 380–381. Here is the passage to which Constant refers: “If one has grasped the idea of a true offense, it will easily be distinguished from offenses of imaginary ill, those acts innocent in themselves, ranked among offenses by prejudice, antipathies, administrative errors, and ascetic principles, almost as healthy foods are regarded among certain peoples as poisons and unclean eating. Heresy and sorcery are offenses of this class.”

[8. ]Ibid., t. I, p. 157: “I can remain standing or sit down, enter or leave, eat or not eat, etc. The law says nothing about that. The right that I exercise in this respect, however, I get from the law, because it is the law which criminalizes all violence by which people might try to prevent me doing as I please.”

[9. ]This anecdote appeared earlier in the Journal intime, dated 21 December 1804: “In the midst of this reverie the idea which dominates me is of this Turk who said: I give thanks every day to His Highness for having my head on my shoulders.”

[10. ]See Constant’s Note D at the end of Book XVIII.

[A. [Refers to page 398.]]It is enfeebling to the power of the law to look for its motives, he says.

[B. [Refers to page 400.]]Corps complet de la législation, Ch. 2, p. 70.20

[C. [Refers to page 400.]]Code Pénal, Partie 3, Ch. 1.21 The legislator’s lack of skill, he adds, often itself creates an opposition between the natural sanction and the political one. He therefore recognizes a natural sanction.

[D. [Refers to page 402.]]Bentham, Principes de législation, Ch. 12.22

[B. [Refers to page 400.]]Corps complet de la législation, Ch. 2, p. 70.20

[C. [Refers to page 400.]]Code Pénal, Partie 3, Ch. 1.21 The legislator’s lack of skill, he adds, often itself creates an opposition between the natural sanction and the political one. He therefore recognizes a natural sanction.

[D. [Refers to page 402.]]Bentham, Principes de législation, Ch. 12.22

[20]Jeremy Bentham, op. cit., t. I, p. 154: “Thus to declare by law that such and such an act is prohibited is to establish that act as an offense.”

[21]Ibid., t. II, pp. 380–384.

[22]Hofmann failed to find the passage quoted by Constant.