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BOOK II: On the Principles to Replace Received Ideas on the Extent of Political Authority - 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.


BOOK II

On the Principles to Replace Received Ideas on the Extent of Political Authority

  • Ch. 1. On the limitation of political authority. 31
  • Ch. 2. On the rights of the majority. 32
  • Ch. 3. On the insignificance of the way government is organized when political power is not limited. 35
  • Ch. 4. Objection to the possibility of limiting political authority. 36
  • Ch. 5. On the limits of political authority restricted to a minimum. 38
  • Ch. 6. On individual rights when political authority is thus restricted. 39
  • Ch. 7. On the principle of utility substituted for the idea of individual rights. 39

chapter one

On the Limitation of Political Authority

A careful distinction must be made between Rousseau’s two principles. The first has to be accepted. All authority which does not issue from the general will is undoubtedly illegitimate. The second must be rejected. The authority which issues from the general will is not legitimate merely by virtue of this, whatever its extent may be and whatever objects it is exercised over. The first of these principles is the most salutary truth, the second the most dangerous of errors. The former is the basis of all freedom, the latter the justification of all despotism.

In a society whose members have equal rights, it is certain that no member can on his own make obligatory laws for the others. It is wrong, however, to say that society as a whole enjoys this faculty without restriction. The body of all citizens is sovereign. This is to say that no individual, no group, no faction, can assume sovereignty except by delegation from that body. It does not follow, however, that the citizen body or those in whom it has vested the exercise of its sovereignty, can use it to dispose sovereignly of individual lives. On the contrary, there is a part of human existence which necessarily remains individual and independent, and by right beyond all political jurisdiction. Sovereignty exists only in a limited and relative way. The jurisdiction of this sovereignty stops where independent, individual existence begins. If society crosses this boundary, it becomes as guilty of tyranny as the despot whose only claim to office is the murderous sword. The legitimacy of government [50] depends on its purpose as well as upon its source. When that government is extended to purposes outside its competence, it becomes illegitimate. Political society cannot exceed its jurisdiction without being usurpative, nor can the majority without becoming factious. The assent of the majority is not enough in all circumstances to render its actions lawful. There are acts which nothing can endow with that character. When a government of any sort puts a threatening hand on that part of individual life beyond its proper scope, it matters little on what such authority claims to be based, whether it calls itself individual or nation. Even if it were the whole nation, except for the man it is harassing, it would be no more legitimate for that. If anyone thinks these maxims dangerous, let him think about the other, contrary dispensation which authorized the horrors of Robespierre and the oppressions of Caligula alike.

chapter two

On the Rights of the Majority

No doubt individuals should submit to the majority. It is not that majority decisions have to be seen as infallible. Any collective decision, that is to say, any decision taken by a group of men, is exposed to two kinds of drawback. When it is dictated by passionate feelings, it is clear these can lead to mistakes. Even when the decisions of the majority are taken in a spirit of calm, however, they are exposed to dangers of another kind. They are formed by negotiation between divergent opinions. Now, if one of the opinions was right, it is clear that the transaction can have been achieved only to the detriment of truth. It may have corrected wrong opinions in some respects, but it has misrepresented the correct opinion or made it less accurate.

It has been shown by mathematical calculations that, when an assembly is held to choose between a certain number of candidates, usually the victor is not the object of the most [51] complete agreement, but of the least repugnance.1 The same thing happens to majority opinions as happens to such candidates in an assembly. This is an inevitable ill, however. If we were to conclude, on the grounds of the possible errors of the majority, that we should subordinate our wills to the will of the minority, we would find ourselves with violent or mendacious institutions.

The prerogative of the majority is that of the strongest. It is unjust. It would be still more unjust, however, if the will of the weakest were to prevail. If society has to make a decision, the strongest or the weakest, the most or the least numerous, must triumph. If the right of the majority, that is, the strongest, were not recognized, the right of the minority would be. This is to say that injustice would weigh down on a greater number of people. The liberum veto (the free veto) of Poland, which intended that the laws should have force only nemine contradicente (no one being opposed), did not make all the citizens free, but rather subjected them all to one person. It is in order to conserve the freedom of the greatest number that the most just lawmakers have found themselves obliged to undermine the freedom of all.2 We have to resign ourselves to disadvantages inherent in the nature of things and which the nature of things puts right. There is a restorative force in nature. Everything natural carries its remedy with it. That which is artificial, on the contrary, has disadvantages at least as great, and nature furnishes us with no remedy. But what she does do to counter the errors of the majority, is to circumscribe its rights within precise limits. If you say its power is boundless, you abandon all defenses against the consequences of its errors.

The majority can make the law only on issues on which the law must pronounce. On those on which the law must not pronounce, the wish of the majority is no more legitimate than that of the smallest of minorities.

I ask pardon for perhaps overextending this subject—it is so important—and for having recourse to an example in order to make these [52] truths more tangible. Let us suppose some men get together for a commercial undertaking. They pool part of their wealth. This is the common wealth. What is left to each man is his private wealth. As a majority, members can direct the use of common funds. If, however, that majority claimed the right to extend its jurisdiction to the rest of the wealth of other members, no law court would uphold this claim.

It is the same with political authority. If the comparison is inexact, this is in respect of one point only, and this inexactitude works in favor of our argument. In the case of our private hypothetical association, there exists outside that association a constraint preventing the majority from oppressing the minority. A small group of men cannot take over the name of the majority in order to tyrannize the association. After all, this association may have entered contractual arrangements for which it is jointly liable, with an outside party. In politics, however, none of these conditions obtains. The political community is not responsible to any outside party. There are only two fractions: the majority and the minority. The majority is the judge when it acts within its competence, and becomes a faction when it exceeds this role. No outside force prevents the majority from sacrificing the minority, or a small band of men from calling themselves the majority in order to control everyone. It is therefore vital to make up for this missing external force, by fixed principles from which the majority never deviates.

Political authority is like government credit. Governments, being always more powerful than their creditors, are by this very fact forced into more stringent scrupulousness. For if they deviate from this a single time, no coercive force being exercisable against them, confidence is frightened away and no longer to be reassured. Just so, the majority always having the power to trespass upon individual or minority rights, if it does not most scrupulously abstain from such, all security vanishes, for there is no guarantee either against the repetition of such offenses or ever-increasing excesses.

A frequent source of error about the proper scope of political authority is the constant confusion of the common interest with the interests of all. The common interest concerns only society as a whole. The interests of all are simply the sum of individual interests. Apart from fractional interests which concern only an individual or fraction of society and hence fall outside all political jurisdiction, there are further things which concern all the members of society and which [53] nevertheless must not be subject to the force of the general will. These things interest each person as an individual and not as a member of the collectivity. Religion is a case in point, for example. Political authority must always act upon the common interest, but it must act on the interests of all only when the common interest is also at stake. The comparison I have previously used will explain what I mean. That part of their wealth individuals hold in common is their common wealth. You could call the sum of what each member retains privately the wealth of all, but if members have not pooled it, it is precisely the wealth of all rather than the common wealth. It is not one undifferentiated thing. It is the sum of all individual fortunes, independent one from another. These are not all of a piece, nor do they merge together. The polity can legitimately make use of the common fund but not of the private wealth of all. It is an error to conclude from the fact that an issue touches on all members of a society that it must be an issue of the common interest. It may be something which touches people only as individuals. Religion, for example, is a case in point. Before we concede the right of government to get involved in this issue, we need to see if it includes any point of common interest, that is to say, if the interests of individuals are of such a nature that they collide and cause mutual offense. It is only then that political involvement is called for, and even then only to prevent friction. If, on the contrary, these interests live side by side without troubling each other, they are not under political jurisdiction. It is de jure that they are not, and we will show that they must not be de facto, since such jurisdiction would merely harass them pointlessly. They should retain their independence and their complete individuality.

Most political writers, above all those who wrote according to the most popular principles, fell into a bizarre error when they spoke about majority rights. They represented the majority as a real person whose existence is protracted and which always comprises the same parts. In fact, however, it happens all the time that a section of the population which was in the majority yesterday forms today’s minority. To defend the rights of minorities is therefore to defend the rights of all. Everyone in turn finds himself in the minority. The whole society is divided into a host of minorities which are oppressed in succession. Each one, isolated to be made a victim, becomes again, by a strange metamorphosis, a part of what is called the exalted whole, which serves as a pretext for the sacrifice of some other [54] minority. To grant the majority unlimited power is to offer to the people en masse the slaughter of the people piecemeal. Injustice and misfortune make their way round the whole society, becoming ever more oppressive of individuals in isolation in the name of all. At the end of this dreadful rotation, all people find they have lost more, irretrievably, as individuals, than they had transiently gained as members of society.

chapter three

On the Organization of Government When Political Authority Is Not Limited

When political authority is not limited, the organization of government becomes a very secondary question. The mutual supervision of the diverse sections of the government is useful only in preventing one of them from aggrandizing itself at the expense of the others. But if the total sum of their powers is unbounded, if when they band together these government sections are permitted to invade everything, who is to stop them forming coalitions to engage in oppression at will?

What matters to me is not that my personal rights shall not be violated by one such power-group, without the approval of another such, but that this violation be forbidden to all sections of government. It is not enough that the executive’s agents have to invoke the authorization of the legislature. Rather, it is that the legislature shall not authorize their actions except in a specified jurisdiction. It is not worth much that the executive power has no right to act without the assent of a law, if no limits are placed on this assent, if no one declares that there are things about which the legislature has no right to make laws, or, in other words, that there are areas of individual existence in relation to which society is not entitled to have any will.

If political authority is not limited, the division of powers,3 ordinarily the guarantee of freedom, becomes a danger and a scourge. The division of powers is excellent in that it draws together, as far as possible, the interests of the governing and the governed. Men in whom executive power is vested have a thousand ways of evading the workings of the law. It is therefore to be feared that if they make the [55] laws, such laws will be worse for having been made by men who do not fear that they will ever fall on them. If you separate the making of laws from their execution, you achieve this end, that those who make the laws, and are thus governors in principle, are yet governed in application; whilst those who execute the laws, though they are governors in application, are yet among the governed in principle. If, however, in dividing power, you do not put limits on the competence of the law, it can happen that one set of men make the laws, without troubling themselves about the evils occasioned thereby, while another set execute them, in the belief that they are innocent of any harm arising from such laws, because they say they had no hand in their making. Justice and humanity find themselves between these two sets, without being able to speak to either. It would be a thousand times better, then, if the authority which carried out the laws were also charged with making them. At least it would appreciate the difficulties and pains of carrying them out.

chapter four

Objection to the Possibility of Limiting Political Authority

There is one obvious objection to the limitation of political authority. Is it possible to limit it? Is there any force strong enough to prevent its breaking through the barriers we have prescribed for it? Some might say we can use various ingenious combinations to limit power by dividing it. We can put its different parts in opposition and in equilibrium. But how can we ensure that its total sum is not unlimited? How can power be limited other than by power itself?

The limitation of political authority in the abstract would probably be a sterile quest, if one did not then back it up with the guarantees it needs in the organization of government. The investigation of these guarantees is not within the purview of this book. Let me merely suggest that it seems possible to me that we might discover political institutions whose foundations are such as to combine the interests of the various power-holders in such a way that their most obvious advantage, as well as the longest term and securest one, would be for them all to stay within their respective spheres and thereby be mutually [56] contained. Even so, the first question is still the limitation of overall authority. For before organizing anything, one needs to have determined its nature and extent.

Without wanting, as philosophers too often have, to exaggerate the influence truth has on men, I will say next that it can be affirmed that when certain principles are fully and clearly demonstrated, they work in some sense as a guarantee of themselves. The most forceful interests have a kind of sense of decency which stops them from relying on errors which have been too obviously refuted. At the exact moment when the strife of the French Revolution was again stirring up into a ferment all the prejudices still existing, some errors of the same type did not dare to reappear, for the simple reason that they had been proved to be wrong. The defenders of feudal privilege did not dream of reviving the slavery which Plato in his ideal Republic and Aristotle in his Politics thought indispensable.4

There forms around all the truths people manage to environ with incontestable proof a universal agreement which soon prevails. If it is widely recognized that political authority is not boundless, that such limitless power exists nowhere on earth, no one will ever again dare to demand such power. Experience itself shows this already. Even though political authority has not yet been limited in theory, it is nevertheless in fact more confined today than before. For example, people no longer attribute powers of life and death without trial even to society as a whole. Nor does any modern government claim such a right. If the tyrants of the ancient republics seem to us far more unbridled than the governments of modern history, this must partly be attributed to this. The most monstrous outrages by despotisms based on one man were often due to the doctrine of the boundless power of all. So political power can be curtailed. It will be guaranteed first of all by the same force which upholds all recognized truths, [57] that is, by public opinion. Afterward we can get busy with guaranteeing this in a more fixed way, via the specific organization of political powers. But having obtained and consolidated the first guarantee will always be a great good.

chapter five

On the Limits of Political Authority Restricted to a Minimum

Two things are indispensable for a society to exist and exist happily. First it must be protected against internal disorder and secondly sheltered from foreign invasion. Political authority must therefore be specifically entrusted with repressing this disorder and repulsing this invasion. To this end it must be invested with the right to impose penal laws against crimes, with the right to organize armed force against external enemies, and finally, with the right to demand from individuals the sacrifice of a portion of their individual wealth in order to meet the expenses of these two purposes. The vital jurisdiction of political authority therefore comprises two branches: the punishment of offenses and resistance to aggression.

We must even distinguish two kinds of offenses, those intrinsically harmful and those which offend only as violations of contracted undertakings. Society’s jurisdiction over the first kind is absolute. With regard to the second kind it is only relative. It depends on the nature of the undertaking and on the claim of the injured party. Even when the victim of an assassination or theft would like to pardon the guilty person, society should still punish him, because the offense committed is intrinsically harmful. When, however, the breaking of an agreement is agreed to by all the contracting or involved parties, society has no right to enforce prolonged compliance, just as it has no right to dissolve the agreement on the say-so of one party alone.

It is clear that society’s jurisdiction cannot stop short of these limits, but it can remain within them. We can scarcely imagine a nation in which individual crimes [58] remained unpunished and which had prepared no means of resisting the attacks foreign nations might launch against it. But we could imagine one in which the government had no mission other than overseeing these two aims. Individual life and national security would be perfectly assured. The necessary minimum would be done.

chapter six

On Individual Rights When Political Authority Is Thus Restricted

Individual rights are composed of everything independent of political authority. In the hypothetical case we have just presented in the last chapter, individual rights would consist in the option to do anything which does not hurt others, or in freedom of action, in the right not to be obliged to profess any belief of which one is not convinced, even though it be the majority view, or in religious freedom, in the right to make public one’s thought, using all the means of publicity, provided that that publicity does not harm any individual or provoke any wrong act, finally in the certainty of not being arbitrarily treated, as if one had exceeded the limits of individual rights, that is to say, in being guaranteed not to be arrested, detained, or judged other than according to law and with all due process.

The rights of society cannot be meaningfully distinguished from those of government, because it is impossible to indicate a way in which society can exercise its rights without the government getting involved. The rights of individuals can be usefully distinguished from those of government and society, however, because it is possible, as we see, to indicate the things government and society must refrain from pronouncing on and to leave individuals perfectly free.

chapter seven

On the Principle of Utility Substituted for the Idea of Individual Rights

A writer much to be recommended for the depth, precision, and originality of his thinking, Jeremy Bentham, has recently protested5 [59] against the idea of rights and above all of natural, inalienable, and imprescriptible rights. He has claimed that this idea is liable only to mislead us, and that in its place should be put the idea of utility, which he sees as simpler and more intelligible. Since this preferred route of his has led him to conclusions just the same as mine, I would rather not dispute his terminology. I must take issue with it, however, because the principle of utility, in the way Bentham presents it to us, seems to me to have the drawbacks common to all vague locutions, and moreover to have its own special dangers.

No doubt by defining the word “utility” appropriately, one can contrive to base on this notion exactly the same rules as those which flow from the idea of natural right and justice. A careful examination of all the questions which seem to put what is useful in opposition to what is just, leads one always to the finding that what is not just is never useful. It is nonetheless true, however, that the word “utility,” in its common meaning, summons up a different notion from that conveyed by justice or right. Now, when usage and common reason attach a fixed meaning to a word, it is dangerous to change that meaning. In vain you go on to explain what you meant. The word stays what it was and your explanation is forgotten.

“One cannot,” says Bentham,6 “reason with fanatics armed with a natural right each one understands as he sees fit, and applies as it suits him.” But by his own admission, the utility principle is quite as susceptible to multiple interpretations and contradictory applications. Utility, he says,7 has often been misapplied. Taken in a narrow sense, it has lent its name to crimes. “But we must not cast back on the principle faults which are contrary to it and which it alone can put right.” Why should this apologia be relevant to utility and not to natural right?

The principle of utility has this further danger natural right does not, that it awakens in the human heart the hope of advantage rather than the feeling of duty. Now, the evaluation of an advantage is arbitrary: it is the imagination which settles it. But neither its errors nor its whims can change the idea of duty.

[60] Actions cannot be more or less just; but they can be more or less useful. In hurting my fellow men, I violate their rights. This is an incontestable truth. But if I judge this violation only by its utility, I can get the calculation wrong, and find utility in the violation. The principle of utility is thus much vaguer than the principle of natural rights.

Far from adopting Bentham’s terminology, I should like as far as is possible to separate the idea of right from the notion of utility. This may be only a difference of wording; but it is more important than one might think.

Right is a principle; utility is only a result. Right is a cause; utility is only an effect.

To wish to make right subject to utility is like making the eternal laws of arithmetic subject to our everyday interests.

It is no doubt useful for the general transactions of men between themselves that numbers involve unalterable relationships. If we claimed, however, that these relationships exist only because it is useful that this should be so, there would be lots of opportunities for proving that it would be infinitely more useful if these relationships were manipulable. We would forget that their constant utility comes from their invariant character, and ceasing to be unalterable, they would cease to be useful. Thus utility, by having been too favorably treated on superficial grounds, and turned into a cause, rather than being left properly as an effect, would soon vanish totally.

Morality and right are like that too. You destroy utility simply by placing it in the first rank. It is only when the rule has been demonstrated that it is good to bring out its utility.

I ask of the very author I am refuting. Do not the expressions he wants to forbid to us refer to better grounded and more precise ideas than those he claims should replace them? Say to a man: you have the right not to be put to death or arbitrarily plundered. You will give him quite another feeling of security and protection than you will by telling him: it is not useful for you to be put to death or arbitrarily plundered. One can show, as I have already acknowledged, that that is indeed never useful. But in speaking of right, you present an idea independent of any calculation. In speaking of utility, you seem to invite that the whole question be put in doubt, by subjecting it to a new verification.

What could be more absurd, cries Bentham’s ingenious and learned collaborator,8 [61] than inalienable rights which have always been alienated, or imprescriptible rights which have been taken away or abandoned? But to say that such rights are inalienable or imprescriptible is only to say that they should not be alienated or taken away or abandoned. One is talking of what ought to be the case, not of what is the case.

By reducing everything to the principle of utility, Bentham condemned himself to an artificial evaluation of the results of all human actions, an evaluation which goes against the simplest and most customary ideas. When he speaks of fraud, theft, etc., he has to admit that if there is loss on one side, there is gain on the other. Then his principle, in order to reject the charge of identical actions, has to be that the benefit of the gain is not equivalent to the ill of the loss.9 The benefit and the ill being separate, however, the man who commits the theft will find that his gain matters more to him than another’s loss. Any idea of justice being now out of the question, he will henceforth calculate only his gain. He will say: for me my gain is more than equivalent to the loss by other people. He will thus be held back by nothing except fear of discovery. This theory wipes out all moral motivation.

In repudiating Bentham’s first principle, I am far from belittling that writer’s merits. His work is full of original ideas and profound perspectives. All the consequences he derives from his principle are precious truths in themselves. It is not that the principle is false; it is only the terminology which is wrong. Once he manages to detach himself from his terminology, he brings together in a most admirable structure the soundest notions on political economy, on the caution with which governments should intervene in people’s lives, on population, on religion, on commerce, on the penal laws, on the appropriateness of punishments to crimes. He happened, however, like many estimable writers, to mistake a rewording for a discovery, a rewording to which he then sacrificed everything.

CONSTANT’S NOTES

[1. ]A probable reference to the Essai sur l’application de l’analyse à la probabilité des décisions rendues à la pluralité des voix by the marquis de Condorcet (Paris, Impr. royale, 1785), in which pp. lix–lxx of the Discours préliminaire deal precisely with the choice between several candidates taken in an assembly.

[2. ]The example of Poland comes, as is indicated in a note by Sismondi, in his Recherches sur les constitutions des peuples libres (éd. cit., p. 89), from Leszek Leczinski, La voix libre du citoyen, ou observations sur le gouvernement de Pologne, s.l., 1749. Constant had had this manuscript by Sismondi from October 1800 until the start of 1801.

[3. ]Constant will return to this question of the separation of powers and the interests of the governing and the governed, in Book XVII, Ch. 3.

[4. ]This last sentence is very close to a passage by Madame de Staël, Des circonstances actuelles qui peuvent terminer la révolution et des principes qui doivent fonder la république en France, critical edition by Lucia Omacini, Paris-Geneva, Droz, 1979, p. 26: “In the struggle of the French Revolution, the most inveterate aristocrats did not dream of proposing the reestablishment of slavery, while Plato in his ideal Republic does not suppose we can do without it.”

[5. ]Jeremy Bentham, Traités de législation civile et pénale, précédés de principes généraux de législation, published in French by Etienne Dumont, Paris, Bossange, Masson et Besson, an X, 1802, 3 vol. The criticisms which Constant leveled at Bentham were probably drafted in the summer of 1802, hence the use of the adverb “recently,” and this chapter was to form part of a grand political treatise written at that time.

[6. ]See Constant’s Note A at the end of Book II.

[7. ]See Constant’s Note B at the end of Book II.

[8. ]See Constant’s Note C at the end of Book II.

[9. ]Jeremy Bentham, Traités de législation . . . , éd. cit., t. I, pp. 94–95: “As to the motive of cupidity, in comparing the pleasure of acquiring by usurpation with the pain of losing, the one would not be equivalent to the other.”

[A. [Refers to page 40.]]

Principes de législation, Ch. 13.10

[B. [Refers to page 40.]]

Ibid., Ch. 5.11

[C. [Refers to page 41.]]

M. Dumont of Geneva.12

Constant’s title for Ch. 3 is slightly different inside his text from what appears on this page.

[A. [Refers to page 40.]]

Principes de législation, Ch. 13.10

[B. [Refers to page 40.]]

Ibid., Ch. 5.11

[C. [Refers to page 41.]]

M. Dumont of Geneva.12

Constant’s title for Ch. 3 is slightly different inside his text from what appears on this page.

[10]Ed. cit., t. I, p. 136. Here is the complete sentence: “One can no longer reason with fanatics armed with natural right, which everyone understands as he likes, applies as suits him, in which he does not have to concede a thing, or take anything back, which is at once inflexible and unintelligible, which is venerated in his eyes like a dogma and from which one cannot deviate without committing a crime.”

[11]Ed. cit., t. I, p. 27: “One can do harm thinking one is following the principle of utility. A weak and limited mind makes mistakes, by not taking into consideration more than a small number of the goods and bads. A passionate man goes wrong by attaching too much importance to a good which blinds him to all the disadvantages. What typifies the bad man is indulging in pleasures hurtful to others. And that itself supposes the absence of some kinds of pleasures. But one does not shift onto the Principle the blame for faults which are contrary to it and which it alone can rectify.”

[12]Hofmann failed to find this quotation in Dumont’s Discours préliminaire on Bentham’s Traités de législation (éd. cit., t. I, pp. v–xxxvi). Might not Constant have transcribed once more a remark Dumont might have made orally, in discussions he had with Mme. de Staël and her friends? Dumont stayed at Coppet in 1802, and Constant could have made a note of one of his reflections. On this subject see Norman King, “‘The airy form of things forgotten’: Madame de Staël, l’utilitarisme et l’impulsion libérale,” Cahier Staëliens, No. 11, Dec. 1970, pp. 5–26.