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Additions to the Work Entitled Principles of Politics Applicable to All Governments - 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.


Additions to the Work Entitled Principles of Politics Applicable to All Governments

Book I:

Exposition of the Subject

Chapter 1:

The Purpose of the Work1

This work, started long ago, has continued under several successive governments in France. Measures are recalled and censured in it which no longer apply. So are others, however, which still obtain, and consequently I do not think people will believe that I have sought to please today’s government by attacking yesterday’s. I have followed the principles,2 independently of circumstances, and I have not deliberately turned aside either for praise or blame. So many errors which seemed to have become dead letters, so many sophisms one might have thought discredited, so many iniquitous practices apparently dead and gone, have reappeared, sometimes under the same names, sometimes with new ones, that I have come to think that I must speak out against these things, whether past or present, equally strongly. So many truths one might have considered universally recognized have been called into question or even put aside, without our being deigned a word of explanation or excuse, that I thought I must not enunciate a single truth, however obvious it might appear, without bringing to mind the evidence for it. My purpose has been to compose an elementary work. A work of this kind, on the fundamental principles of politics, has seemed to me to be lacking in all the literatures I know.

[512] This work originally contained two parts, constitutional institutions and the rights of individuals, in other words, the means of public security and the principles of freedom. Since the first are contestable and the second incontestable, I thought I should present the latter separately.

I have therefore removed from my work everything on the forms of government. I had treated the full extent of this subject. The division of citizens into governors and governed, political powers, executive power and its exclusiveness, whether temporary or for the lifetime of the person in whom it is vested, the dangers of this exclusiveness in the election of the Head of State, the mode of election established in France, the tendency to military government of elective exclusiveness, the complexity of executive power, the objections which the history of so many ancient republics as well as modern revolutions furnishes against that complexity, the abuses natural to executive power, however it is composed, the guarantees against these abuses, the limitation of controls on the law of peace and of war, the right to resist taxes, the independence of the judiciary, accountability, the organization of the armed forces, the legislative power, abuses thereof, safeguards instituted or to be instituted against these abuses, the unlimited power which gives the executive exclusive initiative, the division into two chambers, the veto, the dissolution of legislative assemblies, popular election, in other words, and the advantages found only therein, the two systems substituted successively in France for popular elections, the formal description of a constitution in which all powers would be elective and all the rights of citizens recognized, the weak aspects of this constitution and the means of remedying these, such have been my research preoccupations. A generation must feel young and think forcefully, however, to involve itself with such discussions. In the amphitheater in Constantinople, amid the factions of the blues and the greens,3 they would have been out of place. They would have brought out the suspicions of the former and wearied the frivolity of the latter.

[513] When political questions have caused long agitation and numerous misfortunes, there is established in many minds a conviction that on everything connected with government reasoning is valueless. The errors of theorizing seem much more tiresome than abuses of practice. Since they are indeed more unlimited and incalculable in their results, the attempts of faulty theorizing have a disadvantage from which such abuses are free. A man bends to institutions he finds established, as to the rules of physical nature. He arranges, according to their very faults, his interests, his economic reckoning, and the planning of his life. All his relationships, hopes, means of employment, and happiness are organized around that which exists. During revolutions, however, since everything changes at every instant, men no longer know where they stand. They are forced by their own needs, and often also by the way they are threatened by government, to behave as if that which has just appeared must always subsist; and predicting nevertheless the next changes, they possess neither the individual independence which ought to result from the absence of security, nor security, the only compensation for the sacrifice of freedom.

It is therefore not surprising that after repeated revolutions, any idea of improvement, even abstract and separated from any particular application, is odious and inconvenient and that the aversion it inspires extends to everything which seems to indicate the possibility of a change, even in the most indirect way. It is quite understandable, moreover, that those with the reins of government favor this natural disposition. Even if we attribute to the governors the purest of intentions, they are bound to reserve for themselves the privilege of meditating on the good they want to do; or if they entrust this delicate task to some of the subordinate collaborators surrounding them, this can only be in part. They are happy to see that submissive and flexible minds are undertaking to indicate to them some of the detail needed for achieving their purpose or, better still, to make available to them by minor innovations the means government thinks it has discovered. The independent thinker, however, who claims to grasp at a glance the overall picture, which the governing group allow people to concern themselves with at the very most only in bits, and then functionally and without passing judgment, the philosopher who goes back to the first principles of power and of social organization, even when he isolates himself from present things, and fixing on his memories or his hopes, wishes only to speak with regard to the future or pronounce only on [514] the past, seems to them nevertheless a presumptuous rhetorician, a tiresome observer, a dangerous sophist.

In this way the fatigue of the people combines with the anxiety of its leaders to circumscribe the domain of thought on all sides. It has been said that under the monarchy there was an intermediary class, the nobility, who conserved some independence but only insofar as this decorated and consolidated submission. Similarly, in the state of things we are describing, there forms an intermediary class which demands from reason only what is necessary to limit its sway. Educated men, but without power, elegant subalterns, who take style as the purpose and some restrained and secondary ideas as the means, set themselves up as organs of opinion, the supervisors of thought. They raise an altar to literature, in contravention of philosophy. They declare on which questions human intelligence may exercise itself. They allow it to frolic but subordinately and with circumspection, in the space they have granted it. Anathema on it, however, if it transgresses that space, if, not abjuring its celestial origin, it gives itself over to forbidden speculations, if it dares to think that its noblest destiny is not in the ingenious decoration of frivolous subjects, adroit adulatory praise, and sonorous declamation on unimportant subjects, but that heaven and its own nature have made of it an eternal tribunal, where everything is examined, weighed, and in the last resort judged.

When an inopportune mind wishes to launch itself thoughtlessly from abstract theory to violent practice and, trusting to its own perhaps incomplete and defective speculations, destroy and change everything, madness is probably present and crime even more so. Only perfidiously, however, could immobile, solitary thought be compared with solitary action or reckless advice. Action is for the moment; thought’s judgments are for centuries. It bequeaths future generations both the truths it has been able to uncover and the mistakes which seemed to it truths. Time, in its eternal progression, gathers and separates them.

In Athens, a citizen who deposited on the altar an olive branch surrounded with sacred little bands could freely explain himself on matters political.

I might be accused rather of dealing with obvious things and establishing inapplicable principles. Men who have renounced reason and morality find all one says in this direction so many paradoxes or commonplaces; and since truths are disagreeable to them, above all in their consequences, what constantly happens is that they disdain any initial assertion as not needing demonstration and protest against the second and the third as unsustainable and paradoxical, [515] although the latter may obviously be the necessary and immediate conclusions of the former.

Stupidity is singularly fond of repeating axioms which give it the appearance of profundity, while tyranny is highly adroit in seizing upon stupidity’s axioms. Hence it arises that propositions whose absurdity astonishes us when they are analyzed slip into a thousand minds, are repeated by a thousand tongues, while men who want to agree are continually reduced to demonstrating the obvious.

I have quoted a lot in my book and mainly from living authors, or those recently dead, or from men whose very name is authoritative, such as Adam Smith, Montesquieu, and Filangieri. I have made a point of affirming that often I was only reproducing, with softened expression, opinions to be found in the most moderate of writers.

One habitual ruse of the enemies of freedom and enlightenment is to affirm that their ignoble doctrine is universally adopted, that principles on which rest the dignity of the human race are abandoned by unanimous agreement, and that it is unfashionable and almost in bad taste to profess them, thinking taken very seriously in France. I have tried to prove to them that this so-called unanimity is a lie.

An example more imposing still than the theories of even the most estimable writers has, it is true, come to the rescue of my principles, precisely while I was laboring to expound them. It is the conduct of the American government, such as it was pronounced by the President of the United States on his installation and such as it has been for the last ten years.4

“Although the will of the majority,” said Mr. Jefferson, on 4 March 1801, “must prevail in all cases, that will, to be legitimate, must be reasonable. The minority possess equal rights which equal law must protect. To violate these rights would be an oppression. It is sometimes said that man must not be entrusted with his own self-government. But then how could one entrust to him the government of others? Or have angels perhaps been found, in the form of kings, to govern us? To prevent men from doing each other mutual harm and to leave them otherwise full freedom to manage themselves in the efforts of their work and in their progress toward improvement, that is the sole purpose of a good government. Equal and right justice for all men, whatever [516] their condition or their belief, religious or political, peace, trade, straightforwardness with other nations, without insidious alliances with any, the maintenance of the governments of the individual States in all their rights, as the most convenient administration for our domestic interests and the most certain bulwark against antirepublican tendencies, the conservation of the federal government, in its full constitutional vigor, as the guarantee of our peace within and our security without, scrupulous attention to the right of election by the people, a sweet and sure correction of abuses, which otherwise the sword or revolutions destroy, when no peaceful remedy has been prepared, an unreserved acceptance of the decisions of the majority, a well-disciplined militia, our best safeguard in time of peace and during the first moments of a war, until regular troops can back it up, the supremacy of the civil over the military authority, economy in public expenditure, in order that the working class be taxed only lightly, faithful settlement of our debts and an inviolable respect for public confidence, the dissemination of education and an appeal to public rationality, against all abuses of whatever sort, religious freedom, press freedom, freedom of persons under the protection of habeus corpus and trial by juries impartially chosen, such are the essential principles of our government. The watches of the night of our wise men and the blood of our heroes have been consecrated to their triumph. This is the profession of our political faith, the educational text of the citizens, the touchstone by which we can appreciate the services of those in whom we put our confidence; and if we deviated from these principles in moments of error and alarm, we would have to hasten to retrace our steps and regain the path which alone leads to peace, freedom, and security.”5

These principles, put into practice with so much success in a huge, flourishing republic, are those which I have tried to establish in this book, and I have devoted myself to this task with all the more zeal and confidence in that having some time carried out legislative functions in the State which they named the French Republic, [517] I find myself free again6 without having done a thing or expressed an opinion, which forces me to alter in the slightest detail the intellectual system which I believe to be the only true or useful one, and the only one worthy of good men.

Notes Referring to the Original Chapter

1. Extremes do not only touch but also follow each other. “Everything which tends to restrain kings,” said M. de Clermont-Tonnerre, “is received with delight, because people remember the abuses of royalty. Perhaps there will come a time when everything which tends to restrain the rights of the people will be received in the same fanatical spirit, because the dangers of anarchy will be no loss strongly felt.” II, 232.7

2. the first conquest of our century. Order of the day of His Majesty the Emperor in the Moniteur of 22 January 1806: “There is no censorship at all in France. Every citizen in France can publish such books as he judges suitable, provided he accepts accountability. No work may be suppressed, no author may be prosecuted save by the courts or following a decree by His Majesty where the text would threaten the first prerogatives of public security and interest. We would be falling again into a strange situation, if a simple clerk could arrogate to himself the right to prevent the publication of a book or force an author to retract from or add anything to it. Freedom of thought is the first conquest of the century. The Emperor wishes it conserved,” etc.8

Chapter 2:

Rousseau’s First Principle on the Origin of Political Authority

Notes

1. the world knows only two kinds of power. [518] There is force, the illegitimate kind. “A town,” said Louis XIV, speaking of Genoa, “formerly subject to my ancestors and which had no other rights of sovereignty than those it drew from its rebellion.” Mémoires I, 24. If republics, formerly subject to monarchies, have no other rights of sovereignty than their rebellion, then kings could well have no other rights than their usurpation.

Chapter 3:

Rousseau’s Second Principle on the Scope of Political Authority

Notes

1. the general will must exercise unlimited authority over individual existence. “The voice of the greatest number,” (says Rousseau), “always obliges everyone else. This is a consequence of the contract itself. One may ask how a man can be free and forced to comply with wills which are not his own. How can those opposing be free and subject to laws to which they did not consent? The question is badly put. The citizen consents to all the laws, even to those passed in spite of him and even those which punish him if he dares to break one of them. The constant will of all the members of the State is the general will. When a law is proposed in the people’s assembly, what is asked of them is not precisely whether they approve of the proposition or reject it, but whether or not it conforms to the general will which is their own. Each one giving his vote gives his opinion thereon, and from the counting of votes the declaration of the general will is derived. Therefore when the contrary opinion to mine is carried, this means only that I was in error and that what I had estimated to be the general will was not such. If my minority opinion had carried, I would have done something other than I had wished. It is then that I would not have been free.”9 Rousseau merely pushes the theory back here and expresses it in other words. How does it arise that the declaration of the majority makes the general will clear to the eyes of the minority? It makes clear only that that will is of the majority. What should have been said is that the society has agreed that when a determination is necessary, the will of the majority constitutes law. Then, although it may not be true that when a minority obeys an opinion contrary to its own, [519] it is all the freer for it, although it may be still less true that an individual, whose individual opinion had prevailed, would not be free and would be doing something other than his will, in the very act of doing it, it is conceivable that each person submits to the sacrifice, because others agree to submit to it. This, however, can be only when a resolution is needed. Otherwise the sacrifice has no purpose.

Chapter 4:

Rousseau’s Arguments for Boundless Political Authority

Notes

1. He (Rousseau) forgets that all the preserving qualities which he confers on the abstract being he calls sovereignty are born in the fact that this being is made up of all the separate individuals without exception. Jean-Jacques’s system and all the reasoning it rests on are forgetful of reality, a terrible, vicious flaw. Man is counted in it as some numerical value. When the words all or everyone are spoken, we are led to believe that the discussion is of units or collections of units, which differ not at all among themselves and cannot change their nature. It is taken as shown that none of these figures can encroach on another. These figures being moral beings, however, the result of the bringing together of ten of these figures is not directly proportional to their numerical value, but proportional to the moral value of each one of them. This means that just adding them together one does not get the modified sum of their respective strengths, but only the tenfold multiplication of the individual force of one of them.

Chapter 6:

The Consequences of Rousseau’s Theory

Notes

1. They ask it from the owner of political authority, the people. “The people’s name is a forged signature to justify its leaders.” Bentham.

[520] Chapter 8:

Hobbes’s Opinion Reproduced

Notes

1. This was no longer a man, this was a people. One sees how easily Rousseau’s system leads to the most absolute despotism. Furthermore, we have remarked already that the supporters of this kind of government had avidly seized on it. Men, by uniting, says M. Ferrand, have surrendered, at a word from the general will, all the forces of individual will. Préface de l’esprit de l’histoire.10 Does not this sentence seem to be from Rousseau?

Note that M. Ferrand and others never stop reproaching freedom’s friends for losing themselves in abstractions. When, however, they speak to us of the general will personified and of the sovereign who is no longer a man but a people, can we say they avoid them?

Chapter 9:

On the Inconsistency with Which Rousseau Has Been Reproached

Notes

1. He (Rousseau) has declared that sovereignty cannot be alienated, nor represented, nor delegated. “Sovereignty,” he says, “cannot be represented politically, for the same reason it cannot be alienated. It consists in the general will, and the will is not amenable to representation. It is the same or it is different. There is no in between.”11 This idea of Rousseau arises because he has never defined either the nature or above all the limits of the general will. If we call the will of the members of a society on all things the general will, doubtless it cannot be represented; but if we call the general will only the will of the members of society on those things which society makes common to them, it can be represented, that is to say that a smaller association can be made with the same purpose and can make its decisions according to the same interests as the larger. [521] “The people’s deputies,” he continues, “are not and cannot be its representatives; they are only its commissioners; they cannot conclude anything definitively.”12 It would be just as right to say, however, that the majority cannot conclude anything definitively; since the majority is only the representative of the whole and one is aware of the absurdities this system leads to. “Any law,” he says, finally, “which the people personally have not ratified is null; it is not a law.”13 Rousseau does not explain, however, how the ratification of the majority binds the minority. The power of the majority is explained only by considering it as representing everybody.

Book II:

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

Chapter 1:

On the Limitation of Political Authority

Notes

1. When this government is extended to purposes outside its competence, it becomes illegitimate. Under Pericles the sale of five thousand citizens, because they had been born to foreign mothers, was tyrannical. The institutions under Lycurgus concerned with the private lives of citizens were tyrannical. Our laws on the mercantile system are tyrannical. See Smith IV, chapters 1–8.14 Peter I’s law that his subjects should cut off their beards was tyrannical. Finally, any law which prescribes to someone what he must do for his own utility is tyrannical. The law can decide between one man and another and between a man and society. Any law, however, which regulates the conduct of a man in relation to himself, and only himself, is tyrannical. All these tyrannical laws are nonetheless justified in Rousseau’s theory.15 [522]

2. Even if it were the whole nation, except for the man it is harassing, it would be no more legitimate for that. “Pellitur a populo victus Cato; tristior ille est qui vicit, fascesque pudet rapuisse Catoni. Namque hoc dedecus est populi, morumque ruina. Non homo pulsus erat: sed in uno victa potestas, romanumque decus.” Petronius.16 (Cato, defeated, is driven out by the people. Less fortunate is that man who defeated him, and is ashamed to have seized the symbols of authority from Cato. For this is the dishonor of the people and the ruin of morals. It was not a man who was driven out, but in one man was the power and honor of Rome defeated.)

Chapter 2:

On the Rights of the Majority

Notes

1. than that of the smallest of minorities. Law has been defined as the expression of the majority will.17 This definition is very faulty and very dangerous, in that it appears to give the general will unlimited power. It should be added: on those things where the general will has a right to will.

2. fixed principles from which the majority never deviates. With the system of unlimited rights of the numerical majority, one would be poised to make the whole world one people. For how would a notional territorial line change that right? If thirty thousand neighbors do not want the same thing as a nation of thirty million, by what right do they resist? And if we granted them the right to resist, how would a city already an enclave not have the right to become a neighbor again? [523]

3. They represented it [the majority] as a real person. It is never fundamentally the majority who oppress. People steal its name and then use the arms it has supplied. The interest of the majority is never to oppress. The sum of misfortunes which exists in a society extends more or less to all members and increases when there is injustice. To harm an individual or class is to harm the whole.

Chapter 3:

On the Insignificance of the Way Government is Organized When Political Power Is Not Limited.

Note

1. there are things about which the legislature has no right to make laws. There are unalterable principles, of which the whole nation is guardian, that the nation itself cannot infringe, and which are not numbered in the mass of opinions which it submits to those it charges with exerting its will. The reason is simple, namely that the nation itself has no right to a will contrary to these principles.

Chapter 7:

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

Bentham says that if the supporter of utility found an action in the catalogue of virtues which resulted in more pain than pleasure, he would expunge it from this catalogue. I, 5.18 This is remarkable, in that he says elsewhere19 that it is bad to speak of natural rights, because each man wants to judge them according to his individual judgment. But is this not what he makes the supporter of utility do? In all systems one has to come back to individual judgment.

If one wants to judge according to conscience, says Bentham, I, 31, one will not be able to distinguish between an enlightened conscience and a [524] blind one.20 If, however, one wishes to judge according to the principle of utility, neither will one distinguish good and bad calculations on this basis. “In the immense variety of ideas on natural laws,” says Bentham, Principles of Legislation, Ch. 13, “won’t every person find reasons to resist human laws?”21 He will find the same, however, in the principle of utility, applied in his way.

Book III:

On Arguments and Hypotheses in Favor of the Extension of Political Authority

Chapter 1:

On the Extension of Political Authority beyond Its Necessary Minimum, on the Grounds of Utility

Notes

1. writers of all persuasions. “All government is instituted for men’s happiness. Therefore everything which can assure their happiness must be a part of government.” Ferrand, Esprit de l’histoire, I, 107.22

2. In some respects Montesquieu. Bentham in his Principles of legislation, Ch. 12, entitled On the limits which separate morality from legislation, begins with a false proposition. “Morality,” he says, “is the art of directing men’s actions in such a way as to produce the greatest possible sum of happiness. Legislation has precisely the same end.”23 It is through confounding thus the purpose of legislation and that of morality that we have given legislation the growth which has become so disastrous. Bentham feels it himself, for he says a little further on that the means of legislation are very different, and its jurisdiction much more extensive than that of morality, that there are acts useful to the community which the law must not require and harmful acts [525] that it must not forbid.24 He concludes with this obvious maxim: “Do not make the power of the laws intervene except to stop men hurting each other.”25 The definition he begins with, however, is equally inexact. The purpose of legislation is far more to safeguard men against the evil they might do themselves than to procure for them the greatest sum of possible happiness. The definition of morality and legislation seems to me to be that the first indicates to men how they might be happy, in rendering their fellows happy, and that the second preserves them from what might, on the part of their fellows, prevent them from making themselves happy, without hurting others. The singular thing here is that Bentham joins two definitions which contradict each other and which I oppose equally. For he says elsewhere that any law is a necessary evil.26

3. in this theoretical system political authority has absolutely no limits nor can have. Why is judicial power the least dangerous of all the powers? Because its nature is perfectly understood. People know it is essentially rigorous, that it is indispensable, but that the good it produces is only the absence of ill. Furthermore, it is not easily extended beyond its limits and when people have wanted to abuse it, they have had to distort it and turn it into a political power instead of a judicial one. Those holding other powers have not wished to be confined to such narrow limits. Consequently they have tried to deceive people over the nature of their duties. Instead of presenting themselves as guardians of public order, that is to say, as a sort of political constabulary, they have posed as the fathers of the people. They have benefited from being surrounded by affection, or telling themselves this, rather than mistrust, and have been able to abuse their powers much more easily.

[526] 4. Nothing simpler than the questions on which these functions call governments to pronounce.27 “In the system of natural freedom,” says Smith, IV, 9, V, 1, “the sovereign has only three duties to fulfill, three duties in truth of great importance, but clear, simple, and within the grasp of an ordinary mind. The first is the duty to defend the society from any act of violence or invasion on the part of other independent societies; the second is the duty to protect, as far as possible, each member of the society against the injustice and oppression of any other member, that is to say, the duty to establish a proper administration of justice; and the third of setting up and maintaining certain public works and institutions which the private interest of an individual or group of individuals would never get around to setting up or maintaining because the profit would never reimburse the expenditure of an individual or group of individuals, although with regard to a whole society this profit more than reimburses the expense.”28

Chapter 3:

Are Governors Necessarily Less Liable to Error Than the Governed?

Notes

1. less impartial than the governed. It is a mistake to take it that there is a huge gulf between those who lay down and those who accept the law. Their respective educations are always in a certain ratio and do not shift much. Nature grants no privilege to any individual. No one runs ahead of his country and era by much, and those who do so most are perhaps the least proper to dominate them.

2. It is not the same with the numberless functions, etc. The marquis de Mirabeau, [527] in the first book of his L’ami des hommes,29 establishes a very accurate distinction between positive and speculative laws. According to him, positive laws limit themselves to maintenance; speculative ones extend to guidance. He does not draw extensive consequences from this distinction. His purpose was not to fix the limits of government functions, and although in the rest of his book he may constantly be led by the force of things to restrain these functions de facto, he nevertheless admits their legitimacy in law and strives only to indicate how they may be at their most useful and advantageous. We whose purpose is different will adopt the same distinction, but in order to follow up all it results in. When the government punishes a harmful action, when it penalizes the violation of a contractual undertaking, when it builds or repairs roads or canals, it fulfills a positive function. When it comes down hard on an action which is not harmful on the grounds that it could lead indirectly to one that is, when it imposes on individuals certain rules of conduct which are not a necessary part of the work to which they are contracted, when it harasses the management of property or the carrying out of work, when it seeks to dominate public opinion, either by punishments or rewards, or by seizing control of education, it arrogates to itself a speculative function, since it is basing itself on calculations, on suppositions, on hypothetical cases, in short, on speculations. Government in its positive functions does not act in a spontaneous way. It reacts in response to facts, to antecedent actions, which have taken place independently of its will. In its speculative function it does not have to react against facts or acts already performed, but to foresee future actions. It acts spontaneously therefore. Its action is the product of its own will.

The positive functions of government are of an extremely simple nature, and in their exercise its action is neither equivocal nor complicated. Its speculative functions are of a different nature. They have no factual base, not being exercises over factual things. They start from a supposition, a presumption. They can vary, extend, and become infinitely complicated. Positive functions often let government stay motionless. Speculative functions never let it do so. Its hand, which at times prevents, at times controls, at times creates, at times repairs, can [528] sometimes be invisible, but never stay inactive. Its action taking its source from its will, it must necessarily reason, suppose, guess. This indicates clearly how difficult it is in so many respects to draw the limits of speculative functions. Sometimes government places barriers of its own choosing just short of criminal activity, with a view to then establishing penalties against the overturning of these barriers. Sometimes it has recourse to prohibitive measures, against actions which, neutral in themselves, seem to it nevertheless dangerous in their indirect consequences. Sometimes it builds up coercive laws to compel men to do what seems useful to it. At other times it extends its scope to what people believe. On yet further occasions it modifies or limits the tenure of property, arbitrarily regulating its forms and deciding on, ordering, or prohibiting its transmission. It subjects the work of production to numerous impediments, encouraging it on one side, restraining it on another. Actions, conversations, writings, mistakes, truths, religious ideas, philosophical systems, moral attachments, inner feelings, uses, habits, customs and manners, institutions, all that is vaguest in man’s imagination, most independent in his nature, everything there belongs to the government domain. It enfolds our existence on all sides, takes hold of our first years, surveys and restrains our least movements, sanctifies or combats the most uncertain of our conjectures, modifies or directs our most fugitive impressions.

The difference, then, between speculative and positive functions is that the latter have fixed boundaries, rather than the unlimited ones the former have, once they are accepted.

The law or governmental action, according to which the government might send citizens to the frontiers to defend these when they are attacked, would be a law or positive government action, since obviously its purpose would be to repel an aggression committed and prevent the native territory being invaded. The law or government action according to which the government might oblige citizens to carry the war into the country of another nation, which it suspected of considering an attack, would be a law or action of a speculating government, since that government would not be acting on a factual basis, against some committed action, but following a speculation, against a presumed one. So, in the first case, government authority would be limited, since the government could not take action against a fact, if there were no such fact. In the second, on the contrary, government authority would be limitless, speculation always being at the government’s discretion.

Another difference between positive and speculative functions is that when the government limits itself to the former, [529] it cannot make mistakes; but when it arrogates the latter to itself, it exposes itself to error of every kind.

When government passes a law against assassination or theft, since its severity is directed only against determinate actions, it cannot go astray. If, however, government makes laws against the decay of trade or the stagnation of industry, it runs the risk of taking for means of encouragement things which are not such. A law against theft or assassination can be more or less perfect and therefore more or less attain its purpose. It is impossible, however, that it will work completely against this purpose. A law to encourage trade can destroy it. A law to favor production can run counter to it.

There is therefore in the speculative functions of government a double drawback. Not being susceptible to limitation, they lay themselves open to arbitrariness. Obliging government to act on suppositions, they multiply the chances of mistakes.

Chapter 4:

Are Governmental Mistakes Less Dangerous Than Those of Individuals?

Notes

1. freely set himself straight. Nature has given our errors two great correctives, personal interest and experience. If personal interest makes mistakes, the very losses incurred will enlighten it. What our interests have undergone will put them on a far more secure track than prohibitions could. The man with a vested interest will not have seen proof that prohibitions are necessary. For him their value exists only in the foreboding of governments. Individual interest will never see them as safeguards, only as obstacles.

2. it is better to run the natural risk of individual mistakes. “Everything man does for himself,” says Godwin, Political Justice, VI, Ch. 8,30 “is a good. Everything his fellow citizens or country do for him, against his consent, is an ill.” Godwin is right, and it is an ill in several respects. First, there is a violation of each person’s rights. Justice prefers that every man be judge of what constitutes his own happiness. When you strike a blow against this individual prerogative, even if you are right a thousand times over [530] in the individual case, you are spurning a general principle, which cannot be upturned without the widest and most serious consequences. Secondly, however, it is very doubtful whether, even in the individual circumstance, you are likely to be right. You are subject to error every bit as much as the man whose interest you claim to know better than he himself. On this matter you are much more liable to error than he, for he is very much better acquainted with the overall details of his existence than you who perceive only one side of it, you to whom that one-sided and incomplete awareness can suggest very wrong notions. Thirdly and finally, nothing is beneficial save by consequence, persistence, and agreement and unless it lasts. Now, what you do for a man, against his will, he will undo. Whatever work you have built up at the expense of part of his freedom, with the remainder of that freedom, he will try to destroy it. There will therefore be no cohesion, no continuity, no persistence: instead there will be struggle. If you are right and the violence you are doing the man really is in his interest, do you know what the result will be? It is that you will separate him from his interests and he will not be wrong to separate himself from them. For the interest of his independence is much more important to his happiness than the individual interest in whose name you are claiming to subjugate him. If he gave in to you in this case, in which you are right, you would demand the same submission in another case in which perhaps you would be wrong. It is therefore in his lasting interest to resist you, even when you are acting in his interest of the moment.

Chapter 5:

On the Nature of the Means Political Authority Can Use on the Grounds of Utility

Notes

1. calmly set out again to make what they called laws. We have seen better still. We have seen our legislative assemblies forget the laws they have passed and pass them a second time.

Book IV:

On the Proliferation of the Laws

Chapter 1:

Natural Causes of the Proliferation of the Laws

The laws have been defined as the expression of the general will. This is [531] a very false definition. The laws are the declaration of men’s relations between themselves. From the moment society exists, it establishes certain relations between men. These relations are true to their nature, for if they were not true to their nature, they would not become established. These laws are nothing other than these relationships observed and voiced. They are not the cause of these relationships, which on the contrary are anterior to them; on the contrary, they declare that these relationships exist. They are the declaration of a fact. They create, determine, and institute nothing, except forms and procedures such as to guarantee that which existed before their institution. It follows that no man, no fraction of society, nor even the whole society can, properly speaking and in an absolute sense, attribute to itself the right to make laws. The laws being only the expression of relations which exist between men and these relations being determined by their nature, to make a new law is only a new declaration of what existed previously.

The law is not in the gift of the legislator. It is not his spontaneous work. The legislator is to social order what the physician is to nature. Newton himself was able only to observe it and tell us the laws he recognized or thought he recognized. He did not to all appearances delude himself that he was the creator of these laws.

One thing excuses governments for the proliferation of the laws. This, that everybody solicits them to this end. Does a man think up a new project? Soon he is asking the government for it. Men who most favor freedom are not free from this error. The economists, etc.

Chapter 2:

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

The complicated institutions of government and legislation have created such a number of artificial relations between men that there is no longer room for their true nature. Their moral existence, their will, their judgment find themselves choking under their civil, political, and legal existence, an existence if not opposite to the former, at least totally modified. There has been done for the entire life of man what constitutions did for [532] primary assemblies.31 Reports have been drafted in advance, in which only the name and the date have been left blank and on the basis of which the human race resigns itself docilely to modeling all its actions. Men today have nothing in their own right. In the case of the inner life, there are positive religious dogmas. For external activity there is the law; with the result that when law or religion collapse, men no longer have any guidance and no longer know what they must do.

I read in the Declaration of Rights that no man is a good person if he does not strictly and rigorously observe the laws.32 Does this mean that if I am a good son, a good husband, a good father, a good friend,33 but I forget or I break one of the thirty-two thousand laws which compose our code, I will not be a good man? I perceive in this doctrine a morality every bit as artificial as that of the fakirs of India, who attach virtue or crime to the observance or nonobservance of practices with no value or danger.

Chapter 3:

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

The more a government measure is contrary to justice and reason, the more it entails disorder and violence, and then the need for the measure is justified in terms of this disorder and violence. If, on the grounds that most crimes are committed on the highways and that by forcing citizens to stay at home in their houses we would prevent these crimes, the law told them not to leave their homes and put guards everywhere to arrest the lawbreakers, the citizens, condemned either to neglect the looking after of their interests and to interrupt their reciprocal dealings or to disobey the law, would probably take the second course. The guards would come forward to arrest them and they would put up some resistance. Brawls, threats, fighting on the [533] highways would multiply more than ever and the legislator would conclude from this the necessity of the law which was the initial cause of all these calamities. He would take the effect for the cause: this is the history of many laws.

Often, when the execution of a law meets a thousand obstacles, people imagine these obstacles could be lifted by a new law. This new law is eluded in turn. This is remedied by a third law. You go on like this to infinity. If after you are worn out with fruitless attempts you go back to the first law, fertile source of so many secondary laws, and try to repeal it, you will for the most part see that everything would go better for it, and you would succeed by this repeal, not only in freeing yourself from a bad law, but from a whole series of laws necessary to assure, even imperfectly, the carrying out of your first law.

“You have never in your life,” says the Abbé Galiani, p. 250, “bound anything, whether with string or with thread, without giving it one twist too many or making one extra knot. It is in our instinct, whether we are small or great, always to go beyond the natural measure, following the force of our intention.”34 I conclude from this that one should bind things as lightly as possible.

After the earthquake at Lisbon,35 the marquis de Pombal, in order to prevent the people leaving en masse, set up a cordon of cavalry on the banks of the Tagus and had the roads leading out into the country guarded by large detachments of infantry. No quake occurred, and so these precautions had no inconvenient consequences. If it had been repeated, however, it is clear that the obstacles put in the way of the people’s flight would have increased the despair and unhappiness, since one would have had to battle against the soldiers as well as the elements.

Chapter 4:

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

Even when the government stays strictly within the limits prescribed by its purposes, it always more or less corrupts the instruments it uses. To corrupt is to substitute for moral considerations, which would decide for us if they were the only ones to make themselves heard, considerations of another kind. [534] Any addition to, any change in, the motives which must determine men’s conduct, any threat, any promise, be it of pecuniary recompense, or of power, is a form of corruption. Now, this form of corruption is inseparable from government, within whatever narrow limits you enclose it. It needs agents who, sometimes, function without thought and obey without conviction. These agents are necessarily corrupted. If, along with the natural functions with which it is invested, the government adds functions which do not belong to it, such as, for example, influencing the opinions and outlook of the governed, the corruption of its agents will increase indefinitely. When the government is only an instrument of repression, punishing crimes people have been able to commit, its agents have only little latitude. They are in the inevitably wrong and unhappy situation of obeying without being convinced, and for motives of a quite different nature from conviction. Nothing is left to their arbitrary decision, however. In everything which is not purely repression, though, the solitary barrier having once been breached, despotism no longer finds anything to slow down its march. There results from this a much wider terrain for the corruption of agents. This corruption is aggravated further by the contempt it arouses. The natural feeling that the government should leave citizens free in the occupational, wealth-seeking, and moral part of their lives is so strong that the very men who have not adopted this political view look on the agents of the other approach with nothing but aversion and disdain. Now, this contempt tends to corrupt them more and more. In this way, through its wrong measures, the government, in order to achieve a good which it does not attain, and which it is not in its capacity to attain, creates a real ill. Its true purpose is not to do good but to prevent ill and to do so by way of penal laws. It corrupts in this case only a very small number of those who carry out these laws, and the dealings of these men with society being neither frequent nor complicated and always hostile, the corruption penetrates the social body less. Whereas when the government wants to do positive good, since it corrupts its agents in the same way and since there are more of them, and their dealings with society are more frequent, more various, and less hostile, the harm is much greater.

Coercive laws, intended to force the governed to such and such an action, have one further drawback than prohibitive laws, intended only to forbid such and such an action to the governed. The absence of action is more difficult to determine than the action itself. Against this negative crime a more constant, positive, and inquisitorial surveillance is called for.

[535] In cases where coercive laws were absolutely necessary, rewards should be attached to obedience rather than punishments attached to transgression. Since the State cannot be lavish with rewards, however, there should at the same time be as few as possible laws of this kind.

Chapter 5:

Another Drawback of the Proliferation of the Laws

There were excesses in our old institutions. There are still more in our present ones. Most of the time it is a matter not of adding to them, but reducing them. I deliver you from a ferocious animal, said Voltaire, and you ask me what I am putting in its place.36 This witticism could be applied to many laws. Let us guard against concluding, from the host of laws which have been established, that a host of laws is necessary to public order. Let us consider which laws would seem indispensable to us if the idea of the laws came up for the first time.

Book V:

On Arbitrary Measures

Chapter 1:

On Arbitrary Measures and Why People Have Always Protested Less about Them Than about Attacks on Property

It is in Ch. 15 of Livre XXVI of The Spirit of the Laws that Montesquieu establishes principles much more favorable to property than to freedom. Examining his arguments carefully, however, we see that they apply with as much force to freedom as to property. “It is,” he says, “a paralogism to say that the individual good must yield to the public good. That holds only in the cases where it is a question of the authority of the city, that is to say, the freedom of the citizen. This does not hold in cases where the ownership of goods is at stake, because the public good is always that each person invariably keeps the property which the civil laws bestow on him.” How is it, however, that Montesquieu has not felt that the public good was always also that each person keeps his legitimate freedom? Why is it untoward that, on the grounds of the public good, blows should be struck at property? It is because a single attack of this kind takes away from all [536] property all guarantee and because the whole system of property is destroyed. It is the same, however, with freedom. “Let us take it as a maxim,” he continues, “that when it is a question of the public good, the public good is never that one should deprive an individual of his goods nor even that one should take away the least portion of them.”37 We can say as much for freedom, and experience shows it.

Chapter 2:

On the Grounds for Arbitrary Measures and the Prerogative of Preventing Crimes

Notes

1. government suspicions. The need to prevent crimes is sometimes only a pretext for government idleness, its members sometimes preferring to enchain us than to survey us. They must learn, however, that government is painstaking work and that it is to us, the governed, that peace and freedom belong, while the portion of the governors is enthrallment, anxiety, and work. Governments too often mistake public security and individual safety. Legislators and magistrates in all countries, the peace of the State depends on the sacrifice of your peace. If you must be spared all alarm, freed from all solicitude, released from every care, your work has lost its whole point, and what will you have left then? Prestige and power. No, this is not what your portion is. The society which raises you to the post you occupy commits you thereby to an indefatigable watchfulness. It is to you to watch the sky and the winds, to avoid rocks, to steer the ship and hold the rudder unremittingly. It is not right to leave the passengers to their anxieties, in order to give the pilot a chance to sleep.

2. Of being nuanced infinitely. [Constant’s whole sentence is: “The exemplary nuances here are infinite.”] At a time of trouble, it may be legitimate and wise to order the citizens to carry some means of identification or to provide themselves with some such from the public authorities. If this requirement bore on one individual class only, however, it would be supremely unjust.

Additions

Sometimes the legislators, to palliate the injustices they commit, under the pretext of preventing crime or providing for public safety, resort to a subterfuge as odious [537] as it is illusory. They seem to pity those they hurt, to groan themselves under their harassment, and seek to make amends for this by tokens of esteem and interest. This, however, is to deprive the oppressed of their last remaining support. When a citizen is pursued by a powerful man, if it is a matter of taking his life, his reputation, or his property, it is to be hoped that hearts will be moved and that he will find defenders. When the victim is adorned with flowers, however, when he is seemingly honored, when it is claimed that injustice adds to his glory, the path of the crime is made smooth. This is not a punishment, those who want the ruin of an innocent tell you, this is a precaution, which becomes almost a triumph for the person who is its object. Ostracism transported to modern times.

As prohibitive laws are much more favorable to the encroachments of authority than are the penal laws, government is pleased to exaggerate the small influence of the latter in order to have wider recourse to the former.

Chapter 4:

On the Effect of Arbitrary Measures in Terms of Moral Life, Industry, and the Duration of Governments

Notes

1. When there is no security, there is no moral life. Despotism is hurtful in that it prevents any long-term reckoning of the world. Now, moral life especially needs this kind of reckoning. The moment perhaps favors vice; time alone favors virtue.

2. of production. The large-scale enterprises of merchants are always necessarily intertwined with public affairs. In monarchies, however, public affairs are most of the time as suspect to merchants as they seem to them secure in republican States.

Additions

Despotism in favor of virtue is infinitely more dangerous than despotism in favor of crime. When scoundrels violate due process at the expense of honest men, one knows that this is one crime more. The very violation of due process makes you pay particular attention to it. You learn uncomplainingly and through misfortune to regard such process as sacred, as protecting and conserving the social order. When good men violate due process at the expense of scoundrels, however, the people no longer know where they stand. Due process and the law appear to them like obstacles in the way of justice. They somehow get used to these things and put together some sort of theory of an equitable [538] despotism, which is the overthrow of any kind of thinking, because in the body politic, only due process is stable and resistant to men. The foundations themselves, that is, justice and virtue, can be disfigured. Their names are at the mercy of whoever wants to use them. A feature of all political parties is that they do not hate despotism as such, the first thing in need of hate in a free society, but only this or that despotic act, which seems contrary to their purposes and interests. Once talk of circumstances is allowed, circumstances can always be invoked against principles. Factions march from one circumstance to another, constantly outside the law, sometimes with pure intentions, sometimes with perfidious projects, eternally asking for large-scale measures, in the name of the people, of freedom, of justice. In everything public well-being demands, there are two ways of proceeding, the one legal and the other arbitrary. The first is the only one permissible and always in the long run the one the government finds itself the better for. As long as arbitrary government is considered only as something simply to be snatched from one’s enemy so one can put it to use, that enemy will strive in his turn to seize it, and the struggle will be forever, because arbitrary measures are inexhaustible.

In republics, all arbitrary measures, all formulae intended to serve as a pretext for oppression, rebound on their authors. I find a striking example of this in the Acts of the Constituent Assembly and I will use to recount it the words of one of its members: Clermont-Tonnerre, IV, 90: The National Assembly wanted to declare absolute freedom of religious opinion. The Catholic priests, the supporters of the dominant religion, forced the Assembly to modify this principle by adding this sentence: provided that the manifestation of religious opinion does not threaten public order. Soon this same dominant religion was cruelly abused by this obscure and vague sentence, whose adoption its influence had secured. The overardent friends of the Revolution took advantage of the redraft they had opposed to crush, against all reason, those who had wrung it out of them.38

[539] The ancients believed that places soiled by crimes had to undergo an expiation; and my belief is that land sullied by an act of despotism needs, for purification, a resounding punishment of the guilty person. Every time in any country I see a citizen arbitrarily incarcerated without seeing shortly afterward the hireling who arrested him and the jailer who received him, and the politician, whoever it was, who violated due process, dragged into the same prisons, I will say: this nation does not know how to be free, nor wish to be so, nor merit it, having not yet learned the first notions of freedom.

If it were given to man to invert, just once, the order of the seasons, whatever advantage he might derive from this privilege in a particular circumstance, he would nonetheless experience as a result an incalculable disadvantage, in that subsequently he would no longer be able to rely on the unvarying regularity and uniform sequence which serve as a base for his working activities.

Chapter 5:

On the Influence of Arbitrary Rule on the Governors Themselves

By giving themselves the prerogative of prevention, governments so multiply their duties that their responsibility becomes endless. Their respect for the most solemn treaties, their consideration for individual freedom, can be considered criminal.

Book VI:

On Coups d’Etat

Chapter 1:

On the Admiration for Coups d’Etat

Notes

1. cannot legitimate in individuals. Men in coming together merely put in common what each of them before possessed in isolation. A thousand individuals who link up, in that linking up give a guarantee and some force to the previous rights they had, but do not create for themselves any new rights. The rights of the majority are only the aggregation of the rights of each one. Nations are only aggregations of individuals. Their rights are only the joining up of individual rights. So what could this public morality be which some wish to oppose to private morality? Public morality consists only in the aggregation of individual duties and rights. Now, injustice, not being anyone’s right, cannot be the right of all. How could individuals acquire by coming together rights which they did not have in isolation?

2. which you wish to seize. The Triumvirs, says M. Ferrand, I, 392,39 “agreed to withdraw from a republic whose loss had become inevitable those who insisted on wishing to defend it.” Approval of banishments.

Book VII:

On Freedom of Thought

Chapter 2:

On Freedom of Thought

Notes

1. praiseworthy tolerance. Each man, says M. Ferrand, must have the freedom to think what he pleases, but not to propagate his opinions if they are dangerous, just as he is permitted to have some poison in his closet but not to distribute it nor to make use of it.40 Among the sentences which prove the extent to which men are the dupes of words, this one, which has been repeated by many a writer, is one of the most remarkable. We find it anew in the preambles of edicts, in all the sweet-talking discussions of tolerance [541] which were employed to try to slow its development. It is a fact that enlightened men believed for some time that they should be obliged to those in government for this alleged indulgence. The government made it meritorious on their part that they allowed us to think what seemed reasonable to us! But how could they stop us doing so? By what means did they penetrate the secret of our thoughts, that we had been forbidden to express? They claimed our gratitude and imposed a shameful silence on us and did us all the harm they could. They said they respected our independence of thought. Yes, just as long as they did not know what it was, just as long as it stayed silent and sterile, locked up inside us, deprived of all expression, bereft of all social communication, of that fertile source of accuracy and perfecting. Man has a need, however, to express his thought. Thought itself is something real only when it is expressed. What could government do against thought it knew nothing of? It is insolent scorn on tyranny’s part that it should claim to grant as a favor something it cannot refuse.

Chapter 3:

On the Expression of Thought

Notes

1. speech and writing. Independently of speech and the press, individuals have another way of expressing their opinions, that is to say, coming together to discuss them. All our memories rebel against the exercise of that faculty, one so dangerous when it is abused. I will most assuredly not excuse those wild and monstrous gatherings which flung the nation into excesses of all kinds. I know only one circumstance which justifies meetings of opinion between unsophisticated individuals: this is the need to speak up for oppressed individuals. A sort of contagious courage forces the weak to appear strong. An assembly, in moments of danger, is normally directed by the bravest. Esprit de corps makes up for the lack of a sense of justice, and usurpation by a minority cannot take place. In all other circumstances, however, the groups which citizens arrange between the