Research relating to the constitutional organization of government having been, since The Social Contract and The Spirit of the Laws , the favorite speculative focus of the most enlightened of our writers in France, is now very decidedly out of favor today. I am not examining here at all whether this disfavor is justified; but it is certainly quite understandable. 1 In a few years we have tried some five or six constitutions 2 and found ourselves the worse for it. No argument can prevail against such an experience.
Moreover, if despite the universal distaste today for all discussions of this type, one wished to give oneself over to reflecting on the nature of governments, and their forms, limits, and prerogatives, one would probably make the opposite mistake to the current one, but one no less gross and deadly. When certain ideas are associated with certain words, one may repeatedly seek in vain to show that the association is false. The reproduction of the words will for ages summon up these same ideas. 3 It was in the name of freedom that we got prisons, scaffolds, and endless multiplied persecution. Quite understandably, this name, which signals a thousand odious and tyrannical measures, can be pronounced today only in a mood of distrust or malevolence.
Extremes do not only touch but also follow each other. One exaggeration always produces a contrary one. This applies especially to a nation in which everyone’s aim is to show off, and as Voltaire said, everyone is more concerned to hit hard than accurately. 4 The ambition of the writers of the day is at all times to seem more convinced than anyone else of the reigning opinion. They watch which way the crowd is rushing. Then they dash as fast as they can to overtake it. They think thereby to acquire glory for providing an inspiration they actually got from others. They hope we will take them for the inventors of what they imitate and that because they run panting in front of the crowd they have just overtaken, they will seem like the leaders of the band, though the latter do not even suspect they exist. 5
A man of horrible memory, whose name should not soil any writing, since death has justly settled his personal account, said, on examining the English constitution: “I see a king there, and recoil in horror. Royalty is against nature.” 6 Some anonymous writer, in a recently published essay, likewise declares all republican government unnatural. 7 It really is true that in certain eras you have to go round the whole circle of follies before coming back to reason.
Yet if it is proven that all research on constitutions, properly so called, must, after the upheavals we have suffered, necessarily be for some people a subject to go mad about, while for everyone else it is a matter of indifference, there are nevertheless principles of politics independent of all constitutions, and these seem to me still worth developing. Applicable under all forms of government, no threat to the basis of any social order, compatible with monarchy and republicanism alike, whatever versions either may take, these principles can be discussed frankly and freely. They are especially open to discussion in an Empire whose leader has just proclaimed, in the most unforgettable way, the freedom of the press, and declared independence of thought the first conquest of our century.
Among these principles one seems to me of the greatest importance. It has been overlooked by writers of all parties. Montesquieu was not concerned with it. Rousseau in his The Social Contract based his eloquent and absurd theory on subverting it. All the ills of the French Revolution come from this subversion. All the crimes with which our demagogues have appalled the world have been sanctioned by it. This book is about the reestablishment of this principle, and its developments and consequences, as well as its application to all forms of government, whether monarchical or republican.
Rousseau begins by establishing that any authority which governs a nation must come from the general will. 8 This is not a principle I claim to challenge. In our day people have tried to obfuscate it; and the evils which have been caused and the crimes committed on the pretext that this was to execute the general will, lend seeming support to the arguments of those who would like to locate the authority of government in another source. 9 Nevertheless, all these arguments are powerless against the straightforward definition of the words we use. Short of reviving the doctrine of divine right, we ought to agree that the law must be the expression of the will of everybody or at least of a few people. Now, if it is the latter, what might be the source of the exclusive privilege conceded to this small number? If it is force, force belongs to anyone who can grab it. It does not constitute law, or if you recognize it as legitimate, this will be true whoever has seized it; and everyone will want to win it in turn. If you think that the power of this small group is sanctioned by everyone else, that power then becomes the general will.
This principle holds for all institutions. Theocracy, royalty, and aristocracy, when they command minds, are the general will. When they do not command minds, they cannot be anything else but force. In sum, the world knows only two kinds of power. There is force, the illegitimate kind; and there is the legitimate kind, the general will.
The objections we may raise against this will, bear either on the difficulty of recognizing or expressing it, or on the degree of power granted to the authority emanating from it. One could claim, often justifiably, that what people call the general will is no such thing and that the things subjected to it should not be. In this case, however, it is no longer legitimacy that is being attacked but its rightful powers or the fidelity of its interpreters.
This principle does not deny the legitimacy of any form of government. In some circumstances society may want a monarchy and in others a republic. So these two institutions may therefore be equally legitimate and natural. Those who declare one or the other illegitimate or against nature are either party mouthpieces and do not say what they think, or else they are ideological dupes and do not know what they are saying.
There are only two forms of government, if we may even give them that title at all, which are essentially and eternally illegitimate, because no society could want them: anarchy and despotism. Moreover, I am not sure that the distinction which often favors the latter is not illusory. Despotism and anarchy are more alike than people think. In our era, people gave the name “anarchy,” 10 meaning the absence of government, to a government which was the most despotic that has ever existed on earth: a committee of a few men, who endowed their functionaries with boundless power, with courts tolerating no appeal, with laws based on mere suspicions, with judgments without due process, with numberless incarcerations and a hundred judicial murders a day. This is to abuse terms and confound ideas, however. The Revolutionary government was most certainly not an absence of government.
Government is the use of public force against individuals. When it is used to stop them hurting each other, it is a good government. When it is used to oppress them, it is a frightful government, but in no sense is it anarchic. The Committee of Public Safety was government; so was the Revolutionary Tribunal. The law of suspects embodied government too. This was detestable, but certainly not anarchic. It was not for lack of government that the French people were butchered by executioners. On the contrary, it happened only because executioners were doing the governing. Government was most certainly not absent. Rather, an atrocious and ubiquitous government was always present. This was absolutely not anarchy, but despotism.
Despotism resembles anarchy in that it destroys public safeguards and tramples on due process. It differs from anarchy only in that it then demands for itself the due process it has destroyed and enslaves its victims in order to sacrifice them.
It is not true that despotism protects us against anarchy. We think it does only because for a long time our Europe has not seen a real despotism. But let us turn our gaze on the Roman empire after Constantine. We find that the legions were endlessly in revolt, with generals proclaiming themselves emperors and nineteen pretenders to the crown simultaneously raising the flag of rebellion. Without going back to ancient history, let us look at the sort of spectacle presented by the territories ruled by the sultan. 11
Anarchy and despotism bring back the savage state into the social state. But while anarchy puts all men there, despotism puts itself there on its own and beats its slaves, pinioned as they are, with the chains it has cast off.
Whatever may remain unexamined in this comparison, one thing is certain: this comparison will not suffice to tip the balance in favor of either of the two things concerned. So mankind cannot want either anarchy or despotism. Any other form of government can be useful, any other can be good, any other can be what a society desires and, as a consequence, can be legitimate.
If Rousseau’s first principle is an incontestable truth, this is not so of a second axiom, which he lays down and develops with all the prestigious force of his eloquence. “The clauses of the social contract,” he says, “boil down to just one, namely the total surrendering of each member along with all his rights to the community.” 12 The implication is that the general will must exercise unlimited authority over individual existence.
Political writers before and after Jean-Jacques Rousseau have mostly expressed the same view. 13 None has rejected it formally. 14
“In all government there must be an absolute authority,” says the author of Natural Politics . “Wherever that authority resides, it must employ as it chooses all the powers of the society” and work out what all the particular political orientations are in order to oblige them to fall in with the overall view. However the sovereign power is distributed, the overall quantum is unlimited. 15
Mably says it is an axiom accepted everywhere on earth that legislative power, that which declares and realizes the general will, must not be limited by anything. 16
The supporters of despotism have in this respect come close to Rousseau’s theory. “For a society to subsist,” says M. Ferrand ( The Spirit of History , I, 134), “it is necessary that there exist somewhere a power greater than any obstacle, 17 which directs individual wills and suppresses factionalist passions.” 18
Some writers, 19 of whom Montesquieu is one, have placed certain apparent restrictions on this doctrine. These have always been too vague, however, to serve to define fixed limits to political authority. To say that justice existed before the laws ( The Spirit of the Laws , Livre I) 20 is indeed to imply that the laws, and therefore the general will, of which the laws are only the expression, must be subordinate to justice. But what a set of developments this truth in turn demands if it is to be applied! In the absence of such developments, what follows from this assertion by Montesquieu? That the holders of power have often set off from the principle that justice precedes the laws in order to subject individuals to retrospective laws or deprive them of the benefits of existing ones, in this way hiding the most revolting iniquities behind a sham respect for justice. How crucial it is in matters of this sort to be wary of undefined axioms!
M. de Montesquieu, moreover, in his definition of liberty, misconstrues all the limits of political authority. Liberty, he says, is the right to do anything the law permits. 21 Doubtless there is no liberty at all when the citizens cannot do everything the law does not forbid. But so many things could be made illegal that there would still be no liberty.
M. de Montesquieu, like most political writers, seems to me to confuse two things: freedom and constitutional security. Freedom consists in individual rights; social rights, on the other hand, provide constitutional security. 22
The axiom of the people’s sovereignty has been thought of as a principle of freedom. It is in fact a principle of constitutional guarantee. It aims to prevent any individual from seizing the authority which belongs only to the political society as a whole. It determines nothing, however, about the nature of this authority itself. It in no way adds to the sum of individual liberties, therefore, and if we do not turn to other principles for determining the extent of this sovereignty, freedom could be lost, despite the principle of the sovereignty of the people, or even because of it.
M. de Montesquieu’s maxim, that individuals have the right to do everything the law permits, is similarly a principle of guarantee. It means that no one has the right to stop someone else doing what the law does not forbid. It does not explain, however, what the law is or is not justified in forbidding. Now, it seems to me that this is exactly where freedom resides. It consists only in what individuals have the right to do and society has no right to prevent.
Since the time of M. de Montesquieu some well-known men have protested against Rousseau’s maxim. Beccaria, in his treatise On Offenses and Punishments , 23 and Condorcet, in Commentaries on Public Education , 24 have reasoned from opposite principles. Franklin produced a pamphlet seeking to show that we should have the smallest extent of government possible. 25 Paine defined government authority as a necessary evil. 26 Siéyès, finally, in an opinion delivered in Parliament, declared that political authority was not boundless. 27 It does not seem, however, that the arguments of these writers have made much impression. People still speak endlessly of a power without limits residing in the people or its leaders, as of a thing beyond doubt; and the author of certain essays on morality and politics has recently reproduced, in support of absolute power, all the arguments of Rousseau on sovereignty. 28
The Constituent Assembly, at the start, seemed to recognize individual rights, independent of society. Such was the origin of the Declaration of Rights. The Assembly, however, soon deviated from this principle. It set the example by pursuing individual existence into its most intimate retreats. It was imitated and surpassed by the governments which replaced it.
The party men, however pure their intentions, are bound to detest the limitation of political authority. They see themselves as its presumptive heirs and tend to look after their future property even when it is in the hands of their enemies. They distrust this or that kind of government, or such and such a class of governing politicians, but just let them organize government in their own way, allow them to entrust it to the representatives they want, and they will not think they can extend it far enough.
So we can regard Rousseau’s theory that political power is unlimited as the only one adopted to date. This is the theory which seems to me false and dangerous. In my view, this is the theory we must hold responsible for most of the difficulties the establishment of freedom has encountered among various nations, for most of the abuses which worm their way into all governments of whatever type, and indeed for most of the crimes which civil strife and political upheaval drag in their wake. It was just this theory which inspired our Revolution and those horrors for which liberty for all was at once the pretext and the victim. I do not mean that the countless iniquities we witnessed and suffered were not usually caused in the immediate sense by the factional interests of the men who had seized power. But these men had managed to get the machinery of public enforcement into their guilty hands only by veiling the interests which controlled them, by laying claim to seemingly disinterested principles and opinions which served them as a banner. Now, all their principles and opinions rested on the theory this chapter has related, rested, that is, on the supposition that society may exercise over its members an unlimited authority and that everything the general will ordains, is rendered legitimate by that alone.
It is worth refuting this theory, therefore. It is useful in general to correct opinions, however metaphysical or abstract they seem to us, because vested interests seek their weapons in opinions.
Interests and opinions differ, first of all, in that the former are hidden and the latter displayed, necessarily, since the latter divide while the former unite. Secondly, interests vary for each individual according to his situation, his tastes, or his circumstances, while opinions are the same, or seem so, as between all people who act together. Finally, each individual can direct only himself in the reckoning of his interests. When he wants other people to support him, he has to present them with opinions which mislead them as to his real views. If you expose the falsity of the opinion he advances, you deprive him of his main support. You annihilate his means of influencing those around him, you destroy the flag, and the army vanishes.
I know that today we have given up refuting ideas we want to fight, professing a general aversion for all theories, of whatever sort. People say all metaphysics is unworthy of our attention. But the antimetaphysical stance has always seemed to me unworthy of thinking people. Its declamations are doubly dangerous. They are as forceful against truth as against error. They tend to make reason wither, to hold our intellectual faculties up to ridicule and to discredit what is noblest in us. Secondly, they do not even possess the advantage commonly supposed. Averting ideas you think dangerous by scorning them or suppressing them violently, is to suspend their present consequences only very briefly, and to double their influence to come. We should not be misled by silence nor take it for agreement. For as long as reason is not convinced, error is ready to reappear at the first event which unleashes it. It then takes advantage of the very oppression it has experienced. Our efforts will be in vain. Thought alone can do battle with thought. Reasoning alone can correct mistakes of reasoning. When power repulses reason it does not fail only against the truth; it also fails against error. To disarm error you have to refute it. Anything else is rank charlatanism, renewed century after century, to the profit of a few, and the misfortune and shame of the rest.
Indeed, if contempt for the intellectual life had been able to preserve men from its dangerous deviations, they would long ago have reaped the benefits of this much-praised protection. There is nothing new about contempt for the mind. It is not novel always to appeal to force against thought, nor to set up a small number of privileged persons to the detriment of all other people, the latter’s mental activity being treated as superfluous, and their reflection considered idle and dangerous. From the time of the Goths till today we have seen this mental outlook reproduce itself. From their day till this people have denounced metaphysics and theorizing; yet the theories have always made their reappearance. Before us, people said equality was only a chimera, a vain abstraction, a meaningless theory. Men who wanted to define equality properly in order to separate it from the exaggerations which disfigured it, were treated as dreamers and troublemakers, and an ill-defined equality has never stopped returning to the attack. The Jacquerie, the Levelers, and the revolutionaries of our time have abused this theory, precisely because it had been forbidden rather than put right: incontestable proof of the inadequacy of the measures, taken by the opponents of abstract ideas, first to ward off their attacks, and secondly, so they said, to keep such ideas away from the blind and stupid species they so condescendingly governed. The effect of such measures is never more than temporary. When false theories have misled people, they are ready to listen to commonplaces against theory in general, some through exhaustion, others out of vested interest, but most by way of imitation. But when they have recovered from their weariness or been freed from their fears, they remember that theory is not a bad thing in itself, that everything has its theoretical side, that theory is no more than practice systematized into rules according to experience, and practice only theory applied. They feel that nature did not give them reason just so it could be mute or sterile. They blush at having abdicated the very core of their dignity as human beings. They adopt theories again. If these have not been corrected, if they have been mere objects of disdain, they take them up anew with all their vices intact and are once again entrapped by them in all the errors which led them to reject them before. To hold that because false theories bring grave dangers we must renounce all theories, is to take from men the surest remedy for precisely such dangers. It is to hold that because error has dire consequences, we should refuse ever to search for truth.
So I have tried to fight faulty arguments with ones which seem just to me. I have tried to oppose false metaphysics with metaphysics which I believe to be true. If I have succeeded, I will flatter myself that I have been more helpful than those who demand silence. Their legacy to the future is a set of unresolved issues. In their narrow-minded and suspicious caution they compound the ill effects of wrong ideas by the very fact that they do not allow such ideas to be examined.
Rousseau defines the social contract as involving the unconditional surrender of each individual, along with all his rights, to society as a whole (Constant’s emphasis). 29 To reassure us as to the consequences of this total handing over of every aspect of our lives to the advantage of an abstract entity, he says that the sovereign, that is, the social body as a whole, cannot harm either the collectivity of all its members, or any one of those members individually; that every person makes a total surrender, so that the condition is the same for all members and none has an interest in making it onerous for others; that each person, giving himself to everyone else, gives himself to no one; that everyone acquires over all other members the same rights he cedes to them, and gains the equivalent of all he loses, along with more strength to protect what is his own. 30 But he forgets that all the life-preserving properties 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. Now, as soon as the sovereign body has to use the force it possesses, that is to say, as soon as it is necessary to establish political authority, since the sovereign body cannot exercise this itself, it delegates and all its properties disappear. The action carried out in the name of all, being necessarily willy-nilly in the hands of one individual or a few people, it follows that in handing yourself over to everyone else, it is certainly not true that you are giving yourself to no one. On the contrary, it is to surrender yourself to those who act in the name of all. It follows that in handing yourself over entirely, you do not enter a universally equal condition, since some people profit exclusively from the sacrifice of the rest. It is not true that no one has an interest in making things hard for other people, since some members are not in the common situation. It is not true that all members acquire the same rights they give up. They do not all regain the equivalent of what they lose, and the outcome of what they sacrifice is or may be the setting up of a power which takes away from them what they do have.
How is it that these obvious considerations did not convince Rousseau of the error and dangers of his theory? It is because he let himself be misled by an oversubtle distinction. A double hazard is to be feared when we examine important questions. Men go wrong, sometimes because they misconstrue the distinctions between two ideas and sometimes because they base on a simple idea distinctions which do not apply.
Rousseau distinguished the prerogatives of society from those of government. 31 This distinction is admissible only when the word “government” is understood in a very restricted sense. Rousseau, however, took it in its widest sense, as the bringing together, not only of all properly constituted powers but of all the constitutional ways individuals have for contributing among themselves, in expressing their individual wills, to the formation of the general will. 32 According to these stipulations, any citizen who, in England, elects his representatives, or any Frenchman who, under the Republic, voted in a primary assembly, should be regarded as involved in government. Once the word “government” is taken in this way, any distinction between its prerogatives and those of society itself is rendered illusory and can become in practice an incalculable danger. Society cannot itself exercise the prerogatives bestowed on it by its members. Therefore it delegates them. It sets up what we call a government. From then on any distinction between society’s prerogatives and those of government is an abstraction, a chimera. For on the one hand, if society had a legitimate authority greater than the one it delegated, the part it did not delegate would, by reason of its not being exercisable, be effectively void. A right one cannot exercise oneself, nor delegate to others, is a right which does not exist. On the other hand, the recognition of such rights would inevitably entail the disadvantage that those in whom the delegated part had been invested would inexorably contrive to have the rest delegated to them too. An example will clarify my point. I assume that we recognize—it has often been done—that society has a right to expel a minority part of itself which has given it deep offense. No one attributes this terrible prerogative to the government, but when the latter wants to grab it, what does it do? It identifies the unfortunate minority, at once outlawed and feared, with all life’s difficulties and dangers. It then appeals to the nation. It is not as its prerogative that it seeks to persecute, on mere suspicion, wholly innocent individuals. But it quotes the imprescribable prerogative of the whole society, of the all-powerful majority, of the sovereign nation whose well-being is the highest law. The government can do nothing, it says, but the nation can do everything. And soon the nation speaks. By this I mean that a few men, either low types or madmen, or hirelings, or men consumed with remorse, or terror-struck, set themselves up as its instruments at the same time as they silence it, and proclaim its omnipotence at the same time as they menace it. In this way, by an easy and swift maneuver, the government seizes the real and terrible power previously regarded as the abstract right of the whole society.
There really is a prerogative—when we are speaking abstractly—that the society does possess and does not delegate to the government, namely the right to change the organization of the government itself. To delegate this right would set up a vicious circle, since the government could use it to transform itself into a tyranny. But this very exception confirms the rule. If society does not delegate this prerogative, neither does it exercise it itself. Just as it would be absurd to delegate it, so it is impossible to exercise it and dangerous to proclaim it.
The people, Rousseau observes, are sovereign in one respect and subject in another. 33 In practice, however, the two cases are confused. It is easy for powerful men to oppress the people as their subjects, to force them to manifest in their sovereign role the will which these powerful men are dictating. To achieve this, all that is needed is that the individual members of society be terror-struck and then that a hypocritical homage be rendered to the society en masse.
Thus one can recognize as society’s only those rights which the government can exercise without their becoming dangerous. Sovereignty being an abstract thing and the real thing, the exercise of sovereignty, that is to say, the government, being necessarily delegated to beings of a quite different nature from the sovereign, since they are not abstract beings, we need to take precautionary measures against the sovereign power, because of the nature of those who exercise it, as we would take them in the case of an excessively powerful weapon which might fall into unreliable hands.
When you have affirmed on principle the view that the prerogatives of society always become, finally, those of government, you understand immediately how necessary it is that political power be limited. If it is not, individual existence is on the one hand subjected without qualification to the general will, while on the other, the general will finds itself represented without appeal by the will of the governors. These representatives of the general will have powers all the more formidable in that they call themselves mere pliant instruments of this alleged will and possess the means of enforcement or enticement necessary to ensure that it is manifested in ways which suit them. What no tyrant would dare to do in his own name, the latter legitimate by the unlimited extension of boundless political authority. They seek the enlargement of the powers they need, from the very owner of political authority, that is, the people, whose omnipotence is there only to justify their encroachments. The most unjust laws and oppressive institutions are obligatory, as the expression of the general will. For individuals, says Rousseau, having alienated their all to the benefit of the collectivity, can have no will other than that general will. Obeying this, they obey only themselves, and are all the freer the more implicitly they obey. 34
Such are the consequences of this theoretical system as we see them appear in all eras of history. Their most frightening scope, however, was the one they developed during our Revolution, when revered principles were made into wounds, perhaps incurably. The more popular the government it was intended to give France, the worse were these wounds. When no limit to political authority is acknowledged, the people’s leaders, in a popular government, are not defenders of freedom, but aspiring tyrants, aiming not to break, but rather to assume the boundless power which presses on the citizens. When it has a representative constitution, a nation is free only when its delegates are held in check. It would be easy to show, by means of countless examples, that the grossest sophisms of the most ardent apostles of the Terror, in the most revolting circumstances, were only perfectly consistent consequences of Rousseau’s principles. 35 The omnipotent nation is as dangerous as a tyrant, indeed more dangerous. Tyranny is not constituted by there being few governors. Nor does a large number of governors guarantee freedom. The degree of political power alone, in whatever hands it is placed, makes a constitution free or a government oppressive; and once tyranny subsists, it is all the more frightful if the tyrannical group is large.
Doubtless, the overextension of political power does not always have equally dire consequences. The nature of things and people’s dispositions may sometimes soften the excesses; but such a political system always has serious drawbacks nevertheless. This doctrine creates and then carelessly casts into our human arrangements a degree of power which is too great to be manageable and one which is an evil whatever hands you place it in. Entrust it to one person, to several, to all, you will still find it an evil. You lay the blame on the power-holders and depending on the circumstances, you will have to indict in turn monarchy, aristocracy, democracy, mixed constitutions, and representative government. And you will be wrong. The condemnation must be of the extent of the power and not of those in whom it is vested. It is against the weapon and not the person wielding it we need to rail. There are things too heavy for human hands.
Look at the fruitless efforts of different peoples to remedy the evils of the unlimited power with which they think society invested. They do not know to whom to entrust it. The Carthaginians created in succession the Suffetes to rein in the aristocracy of the Senate, the Tribunal of the Hundred to suppress the Suffetes, the Tribunal of the Five to control the Hundred. Condillac says they wanted to put a brake on one authority, and they established a counterforce which was equally in need of restraining, thus always leaving the abuses to which they thought they brought a remedy to carry on. 36
The mistake of Rousseau and of writers who are the greatest friends of freedom, when they grant society a boundless power, comes from the way their ideas on politics were formed. They have seen in history a small number of men, or even one alone, in possession of immense power, which did a lot of harm. But their wrath has been directed against the wielders of power and not the power itself. Instead of destroying it, they have dreamed only of relocating it. It was a plague; but they took it as something to be conquered; and they endowed the whole society with it. Inevitably it moved from there to the majority and from the majority into a few hands. It has done just as much harm as before, and hostility to all political institutions has accumulated in the form of examples, objections, arguments, and evidence.
The man who reduced despotism to a theoretical system most cleverly, Hobbes, was quick to support unlimited political power, in order to declare thereby in favor of the legitimacy of absolute government by a single person. The sovereign, he says (and by this word he understands the general will), is irreprehensible in his actions. All individuals must obey, and they cannot call upon him to account for his measures. Sovereignty is absolute, a truth which has always been recognized, even by those who have stirred up rebellions, or instigated civil wars. Their motive was not the annihilation of sovereignty; but rather to move its exercise elsewhere. Democracy is an absolute sovereignty placed in the hands of everyone; aristocracy is absolute sovereignty in the hands of a few; and monarchy is absolute sovereignty in the hands of one person. The people were able to give up this absolute sovereignty in favor of a monarch, who then became its legitimate possessor. 37
We can clearly see that the absolute character with which Hobbes endows political authority is the basis of his entire system. This word “absolute” changes the very nature of the question and involves us in a novel chain of consequences. This is the point where the writer leaves the road of truth in order to stride off by way of sophism to the conclusion he set for himself from the start. He shows that men’s conventions being insufficient to secure obedience, there has to be a coercive force to compel this, that given that a society must defend itself against foreign aggression, there has to be a common force to arm for the common defense; that the existence of conflicting claims among men means there must be laws to establish their rights. He concludes from the first point that the sovereign has an absolute right to punish, from the second that he has an absolute right to wage war, and from the third that he is absolute in legislative power. Nothing could be more false than these conclusions. The sovereign does have the right to punish, but only for culpable actions. He does have the right to wage war, but only when society is attacked. He does have the right to make laws, but only when they are necessary and insofar as they are just. There is, therefore, nothing “absolute,” nothing arbitrary in these prerogatives. Democracy is power in the hands of all, but power only in such measure as is needed for the security of the society. Aristocracy is this same authority entrusted to a few; and monarchy is the same thing brought together in one person. The people can divest themselves of this authority in favor of a single man or of a small number, but their power remains limited, like that of the people who vested it in them. With this cutting out of a single word, one Hobbes had inserted gratuitously into the construction of a sentence, his whole frightful system collapses. On the contrary, with the word “absolute,” neither liberty, nor, as we will see subsequently, peace, nor happiness, is possible under any institutional arrangements. Popular government is only a convulsive tyranny; monarchical government only a more morose and taciturn despotism.
When we see a distinguished author arrive by way of specious arguments at manifestly absurd results, it will prove instructive in itself and aid greatly in the refutation of error if, by way of research, we retrace the line of this writer’s thoughts, so to speak, to try and pinpoint where he started to deviate from the truth. Almost all writers start off from some true principle. Once this principle has been posited, however, all it takes to vitiate their whole theory is an invalid distinction, or an ill-defined term, or a superfluous word. In Helvétius, for example, it is an ill-defined term. His starting point is incontestable: all our ideas reach us through our senses. He concludes from this that sensation is everything. To think is to feel, he says, and therefore to feel is to think. 38 This is where he goes wrong. The error stems from an ill-defined term, in this case “to feel” or “sensation.” To think is to feel; but to feel is not to think. In Rousseau, as we saw, the mistake came from an invalid distinction. He sets out from a truth, namely that the general will must make the law; but he distinguishes the prerogatives of society from those of government. He believes that society must possess boundless political power, and from there he goes astray. It is clear that in Hobbes a superfluous word is the cause of the trouble. He too has a correct starting point, namely that we need a coercive force in order to govern human societies. But he slips into his sentence a single unnecessary epithet, the word “absolute,” and his whole argument becomes a tissue of errors.
A contemporary writer, the author of Essays on Morality and Politics, has revived Hobbes’s system, only with much less profundity and much weaker inspiration and logic. Like Hobbes, he sets off from the principle of unlimited sovereignty. He has assumed political authority to be absolute and transferred from society to a man he defines as the species personified, the individualized collectivity. Just as Rousseau had said that the social body cannot hurt either the collectivity of members nor any individual member, 39 this writer says that the depository of power, the man become society itself, cannot harm society, because all the ill he could do to it, he would experience precisely himself, insofar as he is society itself. 40 Just as Rousseau says that the individual cannot resist society because he has handed over all his rights to it, without reserve, 41 this man claims that the authority of the depository of power is absolute, because no member of the collectivity can struggle against the collectivity as a whole. He also claims that there can be no responsibility on the part of the depository of power, since no individual can be in dispute with the body of which he is a part, and that the latter can respond only by making him return to the order he should never have left. He then adds, so that we should in no way be fearful of tyranny: now, here is the reason his authority (that of the depository of power) was not arbitrary. “This was no longer a man. This was a people.” 42 What a marvelous guarantee this switch in reasoning provides!
Because he had not felt that political power had to be limited, Rousseau was drawn into a quandary he was able to escape only by undoing with one hand what he had built with the other. He declared that sovereignty could be neither given away, 43 nor delegated, nor represented, which was to declare, less roundly, that it could not be exercised. This destroyed in fact the principle he had just proclaimed. Those seeking to explain his theory have accused him of inconsistency. 44 On the contrary, his reasoning was very consistent. Terror-struck at the spectacle of the immense political power he had just created, he had no idea in whose hands to place so monstrous a power and had thought of no defense against the danger inseparable from sovereignty as he had conceived it, save an expedient which made the exercise of that sovereignty impossible. It was only those who adopted his principle, separating it from what made it less disastrous, who were bad reasoners and guilty politicians. It is the principle which needs rejecting, since so long as it does not produce despotism, it is only an inapplicable theory, since it leads to despotism as soon as people do try to apply it.
So it is not inconsistency of which Rousseau must be accused. The reproach he deserves is that he set off from an invalid hypothesis and went astray in superfluous subtleties.
I do not side at all with his detractors. A rabble of inferior minds, who see their brief success as consisting in calling into doubt every redoubtable truth, is excitedly anxious to take away his greatness. This is just one more reason to render him our homage. He was the first writer to popularize the sense of our rights. His was a voice to stir generous hearts and independent spirits. But what he felt so powerfully, he did not know how to define precisely. Several chapters of The Social Contract are worthy of the scholastic writers of the sixteenth century. What is meant by rights which one enjoys all the more for having given them away completely? Just what is a freedom in virtue of which one is all the more free the more unquestioningly one does what runs counter to one’s own wishes? 45 These are deadly theological sophisms such as give weapons to all tyrannies, to the tyranny of one man, to that of a few people, to the legally constituted kind, and to the kind dominated by popular fury! Jean-Jacques’s errors have seduced many friends of freedom, because they were established to counter other, more degrading mistakes. Even so, we cannot refute them strongly enough, because they put insuperable obstacles in the way of any free or moderate constitution, and they supply a banal pretext for all manner of political outrages.
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 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.
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 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 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 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 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.
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 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.
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 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, 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.
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 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.
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.
A writer much to be recommended for the depth, precision, and originality of his thinking, Jeremy Bentham, has recently protested 5 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.
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 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.
In no nation have individuals enjoyed individual rights in all their fullness. No government has confined the exercise of political authority to strictly necessary limits. All have gone far beyond this, and philosophers in all ages, and writers of all persuasions, have endorsed the extension with the whole weight of their approval.
Among this number I do not count merely ordinary and second-rate minds, but the most distinguished authors of the last two centuries: Fénelon, 1 Rousseau, Mably, 2 and even in some respects Montesquieu.
M. Necker is not free from the errors with which I reproach those who favor an increase in political authority. He calls the sovereign power the tutor of public happiness 3 and, when he deals with commercial prohibitions, he constantly assumes that individuals let themselves be dominated by short-term considerations, and that the sovereign power understands their long-term interests better than they themselves. 4 What in M. Necker’s case makes this error more excusable and touching, is that he is always so passionately concerned with improving things, and that he sees in government only a more extensive means of benevolence and good works.
Man, such writers say, is a product of law. In the beginning men make institutions, and subsequently institutions make men. Government must seize us from our first moments and surround us with virtue, both by example and precept. It must direct, improve, and enlighten that numerous and ignorant class of people who, lacking time for reflection, are forced to receive the verities themselves on others’ say-so and in the form of prejudices. Any time the law abandons us is a time it gives to the passions to tempt, seduce, and control us. Law must excite in us the love of work, engrave in the spirit of youth respect for morality, enthuse the imagination with subtly combined institutions, and dig deep into our hearts and uproot guilty thoughts there, rather than limiting itself to repressing harmful actions. Law should prevent crimes instead of punishing them. Law should regulate our least movements, preside over the spread of enlightenment, over industrial development, over the perfecting of the arts. It must lead, as by the hand, the benighted crowd it must instruct, or the corrupted one it must correct.
In support of this doctrine, these illustrious protagonists cite the most memorable examples of the nations of antiquity, in which all the jobs men pursued, all the actions of their lives, were covered by laws, their least words were dictated, and even their pleasures were legally regulated. 5
Imbued with such principles, the leaders of the French Revolution thought themselves so many Lycurguses, Solons, Numas, or Charlemagnes. At this very time, despite the sorry results of their efforts, one is still more inclined to blame the blundering of the entrepreneurs than the nature of the enterprise.
A general observation is necessary before we examine in detail the theory aiming to legitimate the extension of political authority.
This extension is not absolutely necessary, as we believe we have shown. It is driven solely by the hope that it will be useful. The argument for utility once allowed, however, we are brought back, despite all our efforts, to the disadvantages which flow from the blind, colossal force which seemed to us so terrible when we called it unlimited sovereignty. Utility does not lend itself to precise demonstration. It is a matter of individual opinion and consequently of interminable discussion. You can find utilitarian reasons for all orders and prohibitions. Forbidding citizens to leave their houses would prevent all the crimes which are committed on the highways. To have them appear every morning in front of their town hall would stop vagabonds, thieves, and dangerous men from hiding in the big cities on the lookout for criminal opportunities. This is the kind of thinking which in our day turned France into one vast prison. Nothing in nature is immaterial in the rigorous sense of the word. Everything has its cause and its effects. Everything has results, real or possible; everything can be useful or dangerous. In a system in which political authority is sole judge of all these possibilities, it is clear that such authority has absolutely no limits nor could have. If it must be limited, however, everything in its jurisdiction must be so too. What cannot be limited does not belong to such jurisdiction. Now, we have shown jurisdiction must be limited. Therefore, before understanding any system at all in terms of its various prerogatives, we have to see if we can draw a line marking where the exercise of that prerogative must stop. If there is no way of drawing such a line, the prerogative itself must be nonexistent. Authority has been taken beyond its competence. For it is of the essence of that competence that it must not be without limits. Set it up without limits and you fall once again into the bottomless abyss of arbitrary rule. Set it up without limits for a single purpose and there will no longer be any security in the social order. For if the security of a single part of the social order is absent, the security of the rest vanishes. If it is not destroyed de facto it is destroyed de jure. Now, the fact is only an accident. Law alone provides a guarantee.
The imagination can come up with some singularly useful activity for indefinitely extended political authority, always on the assumption that it will be exercised on the side of reason and in the interests of all and of justice, that the means it chooses are always honorable and bound to succeed, that it will manage to govern human faculties without degrading them, that it will act, in a word, in the way the religiously minded understand providence, as a thing linking the force of command with the deepest heartfelt conviction. To adopt these brilliant suppositions, however, one must accept three hypotheses. First, the government must be imagined to be, if not infallible, at least indubitably more enlightened than the governed. This is because to intervene in people’s interpersonal relations with more wisdom than they could show themselves, to steer the development of their faculties and the use of their own resources better than their own judgment could, you must have the assured gift of distinguishing better than they what is advantageous from what is harmful. Without this, what gains do you bring to happiness, social order, or morality by enlarging the powers of governments? You create a blind force whose dispositions are abandoned to chance. You draw lots between good and evil, error and truth, and chance decides which will be empowered. Any extension of authority, vested in the governors, taking place always at the expense of the freedom of the governed, furthermore requires, before we can assent to this sacrifice, that it seems probable that the former will make a better use of their extended power than the latter would of their freedom. In the second place, we must suppose that if, in spite of its superior enlightenment, the government gets it wrong, its errors will be less disastrous than those of individuals. Finally, we have to reassure ourselves that the means in the hands of governments will not produce an evil greater than the good they are supposed to achieve.
We are going to look at these three hypotheses in turn.
It is easy to affirm that light has to come from elevated places and that an enlightened government must lead the masses. Writing these words, one is conceiving government as an abstract being, made up of all that is finest, most learned, and wisest in a nation. But this idea of government which people devise for themselves contains a confused sense of historical period and a petitio principii. Historical eras are confused in that such people do not distinguish barbarous nations from civilized ones. No doubt when some clan possessing only the crudest notions indispensable to physical survival comes, by way of conquest or any other means, under a government which acquaints it with the first elements of civilization, then the members of that government are more educated than those they govern. Thus we can hold Cecrops, if he existed, more enlightened than the Athenians, Numa than the Romans, Mahomet than the Arabs. But to apply this thinking to a civilized society seems to me a great error. In such a society, there are many who become enlightened, it is true, only with the greatest difficulty, working, as they do in the nature of things, in mechanical occupations. The governors are incontestably superior to them. There is also an educated class, however, of which the governors are a part, and only a very small part. The comparison must not be made between the uneducated classes and the governing group, but between the governors and the educated class. The latter must instruct and direct the rest of the nation. But we must distinguish its influence as enlightened from that of a fraction of itself as the government. When the question is posed in this way, it involves a petitio principii to attribute to governments the superiority of enlightenment. It jumps over without examining a prime difficulty which occurs in the formation of governments. Governments can be formed in three ways: by heredity, by election, and by force. We say nothing of this last way. In practice it is not likely to be attacked, because it has the advantage of being able to impose silence. Neither, however, would one take it into one’s head to justify it in principle.
When hereditary monarchy rested on divine right, the very mystery which sanctioned this theocratic institution was able to invest the monarch with superior enlightenment, like some gift from heaven. We find just this attitude in the memoirs written by Louis XIV. 6 Nowadays, however, when governments rest on purely human bases, this religious justification is not admissible. Heredity presents us only with a succession of governors brought up to power, and our experience of what results from the two elements of chance and flattery is almost too abundant. Election gives governments the sanction of popular opinion. Is this sanction, however, a guarantee of an enlightenment exclusive to those invested with power? The writers who claim so describe a most singular circle. When someone allows himself some doubt on the excellence of the governing group, the people’s choice seems to them an unanswerable reply to these insulting doubts. In this part of their intellectual schema the people are therefore infallible. Let anyone demand, however, the same people’s right to look after their own interests and opinions, and such writers will say this control belongs to the government. This second part of the schema declares the people incapable of proceeding on their own, without falling into error after error. Thus by some prodigy or other an ignoble, ridiculous, degraded, and stupid rabble, which cannot behave itself, and which needs endless guidance, suddenly becomes enlightened for a unique and unrepeatable moment, in which it can appoint or accept its leaders, before immediately falling back into blindness and ignorance. The people, as first Machiavelli and later Montesquieu show, almost always make good choices as to specific officeholders. But the very arguments of these writers demonstrate that if we are to make sure that the people’s choice is a good one, the duties they confer have to be very definitely circumscribed, confined within precise limits. “The people,” says Montesquieu, 7 “are admirable when it comes to choosing those on whom they have to confer some part of their authority. They know very well that a man has often been to the wars, with such and such a success. They are thus very capable of electing a general. They know that a judge is assiduous, that many people leave his courtroom very pleased with him and that he has not been convicted of corruption. They are well able to elect a senior magistrate therefore. Say they have been struck by the opulence and wealth of a certain citizen. That equips them to make him a town councillor. They have only to make their mind up for reasons they cannot be ignorant of and with regard to self-evident facts.” It will be seen that all the examples M. de Montesquieu rests on, apply only to the functions of political authority kept to a strict minimum. It is the same with what Machiavelli says. 8 Men, he observes, although liable to get things generally wrong, do not get them wrong in their particulars. But to ask the people to appoint the government, if its members do anything more than punish crimes and repel invasions, if, that is, such governors arrogate to themselves jurisdiction over public opinion, over enlightenment, over unimportant actions, over property, over industry, in a word, over everything, then the people are no longer being asked to pronounce on the particular but on the general. The people’s choice, when it is a free one and the times are untroubled, speaks in favor of the particular talent of the man to whom it entrusts a specific task. The people appreciate a judge by his judgments, a general by his victories. When, however, it comes to indefinite power, bearing on things which are vague, or arbitrary, or without clear limits, the people’s choice proves nothing. In such a situation they do not have anterior facts or self-evident facts on the basis of which to make up their mind. The people’s choice naturally destines men of the educated class to political office. But there is no chance that these representatives of the people will be intellectually superior to the rest of their class. Their opinions will be at the level of ideas in the widest circulation. For this very reason they will be excellent at maintaining the society, at negative protection. They will be useless at leadership. For upholding and conserving purposes, the general level suffices. Leadership demands something higher. If you suppose, says Condorcet in the first of his Five Commentaries on Public Education (page 55), that the government is more enlightened than the mass, you must also suppose it less enlightened than lots of individuals. 9 We will add that the qualities which lend authority to a government founded on popular choice are always more or less mutually exclusive of those other qualities particularly relevant to the spread of enlightenment. To gain the confidence of the great mass of the people calls for tenacious ideas, a one-sidedness in opinion, a positive way of seeing things and acting, more force than finesse, and greater quickness in grasping the whole picture than subtlety in discerning the details. These things are excellent for purposes of repression and surveillance, for everything in the functions of government which is set, established, or precise. But carried over to the world of intelligence, opinion, enlightenment, or morality, they have about them something primitive, inflexible, and coarse, which goes against the aim of improvement or the perfecting of things one has in view. There is one other thought which must not escape us. There is something about power which more or less warps judgment. Force is far more liable to error than weakness is. Force finds resources in itself. Weakness needs thought. All things equal, it is always likely that the governors will have views which are less just, less sound, and less impartial than those of the governed. Suppose there are two equally enlightened men, one in power, the other a plain citizen. Do you not feel that the first, endlessly called upon to act, more or less compromised in his actions, in a more exposed position, will have less time to reflect, more reason to persist, and thus more chance of mistakes than the second, who can reflect at leisure, is not pledged to any line, has no reason to defend a wrong idea, has compromised neither his power, nor safety, nor self-esteem, and who finally, if he does embrace that wrong idea passionately, has no way of making it prevail? The chances of mistakes by government ministers are not a reason for putting in doubt the need for the functions of government, in matters of security, internal or external. These functions being a proven necessity, an authority must at all cost be set up to exercise them and run the risk of its mistakes. These are anyway not very dangerous. There is nothing simpler than the questions on which these functions of government call it to pronounce. To preserve the State from enemy invasions, the law must decree that responsible agents will keep an eye on the movements of foreigners and that a body of men will be ready to move at a given signal. To maintain good internal order the law must lay down that particular crimes will be followed by particular punishments. To defray the costs of these two objectives, the law must decree that each citizen will supply the public funds with a given proportion of his wealth. These functions demand from government only the common intelligence and enlightenment vouchsafed by the upbringing of most of the educated class. It is not the same with the numberless, unlimited functions which the government must assume when it exceeds these limits. It is at once less necessary that these new functions should be fulfilled, more difficult to do them well, and more dangerous if they are done badly. They do not have the same sanction as the necessary functions. Utility is their only claim. Now, this utility rests only on the supposed superior qualities of the governors over the governed. When the only thing we have shown is that this superiority is doubtful, this constitutes for me an irrefutable objection to these functions. Terminology has been behind most false ideas. Impersonal verbs have misled political writers. They thought they were saying something when they said there has to be direction of men’s opinions. One must not abandon men to their erratic minds. There has to be an impact on thought. There are opinions men can usefully take advantage of in order to deceive others. But these words— there has to be, one must, one must not —do not these refer to men too? You would think the talk were about another species. All the sentences which deceive us here, however, come down to saying: men must control the views of men. Men must not leave other men to their erratic thoughts. Men can usefully exploit opinions in order to deceive men. Impersonal verbs seem to have persuaded our philosophers that there is something else besides men in governing groups.
We can reply to those who want to subject the intelligence of the many to that of the few what a famous Roman said to his son when the latter proposed to take a town, with the sacrifice of three hundred soldiers. Would you care to be one of this three hundred? And it should also be added that it is not certain that the town will be taken. 10
Governments being like individuals subject to mistakes, we must now explore whether governmental mistakes are less serious than those of individuals. For one might confine oneself to saying that mistakes being inevitable, it is better that governments make them, and people obey. This would be in some sense to confer on government full powers to get things wrong in our stead. But government mistakes are a serious nuisance in three ways. First of all, they create positive ill just by their wrongness in principle. In the second place, however, men, being forced to resign themselves to them, adjust their interests and behavior to them too. Then, when the error is recognized, it is almost as dangerous to destroy it as to let it continue. Government, sometimes struck with the danger of continuing with defective arrangements, sometimes with the danger of repudiating them, follows an uncertain and wavering course and ends up doubly offensive. Finally, when the erroneous policy collapses, new troubles result from the upset to people’s calculations and the slighting of their practices. Doubtless individuals can make mistakes too; but several basic differences make theirs far less fatal than those of government. If individuals go astray, the laws are there to check them. When government goes wrong, however, its mistakes are fortified with all the weight of the law. Thus the errors of government are generalized, and condemn individuals to obedience. The mistakes of individual interest are singular. One person’s mistake has absolutely no influence on the conduct of another. When government remains neutral, any mistake is detrimental to him who commits it. Nature has given every man two guides: his interest and experience. If he mistakes his interest, he will soon be enlightened by his personal losses, and what reason will he have for persisting? He need consult no one save himself. Without anyone’s noticing it or forcing it on him, he can withdraw, advance, or change direction, in a word, freely set himself straight. The government’s situation is the exact opposite. Further away from the consequences of its measures and not experiencing their effects in so immediate a way, it discovers its mistake later. When it does discover it, it finds itself in the presence of hostile observers. Quite correctly it is afraid of being discredited by the process of rectification. Between the moment when government strays from the path of virtue and the moment when it notices, lots of time slips by; but even more between the latter point and the moment it starts to retrace its steps, and the very action of retracing is dangerous too. Therefore whenever it is not necessary, that is, whenever there is no question of the punishment of crimes or resistance to foreign invasions, it is better to run the natural risk of individual mistakes than the risk of equally likely government ones. The right I guard most jealously, said some philosopher or other, is to be wrong. He spoke truly. If men let governments take this right away, they will no longer have any individual freedom, and this sacrifice will not protect them from mistakes, since government will merely substitute its own for those of individuals. 11
We come to the third question. Do not the means which governments possess, when they are used on the vague pretext that they are useful, produce harm greater than the good which governments intend to attain?
All human faculties can be abused. But when we fix our gaze on the abuses of these faculties and persuade ourselves in a facile fashion that it is good to restrain them, or when we think that government must constrain man to make the best use possible of these faculties, we are envisaging the question from a very incomplete perspective. One should never lose sight of what the restrictions on these faculties lead to.
The theory of government comprises two comparative terms: the usefulness of the end and the nature of the means. It is a mistake to think just of the first of these, since this leaves out of the reckoning the pressure these means exert, the obstacles they encounter, and therefore the danger and misfortune of clashes. One can then make a great show of the advantages one is proposing to obtain. As long as one describes these advantages, one will see the purpose as marvelous and the arrangements beyond reproach. There is no despotism in the world, however inept its plans and oppressive its measures, which does not know how to plead some abstract purpose of a plausible and desirable kind. If this is unattainable, however, or achievable only via means whose resultant ill exceeds the good aspired to, a great deal of eloquence will have been squandered in vain, and we will have been gratuitously subjected to a lot of vexations.
This consideration will guide us in this work. We will apply ourselves mostly to pinning down the results of the means which political authority can use, exercising the powers it assumes, when the pretext for its acts is their utility. We will finish by examining how far the examples the nations of antiquity have left us are applicable to modern peoples, to the practices and customs—in a word, the moral nature—of contemporary societies.
Governments can use two sorts of means—prohibitive or coercive laws, and the acts we call measures for securing public order in ordinary circumstances or “coups d’Etat” in extraordinary ones. Several authors say government has means of a third type. They speak constantly of action on public opinion of a gentle or adroit or indirect kind. To create public opinion, to revive public opinion, to enlighten public opinion—these are words we find attributed to the powers of government on every page of all the pamphlets and books, in all the political projects and, during the French Revolution, we found it in all the acts of government. There has always seemed to me, however, to be a troubling side to this thesis. I have always observed that all government measures which seek to influence in this way, result in punishments for those who evade them. Apart from proclamations, which in consequence are seen as mere formalities, government, when it begins with advice, finishes with menaces. Indeed, as Mirabeau put it very well, everything which depends on thought, or opinion, is individual. 12 It is never as a government that a government persuades. In this capacity a government can only command or punish. Therefore I do not count among the real means of authority these double-faced endeavors which for government are only dissimulation, which it will soon drop as useless or inconvenient. I will return to this subject in a special chapter at the end of this book. 13 Here I confine myself to the two means which really are at the disposal of the government.
Republics, when they are at peace, produce endless prohibitive and coercive laws. In troubled times, they are equally liable to coups d’Etat. This form of government has the danger that the men who get to the top do not have the habit of government and do not know how to get around the difficulties. Each time they meet one, they think violence is necessary. They suspend the laws, overturn due process, and bleat stupidly that they have saved the fatherland. But a country made secure each day on such a basis is soon a lost country.
Monarchies, unless they are very stupidly organized, normally restrict themselves to measures for securing public order, though they resort to them widely.
We can say that the multiplicity of laws is a sickness of States which claim to be free, because in these States people demand that the government do everything by means of laws. We have seen our demagogues, having trampled underfoot all ideas of justice and all natural and civil laws, calmly set out again to set up what they called laws.
One can say that the absence of laws, plus measures for public order and arbitrary acts, are the sickness of governments which make no pretense of being free, because in these governments authority does everything by using men.
This is why in general there is less personal independence in republics, but less personal security in monarchies. I am speaking of these two types of State when they are properly conducted. In republics dominated by factions or monarchies inadequately constituted and established, the two disadvantages go together.
We are going to examine in the first place the effects of the multiplicity of laws on the happiness and moral life of individuals. We may find that this rash proliferation, which in some eras has thrown disfavor onto everything which is most noble in the world, such as freedom, has made men seek refuge in the most wretched, lowest of things, namely slavery. Then we will deal also with the effects arbitrary measures have on the morality and happiness of citizens.
The reader will then be able to compare the means political authority uses when it exceeds its indispensable limits, with the purpose it ought to have in mind, to see if the government attains this purpose and to judge finally whether this purpose, supposing it to be attained, is a sufficient compensation for the effect on moral life of the means used to achieve it.
The proliferation of the laws flatters the lawmaker in relation to two natural human inclinations: the need for him to act and the pleasure he gets from believing himself necessary. Anytime you give a man a special job to do, he does more rather than less. Those who are ordered to arrest vagabonds on the main roads are tempted to look for quarrels with all travelers. When spies have not found out anything, they invent. It has been remarked that all one needed to do in a country for talk of conspiracies to be heard constantly was to create a ministry to maintain surveillance on conspirators. Those in government always want to be governing; and when, because of the division of powers, a group of them are told to make laws, they cannot imagine they could possibly make too many.
Lawmakers parcel out human existence, by right of conquest, like Alexander’s generals sharing the world.
People normally think that when the government allows itself to multiply prohibitive and coercive laws at will, provided that the intention of the legislator is clearly expressed, provided that the laws are not in any way retroactive, provided that citizens are told in time of the rule of behavior they must follow, the proliferation of laws has no drawback other than cramping individual freedoms a little. This is not the case. The proliferation of laws, even in the most ordinary of circumstances, has the bad effect of falsifying individual morality. The actions which fall within the competence of government, according to its primary purpose, are of two kinds: those intrinsically harmful which government must punish; and arrangements contracted between individuals which government must uphold. As long as government stays within these limits, it does not establish any contradiction, any difference, between legislative morality and natural morality. But when it prohibits actions which are not criminal or demands the completion of those which have not become obligatory owing to prior contract and which consequently are based only on its will, there are brought into society two kinds of crimes and two kinds of duties: those which are intrinsically such and those government says are such. Whether individuals make their judgment subservient to government or maintain it in its original independence, this produces equally disastrous effects. In the first hypothetical case, moral behavior becomes hesitant and fickle. Acts are no longer good or bad by reason of their good or bad outcomes, but according to whether law commands or forbids them, much as theology used to represent them as good because they pleased God, rather than as pleasing to God because they were good. The rule of the just and the unjust is no longer in the consciousness of man but in the will of the legislator. Morality and inner feeling undergo an unfathomable degradation through this dependence on an alien thing, a mere accessory—artificial, unstable, and liable to error and perversion. In the contrary case, in which a man—by supposition—opposes the law, the result is first of all many individual troubles for him and those whose fates depend on his. But in the second place, will he bother for very long disputing the law’s competence in matters he considers outside it? If he violates prohibitions and orders which seem to him arbitrary, he runs the same dangers as he would infringing the rules of eternal morality. Will not this unjust equality of consequences bring about a confusion in all his ideas? Will not his doubts, without distinction, touch on all the actions the law forbids or requires, and in the heat of his dangerous struggle with the institutions menacing him, do we not have to fear that he will soon not be able to tell good from bad any longer, nor law from the state of nature? 1
Most men are kept from crime by the feeling of never having crossed the line of innocence. The more restrictedly that line is drawn, the more are men put at risk of transgressing it, however light the infraction. Just by overcoming their first scruples, they have lost their most reliable safeguard. To get around restrictions which seem to them pointless, they use means which they could use against the most sanctified of laws. They acquire thereby the habit of disobedience, and even when they want some end which is still innocent, they go astray because of the means they are forced to follow to achieve it. Forcing men to refrain from things which are not forbidden morally or imposing on them duties which morality does not require of them, is therefore not only to make them suffer, but to deprave them.
We said that proliferation of the laws was the sickness of states claiming to be free. The friends of democratic government have recourse to a specious argument to justify them. It is better, they say, to obey laws than men. The law must command in order that men shall not. This is no doubt true, when it is a question of obeying, and when commanding is called for. On countless matters, however, men and law alike should keep quiet, since one should not obey either.
Moreover, it is a mistake to hope the proliferation of laws will save us from the tyranny of men. In multiplying laws you necessarily create more government agents. Consequently you give a larger number of men power over their fellows and thus double the likelihood of its arbitrary misuse. This is because however precise these laws, there is always the possibility of arbitrariness, if only in the more or less severe exactness with which they are carried out.
Furthermore, all written law is liable to evasion. The legislator tries in vain to provide for this with minatory precautions and detailed formalities. His expectations are always disappointed. Out of the challenge which each individual puts to the laws comes an infinite diversification of actions. A fatal struggle begins between legislator and citizen. Individual wills are irritated to find everywhere a general will which claims the right to repress them. The law subdivides, becomes more complex, multiplies: all in vain. People’s actions always manage to slip away from its proceedings. The legislator wants to defend his work just as the citizen defends his freedom. A law disobeyed calls for a tougher one. This in turn, if it is not carried out, calls for a harsher one still. The progression is endless. Finally, the legislator, tired of so many futile efforts, stops making precise laws, because experience has convinced him they are too easy to evade, however strict they may be. He makes vague laws and in this way the tyranny of men is in the final analysis the result of the proliferation of laws. It was in this way in our country that those claiming to be republicans began with hundreds of decrees—puerile, barbarous, and never carried out—against the clergy. They ended by giving five men the right to deport priests without trial. 2
Another drawback of the proliferation of the laws is that it inevitably corrupts the agents charged with making sure that they are not broken or evaded. The law does not need to pay informers to make sure crimes are tracked down and punished. The individuals they hurt naturally take it upon themselves to demand reparation for them. But when laws proliferate, this is a sign that government is no longer keeping to its natural sphere; and then its activities run up against new obstacles. When, on the pretext that this is useful, the laws are aimed at things which are by their very nature not criminal, no one has any interest in denouncing transgressions which do him no harm. Government has to create an interest group; only corruption can create this. In this way, by acting outside its proper sphere, government corrupts, not only in a general way, as we saw above, those on whom it acts; it also corrupts in particular those through whom it acts. Hired ruffians, spies, and informers are men too. When the government buys them to push them to the extremities of perversity and infamy, it is dedicating a portion of the citizen-body to baseness and crime and aiming a blow at the morality of the rest, by offering everyone the example of crime rewarded.
Those in power wrongly imagine that they alone profit from the corruption of their agents. The men who sell themselves to the government by betraying others, sell themselves in the same way to others by betraying government. Such depravity is communicated to all classes of people.
Prohibitive and coercive laws are always instruments of a dangerous sort, and the danger increases as their number and complexity grow. Laws even when directed against crime are not without drawbacks, but they are legitimated by their urgent necessity. In face of the certain prospect of the whole of society falling apart, the outcome which the impunity of crimes would produce, any drawbacks in the detail must count for nothing. When, however, it is a question of usefulness only, that is, of an imprecise and shifting calculus, what could be more absurd than sacrificing to this calculus known advantages: calm, happiness, and the good morals of the governed?
These observations hold equally strongly under all forms of government. They apply especially, however, to governments affecting to be free. Some so-called lovers of freedom have for too long cherished the idea of controlling all human actions and destroying in the human heart anything going against their deliberations or resisting their theories. The laws of liberty, says Rousseau, are a thousand times more austere than the tyrant’s harsh yoke. 3 It is no wonder these ardent and bungling apostles have made the doctrine they preached in this way so detested. One can repeat in vain: the most indispensable condition for getting men to adopt the principles of liberty will always be, whatever one does, the possession of liberty.
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, 4 “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 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, 5 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.
Governments which make no claim to be free escape some of the disadvantages of the proliferation of laws, by recourse to arbitrary measures. One by one these measures press only on isolated individuals, and though they threaten all citizens, the majority of those so threatened delude themselves about the danger that hangs over their heads unnoticed. Hence it happens that under governments which make only a moderate use of arbitrary measures, life seems at first more pleasant than in republics which harass their citizens with proliferating and irritating laws. Moreover it takes a degree of reflection, it takes accurate understanding and farsighted reason, such as develops only out of habituation to freedom itself, to perceive, right from the start, and in a single arbitrary act, all the consequences of this terrible expedient.
One of the characteristics of our nation is that it has never attached enough importance to individual security. To imprison a citizen arbitrarily, to hold him indefinitely in jail, to separate him from his wife and children, to shatter his social life, to upset his economic plans: all this has always seemed to us quite a simple set of measures, at the least excusable. When these measures hurt us or things dear to us, we complain, but about the mistake rather than the injustice. Indeed, rather few men in the long history of our various oppressions have earned for themselves the easily gained credit of protesting on behalf of those in different situations from themselves.
It has been pointed out that M. de Montesquieu, who vigorously defends the rights of individual property even against the State’s own interests, is much cooler in his treatment of individual freedoms, 1 as if people were less sacred than goods. There is a straightforward reason in the case of a preoccupied and egotistical people for the fact that the rights of individual freedom are less well protected than those of property. The man whose liberty is removed is disarmed by this very fact, while the man who is stripped of his property retains his freedom to demand it back. Thus freedom is never defended except by the friends of an oppressed person, while property is defended by the oppressed person himself. One can see that the intensity of the claims is likely to differ as between the two cases.
Arbitrary measures are often justified in terms of their alleged utility. They aim to preserve order and prevent crime. It has been said countless times that it is better to prevent crimes than to punish them, and since this vague proposition is consistent with a number of interpretations, no one has so far taken into his head to put the question in doubt.
If we mean by the prerogative of crime prevention the right to distribute a mounted constabulary around the highways or break up gatherings before they have caused disorder, government has this right, and it is more appropriately called one of its duties. The right to stop crimes, however, is all too often the freedom to treat innocent people harshly for fear they might become criminal. Are certain individuals thought likely to conspire? They are arrested and kept apart, not because they are criminal but to prevent them from becoming so. Is a particular group considered criminally disposed? It is marked off in a humiliating way from other citizens and subjected to legal formalities and precautionary measures from which other people are exempt.
We will long remember the various innovations signaling what we call the Reign of Terror, the law of suspects, the banishment of the nobles, and the proscription of priests. 2 The interests of these groups, it was asserted, being contrary to public order, it had to be feared they might upset it, and one would rather prevent their crimes than punish them—proof of what we observed above, that a republic dominated by a faction, adds to the disorders of anarchy all the harassment of despotism. On the other hand, some tyrant or other of a small Italian principality arrogated to himself the right to deport people at will, on the pretext that it was part of his clemency to prevent men inclined to crime from giving in to this fatal tendency. 3 Proof again of what we have said: the improperly constituted or ratified government of a single man adds to constant and unspoken abuses, the noisy and scandalous practices of factions.
The pretext of crime prevention has the most immense and incalculable consequences. Potential criminality inheres in everybody’s freedom, in the lives of all classes, in the growth of all human faculties. Those in authority endlessly affecting to fear that a crime may be committed, may weave a vast web that envelops all the innocent. The imprisonment of suspects, the endless confinement of those whom due process would acquit, but who instead may find themselves subjected to the indignity of prolonged detention, the arbitrary exile of those believed dangerous, though there is nothing they can be reproached with, the enslavement of thought, and then that vast silence so pleasing to the ear of government: this pretext explains all these. Every event offers a justification. If the crime the government claimed it feared does not occur, the credit goes to its watchfulness. If one or two unjustified actions provoke opposition, this resistance to which injustice alone led is itself quoted in support of such injustice. Nothing is simpler than passing off the effect for the cause. The more a government measure offends against freedom and reason, the more it drags in its wake disorder and violence. Then government attributes the need for the measure to the disorder and violence themselves. Thus we have seen the agents of the Terror among us forcing priests to resistance by refusing them any security when they submit and then justifying clerical persecution by their resistance. 4 Similarly the Romans saw Tiberius, when his victims disappeared in silence, glorying in the peace he was maintaining in the empire, and then when complaints made themselves heard, finding justification for tyranny in what his flatterers called attempted sedition.
The pretext that crime is being prevented can be shifted from domestic politics to foreign affairs. This results in the same abuses just as the same sophisms justify it. Are those in power provoking our most peaceful neighbors and faithful allies? All they are doing, they say, is punishing hostile intentions and forestalling attacks now being considered. How can we show the nonexistence of these intentions, the impossibility of these attacks? If the unfortunate nation they calumniate is easily intimidated, our governing group has forestalled it, since it is submitting. If it has time to resist these hypocritical aggressors, it wanted war because it is defending itself. To show that this picture is in no way exaggerated, one need only recall the war in Switzerland. 5
“What?” someone will say, “when the government knows a conspiracy is being hatched in the shadows, or that thieves are plotting to murder a citizen and plunder his home, it will have resources to punish the guilty persons only once the crime has happened!” Two very different things are confounded here: crimes actually begun, and the alleged will to commit crimes. The government has the duty and therefore the right to keep an eye on trends which look dangerous to it. When it has evidence of the conspiracy being hatched or the murder being pondered, it can make sure of the men this evidence points to. In this case, however, this is not an arbitrary measure but a legal action. This is precisely when these men must be brought before independent courts. This is the very time when the detention of the accused must not be prolonged if proof is not forthcoming. As long as government has only suspicions about people’s intentions, it must keep guard passively, and the object of its worries must not feel their effect. It would be an intolerable condition for men to be constantly at the mercy of government suspicions.
To render the prerogative of prevention admissible, we must distinguish again between the jurisdiction of authority over actions and its jurisdiction over individuals. Our safeguard against arbitrary government lies in this distinction. The government sometimes has the right to direct its powers against harmless or innocent actions, when they seem to it to lead on to dangerous results. It never has the right, however, to make this same power weigh on individuals who are not clearly guilty, even when their intentions are suspect to it, and their resources seem such as to be feared. If, for example, a country were infested with armed gatherings, it would not be unjust for a brief period to put obstacles in the way of all meetings, obstacles which would hurt innocent and guilty alike. If, as happened in parts of Germany, arson was becoming widespread, one could attach a punishment to the mere transport or mere possession of certain combustible materials. If there were a high murder rate as in Italy, the bearing of arms could be forbidden to all individuals, without distinction. The exemplary nuances here are infinite. The most innocent of actions in intention may in certain contexts cause as much harm as the most criminal ones. Of course this principle must be applied with great caution, since the prohibition of any noncriminal act is always harmful to the moral life as well as the freedom of the governed. Nevertheless, government cannot be denied this latitude. Interdictions of the kind we have been considering have to be regarded as legitimate, as long as they are general. But these same interdictions, were they to be directed exclusively against certain individuals or classes, as happened so often during our Revolution, would become unjust. They would be nothing else than punishments which had got ahead of the crime. For it is a punishment that there should be an unseemly distinction between equally innocent men. The unwarranted deprivation of freedom which others enjoy is a punishment. Now, all punishment which does not stem from legally proven crime is itself a governmental crime.
The actions of government, we are told, bear down only on imprudent souls who provoke them. The man who resigns himself and keeps silent is always safe. Reassured by this worthless and specious argument, we do not protest against the oppressors. Instead we find fault with the victims. Nobody knows how to be brave even prudentially. Everyone stays silent, keeping his head low in the self-deceiving hope of disarming the powers that be by his silence. People give despotism free access, flattering themselves they will be treated with consideration. Eyes to the ground, each person walks in silence the narrow path leading him safely to the tomb. But when arbitrary government is tolerated, bit by bit it spreads out between so many participants that the least known of citizens may find his enemy in a position of power. Whatever cowardly hearts may hope for, fortunately for the morality of humankind, our safety calls for more than mere standing to one side and letting the blows fall on others. A thousand links bind us to our peers and even the most frantic egoism cannot break all of them. You think you are safe in your deliberate obscurity and your shameful apathy. But you have a son and youth gets the better of him, a brother less cautious than you permits himself a murmur, an old enemy you once wounded who has got himself a bit of power, and in his fantasies some corrupt military leader is coveting your house in Alba. What will you do then? Having bitterly condemned all struggles against the powers that be, will you struggle in your turn? You are condemned in advance both by your own conscience and by that degraded public opinion you yourself helped to create. Will you give in without resistance? But will they let you give in? Will they not exile or persecute this annoying case, this monument to injustice? Innocent people disappeared. You saw them as guilty. You prepared the road you now walk along in your turn.