chapter five: Another Drawback of the Proliferation of the Laws - Benjamin Constant, Principles of Politics Applicable to All Governments [1815]
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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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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, “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, 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
BOOK V
On Arbitrary Measures
- Ch. 1. On arbitrary measures and why people have always protested less about them than about attacks on property. 73
- Ch. 2. On the grounds for arbitrary measures and the prerogative of preventing crimes. 74
- Ch. 3. Specious argument in support of arbitrary government. 77
- Ch. 4. On the effect of arbitrary measures in terms of moral life, industry, and the duration of governments. 78
- Ch. 5. On the influence of arbitrary rule on the governors themselves. 80
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