This observation is borne out, even when applied to contemporary nations. People in Athens enjoyed an individual freedom much greater than in Sparta, because Athens was at once warlike and commercial 12 and Sparta was exclusively warlike. This difference makes itself felt under all forms of political organization. Under despotism, as under freedom, war gathers men around government, trade isolates them from it.
If we could enter here into historical details, we would show how among the Athenians trade had made the most essential differences between the ancient and modern peoples disappear. The outlook of the Athenian traders was like the outlook of ours. During the Peloponnesian War they withdrew their holdings from the Athenian mainland and sent them to the islands of the archipelago. 13 Trade had created circulation between them. They understood the use of bills of exchange. 14 From this, because it is all connected, flowed a vast softening in manners, more indulgence toward women, 15 more hospitality to strangers, 16 and an exceeding love of individual freedom. In Sparta, says Xenophon, 17 citizens run when the magistrate calls them. In Athens a rich man would be in despair if anyone thought he was subservient to the magistrate. If the completely modern character of the Athenians has not been remarked on enough, this is because the general spirit of the age influenced philosophers, and they always wrote in an inverse direction from the national mores.
Fourthly, the universal practice of slavery among the ancients lent their mores something severe and cruel which made it easy for them to sacrifice the gentle affections to political interests. The existence of the slaves, that is, of a class of men who enjoy none of the rights of humanity, changes absolutely the character of the peoples among whom that class exists. The inevitable consequence of slavery is the weakening of pity, of sympathy for pain. The slave’s pain is a resource for the owner. At equal levels of civilization, a nation which has slaves must be much less compassionate than one which does not. Antiquity, even among the most orderly peoples, and the individuals most distinguished by their rank, elevation, and enlightenment, supplies us with numerous and almost incredible examples of inhumanity inspired in the master by his untrammeled power over the enslaved. 18 Reading the address by Lysias, 19 we can scarcely conceive a social condition so ferocious that such an address could actually be articulated. Two men have bought a slave girl destined for their common pleasure, an initial outrage against decency and nature. She becomes fond of one to the other’s disadvantage. The latter comes before the judges, demanding publicly from the court his share of the slave whom he has legitimately bought. To establish the facts he alleges, he demands that she be subjected to torture, waxing indignant that his opponent objects to this, and seeing nothing in his objections save the illegal refusal of a litigant of bad faith perfidiously repudiating the best way of bringing out the truth. The torments of the slave, the profanation of everything holy in humanity and love, the horrible mix of torture and pleasures, which would revolt any modern mind, count for nothing, either with him who makes this shameful demand, or the judges to whom he appeals, or the spectators who listen to him, or Lysias, who cold-bloodedly composes a harangue in support of this claim.
The absence of slavery joined to the progress of civilization has given us more human mores. Cruelty, even to further our interest, has become generally alien. Abstract reasoning and the public good have made it impossible for us.
Lastly, mankind has not aged by more than twenty centuries without changes in character. The ancients were right in the youth of moral life. The moderns are in its maturity or perhaps its old age. This observation can be proved, if need be, by simple examination of ancient writings. Their poetry is all of a kind and direct. Their poets’ enthusiasm is true, natural, complete. Modern poets are always trailing some ulterior motive or other drawing on experience and destroying enthusiasm. We might say they fear to seem dupes and rather than lending themselves to an irresistible impulse, these are men who pore over the poetry with their readers. The first condition of enthusiasm is not to observe oneself too knowingly, but the moderns never stop observing themselves, even in the midst of their most sensitive or violent impulses.
The word “illusion” has no equivalent in any ancient language because the word comes into being only when the thing no longer exists. The philosophy of the ancients is exalted even when it claims to be abstract. Modern philosophy is always dry, even when it strives to be exalted. There is poetry in the philosophy of the ancients and philosophy in the poetry of the moderns. Ancient historians believe and affirm; modern historians analyze and doubt. The ancients had complete conviction about everything. We have almost none save about the hypocrisy of conviction. Now, nothing is isolated in nature. Literature always bears the impress of the general character. Less worn out by civilization, the ancients had more vivacious impressions of things. Their warlike habits inspired in them great activity, profound confidence in their strength, scorn for death, a standard indifference to pain, and therefore greater devotion, energy, and nobility. The moderns, wearied by experience, have a sadder and thereby more delicate sensibility, a more habitual openness to emotion. Egoism itself, which mingles in with this faculty of emotion, can corrupt but not destroy it. To resist the power which suffering has over us, we are forced to avoid the sight of it. The ancients faced it without fear and tolerated it without pity. A woman of very superior intelligence has very wisely remarked how much less refinement there was in the sensibility of the ancients than in ours, by comparing Racine’s Andromache with Virgil’s, though the latter is incontestably the most sensitive of the ancient poets. 20 Writers who have come after her and copied her without acknowledgment, 21 have attributed the difference to religious causes. This is an inversion of the ideas. This difference makes itself felt in religion as elsewhere. Religion is not its cause, however. Its cause lies in the progress of civilization, which gentles the character by weakening it, and which, making domestic relations safer, less menaced, less interrupted, thereby makes of them a more constant and intimate part of human life. The ancients, like children, believed docilely, and listened with respect. They could accept without repugnance a whole ensemble of institutions made up of traditions, precepts, usages, and mysterious practices as much as from positive laws. The moderns have lost the ability to believe for a long time and without analysis. Doubt is endlessly at their shoulder. It weakens the force even of what they do take on. The lawmaker cannot speak to them as a prophet. He makes positive laws for them to give their existence security. They cannot be dominated, however, except by habit. Every advance in life gives preeminence to a different faculty, among nations as among individuals. Imagination was dominant among the ancients as reason is with us. Now imagination runs to meet what one wishes to persuade it of. Reason waits and rejects, and even when it yields does so only reluctantly. From this results a truth whose consequences are as important as they are extensive. Nothing was easier than recasting ancient peoples by their institutions. Nothing would be more impossible than treating modern peoples this way. Among the ancients an institution was effective the moment it was set up. An institution among the moderns is effective only when it has become a habit. In the remote times of antiquity peoples had so few habits that they changed names almost as often as rulers. Dionysius of Halicarnassus 22 informs us that Italy was designated in succession by six different appellations according to the names of those who seized that country one after another. Leaders of nations and earth’s conquerors, try to designate a street by your name today. All your might will not make people forget their habit and substitute this new name for it.
Because of all these differences, freedom cannot be the same among the moderns as it was among the ancients. The freedom of ancient times was everything which assured the citizens the biggest share in the exercise of political power. The freedom of modern times is everything which guarantees the citizens independence from the government. The character of the ancients gave them above all the need for action, and this need sits very well with a great extension of political power. Moderns need calm and various satisfactions. 23 Calm is found only in a small number of laws preventing its being disturbed, satisfactions in an expansive individual freedom. Any legislation demanding the sacrifice of these satisfactions is incompatible with the present state of the human race. In this respect nothing is more curious to observe than the speeches of French demagogues. The wittiest of them, Saint-Just, delivered all his speeches in short sentences, proper to arouse tired souls. And while he seemed to suppose the nation capable of the most painful sacrifices, in his very style he recognized it as incapable even of attention. One must not demand of modern peoples the love and devotion the ancients had for political freedom; it is civil freedom which men in our era cherish above all. This is because not only has civil freedom gained in advantages, owing to the multiplication of private decision making, but political freedom has lost them, owing to the size of societies. The only group among the ancients to demand a sort of individual independence were the philosophers. Their independence, however, was in no sense like personal freedom, which seems desirable to us. Their independence consisted in renouncing all the joys and affections of life. Ours on the contrary is precious to us only in guaranteeing us these joys and permitting us these affections. The progress of mankind resembles the individual’s. The young man believes he loves his country more than his family and sometimes the world more than his country. But as he gets older, the scope of his feelings narrows, and as if warned by instinct of the weakening of his powers, he no longer tires himself loving faraway things. He keeps close to him what remains of his power to feel. Similarly, as the human race ages, home-based affections replace grand political interests. What needs to be done, therefore, is to purchase political freedom as cheaply as possible, that is, to leave as much personal freedom as possible, 24 in all its forms, and in every respect. The tolerance of the ancients would not suffice for us, being purely national. Each nation’s religion was respected, but each member of a given State was forced to abide by his country’s religion. 25 The religious freedom civilization demands today is of a different kind. It is an individual freedom each man wants to be able to practice privately. Laws on morals, celibacy, or idleness are intolerable. These laws assume a subjugation of the individual to the body politic of a kind we could no longer tolerate. 26 Even the laws against begging, however necessary they might be, are difficult and odious to operate, involving something against the grain of our practices.
For the same reason life must not be subject to many shocks. The social ramifications are much greater than before. Even groups which seem to be enemies are joined by imperceptible but indissoluble links. Banishments, confiscations, spoliation by the state, unjust in all eras, have today become absurd and pointless as well. Property, having assumed a much more stable nature and having identified itself more intimately with human existence, demands much more respect and much more freedom. Man having lost in imagination what he has gained in positive knowledge and for this very reason being less given to enthusiasm, legislators no longer have the same power over him. They must renounce any disruption of settled habits, any attempts to affect opinion powerfully. No more Lycurgus, no more Numa, no more Mahomet. 27 M. de Pauw’s observations on music apply to legislation. “The most inferior of music,” he says, “produces among barbarian peoples sensations incomparably stronger than the sweetest melody can excite among civilized peoples.” He continues, “The more the Greeks wished to perfect music, the more they saw its marvels weakening.” 28 This was precisely because they wished to perfect music, that is to say, were judging it. All their savage ancestors had done was listen to it. 29 I would not want to affirm that modern man is not given to enthusiasm for certain viewpoints, but he certainly no longer is for men. The French Revolution is very remarkable in this regard. Whatever one may have been able to say about the inconstancy of the peoples of the ancient republics, nothing compares with the volatility we have witnessed. Study carefully, even in the violence of the best-prepared unrest, the obscure ranks of the blind, submissive populace, and you will see them, just as they are following their leaders, fix their gaze in advance on the moment when the latter must fall. You will spot in their meretricious exaltation a bizarre mix of analysis and mockery. Though they strive to numb themselves by their acclamations, and recoup themselves by their raillery, at the same time they will seem to you to distrust their own conviction, to have a personal presentiment, so to speak, of the time when the prestige will be dissipated. People are astonished that the most marvelous enterprises, the most unexpected successes, prodigious actions of courage and skill, today cause almost no sensation. This is because the good sense of the human race warns it that all this is not done on its behalf. This is governmental display. Since governments alone find pleasure in it, they alone can bear the costs. The activity of those in power has become much less necessary since contentment, for most men, is now based on private relationships. When conditions were essentially warlike, people admired courage particularly, because courage was the most indispensable quality in the leaders of the peoples. Today, conditions being essentially pacific, what those in government are asked for is moderation and justice. When they lavish countless great spectacles of heroism and creation and destruction on us, we are tempted to reply to them: the least grain of benevolence would be far more to our liking. All the moral institutions of the ancients have become inapplicable to us. The institutions I call moral, as opposed to purely political ones, are those which like censorship or ostracism attributed to society, or some number of men or other, a discretionary jurisdiction operating not according to legal and judicial principles but on the vaguely conceived idea of the moral character of certain individuals, of their intentions and of the danger they could pose to the State. I call the practice which made all the citizens of the ancient republics prosecutors a moral institution. This was an honorable function. People sought to distinguish themselves in the pursuit and denunciation of the guilty. In our times the function of the prosecutor is odious. A man would be dishonored if he exercised it without legal remit. All this results from the same cause. Formerly public interest went before safety and individual freedom. Today safety and individual freedom come before the public interest.
Peace, calm, and domestic contentment being the natural and invincible tendency of modern peoples, more sacrifices have to be made for that calm than the ancients made. Disorder is not always incompatible with political freedom, but it always is with civil and individual freedom.
Political freedom offering less satisfaction than formerly and the disorders it can entail being more unbearable, we must conserve only what is absolutely necessary in it. To claim today to console men with political freedom for the loss of their civil freedom is to go in the opposite direction from the present-day spirit of the human race. Far from opposing one of these freedoms to another, we should present the former only as the guarantee of the latter. I would be misunderstood, nevertheless, if it were claimed that arguments against political freedom could be drawn from this conclusion. Many men today would like to draw this inference from it. Because the ancients were free, their inference is that we are destined to be slaves. They would like to constitute the new social State with a small number of elements they claim to be uniquely adapted to the situation of the modern world. These elements are: prejudices to frighten men, greed to corrupt them, frivolity to stupefy them, coarse pleasures to degrade them, despotism to rule them, and, of course, positive knowledge and exact science to serve the despotism more adroitly. It would be bizarre were such to be the end point of forty centuries during which the human race has mastered more moral and physical means. I cannot believe it. The inference I draw from the differences which mark us off from antiquity is absolutely not that we should abolish public safeguards but that we should extend satisfactions. It is not political freedom that I want to renounce, but civil freedom that I am demanding along with other forms of political freedom.
Governments have no more right than before to arrogate to themselves illegitimate power; but legitimate governments have less right than in former times to fetter individual freedom. 30 We still possess today the rights we owned at all times, the eternal rights to justice, equality, and safeguards, because these rights are the purpose of human societies. But governments, which are only the means of attaining this purpose, have new duties. The progress of civilization, the changes effected by the centuries in the predisposition of the human race, require of them more respect for the habits and affections, in a word for the independence of individuals. They must handle these sacred things more prudently and more gently every day.
The truths we have just developed are unrecognized today, as much by the speculative philosophers who during the eighteenth century, it must be added, with a courage worthy of praise, laid claim to the forgotten rights of the human race, as by more hotheaded and less enlightened men, who have wanted to put into practice the principles of these philosophers. From this have followed mistakes and absurdities which seem almost inexplicable to us, in the theorizing of some of our most famous writers. We will cite only one example of these, taken at random.
Ancient legislators had a deep hatred of wealth. Plato refused to give laws to Arcadia solely because of its opulence. 31 All the men of government of antiquity saw in poverty the source of all virtue and glory. Modern moralists have copied these maxims. They have not considered that if wealth was corrupting among the warlike people of antiquity, this is because it was the fruit of conquest and pillage which, swiftly penetrating the lands of poor people unused to its possession, soon intoxicated them.
Wealth would become corrupting again, if owing to some violent upsets we fell back again in this respect into the condition of the ancient peoples, that is, if the poor and ignorant class, suddenly seizing the spoils of the educated class, had at their disposal riches they could use only deplorably and coarsely. When wealth is the gradual product of assiduous work and a busy life or when it is transmitted from generation to generation by peaceful possession, far from corrupting those who acquire it or enjoy its use, it offers them new means of leisure and enlightenment and consequently new motives for morality. Because they did not consider differences of period, our moralists have wanted to swim against the current. They have recommended privations to peoples schooled to the imperatives of power and riches and, by a singular contrast, while all the laws were calculated to encourage the acquisition of wealth and discover new sources of it, all the moralizing aimed to present it as a scourge. 32
The errors of our philosophers, innocent as long as they were merely theoretical, became terrible in application. During the French Revolution, when the flow of events put in charge of things men who had adopted philosophy in a preconceived way, these men thought they could make public power work as they saw it done in the free States of antiquity. They believed everything must still today yield to collective authority, that private morality must be silent before the public interest, that all the violations of civil liberty would be redressed by the enjoyment of political liberty in its widest sense. But collective authority did nothing but harm individual independence in every sense, without destroying the need for it. Private morality was silent; but since the public interest does not exert the same sway over us as over the ancients, it was to a hypocritical and ferocious egoism that private morality saw itself sacrificed. The great sacrifices, the acts of devotion, the victories won in Greece and Rome by patriotism over the natural affections, served among us as a pretext for letting loose the most unchecked individual passions, in a wretched parody of the most noble examples. Because inexorable but just fathers had once condemned their criminal children, their modern imitators had innocent enemies put to death. 33 Lastly, the institutions which in the ancient republics surrounded political freedom, the foundation of civil freedom, with a strong guarantee, resulted only in the violation of civil freedom, without establishing political freedom.
Among the writers of the eighteenth century, there is one above all who has pulled opinion along this mistaken and dangerous course, namely the Abbé de Mably. 34 Mably, whom people nicknamed the Spartan, was a pure-hearted man who cherished morality and thought he loved freedom, but was possessed assuredly of the falsest mind and the most despotic outlook ever to exist. 35 As soon as he happened upon a vexatious measure, in any country, he thought he had made a discovery and proposed it as a model. He detested most of all individual freedom, and when he came upon a nation which was completely deprived of this, he could not stop himself admiring it, even when it had absolutely no political freedom. He raved over the Egyptians, because he said with them everything was fixed by law. Every moment in the day was filled by some duty. Everything bowed before the legislator’s empire, even relaxation, even necessities. Love itself was subject to this honored intervention, law by turns opening and closing the nuptial bed. 36 For some time people have repeated the same absurdities about the Egyptians. We are recommended to imitate a people suffering from a double servitude, pushed back by their priests from the sanctuary of all knowledge, divided into castes of which the lowest was deprived of all the rights of society and of humanity itself, retained by a yoke of iron in an eternal infancy, an immobile mass, equally incapable of educating or defending itself and constantly the prey of the first conqueror who came to invade, I will not say their fatherland, but their territory. These new apologists of Egypt must be recognized as more consistent in their theorizing than the philosophers who have heaped the same eulogies on it. They set no value on freedom, on the dignity of our nature, on the activity of the mind, on the development of the intellectual faculties. They want only to serve despotism, for lack of the ability to possess it. 37 If enslaved Egypt seemed to Mably to merit an almost boundless admiration, solely because all individual independence was suppressed there, one can see that Sparta, which brought together the forms of republicanism with the same bondage for individuals, must have excited his even more enthusiastic admiration. This vast monastery seemed to him the ideal of the free republic. 38 He had a profound contempt for Athens, and would readily have said of that first nation of Greece, what some grand seigneur or other of an academician said of the academy: What a frightful despotism; everybody does what he likes there! The regret he expresses constantly in his works is that the law can get at actions only. He would have liked it to get at thoughts and the most fleeting impressions, and to pursue man without respite, leaving him no shelter where he could escape its power. He constantly took government for freedom, and all means for extending the action of government over the recalcitrant part of human existence, whose independence he deplored, seemed to him good. Mably is, after Rousseau, the writer who has had the most influence on our Revolution. His austerity, his intolerance, his hatred for all the human passions, his eagerness to enslave them, his excessive principles concerning the jurisdiction of the law, his relentlessness against individual freedom, which he treated as a personal enemy, the difference between what he recommended and what had existed, his ranting against wealth and even against property, all these were bound to please a group of men overheated by their recent victory, men who, conquerors of a power they called law, were very pleased to extend that power over everything. It was weighty authority for them, that a writer with no stake in the question, who always pronounced anathemas against royalty, had, buried away in his study, long before the Revolution, drafted in axiomatic form all the maxims necessary for organizing the most absolute despotism, under the name “republic.” Mably had noticed in antiquity, independently of law proper, what he termed institutions. It would be difficult to define precisely what he understood by this word. It was an ensemble of laws, habits, traditions, and ceremonies, calculated to appeal to the imagination and to lend to established constitutions the support of this vague but irresistible power. Mably did not reflect that the very philosophers of antiquity, who so sang the praises of institutions to us, were mostly speaking of an earlier time, and it was the same with these things as with ghosts. No one has seen any; but everyone has in his family some tale which attests their existence. 39 Mably exalted therefore beyond measure the institutions of antiquity and the need to establish ones like them, and our legislators began to establish institutions. But since institutions rest on habits, this was to want to create habits, that is to say, to create a portion of the past. They instituted national holidays, ceremonies, periodic assemblies. Soon it was necessary to require the observance of these fairs, attendance at these assemblies, respect for these ceremonies, under threat of severe penalties. A duty was made of what should be voluntary. Celebration of freedom was surrounded with constraint. 40 Those in government were astonished that the decrees of a day did not immediately erase the memories of several centuries. They called habits ill will. The slow, gradual effects of childhood impressions, the direction imprinted on imagination by a long sequence of years, seemed to them acts of rebellion. The law being the expression of the general will, it seemed to them that it should make all other forces give way, even those of memory and time. All these efforts, all this harassment, gave way beneath the weight of their own extravagance. There is no saint so humble in the most obscure hamlet who has not battled successfully against the whole national government, ranged in arms against him. Supporters of all theoretical systems of this kind always mistake effect for cause. Because habits transform themselves into institutions, they think nothing easier than transforming institutions into habits. They want to support all the natural sentiments, honor, patriotism, paternal power, conjugal love, respect for old age, by means of institutions. This is to pursue a course opposite to nature. Institutions have to be created by the spontaneous motion of sentiments. For them to be powerful but not tyrannical, their origin must be lost in the night of time. For their head to reach toward heaven and cover us with its shade, their roots must be hidden in the earth’s bosom. They are useful as a heritage; they are merely oppressive when drafted as laws. Government is in rightful place only when it is a curb. Then none of its actions is worthless. But when it wants to encourage, direct, arouse, and enthuse and comes forward with pretentious talk, always followed with coercive measures, it is ridiculous in failure and despotic in constraint.
One can include under the heading of ill-conceived institutions what some political writers 41 have termed penalties for infamy and rewards of honor, isolated, spasmodic attempts, vicious in inspiration, liable to bias and contradiction and irrelevance, by means of which government wishes to put itself in the place of the most easily offended and delicate feelings, believing it can distribute honor and shame at will.
If the penalty for shameful behavior is accompanied by deprivation of certain rights, by exclusion from certain offices, then it becomes a positive punishment, not solely a case of disapprobation. If the honorific rewards the government bestows carry with them an entitlement to certain prerogatives, the rewards are no longer purely honorific. They come into the category of compensation which society can grant for services it has received. Then the vocabulary is inaccurate. But if both of these measures are separated from any drawback or any advantage of a different sort, then that is a nonsense. This is to require the government to play the part of public opinion. Shame diminishes and honor withers, when government arrogates to itself the right to apply them. Human intelligence must be perverted and the most delicate strands of inner feeling ruffled, to make men submit to government in questions pertaining to morality. Consider how under the monarchy itself, at a time when vanity was raised to its highest possible degree of susceptibility by all the artificial means it is in the nature of this government to employ, consider, I repeat, how many useless attempts and proclamations there were by government to stigmatize dueling.
People have often praised the moral effect of Roman censorship. But the censors had legal power and inflicted real punishments. They inflicted them arbitrarily in truth. This arbitrariness was counterbalanced, however, by the simplicity of ancient mores, and by the chance every citizen, as an almost immediate spectator of all the actions of his fellows, had to evaluate the justice of the censors. When these magistrates debarred the dictator Mamercus, who had reduced their terms of office to eighteen months, from entering the Senate, this vengeance excited the indignation of the Senate and the people, and Mamercus was amply compensated by public opinion. 42 The fact is, however, that all the fellow citizens of this dictator were gathered together in the same town, and witnesses and judges of the injustice he was experiencing. In a State like France, the power of the censors would be an intolerable tyranny. If the government of a large nation dared to declare, by way of a public act, without trial, that an individual was dishonored, it would not be the individual but this entire nation that this government would be declaring incapable of all sense of honor, and the nation would protest against this decree by not endorsing the government’s decisions.
Censorship degenerated even in Rome, when the size of the Republic, the complexity of social relationships, and the refinements of civilization had taken away from the institution the thing which served it as both a base and a limit. It was not censorship which had created good mores, but the simplicity of the mores which constituted the power and efficacy of censorship. 43
In the present state of society, individual relations are made up of fine nuances, changeable and elusive, which would be distorted in a thousand ways if one tried to give them clearer definition. Public opinion alone can affect them. It alone can judge them because its nature is the same. Times of civil upheaval, I must confess, are particularly unfavorable to the power of opinion, which is a kind of moral sense which develops only in tranquillity. It is the fruit of leisure, security, and intellectual independence.
Revolutionary shocks and reactionary excesses make it disappear. Scaffolds, deportations, and massacres leave purely moral nuances powerless. Public opinion can exist only where there remains neither anything despotic nor any political divide. Public opinion and arbitrary power are incompatible. The former must overcome the latter or be suffocated. Divisions on party lines, which make this or that belief the blackest of crimes or the highest of virtues, are destructive of public opinion because its basis is falsified and it follows a totally mistaken direction. In such cases one has to wait and leave things to happen. I would add that the law should be silent, if I did not think that in these circumstances those who make the laws are aiming precisely to falsify public opinion. They prevent man from retiring into himself, from consulting his own heart, from thinking according to his own lights. And as if his self-interest was not enough for them to corrupt him, they also want to stupefy him by giving themselves the false appearance of appealing to his own judgment and reason.
This work has sought to determine the extent and jurisdiction of political authority on the various things which include all the interests of men. Let us now see what principles of freedom result from our analysis and whether these can be overdone or misused.
Individuals must enjoy complete freedom of action for all innocent or unimportant actions. When, in a given situation, an action unimportant in itself can threaten public safety, such as a certain way of dressing which can serve as a password, a society has a right to forbid it. When an action of the same kind is part of a guilty action, such as brigands agreeing to a rendezvous before effecting an assassination, society has the right to deal harshly with this unimportant action, in order to interrupt a crime already begun. In the two cases society’s intervention is legitimate because its need is proven. But equally in the two cases it is legitimate only on this condition. 1
Individuals must enjoy complete freedom of opinion either private or public, as long as that freedom does not produce harmful actions. When it does produce such, it becomes identified with them, and under this heading it must be repressed and punished. Opinion separated from action, however, must remain free. The only function of the government is to confine it to its proper domain, speculation and theory.
Individuals must enjoy a boundless freedom in the use of their property and the exercise of their labor, as long as in disposing of their property or exercising their labor they do not harm others who have the same rights. If they do so harm them, society intervenes, not to invade anyone’s rights but to guarantee the rights of all.
Now, what abuses can result from these principles which are the only true principles of freedom, and to what exaggeration are they susceptible?
A singular error which I indicated at the start of this book and of which one must accuse Rousseau and Mably above all, but from which almost no political writer has been exempt, has confused all ideas on this question.
The principles of political authority have not been distinguished from those of freedom.
Since in the theorizing of philosophers friendly to humanity, the principles of government tended to take away from oppressors of human societies the powers they had usurped and to return those powers to the whole society, it was not grasped that this last was only a preliminary operation which had merely destroyed that which should not exist, but by means of which one was deciding nothing as to what should be put in its place.
Thus the dogma of national sovereignty having been first proclaimed and then abused, it was thought that a principle of freedom was being abused, when it was only an abuse of a principle of government.
Because where citizens are nothing, usurpers are everything, it was believed that for the people to be everything it was necessary that individuals be nothing. This maxim is palpably false. It implies that freedom is nothing other than a new formula for despotism. Where the individual is nothing, the people are nothing. Can it be thought that the people get rich from the losses of each of their members, as a tyrant enriches himself from what he steals from each one of his subjects? Nothing is more absurd. The people are rich by way of what their members possess, free because they are free. The people gain nothing from members’ sacrifices. Individual sacrifices are sometimes necessary, but they are never a positive gain, either for individuals or the nation.
Those who hold or usurp power may, to legitimate their encroachments, borrow the name of freedom, because, unfortunately, the word is boundlessly obliging; but they can never borrow its principles or even any of its maxims.
When, for example, a mistaken majority oppresses the minority or, which happens far more often, when a ferocious and noisy minority seizes the name of the majority to tyrannize society, to what does it lay claim in justification of its outrages? The sovereignty of the people, the power of society over its members, the abnegation of individual rights in favor of the society, that is to say, always principles of government, never principles of freedom.
How indeed could the latter be invoked in favor of the opposition? What do they establish? That society has no right to be unjust toward a single one of its members, that the whole society minus one is not authorized to obstruct the latter in his opinions, nor in those actions which are not harmful, in the use of his property or the exercise of his labor, save in those cases where that use or that exercise would obstruct another individual possessing the same rights.
Now, what do oppressive majorities or minorities do? Precisely the opposite of what these principles establish. It is not therefore these principles they exaggerate or abuse. They act from directly opposite assertions.
When can opinions put out by the press become a means of tyranny? It is when a single man or group of men seize exclusive control of the press and make it the organ of their opinion, represent this opinion as national, and wish on this authority to make their view prevail over all others. But in that case, what principles can this man or men proclaim in support of their behavior? Not the principles of freedom, which forbid making any opinion dominate, even that of everyone against that of a single other soul, but the principles of political government, which, exaggerated and submitting individuals with all their rights and without reserve to the sovereign community, permit the restraining, obstructing, and proscribing of the opinions of individuals.
These examples could be multiplied infinitely. The result would always be the same. It was by derivation from this error that Burke said freedom is a power. 2 Freedom is a power only in the sense that a shield is a weapon. So when one speaks of possible abuses of the principles of freedom, such an expression is inaccurate. The principles of freedom would have prevented anything under the heading of abuses of freedom. These abuses, whoever their author, taking place always at the expense of another’s freedom, have never been the consequence of these principles, but rather their reversal.
The circumscription of political authority, within its precise limits, does not tend to weaken that necessary authority. On the contrary, it gives it the only real strength it can have. The jurisdiction of authority must be scrupulously limited; but once that jurisdiction is fixed, it must be so organized as always to be capable of attaining swiftly and completely all the purposes within its remit. Freedom gains everything from the government’s being severely confined within the bounds of its legitimacy; but it gains nothing from government’s being feeble within those bounds.
The weakness of any part of government whatsoever is always an evil. That weakness in no way diminishes the drawbacks to be feared, and it destroys the advantages to be hoped for. In loosening public safeguards it places absolutely no obstacles to usurpation, since usurpation results from powers the government encroaches upon and public safeguards from powers which belong to it legitimately. Now, in weakening government, you force it to encroach. Unable to attain its necessary purposes with the means which belong to it, in order to attain them it has recourse to means it usurps, and from that usurpation, so to speak forced, to spontaneous usurpation, boundless usurpation, there is but a single step. If you extend government to everything, however, lovers of freedom and all independent men, that is to say everything on earth which has some value, will not be able to submit to such an idea. They would readily have accepted that the government be all-powerful within its jurisdiction; but constantly finding it transgressing that jurisdiction, they will want to diminish a power which they will not be able to limit. In that way, they will organize, as we have seen in a number of examples, governments which are too weak, and accordingly become usurpatory. It is quite unnecessary to sacrifice the least part of the principles of freedom for the organization of legitimate and sufficient government authority. The principles coexist with this authority, both protecting it and protected by it; for they stand against the possibility that factions may overthrow it, by laying claim to these rights of society, opposed to those of individuals, these axioms of unlimited sovereignty, this despotism of the so-called general will, in a word, this popular power without limits, dogmas which are the pretext for all our upheavals and which have been represented as principles of freedom, while they are precisely the opposite.
The principles of freedom, such as we have defined them, are useful and necessary to everybody, for they preserve the rights of all people as individuals, those of society and those of government. These principles are the sole lasting means of real happiness, of assured peace, of ordered activity, of improvement, of tranquillity and durability.
That this book has dealt exclusively with issues connected to civil freedom does not mean to insinuate that political freedom is something superfluous. Those who would sacrifice political freedom in order to enjoy civil freedom the more peacefully are no less absurd than those who would sacrifice civil freedom in the hope of further extending political freedom. The latter sacrifice the end to the means. The former renounce the means under the pretext of achieving the end. One could apply to taxation all the arguments used against political liberty. One might say that in order to conserve what one has it is ridiculous to begin by sacrificing a part of it. Provided that the people are happy, it is sometimes said, it matters little if they are free politically. But what is political freedom? It is the ability to be happy without any human power being able arbitrarily to trouble that happiness. If political freedom is not one of the individual possessions nature has given man, it is what guarantees them. 4 To declare it worthless is to declare the foundations of the building one lives in superfluous. Those in government, the argument continues, have nothing to gain from the unhappiness of the governed. Consequently, political freedom, that is, the safeguards of the governed against the government, is scarcely necessary. This assertion is not correct, however.
First, it is not at all true that the interests of the governors and the governed are the same. The governors, whatever the political organization, being always limited in number, are threatened with loss of power if others attain it. They therefore have an interest in the governed not getting into government, that is to say, they clearly have an interest distinct from that of the governed. I have said elsewhere 5 that property tended to circulate and spread, because owners remain owners when others become such. For the opposite reason power tends to concentrate. As a result, as soon as a man passes, by whatever means, from the class of the governed to the class of the governors, he adopts the interests of the latter. This is the spectacle offered in Rome for the most part by the defenders of the popular cause when success crowned that ambition; and we see the same thing among the ministers in England.
Representative government does not lift this difficulty. You choose a man to represent you because he has the same interests as you. By the very fact of your choosing him, however, your choice placing him in a different situation from yours gives him a different interest from the one he is charged with representing.
This drawback can be prevented by the creation of various sorts of positions in government invested with different kinds of powers. Then the holders of these powers, mutually contained in such a way as to be unable to make their own interests prevail, draw close to those of the governed whose interests are the average ones of everybody. Such is the advantage of the division of powers. One should not delude oneself, however, as to the efficacy of these devices or flatter oneself that these two sets of interests ever get to be amalgamated completely.
An incontestable maxim is that it is always in the interests of the greater number that things go well, rather than badly. It is sometimes in the interests of the smaller number that things go badly rather than well.
In the second place, if we examine the different ways in which the governors can abuse their power, we will find that their interest is not at all not to abuse it, but to do so only to a certain point. For example, they have an interest in not dissipating the state’s revenues, in such a way as to impoverish it and remove all its resources. But they like to appropriate the largest possible portion of these revenues, to give them to their creatures and to use them in pointless pomp and display. Between what is right and necessary and what would be obviously dangerous, the gap is vast, and assuming prudence and an ordinary degree of patriotism in the governors, we may properly suppose that if they are not contained they will get as close as possible to this latter line without passing it. It is the same with military ventures. They will not expose themselves to being overwhelmed by the numbers of their enemies. They will not draw neighboring nations on to the home ground by attacking them gratuitously. They can indulge at will, however, in warlike enterprises. They will take advantage of this ability by provoking or continuing wars which, without entailing the loss of the State, will add to their power, which always increases in times of danger. To this end they will sacrifice public peace and the well-being of many citizens. It is the same furthermore with despotic actions. The governors will avoid causing popular revolt by multiplying vexations beyond all measure. They will allow themselves smaller oppressions, though: these are in the nature of things. They are in the personal interest of the individual governors. When they are not in their lasting or well-understood interest they are likely to be in their passing interest, their passions and their whims, which suffices for us to anticipate and fear them. The very supposition that they will bring to these abuses a certain restraint rests on the prudence and enlightenment we attribute to them. But they can be misled by false initiatives, carried away by hateful passions. Then all moderation will disappear and excesses will reach a peak. 6 To say that the interests of governments are always consistent with those of the governed is to understand the interests of governments abstractly. This commits with respect to government the same error Rousseau commits with regard to society. There is a note to add. Let us for a moment accept this principle. Let us agree that a monarch, separated by an immense distance from his subjects, has nothing to gain in happiness or even by way of caprice, from offending individuals. The government is not made up solely of the man who is at the head of the State. Power subdivides; it is shared among thousands of subalterns. So it is not true that the numerous members of the government have nothing to gain from the unhappiness of the governed. Every one of them has, on the contrary, very close to him, someone of equal or lower rank, whose losses would enrich him, whose fields would improve his fortune, whose humiliation would flatter his vanity, whose banishment would rid him of an enemy, a rival, an inconvenient monitor. If it is true in some respects that the interests of the government, considered at the top of the social edifice, always coincide with those of the people, it is no less incontestable that the interests of the lower ranks of government can often be opposed to them. A coming together impossible to hope for would be necessary were we to suppose despotism to be compatible with the happiness of the governed. At the summit of the political hierarchy a man without personal passions, closed to love, hatred, favoritism, anger, jealousy, a man active, vigilant, tolerant of all opinions, attaching no amour propre to persistence in errors committed, consumed with the desire for good, and knowing, nevertheless, how to resist impatience and to respect the rights of the time. Further down the scale of powers, ministers endowed with the same virtues, in a position of dependence without being servile, in the midst of despotism without being tempted to fall in with it out of fear or to abuse it from self-interest, lastly, everywhere in the lowest positions, the same combination of rare qualities, the same security, the same love of justice, the same selflessness. If a single link of this chain of preternatural virtues happens to be broken, everything is in peril. The two halves thus separated would both remain beyond reproach, but the good would not be assured. The truth would no longer make its way accurately to the summit of power; justice would no longer descend, pure and whole, into the obscure ranks of the governed. A single wrong transmission is enough to mislead the government, to set it in arms against innocence. When it is claimed that political freedom is not necessary, it is always believed that relations are only with the head of the government, but in reality one has them with all the agents of lower rank, and the question is no longer one of attributing to a single man distinguished qualities and never-failing impartiality. One has to suppose the existence of a hundred or two hundred thousand angelic creatures above all the weaknesses and vices of humanity. 7 If we put the happiness of the governed in purely physical pleasures, it is possible to say with some reason that the interest of the governors, above all in the large modern societies, is almost never to trouble the governed in these pleasures. If we place the happiness of the governed higher, however, in the development of their intellectual faculties, the interest of most governments will be to stop this development. Now, since it is in the nature of the human race to resist when there is a wish to arrest the development of its faculties, the government will have recourse to constraint to achieve this. The result is that by a detour it will press on the physical pleasures of the governed in order to dominate them in areas of their existence which seem to have only a very distant connection with these pleasures.
Lastly, it is said every day that the clear interest of each man is not to infringe the rules of justice, and yet laws are made and punishments set up for criminals. So often is it noted that men endlessly deviate from their clear interest! One could surely expect much the same of governments!
Political freedom is accused of throwing people into continual agitation. One could easily show that while the conquest of that freedom can inebriate slaves, the enjoyment of it forms men worthy of its possession. But were this assertion against freedom proven, nothing would result from it in favor of despotism. To hear the supporters of this shameful politics you would believe it a sure guarantee of peace. If we look at history, though, we will see that absolute power almost always crumbles at the moment when long efforts having delivered it from every obstacle seem to promise it the longest duration.
The kingdom of France, says M. Ferrand, III, 448, “brought together under the unique authority of Louis XIV all the means of force and prosperity. . . . Her greatness had long been retarded by all the vices with which a moment of barbarism had overburdened her and whose rusty deposit it had needed almost seven centuries to remove entirely. But that rust had gone. All the springs had just received a last tempering. Their action had been made freer, their play swifter and more certain. They were no longer checked by a multitude of alien movements. Now only one movement gave motion to all the others. 8 Well, what is the result of all this, of this unique and powerful energy, of this precious unity? A brilliant reign, then a shameful one, then a weak one, and then a revolution. In the recently published Memoirs of Louis XIV, one finds this prince complacently recounting the details of all the operations for the destruction of the power of the body of judges (Parlement), of the clergy, of all intermediary powers. He keeps congratulating himself on the reestablishment or growth of royal authority. He holds it as merit on his part in his successors’ eyes. He was writing about 1666. A hundred twenty-three years later the French monarchy was overthrown.
In England absolute power was established under Henry VIII. Elizabeth consolidated it. People rave about the boundless power of this queen. But her successor was endlessly engaged in struggle against the nation people thought subjugated, and the son of this successor lost his head on the scaffold. The fourteen centuries of the French monarchy are constantly advanced as proof of the stability of absolute monarchy; but of these fourteen centuries, twelve were consumed by the struggle against feudalism, an oppressive system but as opposite as one could conceive to the despotism of a single man. There is no government, none, less monarchical than the government of the third race, especially in the last three centuries, says a writer who is moreover the most extreme supporter of absolute monarchy. 9 Apologists of despotism, the system you favor has three chances. Either it rouses the people to overthrow it; or it weakens the people, and then if foreigners attack they overthrow it; or if foreigners do not attack it, it wastes away more slowly, only in a way more shameful and just as certain. It has often been said that the prosperity of republics is fleeting. That of absolute power is much more so. No despotic state has lasted in full vigor as long as English freedom. The reason for this is simple. This political freedom, which serves as a barrier to government, is also a support for it, guiding it on its way, sustaining it in its efforts, moderating it in its onsets of madness, and encouraging it in its moments of apathy. Political freedom draws together around government the interests of all the various groups. Even when it struggles against government, it imposes on it certain controls which render its deviations less ridiculous and its excesses less odious. When political freedom is totally destroyed, government, finding nothing which regulates it, nothing which directs or contains it, tends to go out of control. Its steps become uneven and erratic. Sometimes it rages and nothing calms it. At others it is dejected and nothing can rally it. Thinking it was shaking off its opponents, it has got rid of its allies. Everything confirms this maxim of Montesquieu, in proportion as a monarch’s power becomes immense, his security diminishes. 10
It is rather curious to hear Louis XIV on despotism. He makes an apologia for it and not without skill.
“We must remain in agreement,” he says, “that nothing so securely establishes the happiness and peace of provinces, as the perfect coming together of all authority in the person of the sovereign. The least division made in it always produces very great misfortunes and, whether the parts detached from it end up in the hands of individuals or certain companies, they can never be other than in a violent condition. The prince who must keep them united in his person could not possibly permit their dismemberment without making himself responsible for all the misfortunes which flow from this. . . . Not counting the revolts and internal wars which the ambition of the powerful inevitably produces when it is not checked, a thousand other ills are born again from the sovereign’s slackness. Those closest to him, the first to see his weakness, are also the first who want to gain advantage from it. Each one of them necessarily having people who act as ministers to their greed, they give these at the same time license to imitate them. Thus by degrees corruption spreads everywhere and becomes the same in all occupations. . . . of all these various crimes, the people alone are the victims. It is only at the expense of the weak and the poor that so many people mean to accumulate their monstrous fortunes; instead of a single king whom the people ought to have, they have a thousand tyrants at once.” 11
All this reasoning is founded on the error this book seeks to refute. It is thought that despotism must be somewhere, either in the hands of one man or of several. Rather than despotism, however, we can establish in its place something called freedom. Then it does not at all follow from the fact that the head of the supreme power has only limited authority, that subaltern agents possess what would make his authority absolute. They too have only limited authority. Far from oppression spreading and descending from rung to rung, all are contained and checked. Louis XIV paints us a picture of a free government as if despotism were everywhere in it and freedom nowhere. The complete opposite is the case. Despotism is nowhere in it because freedom is everywhere. The weakness of an absolute government is the misfortune of peoples, because power drifts randomly and the strong seize hold of it. Wisely established limits are the good fortune of nations because they circumscribe power, in such a way that no one can abuse it.
Political authority not being limitless, it is clear that the duties of individuals toward it are not unlimited. These duties diminish in proportion to the government’s encroachments on aspects of individual life outside its jurisdiction. When these encroachments are taken to the limit, it is impossible for resistance not to result.
Government is like taxation. Each person agrees to sacrifice a portion of his wealth in order to finance public expenditure, whose purpose is to assure him the peaceful enjoyment of what he retains; but if the state demanded from each person all his wealth, the guarantee it offered him would be illusory, since there would no longer be anything to which it could apply. Likewise each person agrees to sacrifice a part of his freedom in order to assure the remainder; but if the government invaded all his freedom, the sacrifice would be purposeless.
We know all the dangers of the only too well-known question of resistance. We know to what abuses and crimes it opens the way. No one today can utter the word revolution without an unease bordering on remorse. Nevertheless, whatever line one takes on this question of resistance, it will always present a lot of difficulties.
In countries where authority is divided, if the holders of that authority are in dispute, one has to choose between them, and resistance against one lot or the other is forced on us. The English constitution requires both chambers and the king to cooperate in the establishment of taxes and the making of laws. If the king wished to raise taxes in opposition to one of the two chambers, to obey the king would be to resist the lawful authority of Parliament. If one or both chambers wanted to pass a law independently of the royal sanction, to obey them would be to resist the lawful authority of the crown.
Even in those countries where power is concentrated in a single person, however, the question of resistance is less simple than it appears. It certainly rests with each citizen not to resist the government. It does not rest with him, however, to prevent others from resisting and overthrowing it. Now, if this government is overthrown, should one immediately rally around the new government? This principle would sanction every violent outrage. It would become a fertile source of the very ills one is seemingly striving to avoid, since it would give audacity the continual attraction of recompense, by legitimating initial success. Movements which overthrow usurping governments are acts of resistance, just as much as those which overthrow established ones. The overthrow of the Committee of Public Safety was quite simply an act of resistance. Should we have stayed submissive forever to the Committee of Public Safety? If we say all power comes from God, then Cartouche was one such power and Robespierre another. But the problem would still not be resolved. Former government can, after its fall, still have resources, supporters, and hopes. At what time, by what indication, according to what calculation, moral or numerical, does the duty of individuals, founded on divine right or on such other basis as one may choose to give it, get transferred from their former to their new masters? Finally, could one seriously make out the case that resistance is always illegitimate? Can one condemn it under Nero, Vitellius, or Caracalla? One may think one is getting out of the difficulty by way of abstract, general maxims, which seem to oust personal judgment. But the complexities and nuances of circumstance render these maxims useless and sterile in application.
Resistance can be of two kinds, negative disobedience or disobedience to the law, positive resistance or active opposition to government.
Let us deal first with negative resistance, a less complicated question and less dangerous to examine than that of positive resistance. It has nevertheless its own particular difficulty.
The authority of government can be limited in a precise way, because law can limit it. The limitation is external. It is easy to see if it is transgressed. It is not the same with the jurisdiction of the law, however. The law being the only written rule which can exist, it is much less easy to say what constitutes a transgression in it.
Pascal, 1 Chancellor Bacon, 2 and many others like them have cut short the discussion, by positing that in principle one must obey the law without questioning because it is the law. To refute this assertion, we need only identify its strict meaning.
Is the claim that the name “law” always suffices to enforce obedience? If a number of men or even one man with no official function call the expression of their individual wills the law, are the other individuals in society obliged to conform to this? An affirmative answer is absurd, but a negative one implies that the title “law” does not impose a duty to obey and that this duty supposes an anterior identification of the source from which that law derives.
Is the claim that questioning is permitted, when it is a matter of establishing that what is presented to us as law derives from a legitimate authority; but that this last point being cleared up, examination has no further place regarding the actual content of the law?
In the first place, if we wish always to allow for the inevitable abuse of all the faculties man has been granted, the examination of the legitimacy of legislative authority will open the way to disturbances just as great as examination of the law itself.
Secondly, an authority is legitimate only in virtue of the function given to it. A municipality and a police court magistrate are legitimate authorities. They would cease to be such, nevertheless, if they assumed the right to make laws. In all systems, therefore, individuals must be granted the use of their intelligence, whatever the system, not only for the understanding of the characters of the authorities but for judging their actions. This means the content of law must be examined, along with its sources.
We see therefore that Pascal’s proposition is illusory, once we do not want it to lead to absurdity.
Man has the right to use his learning, for it is the only instrument of understanding he has, to evaluate the source of a law. If you refuse him this, you lay yourself open to his stabbing you at the will of the first brigand calling himself a lawmaker.
Moreover, man possesses the right to examine the content of a law, since it is only in terms of the content that he can determine the legitimacy of its source. If you challenge his right here, you allow the most subaltern of authorities endless and disorderly encroachments on all existing authority.
Note that the very people who declare implicit obedience to the laws to be strictly binding always make an exception to the rule of what touches them. Pascal excepted religion. He absolutely did not bow to civil authority in religious matters; and he braved persecution for his disobedience in this respect.
Driven by the determination not to recognize any natural law, Bentham necessarily had to maintain that law alone created offenses, that any action prohibited by law became a crime; 3 and in this way pigheadedness kept this writer, who, it must be added, stands out on every page against the mistakes and encroachments of government, back in the ranks of the apologists of the most absolute and servile obedience.
Fortunately, he refutes himself in his definition of offenses. “An offense,” he says, “is an act from which ill results.” 4 But does the law which forbids an action from which no ill results create an offense? Yes, he replies, for in attaching a penalty to that action, it ensures that an ill results. 5 On this reckoning, the law can attach a penalty to my saving my father’s life, to my not killing him. Would this suffice to make filial devotion a crime, and parricide an obligation? And this example, horrible though it be, is not an empty speculation. Have we not seen the condemnation, in the name of the law, in a thousand political revolutions, of fathers for having saved their children, of children for having succored their father?
Bentham refutes himself much better, when he speaks of imaginary offenses. 6 If the law created offenses, no offense created by the law would be imaginary. Anything the law had declared criminal would be such.
The English author makes use of a comparison very apt for clarifying the question. Certain actions innocent in themselves, he says, are ranked among the offenses, just as among certain peoples healthy foods are treated as poisons or unclean things. 7 Does it not follow that, just as the mistake of these peoples does not turn into poison the healthy food they envisage as such, the law’s mistake does not convert into offenses the innocent actions it declares guilty? It endlessly happens that when we are talking abstractly about law, we assume it is what it ought to be. When we are practically concerned with what it is, we find it to be quite other. Hence the endless contradictions in theories and terms.
The word “law” is as vague as the word “nature.” To abuse the latter is to overthrow society. To abuse the former is to tyrannize individuals. If we have to choose between the two, at least the word “nature” evokes an idea virtually the same for all men. The word “law” can be applied to entirely opposite ideas.
When our orders have included murder, informing, and spying, these orders have not been in the name of nature. Everyone would feel that there was contradiction in the terms; these have been demanded of us in the name of the law, so there was no longer a contradiction.
To wish to leave nature entirely out of account in a legislative system is to take away from the laws simultaneously their sanction, their basis, and their limit. Bentham even goes so far as to say that any action, however neutral, being liable to prohibition by law, then we must owe to the law the freedom to sit down or stand upright, to enter or leave, to eat or not eat, because the law could forbid us these. 8 We owe this freedom to the law, just as the vizier who gave thanks every day to his highness that his head was still on his shoulders was indebted to the sultan for not having been beheaded. 9 But any law which pronounced on these unimportant actions would have pronounced illegitimately; it would not have been a law.
Obedience to the law is without doubt a duty; but this duty is not absolute, but relative. It rests on the supposition that the law flows from its natural source and is confined within legitimate limits. This duty does not cease absolutely when the law deviates from this rule only in a few respects. Public peace is worthy of many sacrifices. We would be morally blameworthy if through too inflexible an attachment to our rights, we resisted all the laws which seemed to us to threaten them. No duty, however, binds us to these so-called laws, whose corrupting influence menaces what is noblest in our being, to these laws which not only restrain our legitimate freedoms and stand in the way of actions they have no right to forbid, but require from us ones contrary to the eternal principles of justice and pity, ones man cannot adhere to without being false to his nature.
The political theorist we have refuted above himself agrees with this truth. 10 If the law, he says, is not what it ought to be, should it be obeyed or violated? Should we stay neutral between the law which requires evil and morality which forbids it? We have to see whether the probable ills of obedience are less than the probable ills of disobedience. He recognizes in this passage the rights of individual judgment he denies elsewhere.
The doctrine of boundless obedience to the law has perhaps been the cause of more evil than all the other errors which have led men astray. The most execrable passions have dug in behind this convention, on the surface impassive and impartial, and indulged in every excess. Do you want to bring together under a single viewpoint the consequences of your doctrine of blind and implicit obedience to the law? Remember that the Roman emperors made laws, that Louis XI made laws, that Richard III made laws, that the Committee of Public Safety made laws! There exists no natural sentiment that a law has not forbidden, no duty whose fulfillment a law has not prohibited, no virtue a law has not proscribed, no affection a law has not punished, no treason a law has not remunerated, no heinous crime a law has not ordered. It is therefore necessary to put limits on this alleged duty of obedience. It is necessary to identify those characteristics which mean that a law is not a law.
Retrospective operation is the first of these. Men have consented to the fetters of law only in order to attach to their actions definite consequences, according to which they might direct and choose the line of behavior they wished to follow. Retroactivity robs them of this benefit. It violates the terms of social agreement. It conceals the price of the sacrifice it has imposed. Governments, having neglected the safeguards they should have taken, often think they can make good their fault by extending the influence of laws which experience has shown them to be necessary over the past itself. The atrocious aspect of a crime, the indignation it incites, the fear that a guilty person’s going unpunished, as he takes advantage of the law’s silence, may encourage other guilty people, even after the law has pronounced, these sometimes lead wise men to justify this extension of government. This is the annihilation of all justice, making the governed pay the penalty for the lack of foresight of their governors. Better to let a man guilty of the most odious crime escape than to punish an action not prohibited by an existing law.
A second feature of illegality in the laws is the prescription of immoral actions. Any law demanding informing or denunciation is not a law. Any law which interferes with the propensity of man to give refuge to anyone asking for shelter is not a law. Government is instituted to oversee things. It has the means of accusation, pursuit, exposure, handing over, and punishment. It does not have the right to make these duties, necessary but painful, fall on the individual, who occupies no official position. It must respect that sensibility in citizens, the most precious part of our being, which leads us to unquestioning pity and help for the weak oppressed by the strong.
It is to make individual pity inviolable that we have made the authority of government commanding. We wanted to conserve in ourselves feelings of sympathy, by charging government with the severe duties which might have wounded or withered these feelings. I make an exception, nevertheless, of crimes against which even sympathy itself rises up. There are actions so atrocious that all men are disposed to agree on their punishment. Then the prosecution of guilty people is not repugnant to their affections, nor does it dull their sensibilities, nor diminish their moral sense. But these actions are very few. We can positively rank in this category only criminal assaults against human life. Attacks on property, although very criminal, do not at all rouse in us sufficient indignation to stifle all pity. As for misdemeanors which we might call artificial, in the sense that they are misdemeanors only because they infringe certain positive laws, to force individuals to support prosecution of these is to harass and degrade them. I have sometimes wondered what I would do if I were trapped in a town where it was forbidden under pain of death to give shelter to citizens accused of political crimes. My answer to myself was that if I wanted to make my life secure, I would give myself up to imprisonment as long as that measure was in force.
Any law which divides the citizens into groups, which punishes them for what is not within their control, which makes them responsible for other actions than their own, any such law is not a law.
It is not, let us repeat, that the resort to resistance, always dangerous, is to be recommended. It puts society in peril. Let it be forbidden, not out of deference to a usurping government, but out of consideration for the citizens who are deprived of the benefits of living in society by continual struggle. As long as a law, although bad, does not tend to deprave us, as long as the encroachments of government demand only sacrifices which render us neither base nor savage, we can acquiesce in them. We compromise only on our own behalf. If the law demands, however, that we trample on our affections or duties, if, on the absurd pretext of a gigantic and false devotion to what it by turns calls monarchy or republic, or prince, or nation, it forbids us fidelity to friends in need, if it demands from us treachery to our allies, or even the persecution of vanquished foes, then anathema and disobedience to this corrupting government and to the drafting of injustices and crimes which it decorates with the name of law.
A positive duty, general and unreserved, whenever a law seems unjust, is not to become its executor. This passive resistance entails neither upheavals, nor revolutions, nor disorders. It would be a fine spectacle to see a criminal government in vain drafting sanguinary laws, mass banishments, and deportations and finding in the vast and silent nation trembling under its power no executor of its injustices, no accomplice of its heinous crimes.
Nothing excuses the man who lends assistance to a law he believes wicked, the judge who sits in a court he believes illegal or pronounces a sentence of which he disapproves, the minister who gets a decree carried out against his conscience, the satellite who arrests a man he knows to be innocent to hand him over to his executioners. Under one of the most oppressive governments which has ruled France, a man seeking a post exonerated himself from this move by saying that his only alternative was between obtaining a position or stealing on the public highway. But if the government refuses your requests, someone replied to him, will you take to stealing then?
Terror is no more valid an excuse than all the other base passions. Woe betide those eternally compromised men, on their own say-so, tireless agents of all the present tyrannies, and posthumous denunciators of all those overthrown ones.
We have innumerable proofs of this. These men never get over the dishonor they have accepted. Their broken spirit never regains an independent outlook. We pretend in vain, whether out of calculation, or kindness, or pity to listen to their wretched, faltering excuses. In vain we seem to be convinced that by some inexplicable marvel they have suddenly regained their long since vanished courage. They themselves do not believe it. They no longer have the ability to hope on their own behalf. They drag after them the profound memory of their inexpiable opprobrium, and their heads, bent under the yoke they have carried, stoop by habit, and helplessly so, to receive another yoke.
They tell us that they serve as executors to unjust laws only to lessen their severity, that the government whose depositories they agree to become would do worse ill still if it were remitted to less pure hands. Mendacious dealings which open the way to a boundless career for all crimes. Each man trades with his conscience and for each level of injustice the tyrants find worthy executors. I do not see why, on such arguments as these, one should not become the executioner of innocence, on the grounds that one would strangle it more gently. It is a thousand times better that atrocious laws should be carried out only by obviously criminal men.
These dubious though as yet untainted men lessen the odium of the most horrible institutions in the eyes of the people, who thus become accustomed to putting up with them. Without them, without the prestige of their overvaunted names, the institutions would be overthrown from the start by public indignation. Then, when the evil gets to a pitch, these worthy souls withdraw, leaving the field free to scoundrels. In this fashion, the service they do us is to cover assassins who are still weak with a shield, to give them time to become the strongest kind.
It would be a childish endeavor to seek to present individuals with fixed rules relative to revolution. Revolutions share in the nature of physical upheavals. Hidden causes prepare them. Chance decides them just as chance can retard them. The lightest circumstance, or an event less important than a thousand others which had produced no effect, sometimes suddenly gives the unexpected signal for the subversive movement. The contagious fury spreads. Spirits are raised. Citizens feel themselves pushed as though involuntarily to the overthrow of existing order. Chiefs are far outdistanced by the crowd, and revolutions operate without anyone really knowing as yet what people want to destroy and what they want to build.
It would also be impossible to judge revolutions in a general way by their consequences. These have not all been dire. The expulsion of the Tarquins established Roman freedom. The Swiss insurrection has given close to five valuable centuries of peace and good fortune to Switzerland. The banishment of the Stuarts has given England a hundred twenty years of prosperity. The Dutch are indebted to the rebellion of their ancestors for a long enjoyment of peace and civil freedom. The American uprising has been followed by political arrangements which permit man the freest development of all his faculties. Other revolutions have had different results: that of Poland, for example, that of Brabant under Joseph II, several in Italy, and yet others.
It is only to governments that one can give useful advice for the avoidance of revolutions. The most absolute resignation on the part of individuals is a powerless guarantee against these terrible crises, because that resignation cannot exceed certain limits. Long-lasting injustice, repeated and growing, insolence, more difficult to endure even than injustice, the intoxication of power, the shocks of government which offend all interests in succession, or its negligence which refuses to listen to complaints and lets grievances accumulate: these things produce, sooner or later, such fatigue, such discontent, that all the counsels of prudence cannot stop that mood. It penetrates all minds with the air that is breathed. It becomes habitual feeling, everyone’s idée fixe. People do not get together to conspire; but all those who do get together do conspire.
It is in vain then that the government aspires to maintain itself by force. It is a matter of appearances. The reality does not exist. Governments are like those bodies struck by a thunderbolt. Their outer contours are still the same, but the least wind, the slightest shock, are enough to reduce them to dust.
Whatever physical means surround those in power, it is always public opinion which creates, gathers together, keeps available, and directs these means. These soldiers who seem to us, and indeed are at such and such a given moment, blind machines, these soldiers who shoot their fellow citizens indiscriminately, as though without pity, these soldiers are men, with moral faculties, with sympathy, sensibility, and a conscience which can suddenly awake. Public opinion has the same sway over them as over us, and no order can affect that sway. Watch it running through the ranks of the French soldiery in 1789, transforming into citizens men brought together from all parts, not just of France, but of the world, reanimating spirits crushed by discipline, enervated by debauchery, driving the ideas of freedom into these ignorant minds like a prejudice, a new prejudice breaking the bonds which so many ancient prejudices and entrenched habits had woven. Later on look at the changeable and swift opinion, sometimes detaching our soldiers from their leaders, sometimes rallying them around the latter, rendering them by turns rebellious or devoted, defiant or enthusiastic. In England, after the death of Cromwell, watch the republicans, concentrating all power in their hands, having at their disposal armies, treasure, civil authorities, Parliament, and the courts. Only dumb opinion was against them; suddenly all their resources are dissolved, everything is shaken and crumbles.
Choke malcontent opinion in blood is the favorite maxim of certain statesmen. But you cannot choke opinion. Blood flows, but opinion survives, takes up the charge again, and triumphs. The more repressed it is, the more terrible is it. 11 When it cannot speak it acts. “In London,” one Englishman says, “the people express themselves through petitions; in Constantinople by means of fires.” He might have added that in London the monarch’s measures are criticized. In Constantinople he is not censured, merely strangled.
Shall we conclude from the fact that individual wills have little influence on the causes of revolutions that in the midst of these social convulsions, each person battered by the storm can surrender himself without resistance to the ungovernable waves, live from day to day, submitting to the events whose rapid succession drags him along, taking counsel from chance? I do not think so. In the stormiest of circumstances there is always a direction pointed out by morality. Therefore there is always a duty to fulfill.
Two movements are natural to any nation overthrowing institutions it finds oppressive or vicious. The first is to wish to see everything destroyed and constructed anew, the second to display implacable severity to those who profited from the vices of the former institutions. These two movements are precisely what makes revolutions dire, what takes them beyond the people’s needs, prolongs their duration, and jeopardizes their success. Enlightened men must strive to stop or suspend them.
People say we should take advantage of periods when everything is shaken up in order to reshape it all. The Constituent Assembly is party to this indeed very specious sophism. He who would have qualms about overthrowing an edifice still in existence, and offering a tolerable shelter, finds it legitimate to bring about the ruin of a half-destroyed edifice, in order to raise in its place one more regular in its parts and overall. Yet from this there result all the greatest evils of revolutions. Not only are all the abuses related, but they result from all the ideas. The agitation is communicated from one end to the other of the immense chain. One abuse destroyed, a second of them is attacked, and a third, and people get excited during the struggle. Soon they see everything as an abuse. On this basis they appeal from the present majority to the future majority which they flatter themselves they will either dominate or convince. They run through the whole circle of human ideas. They run ahead of opinion, always hoping to drag it behind them.
Ordinarily there are two stages in revolutions, a first when unanimous feeling overthrows what everybody finds intolerable, a second when by means of an artificial prolongation of a movement no longer nationwide, there is an attempt to destroy everything contrary to the viewpoint of a few. If the enlightened men can stop the revolution at the first stage, the chances of success are good. The revolutions where this principle has been observed have been the shortest, happiest, and least bloody. The Tarquins oppressed Roman freedom. They were driven out. Otherwise, however, the whole organization of Rome stayed intact. The agitation stopped, calm was reestablished, the Republic rose and steadied itself. Doubtless in conserving constitutionally everything which was not royalty, Rome conserved very numerous abuses. These abuses, however, were proportionate to the state of opinion. If the kings, the priesthood, and the patricians of Rome had all been overthrown simultaneously, the revolution would never have finished, and Rome would have been annihilated.
In England in 1688 the Stuarts were driven out, but nothing new was built. The Commons remained, the Peers remained, the Magna Carta and the constitutional monarchy remained. All the elements of the established order were reassembled and brought together and combined. The result was a constitution which has already given England more than a century of good fortune.
It is the same with the Americans. They have retained almost all the institutions which thrived among them before their independence. By contrast, in the case of nations which reject all their memories and think everything must be changed, reformed, and built from scratch, revolutions never end. Interminable divisions tear these peoples apart. With everyone judging according to his own lights the best that is possible, or practical, or ideal, there are as many revolutions, at least attempted, as there are diverse opinions on this inexhaustible subject. Each hidden interest adopts one approach as its standard, and the nation succumbs sooner or later to lassitude, its resources depleted.
An improvement, a reform, the abolition of an abusive practice, all these things are useful only when they follow what the nation wants. They become fatal when they precede it, because then they are no longer improvements but tyrannical acts of force. The important thing is not that they take effect quickly but that the public outlook moves in this direction and that the institutions are at one with the ideas.
Individuals have the same duties to society as society to individuals. It has no right to stop the development of their intellectual faculties nor to put limits on their progress. They, however, have no right to stand in judgment on the progress society should make and drag it violently toward a purpose going beyond its present wishes. By what right might a minority meditate on changes of which the majority disapproved? Might this be in terms of a greater enlightenment or wisdom than the rest of the citizens have, or a greater capacity for sound judgment as to what is useful? But by what signs will you recognize these quite exceptional qualities in a minority? Who will be judge of these characteristic signs? The minority themselves probably, since the majority cannot be consulted. Thus it is from its private eminence that this minority derives its mission; I am about as fond of kings who derive their power from God or their swords.
All these rushed reforms have as devices for freedom, improvement, and enlightenment all the drawbacks with which we have reproached government; they put force in place of reason. Would it not be absurd to forgive the supporters of revolution for what we detest in the agents of government?
Men who get ahead of opinion fall without knowing it into a very bizarre contradiction. In order to justify their dire initiatives, they say that they absolutely must not steal from the present generation the benefits of the system they are claiming to be establishing; then, to excuse the sacrifice of the present generation, they exclaim that only by narrow calculation is it not sacrificed without hesitation to the immense weight of future generations.
These men complain constantly of ill will: a new contradiction in terms. Are they not acting in the name of the people? Do they not rest everything they are doing on the general will? So what can ill will be? Can there be a mass will to which all individuals are opposed? To listen to them, you would think ill will is a magic power which by some miracle or other forces the people constantly to do the opposite of what they wish. They attribute the misfortunes their premature policies occasion to the opposition such policies encounter. This is no excuse at all; one should not make changes which provoke such opposition. The very difficulties these changes encounter are a condemnation of their authors.
There is a point of view from which the legitimacy of violent measures in the pursuit of improvement has not yet, to my knowledge, been envisaged. If there were a system of government perfect in all its parts, after the consolidation of which the human race had merely to relax, one might be excused for dashing, in sudden and violent effort, toward this system, at the risk of offending individual people or even whole generations. The sacrifices would be compensated for by the eternity of happiness assured to the long line of future generations. But no government is perfect. Improvement is gradual and indefinite. When you have once improved some of your institutions, many other desirable improvements will remain. The very improvement you have established and achieved will need further refinements. Thus you are not as you imagine doing uncertain and temporary harm to achieve positive and lasting good; you are doing certain and positive harm in exchange for uncertain, relative, and temporary advantage.
“The National Assembly,” said Chamfort, “in 1789 gave the French people a constitution stronger than itself. It must hurry to lift the nation up to this height. . . . 12 Legislators must act like those skillful doctors who, treating an exhausted sick person, help the digestion of revigorating food by means of stomachic medicine.” 13 The unfortunate thing in this comparison is that legislators are most of the time patients who call themselves doctors.
A nation cannot be sustained at a level to which its own disposition does not lift it. To sustain it there one would have to treat it violently, and the very fact that it was being treated violently would bring it back down and it would collapse.
For tyranny, Machiavelli says, everything must change; 14 one could likewise say that to change everything one must resort to tyranny. That is what people do.
When a nation is shallow and imitative, it finds nothing more powerful than editorial slogans. They are short, they seem clear, they are inscribed easily in the memory. Cunning men throw them to fools who seize them, because they are thus spared the trouble of thinking. They repeat them, because this gives them the appearance of understanding. Hence it arises that propositions whose absurdity astonishes us when they are analyzed, slip into a thousand heads and are repeated by a thousand tongues, such that one is endlessly reduced to proving what is obvious. Among these dire slogans, there is one we have heard repeated a thousand times during our Revolution, one whose repetition all violent revolutions invite; it is that despotism is necessary to establish freedom. This axiom justifies all oppressions along with their indefinite prolongation, since the duration of this despotism to which it is claimed that freedom will owe its birth cannot be specified.
Freedom is priceless, however, only because it gives our mind precision, our character strength, and our souls elevation. All these benefits of freedom depend on its existing in reality. If you use despotism to bring in freedom, you get only its worthless forms; the essence will always escape you. The victory you win is opposed in its very essence to the proper spirit of the institution. And just as its successes will not persuade the conquered, so they will not reassure the conquerors.
What must we say to the people in fact, so that they will get the advantages of freedom into their minds? You were subject to privileged castes; most people lived for the ambition of the few. Unequal laws protected the strong against the weak. You had only precarious enjoyments, that is, rights, of which despotism threatened to rob you at every moment. You took part neither in the making of your laws nor in the election of your public officials. All these abuses are going to disappear. All your rights will be rendered to you. The men who want to form between despotism and freedom some kind of insane alliance, however, what can they say? No privilege will separate the citizens, but at all times men who seem to us enemies will be smashed with no right to a hearing. Virtue will be the only distinction among men; but those most given to persecution and violence will create for themselves by means of tyranny a patriciate guaranteed by terror. The laws made by the will of the people will protect property; but at every moment the fate of individuals or groups under suspicion will be confiscation. The people will elect their magistrates, but if they do not do it according to requirements prescribed in advance, their choice will be nullified. Opinion will be free, but any opinion contrary not only to the general policy but also to its slightest day-to-day enactments will be punished like a violation. So, following a revolution against despotism, against the enslavement of opinion, despotism is found reinforced a thousandfold, and opinions are a thousand times more enslaved. To each word, each gesture, each outpouring of friendship, each cry of unhappiness, a fearful influence is attributed. Discussion of the victorious opinion is banned. The outrages committed by the fallen government are recalled in exaggerated form in order to stifle thought. Thought control is the distinctive mark of the new government. That men be made free, they are hounded with the fear of torture. Tyrannical government being denounced, the most tyrannical of governments is constructed.
To sustain what is thought to be freedom by despotic means requires the invention of far more persecution and deception than straightforward governmental control does. It is not enough to destroy an innocent man; he must be calumniated in the eyes of all. It is not enough to give power to those the people reject; the people must be forced to choose them. Forbidding press freedom is not enough; newspapers must parody it. It is not enough to impose silence on representative assemblies; a worthless simulation of opposition must be set up, tolerated as long as it is puerile, and dissolved when it gives offense. It is not enough to dispense with the nation’s will; the addresses of a minority calling itself the majority must be put forward. All the time things are dragged far off course by increasing difficulties. There is absolutely no end to a tyranny seeking to extract from people by force the appearances of consent.
The war against public attitudes is less evil when the despotism is blatant, since it is not of the essence of despotism to depend on them. Usually despotism secures at least domestic calm, because it can rule more easily in silence. Institutions claiming to be free ones, however, when they employ despotic means, bring together all the ills of a monarchy under an oppressive tyrant with all those of a republic rent by factions. Quiet men are persecuted for being apathetic, ardent men because they are dangerous. Servitude guarantees no rest; human activity lacks all purpose and joy. Freedom is adjourned until factions are destroyed. As long as freedom is postponed, however, factions are never destroyed. Despotism weighs on all the factions in turn; in the gaps between, there is nothing free. The coercive measures adopted by dictatorship, pending public approval, militate against this approval being realized. Such dictatorship flails around in a vicious circle, signaling an historic era it is destined never to achieve, since the means adopted on the pretext of achieving it prevent its ever happening. Force makes itself more and more necessary, growing anger feeds on itself, laws are hammered out like weapons, certain branches of law become declarations of war, 15 and the blind friends of freedom, who thought they could impose it by way of despotism, turn all free spirits against them, their only support the vilest toadies of power.
More: unjust laws directed against freedom’s enemies inevitably fall on its true friends. To invest governments with arbitrary power is to given them an interest distinct from that of the governed. This interest becomes then their sole concern, and it is only to make it prevail that they employ the wider means with which they were entrusted for the public good. It should not be thought that one can take the side of wickedness in one branch of the law, and stay true to justice in the rest. One single barbarous law will set the character of all legislation. Heated feelings or calculation produce the first law and fear or necessity the second. No just law can coexist with a single despotic measure. One cannot deny freedom to some people and accord it to others. Let us imagine a single harsh measure against people not legally convicted. You can no longer tolerate freedom of the press. It will be used to stir up the people in favor of victims who may be innocent. You can no longer respect individual freedom. Those you wanted to deprive of their rights will take advantage of this and merge with the rest of the citizens. You can no longer leave industry to itself. It will supply those proscribed with resources. Your friends will suffer the consequences of your actions against your enemies. Your enemies will benefit from what you do for your friends. Men would like compromises with freedom, to leave its circle for a day, because of some obstacle or person or given purpose, before returning to its order. They would like to have the security of the rules with the advantages of exceptions to them. Nature runs contrary to this. Freedom is a complete and ordered system. A single deviation destroys it, just as in arithmetical calculation a mistake of one digit or a thousand falsifies the result equally.
The second duty of enlightened men is more important still, since it is a function not only of prudence but of morality.
When an improper constitution or long-established custom confers on those in the governing group or on some class or other vexatious privileges or despotic usages, the fault lies not with the governing group nor with this class but with the nation which has tolerated what should not exist. No one is guilty if he profits from a faculty he found ready-established and which society had peacefully granted him. The people can reclaim their rights because these are imprescriptible. They can take away from government an unjust prerogative. They can deprive a class of an oppressive privilege. They cannot, however, punish either one of them. They have lost all right to demand compensation or to exercise vengeance for damage to which they had seemed to resign themselves.
In the absence of this principle, revolutions no longer have any term. An abominable, retroactive course is entered, where each step, on the pretext of a past injustice, leads to a present one. People fall into the same absurdity with which they reproach the supporters of the most defective institutions. Men are punished for what they were and could not not be. A revolution gets turned into an era of new inequality whose newness renders it only the more revolting. There are sown for the future the seeds of iniquity, regret, suffering, and resentment. The generations allegedly to be freed are bequeathed the seeds of discord, hatred, and misfortune.
The groups you proscribe, those grown rich on abuses, are at the same time the most cultivated. If you go so far as destroying even the individuals who compose them, you diminish proportionately the body of national enlightenment. The education of a nation is not the work of a day. It is not enough to strive to instruct that lively majority formerly kept in ignorance by an imperfect social order. The task is long. Pressing events will perhaps not wait until this task is achieved. Enlightened men have to be spread out between all the parties to preserve them from despotism. The Greeks pardoned captives who recited the verses of Euripides. 16 The least bit of enlightenment, the least germ of thought, the least refined sentiment, the least mark of elegance must be carefully protected. These are so many elements indispensable to social happiness. They must be saved from the storm. This is necessary both for the sake of justice and for the sake of freedom itself. For all these things, by more or less direct pathways, end in freedom.
Doubtless this duty is hard to fulfill. Revolutions scarcely begin before the friends of freedom find themselves split into two sections. On one side are ranged the moderate men, on the other the violent. Only these latter, however, remain united a long time, because the spur they have been given prevents their separating, and they are exclusively absorbed in an idea common to them. Moderate men, not being drawn by a dominant preoccupation, lend their ears readily to individual considerations. Pride awakens in them, courage is shaken, their steadfastness wearies, personal calculation, repulsed for a moment, takes up the charge again. Cowardice takes a thousand forms and disguises itself in a thousand ways to hide itself from its own gaze. It does not call itself only prudence, reason, wisdom, and knowing what is valuable; it sometimes assumes the title of independence. How many men have I seen leaving the most just and the weakest party, because they were, so they said, too independent to be associated with any party. This language heralded the fact that they were going to move to the stronger side, and their proclamation of independence was only a prouder wording of cowardice.
A terrible ally, fanaticism, very active in political questions, as in religious ones, is committed to the violent side. Fanaticism is nothing save the rule of a single idea which wishes to triumph at any price. It is probably more absurd still when the question is freedom than it is when the question is religion. Fanaticism and freedom are incompatible. One is based on examination; the other forbids research and punishes doubt. The one thinks through and evaluates all views; the other sees the most timid objection as an assault. The one seeks to persuade, the other issues orders. The one, in a word, considers the need for victory a misfortune and treats the vanquished as equals whose rights it is keen to recognize, the other hurls itself on all questions as if on enemy redoubts and sees in its adversaries only still-dangerous captives it must immolate, so as no longer to have to fear them.
Whatever the natural incompatibility between love of freedom and fanaticism may be, however, these two things combine easily in the minds of men who, not having contracted the habit of reflection, can receive ideas only on the word of others, more in the form of a mysterious revelation than as a sequence of principles and consequences. It is in the shape of a dogma that the notion of freedom dawns in unenlightened minds, and its effect then is as with any other dogma, a kind of exaltation, of fury, impatience with contradiction, the inability to tolerate the slightest reservation, the slightest change in the creed. This rule of faith, brought thus to bear on questions which touch all interests, on opinions which, subject to the law of circumstances, become criminal today when yesterday they were a duty, is much more to be feared than when it is enclosed in an abstract circle of theological subtleties. These subtleties leave in peace, in the bosom of their families, many men indifferent to shadowy discussions. What obscure life, however, what immobile existence, what unknown name could succeed in disarming fanaticism in the political field? This obscure life, this unknown name, this immobile existence, are in its eyes treasons. Inactivity seems punishable to it, domestic affections a forgetting of patriotism, happiness a suspect purpose. Those who desire or regret it, it will call conspirators. Armed for freedom, it bows joyfully before the harshest slavery, provided that it is exercised in the name of its cherished doctrine. It battles for the cause and renounces its effect. Severity, injustice, and slights of all kinds on the part of its leaders seem to it meritorious acts, as it were gauges of sincerity. It finds the educated bothersome because they find it hard to embrace an opinion without certain restrictions and nuances. It is suspicious of the person of proud spirit, because proud spirits experience some kind of antipathy to the strongest people and serve the powerful only with distaste. The only qualities it demands are belief and will. It sees in morality obstacles, weakness, and chicanery. All is well if the end is good. It violates laws because they are made only for the friends, not the enemies of the fatherland. It betrays friendship because there cannot be friendship between the people’s defenders and oppressors. It neglects its most solemn commitments because fulfilling them might supply dangerous men with means they could direct against public safety. It effaces even the very last vestiges of pity. It is moved not at all by the sight of grief, nor does it fade at all with age. We have seen old men, overcome with sufferings which told them that the end was near, strike their victims with a failing hand, showing themselves unyielding at the edge of the tomb and remaining pitiless in the presence of eternity.
Fanaticism has the fatal property that its very sincerity freezes the courage of those who wish to fight it. It is easy to stand up to the injustice of the wicked, because it is known that in the bottom of their hearts they render homage to those they persecute. It is nothing to attack frontally enemies recognized as such. We resign ourselves willingly to the hatred of these adversaries. We are separated from them by fixed barriers. We fight them in the name of everything which raises the spirit, everything dear to the heart. But to bring down on one’s head the distrust of men one wishes to serve, to lose that popularity which is so vast a recompense for danger, such a means of consoling and saving innocence, to repel the repeated applause of an excited crowd listening to you, responding to you, saluting you, and following you like some tutelary God, to give up the support of one’s party without gaining the good will of the opposing party, to be disowned by those very people who share your opinions most keenly and who are devoted enthusiastically to the cause you cherish, that is real discouragement, the deepest misery. When disinterested men, brave, ardent for freedom, free from all egoism or low passion, in their suspicions come to pursue the friends of humanity and morality, they are animated, in the midst of their mistakes, by a conviction so firm that it takes away from those they suspect part of the sense and the strength of innocence.
This is still not the whole story. Fanaticism, contained initially in a few energetic minds, seems to communicate itself by rapid contagion to timid and weak characters. They learn its language out of self-interest. They speak its language in order to please it. Soon, however, its ascendancy subjugates them. They become intoxicated by what they say. Each word they utter is a commitment into which they enter. They are driven forward in this course by the very feelings which might induce them to flee. Sometimes they dread their victims, more often their own side. If mutual recognition were possible, their terror would be less; but they all react on each other. Thus in our country men made ferocious by fear got drunk on their own terror. Thus there spread over France this inexplicable vertigo which people called the Reign of Terror.
Fanaticism then loses even the qualities which ennoble it. It furnishes pretexts for all forms of vice. The ungrateful friend, the faithless debtor, the obscure informer, the prevaricating judge, find their apologia written in advance in the agreed language; and this banal justification, prepared for all crimes, succeeds in corrupting that host of equivocal souls, who have neither the audacity of crime nor the courage of virtue.
Once they reach this stage, revolutions destroy all morality. They break the regular sequence of causes and effects. They separate actions from their natural consequences. They break all equilibrium between obligations and sacrifices. There are no longer easy duties nor safe virtues. Everything becomes devotion or heroism; and charisma takes over all the vulgar souls incapable of these great efforts.
Each person in the sinking vessel seizes a plank and repels the companion in misfortune who would like to attach himself to him. 17 Each man abjures the links of his past life, isolating himself in order to defend himself and seeing in the friendship or misfortune which implore him only an obstacle to his safety.
One thing only keeps its price. It is not public opinion. There no longer exists any glory for the powerful nor respect for victims. It is not justice. Its laws are unrecognized and its forms profaned. It is wealth. Wealth can disarm tyranny and seduce some of its agents. It can appease proscription, making flight from it easier. In sum, it can spread a few material joys across a life which is always under threat. Thus shameful leanings form an alliance with the most unbridled manias. People amass wealth to enjoy possessions. They possess to forget inevitable dangers. The response to others’ misfortune is hardness, to one’s own, insouciance. There is blood-letting alongside festivities. In their fierce stoicism people reject sympathy; they throw themselves into pleasure in sybaritic voluptuousness.
Lost in this chaos, enlightened men no longer find any voice to respond to them. All reasoning seems perverted, and no one feels above reproach. Rectitude is a prosecuting voice to be got rid of, to be distorted for the sake of a peaceful life. Each man is haunted by the memory of some troubling fact, on which all his logic focuses. You may believe he is expounding a whole theory to you; he is really trying to justify an hour of his life.
One reflects, sorrowfully, on oneself, on morality, on the principles one has adopted from childhood. To remember some ideas of moderation or prudence is to be regarded as a traitor. One is regarded as culpable when one takes up with any zeal the cause of some unfortunate soul. Faced with all the evidence of disapproval one meets, one is tempted to reproach oneself with a crime, whereas in fact one is fulfilling a duty. Shame upon him, however, who, charged with preserving his country from the perils which the blind furies are preparing for it, him whose duty is to protect weak, oppressed, and defenseless beings, shame I say, if he loses heart. Woe to freedom’s friends if they compromise with that spirit of persecution whose nature is to scorn all compromise. Their cause is henceforth dishonored. Sooner or later, this spirit, not finding them zealous enough, will turn its weapons against them, snatch their banners from them, thrust them into the ranks of the enemy, and proscribe them as turncoats. Then they will have the courage to die, a sterile courage, for which the future will pay them little regard. For want of courage earlier, for not having struggled against injustice from its very first moves, they will die without glory, at once the victims and the authors of the crimes they have suffered.
One might believe that when revolutions calm down, a time of compensation or at least of rest begins for humanity’s friends. Sometimes, however, fate reserves for them one last and painful ordeal.
The people, weary of an oppression operating in the name of freedom, seem to ask, in order to resign themselves almost joyfully to a new oppression, only for a different name for this oppression. It is enough to tell the people straightforwardly that it is not in the name of freedom that they are being trampled underfoot. What a strange reversal of ideas. All the laws have been violated by an unlimited government, and it is not the laws that are invoked but a government of the same unlimited character. A boundless despotism has weighed hard on everyone, and the cry is not for freedom but for another despotism. All the rages which during the violence of revolutions proved so fatal are reproduced under other forms. Fear and vanity formerly travestied the party spirit in its implacable furies; their insane manifestations now surpass the most abject servility. The pride which survives everything scores another success in the baseness in which fear seeks refuge. Cupidity seems openly to sacrifice its opprobrium as a guarantee to tyranny. The new power is fortified by everything remembered. It inherits all the criminal theories. It thinks itself justified by everything which has happened before it. It parades its contempt for men and its scorn for reason. It fortifies itself on all the attacks and all the mistakes by the very people it has just repressed or punished. It is no longer subject to the brake of public opinion, which sometimes contains established despotism. It is absolutely without the purity of intention, the disinterestedness, the good faith which characterize the blind masses in the midst of their fury. Around it there gather every ignoble desire, every deft calculation, and every refined degradation. To its feet there hastens false argument, to astonish it with its zeal and surpass it in its cries, obscuring all ideas and calling the voice which would contradict it sedition. Intelligence comes to offer its services, intelligence which, separated from conscience, is the vilest of instruments. The apostates of all opinions gather swiftly, conserving from their former opinions only the habit of culpable methods. Crafty turncoats, famous in the annals of vice, slip into place; their quick dexterity carries them from yesterday’s to today’s prosperity, so that at all times they blight everything good, belittle everything elevated, and insult everything noble. Mediocre talents, joined with subaltern natures, set themselves up in the name of power as guardians of thought. They declare what questions the human mind may ponder. They allow it to frolic, subordinately, however, in the narrow enclosure they have conceded it. Anathema on its head, though, if it should ever break out of that enclosure, or scorn puerile subjects, or not abjure its celestial origin. Religion is no more than a vile instrument of government and reasoning only a cowardly commentary of power. The weirdest doctrines are arrogantly advanced. The prejudices of all the ages and the injustices of all countries are brought together as materials of the new social order. People go back to distant centuries and traverse faraway countries to put together from a thousand scattered parts a truly complete servitude which can be laid down as a model. The dishonored word flies from one mouth to another, never leaving from any real source, never carrying conviction anywhere, a tiresome sound, lazy and ridiculous, which leaves neither truth nor justice with any expression which is not soiled. Such was the reign of Charles II, the result of thirty years of civil wars, a forever shameful one, where we saw all the excesses of madness succeeded by all those of degradation.
Such a state is more disastrous than the most stormy revolution. One can at times detest the seditious Roman tribunes, but one is dejected by the contempt one experiences for the Senate under the Caesars. One may find Charles I’s enemies hard and guilty, but a profound disgust seizes us for Cromwell’s creatures. When the ignorant parts of society commit crimes, the enlightened classes stay blameless; and since the natural thrust of things sooner or later puts power back in their hands, they can easily restore a public opinion which is misled rather than corrupted. When these classes themselves, however, disavowing their ancient principles, shed their habitual decency and permit themselves execrable examples, what hope remains? Where can one find in the nation a germ of honor, an element of virtue? Everything is only mire and blood and dust. A cruel destiny, in all eras, for the friends of freedom. Unrecognized, suspected, surrounded by men incapable of believing in impartiality, courage, disinterested conviction, distressed in turn by the feeling of indignation when these oppressors are at their strongest and by that of pity when they have become victims, they have always wandered the earth, the butt of all parties, isolated in the midst of generations sometimes raging and sometimes depraved.
It is on them, however, that the hope of the human race rests. We owe to them that great correspondence across the centuries, which gives evidence in ineffaceable letters against the sophisms which all the tyrants renew. Owing to this correspondence Socrates has survived the persecutions of a blind populace. Brutus and Cicero are not entirely dead under the proscriptions of the infamous Octavian. Lucan and Seneca were able to defy Nero’s henchman, Boethius the prisons and the sword under Theodoric. Their example has done good long after their deaths. Let their successors not lose courage. The same rewards await them in a distant future, but one brilliant in glory. When they are no more, the truths they have repeated in vain will be listened to. No effort is wasted on that road where the nature of things necessarily leads men. It is a matter only of knowing how to struggle long-term, perhaps all one’s life.
Let them therefore raise their voices anew. Let them not abjure their principles. They have nothing to reproach themselves with. They have need neither of expiation nor disavowal. They possess intact the treasure of a pure reputation. Let them dare to avow the love of generous ideas. These do not cast on them an accusatory light.
To no avail do the weariness of nations, the anxiety of leaders, the servility of political instruments form an artificial assent which people call public opinion. It is absolutely not this. Men never cut themselves off from freedom. To say that they do is to say that they love humiliation, suffering, destitution, and poverty. To represent them as absorbed in their domestic feelings and individual economic decisions is to paint them, by a crude contradiction, as both putting an excessive price on their possessions and none at all on the lasting nature of these. For security is nothing else but the lasting of things. To say that men can cut themselves off from freedom is to claim that they resign themselves painlessly to being oppressed, incarcerated, separated from what they love, interrupted in their work, deprived of their goods, harassed in their opinions and their most secret thoughts, and dragged into prisons and to the scaffold. Since security is instituted against these things, it is to be preserved from these scourges that we invoke freedom. It is these scourges the people fear, curse, and detest. Wherever and under whatever name they encounter them, they take fright and recoil. What they abhorred in what their oppressors called freedom was not freedom, but slavery; but if slavery were presented under its true names, its true forms, is it credible that they would detest it less?
However active the inquisition may be, with whatever care its precautions multiply, enlightened men always retain a thousand ways of making themselves heard. Despotism is to be feared only when it has choked reason in its infancy. Then the former can stop the progress of the latter and keep the human race in a long imbecility. When reason gets on the march, however, it is invincible. Its supporters may perish, but it survives and triumphs. There exists only a moment to proscribe it with advantage. Once this has passed, all efforts are in vain. The intellectual struggle is engaged, thought is separated from power, truth dawns in every mind.
After the inestimable advantage of being the citizen of a free country, no situation is perhaps sweeter than being the courageous commentator of a subjugated yet enlightened nation. Times when despotism, disdaining a hypocrisy it deems pointless, decks itself in its true colours and insolently deploys banners known for ages are not without compensations. How much better it is to suffer from the oppression of one’s enemies than to blush from the excesses of one’s allies. The defenders of freedom encounter then the agreement of the best part of the human race. They plead a noble cause openly to people and are seconded by the wishes of all men of good will. Persecution followed by glory is largely recompensed. He who succumbs confidently bequeaths to his contemporaries the care of defending his memory and completing his work.
Missionaries of truth, if the road is cut off, redouble in zeal and effort. Let light penetrate everywhere; if it is obscured, let it reappear; if it is repelled, let it come back. Let it reproduce, multiply, and transform itself. Let it be as indefatigable as persecution. Let some march bravely while others slip adroitly into place. Let the truth spread, sometimes resounding and sometimes repeated very low. Let all rational endeavors combine, let all hopes revive, let everybody work, serve, and wait. “There is no prescription for useful ideas,” said a famous man. 18 Courage can come back after despondency, light after ignorance, ardor for the public good after the sleep of indifference.
Despotism, immorality, and injustice are things so against nature that all it takes is an incident, an effort, a brave voice to pull man back out of that abyss. He comes back to morality by way of the misfortune which results from a general forgetting of morality. He comes back to freedom because of the oppression made to weigh on him by all power he has neglected to limit. No nation’s cause is hopeless. What could be more savage than England during the civil wars of Charles I and his Parliament? 19 What could be more degraded than that same England during the reign of Charles II? And yet, forty years after having offered the world horrible examples of savagery, twenty years after having given it shameful examples of license and baseness, England regained its place among the wise, virtuous, and free peoples, and has kept it.
This work, started long ago, has continued under several successive governments in France. Measures are recalled and censured in it which no longer apply. So are others, however, which still obtain, and consequently I do not think people will believe that I have sought to please today’s government by attacking yesterday’s. I have followed the principles, 2 independently of circumstances, and I have not deliberately turned aside either for praise or blame. So many errors which seemed to have become dead letters, so many sophisms one might have thought discredited, so many iniquitous practices apparently dead and gone, have reappeared, sometimes under the same names, sometimes with new ones, that I have come to think that I must speak out against these things, whether past or present, equally strongly. So many truths one might have considered universally recognized have been called into question or even put aside, without our being deigned a word of explanation or excuse, that I thought I must not enunciate a single truth, however obvious it might appear, without bringing to mind the evidence for it. My purpose has been to compose an elementary work. A work of this kind, on the fundamental principles of politics, has seemed to me to be lacking in all the literatures I know.
This work originally contained two parts, constitutional institutions and the rights of individuals, in other words, the means of public security and the principles of freedom. Since the first are contestable and the second incontestable, I thought I should present the latter separately.
I have therefore removed from my work everything on the forms of government. I had treated the full extent of this subject. The division of citizens into governors and governed, political powers, executive power and its exclusiveness, whether temporary or for the lifetime of the person in whom it is vested, the dangers of this exclusiveness in the election of the Head of State, the mode of election established in France, the tendency to military government of elective exclusiveness, the complexity of executive power, the objections which the history of so many ancient republics as well as modern revolutions furnishes against that complexity, the abuses natural to executive power, however it is composed, the guarantees against these abuses, the limitation of controls on the law of peace and of war, the right to resist taxes, the independence of the judiciary, accountability, the organization of the armed forces, the legislative power, abuses thereof, safeguards instituted or to be instituted against these abuses, the unlimited power which gives the executive exclusive initiative, the division into two chambers, the veto, the dissolution of legislative assemblies, popular election, in other words, and the advantages found only therein, the two systems substituted successively in France for popular elections, the formal description of a constitution in which all powers would be elective and all the rights of citizens recognized, the weak aspects of this constitution and the means of remedying these, such have been my research preoccupations. A generation must feel young and think forcefully, however, to involve itself with such discussions. In the amphitheater in Constantinople, amid the factions of the blues and the greens, 3 they would have been out of place. They would have brought out the suspicions of the former and wearied the frivolity of the latter.
When political questions have caused long agitation and numerous misfortunes, there is established in many minds a conviction that on everything connected with government reasoning is valueless. The errors of theorizing seem much more tiresome than abuses of practice. Since they are indeed more unlimited and incalculable in their results, the attempts of faulty theorizing have a disadvantage from which such abuses are free. A man bends to institutions he finds established, as to the rules of physical nature. He arranges, according to their very faults, his interests, his economic reckoning, and the planning of his life. All his relationships, hopes, means of employment, and happiness are organized around that which exists. During revolutions, however, since everything changes at every instant, men no longer know where they stand. They are forced by their own needs, and often also by the way they are threatened by government, to behave as if that which has just appeared must always subsist; and predicting nevertheless the next changes, they possess neither the individual independence which ought to result from the absence of security, nor security, the only compensation for the sacrifice of freedom.
It is therefore not surprising that after repeated revolutions, any idea of improvement, even abstract and separated from any particular application, is odious and inconvenient and that the aversion it inspires extends to everything which seems to indicate the possibility of a change, even in the most indirect way. It is quite understandable, moreover, that those with the reins of government favor this natural disposition. Even if we attribute to the governors the purest of intentions, they are bound to reserve for themselves the privilege of meditating on the good they want to do; or if they entrust this delicate task to some of the subordinate collaborators surrounding them, this can only be in part. They are happy to see that submissive and flexible minds are undertaking to indicate to them some of the detail needed for achieving their purpose or, better still, to make available to them by minor innovations the means government thinks it has discovered. The independent thinker, however, who claims to grasp at a glance the overall picture, which the governing group allow people to concern themselves with at the very most only in bits, and then functionally and without passing judgment, the philosopher who goes back to the first principles of power and of social organization, even when he isolates himself from present things, and fixing on his memories or his hopes, wishes only to speak with regard to the future or pronounce only on the past, seems to them nevertheless a presumptuous rhetorician, a tiresome observer, a dangerous sophist.
In this way the fatigue of the people combines with the anxiety of its leaders to circumscribe the domain of thought on all sides. It has been said that under the monarchy there was an intermediary class, the nobility, who conserved some independence but only insofar as this decorated and consolidated submission. Similarly, in the state of things we are describing, there forms an intermediary class which demands from reason only what is necessary to limit its sway. Educated men, but without power, elegant subalterns, who take style as the purpose and some restrained and secondary ideas as the means, set themselves up as organs of opinion, the supervisors of thought. They raise an altar to literature, in contravention of philosophy. They declare on which questions human intelligence may exercise itself. They allow it to frolic but subordinately and with circumspection, in the space they have granted it. Anathema on it, however, if it transgresses that space, if, not abjuring its celestial origin, it gives itself over to forbidden speculations, if it dares to think that its noblest destiny is not in the ingenious decoration of frivolous subjects, adroit adulatory praise, and sonorous declamation on unimportant subjects, but that heaven and its own nature have made of it an eternal tribunal, where everything is examined, weighed, and in the last resort judged.
When an inopportune mind wishes to launch itself thoughtlessly from abstract theory to violent practice and, trusting to its own perhaps incomplete and defective speculations, destroy and change everything, madness is probably present and crime even more so. Only perfidiously, however, could immobile, solitary thought be compared with solitary action or reckless advice. Action is for the moment; thought’s judgments are for centuries. It bequeaths future generations both the truths it has been able to uncover and the mistakes which seemed to it truths. Time, in its eternal progression, gathers and separates them.
In Athens, a citizen who deposited on the altar an olive branch surrounded with sacred little bands could freely explain himself on matters political.
I might be accused rather of dealing with obvious things and establishing inapplicable principles. Men who have renounced reason and morality find all one says in this direction so many paradoxes or commonplaces; and since truths are disagreeable to them, above all in their consequences, what constantly happens is that they disdain any initial assertion as not needing demonstration and protest against the second and the third as unsustainable and paradoxical, although the latter may obviously be the necessary and immediate conclusions of the former.
Stupidity is singularly fond of repeating axioms which give it the appearance of profundity, while tyranny is highly adroit in seizing upon stupidity’s axioms. Hence it arises that propositions whose absurdity astonishes us when they are analyzed slip into a thousand minds, are repeated by a thousand tongues, while men who want to agree are continually reduced to demonstrating the obvious.
I have quoted a lot in my book and mainly from living authors, or those recently dead, or from men whose very name is authoritative, such as Adam Smith, Montesquieu, and Filangieri. I have made a point of affirming that often I was only reproducing, with softened expression, opinions to be found in the most moderate of writers.
One habitual ruse of the enemies of freedom and enlightenment is to affirm that their ignoble doctrine is universally adopted, that principles on which rest the dignity of the human race are abandoned by unanimous agreement, and that it is unfashionable and almost in bad taste to profess them, thinking taken very seriously in France. I have tried to prove to them that this so-called unanimity is a lie.
An example more imposing still than the theories of even the most estimable writers has, it is true, come to the rescue of my principles, precisely while I was laboring to expound them. It is the conduct of the American government, such as it was pronounced by the President of the United States on his installation and such as it has been for the last ten years. 4
“Although the will of the majority,” said Mr. Jefferson, on 4 March 1801, “must prevail in all cases, that will, to be legitimate, must be reasonable. The minority possess equal rights which equal law must protect. To violate these rights would be an oppression. It is sometimes said that man must not be entrusted with his own self-government. But then how could one entrust to him the government of others? Or have angels perhaps been found, in the form of kings, to govern us? To prevent men from doing each other mutual harm and to leave them otherwise full freedom to manage themselves in the efforts of their work and in their progress toward improvement, that is the sole purpose of a good government. Equal and right justice for all men, whatever their condition or their belief, religious or political, peace, trade, straightforwardness with other nations, without insidious alliances with any, the maintenance of the governments of the individual States in all their rights, as the most convenient administration for our domestic interests and the most certain bulwark against antirepublican tendencies, the conservation of the federal government, in its full constitutional vigor, as the guarantee of our peace within and our security without, scrupulous attention to the right of election by the people, a sweet and sure correction of abuses, which otherwise the sword or revolutions destroy, when no peaceful remedy has been prepared, an unreserved acceptance of the decisions of the majority, a well-disciplined militia, our best safeguard in time of peace and during the first moments of a war, until regular troops can back it up, the supremacy of the civil over the military authority, economy in public expenditure, in order that the working class be taxed only lightly, faithful settlement of our debts and an inviolable respect for public confidence, the dissemination of education and an appeal to public rationality, against all abuses of whatever sort, religious freedom, press freedom, freedom of persons under the protection of habeus corpus and trial by juries impartially chosen, such are the essential principles of our government. The watches of the night of our wise men and the blood of our heroes have been consecrated to their triumph. This is the profession of our political faith, the educational text of the citizens, the touchstone by which we can appreciate the services of those in whom we put our confidence; and if we deviated from these principles in moments of error and alarm, we would have to hasten to retrace our steps and regain the path which alone leads to peace, freedom, and security.” 5
These principles, put into practice with so much success in a huge, flourishing republic, are those which I have tried to establish in this book, and I have devoted myself to this task with all the more zeal and confidence in that having some time carried out legislative functions in the State which they named the French Republic, I find myself free again 6 without having done a thing or expressed an opinion, which forces me to alter in the slightest detail the intellectual system which I believe to be the only true or useful one, and the only one worthy of good men.
1. Extremes do not only touch but also follow each other. “Everything which tends to restrain kings,” said M. de Clermont-Tonnerre, “is received with delight, because people remember the abuses of royalty. Perhaps there will come a time when everything which tends to restrain the rights of the people will be received in the same fanatical spirit, because the dangers of anarchy will be no loss strongly felt.” II, 232. 7
2. the first conquest of our century. Order of the day of His Majesty the Emperor in the Moniteur of 22 January 1806: “There is no censorship at all in France. Every citizen in France can publish such books as he judges suitable, provided he accepts accountability. No work may be suppressed, no author may be prosecuted save by the courts or following a decree by His Majesty where the text would threaten the first prerogatives of public security and interest. We would be falling again into a strange situation, if a simple clerk could arrogate to himself the right to prevent the publication of a book or force an author to retract from or add anything to it. Freedom of thought is the first conquest of the century. The Emperor wishes it conserved,” etc. 8
1. the world knows only two kinds of power. There is force, the illegitimate kind. “A town,” said Louis XIV, speaking of Genoa, “formerly subject to my ancestors and which had no other rights of sovereignty than those it drew from its rebellion.” Mémoires I, 24. If republics, formerly subject to monarchies, have no other rights of sovereignty than their rebellion, then kings could well have no other rights than their usurpation.
1. the general will must exercise unlimited authority over individual existence. “The voice of the greatest number,” (says Rousseau), “always obliges everyone else. This is a consequence of the contract itself. One may ask how a man can be free and forced to comply with wills which are not his own. How can those opposing be free and subject to laws to which they did not consent? The question is badly put. The citizen consents to all the laws, even to those passed in spite of him and even those which punish him if he dares to break one of them. The constant will of all the members of the State is the general will. When a law is proposed in the people’s assembly, what is asked of them is not precisely whether they approve of the proposition or reject it, but whether or not it conforms to the general will which is their own. Each one giving his vote gives his opinion thereon, and from the counting of votes the declaration of the general will is derived. Therefore when the contrary opinion to mine is carried, this means only that I was in error and that what I had estimated to be the general will was not such. If my minority opinion had carried, I would have done something other than I had wished. It is then that I would not have been free.” 9 Rousseau merely pushes the theory back here and expresses it in other words. How does it arise that the declaration of the majority makes the general will clear to the eyes of the minority? It makes clear only that that will is of the majority. What should have been said is that the society has agreed that when a determination is necessary, the will of the majority constitutes law. Then, although it may not be true that when a minority obeys an opinion contrary to its own, it is all the freer for it, although it may be still less true that an individual, whose individual opinion had prevailed, would not be free and would be doing something other than his will, in the very act of doing it, it is conceivable that each person submits to the sacrifice, because others agree to submit to it. This, however, can be only when a resolution is needed. Otherwise the sacrifice has no purpose.
1. He (Rousseau) forgets that all the preserving qualities which he confers on the abstract being he calls sovereignty are born in the fact that this being is made up of all the separate individuals without exception. Jean-Jacques’s system and all the reasoning it rests on are forgetful of reality, a terrible, vicious flaw. Man is counted in it as some numerical value. When the words all or everyone are spoken, we are led to believe that the discussion is of units or collections of units, which differ not at all among themselves and cannot change their nature. It is taken as shown that none of these figures can encroach on another. These figures being moral beings, however, the result of the bringing together of ten of these figures is not directly proportional to their numerical value, but proportional to the moral value of each one of them. This means that just adding them together one does not get the modified sum of their respective strengths, but only the tenfold multiplication of the individual force of one of them.
1. They ask it from the owner of political authority, the people. “The people’s name is a forged signature to justify its leaders.” Bentham.
1. This was no longer a man, this was a people. One sees how easily Rousseau’s system leads to the most absolute despotism. Furthermore, we have remarked already that the supporters of this kind of government had avidly seized on it. Men, by uniting, says M. Ferrand, have surrendered, at a word from the general will, all the forces of individual will. Préface de l’esprit de l’histoire. 10 Does not this sentence seem to be from Rousseau?
Note that M. Ferrand and others never stop reproaching freedom’s friends for losing themselves in abstractions. When, however, they speak to us of the general will personified and of the sovereign who is no longer a man but a people, can we say they avoid them?
1. He (Rousseau) has declared that sovereignty cannot be alienated, nor represented, nor delegated. “Sovereignty,” he says, “cannot be represented politically, for the same reason it cannot be alienated. It consists in the general will, and the will is not amenable to representation. It is the same or it is different. There is no in between.” 11 This idea of Rousseau arises because he has never defined either the nature or above all the limits of the general will. If we call the will of the members of a society on all things the general will, doubtless it cannot be represented; but if we call the general will only the will of the members of society on those things which society makes common to them, it can be represented, that is to say that a smaller association can be made with the same purpose and can make its decisions according to the same interests as the larger. “The people’s deputies,” he continues, “are not and cannot be its representatives; they are only its commissioners; they cannot conclude anything definitively.” 12 It would be just as right to say, however, that the majority cannot conclude anything definitively; since the majority is only the representative of the whole and one is aware of the absurdities this system leads to. “Any law,” he says, finally, “which the people personally have not ratified is null; it is not a law.” 13 Rousseau does not explain, however, how the ratification of the majority binds the minority. The power of the majority is explained only by considering it as representing everybody.
1. When this government is extended to purposes outside its competence, it becomes illegitimate. Under Pericles the sale of five thousand citizens, because they had been born to foreign mothers, was tyrannical. The institutions under Lycurgus concerned with the private lives of citizens were tyrannical. Our laws on the mercantile system are tyrannical. See Smith IV, chapters 1–8. 14 Peter I’s law that his subjects should cut off their beards was tyrannical. Finally, any law which prescribes to someone what he must do for his own utility is tyrannical. The law can decide between one man and another and between a man and society. Any law, however, which regulates the conduct of a man in relation to himself, and only himself, is tyrannical. All these tyrannical laws are nonetheless justified in Rousseau’s theory. 15
2. Even if it were the whole nation, except for the man it is harassing, it would be no more legitimate for that. “Pellitur a populo victus Cato; tristior ille est qui vicit, fascesque pudet rapuisse Catoni. Namque hoc dedecus est populi, morumque ruina. Non homo pulsus erat: sed in uno victa potestas, romanumque decus.” Petronius. 16 (Cato, defeated, is driven out by the people. Less fortunate is that man who defeated him, and is ashamed to have seized the symbols of authority from Cato. For this is the dishonor of the people and the ruin of morals. It was not a man who was driven out, but in one man was the power and honor of Rome defeated.)
1. than that of the smallest of minorities. Law has been defined as the expression of the majority will. 17 This definition is very faulty and very dangerous, in that it appears to give the general will unlimited power. It should be added: on those things where the general will has a right to will.
2. fixed principles from which the majority never deviates. With the system of unlimited rights of the numerical majority, one would be poised to make the whole world one people. For how would a notional territorial line change that right? If thirty thousand neighbors do not want the same thing as a nation of thirty million, by what right do they resist? And if we granted them the right to resist, how would a city already an enclave not have the right to become a neighbor again?
3. They represented it [the majority] as a real person. It is never fundamentally the majority who oppress. People steal its name and then use the arms it has supplied. The interest of the majority is never to oppress. The sum of misfortunes which exists in a society extends more or less to all members and increases when there is injustice. To harm an individual or class is to harm the whole.
1. there are things about which the legislature has no right to make laws. There are unalterable principles, of which the whole nation is guardian, that the nation itself cannot infringe, and which are not numbered in the mass of opinions which it submits to those it charges with exerting its will. The reason is simple, namely that the nation itself has no right to a will contrary to these principles.
Bentham says that if the supporter of utility found an action in the catalogue of virtues which resulted in more pain than pleasure, he would expunge it from this catalogue. I, 5. 18 This is remarkable, in that he says elsewhere 19 that it is bad to speak of natural rights, because each man wants to judge them according to his individual judgment. But is this not what he makes the supporter of utility do? In all systems one has to come back to individual judgment.
If one wants to judge according to conscience, says Bentham, I, 31, one will not be able to distinguish between an enlightened conscience and a blind one. 20 If, however, one wishes to judge according to the principle of utility, neither will one distinguish good and bad calculations on this basis. “In the immense variety of ideas on natural laws,” says Bentham, Principles of Legislation, Ch. 13, “won’t every person find reasons to resist human laws?” 21 He will find the same, however, in the principle of utility, applied in his way.
1. writers of all persuasions. “All government is instituted for men’s happiness. Therefore everything which can assure their happiness must be a part of government.” Ferrand, Esprit de l’histoire, I, 107. 22
2. In some respects Montesquieu. Bentham in his Principles of legislation, Ch. 12, entitled On the limits which separate morality from legislation, begins with a false proposition. “Morality,” he says, “is the art of directing men’s actions in such a way as to produce the greatest possible sum of happiness. Legislation has precisely the same end.” 23 It is through confounding thus the purpose of legislation and that of morality that we have given legislation the growth which has become so disastrous. Bentham feels it himself, for he says a little further on that the means of legislation are very different, and its jurisdiction much more extensive than that of morality, that there are acts useful to the community which the law must not require and harmful acts that it must not forbid. 24 He concludes with this obvious maxim: “Do not make the power of the laws intervene except to stop men hurting each other.” 25 The definition he begins with, however, is equally inexact. The purpose of legislation is far more to safeguard men against the evil they might do themselves than to procure for them the greatest sum of possible happiness. The definition of morality and legislation seems to me to be that the first indicates to men how they might be happy, in rendering their fellows happy, and that the second preserves them from what might, on the part of their fellows, prevent them from making themselves happy, without hurting others. The singular thing here is that Bentham joins two definitions which contradict each other and which I oppose equally. For he says elsewhere that any law is a necessary evil. 26
3. in this theoretical system political authority has absolutely no limits nor can have. Why is judicial power the least dangerous of all the powers? Because its nature is perfectly understood. People know it is essentially rigorous, that it is indispensable, but that the good it produces is only the absence of ill. Furthermore, it is not easily extended beyond its limits and when people have wanted to abuse it, they have had to distort it and turn it into a political power instead of a judicial one. Those holding other powers have not wished to be confined to such narrow limits. Consequently they have tried to deceive people over the nature of their duties. Instead of presenting themselves as guardians of public order, that is to say, as a sort of political constabulary, they have posed as the fathers of the people. They have benefited from being surrounded by affection, or telling themselves this, rather than mistrust, and have been able to abuse their powers much more easily.
4. Nothing simpler than the questions on which these functions call governments to pronounce. 27 “In the system of natural freedom,” says Smith, IV, 9, V, 1, “the sovereign has only three duties to fulfill, three duties in truth of great importance, but clear, simple, and within the grasp of an ordinary mind. The first is the duty to defend the society from any act of violence or invasion on the part of other independent societies; the second is the duty to protect, as far as possible, each member of the society against the injustice and oppression of any other member, that is to say, the duty to establish a proper administration of justice; and the third of setting up and maintaining certain public works and institutions which the private interest of an individual or group of individuals would never get around to setting up or maintaining because the profit would never reimburse the expenditure of an individual or group of individuals, although with regard to a whole society this profit more than reimburses the expense.” 28
1. less impartial than the governed. It is a mistake to take it that there is a huge gulf between those who lay down and those who accept the law. Their respective educations are always in a certain ratio and do not shift much. Nature grants no privilege to any individual. No one runs ahead of his country and era by much, and those who do so most are perhaps the least proper to dominate them.
2. It is not the same with the numberless functions, etc. The marquis de Mirabeau, in the first book of his L’ami des hommes, 29 establishes a very accurate distinction between positive and speculative laws. According to him, positive laws limit themselves to maintenance; speculative ones extend to guidance. He does not draw extensive consequences from this distinction. His purpose was not to fix the limits of government functions, and although in the rest of his book he may constantly be led by the force of things to restrain these functions de facto, he nevertheless admits their legitimacy in law and strives only to indicate how they may be at their most useful and advantageous. We whose purpose is different will adopt the same distinction, but in order to follow up all it results in. When the government punishes a harmful action, when it penalizes the violation of a contractual undertaking, when it builds or repairs roads or canals, it fulfills a positive function. When it comes down hard on an action which is not harmful on the grounds that it could lead indirectly to one that is, when it imposes on individuals certain rules of conduct which are not a necessary part of the work to which they are contracted, when it harasses the management of property or the carrying out of work, when it seeks to dominate public opinion, either by punishments or rewards, or by seizing control of education, it arrogates to itself a speculative function, since it is basing itself on calculations, on suppositions, on hypothetical cases, in short, on speculations. Government in its positive functions does not act in a spontaneous way. It reacts in response to facts, to antecedent actions, which have taken place independently of its will. In its speculative function it does not have to react against facts or acts already performed, but to foresee future actions. It acts spontaneously therefore. Its action is the product of its own will.
The positive functions of government are of an extremely simple nature, and in their exercise its action is neither equivocal nor complicated. Its speculative functions are of a different nature. They have no factual base, not being exercises over factual things. They start from a supposition, a presumption. They can vary, extend, and become infinitely complicated. Positive functions often let government stay motionless. Speculative functions never let it do so. Its hand, which at times prevents, at times controls, at times creates, at times repairs, can sometimes be invisible, but never stay inactive. Its action taking its source from its will, it must necessarily reason, suppose, guess. This indicates clearly how difficult it is in so many respects to draw the limits of speculative functions. Sometimes government places barriers of its own choosing just short of criminal activity, with a view to then establishing penalties against the overturning of these barriers. Sometimes it has recourse to prohibitive measures, against actions which, neutral in themselves, seem to it nevertheless dangerous in their indirect consequences. Sometimes it builds up coercive laws to compel men to do what seems useful to it. At other times it extends its scope to what people believe. On yet further occasions it modifies or limits the tenure of property, arbitrarily regulating its forms and deciding on, ordering, or prohibiting its transmission. It subjects the work of production to numerous impediments, encouraging it on one side, restraining it on another. Actions, conversations, writings, mistakes, truths, religious ideas, philosophical systems, moral attachments, inner feelings, uses, habits, customs and manners, institutions, all that is vaguest in man’s imagination, most independent in his nature, everything there belongs to the government domain. It enfolds our existence on all sides, takes hold of our first years, surveys and restrains our least movements, sanctifies or combats the most uncertain of our conjectures, modifies or directs our most fugitive impressions.
The difference, then, between speculative and positive functions is that the latter have fixed boundaries, rather than the unlimited ones the former have, once they are accepted.
The law or governmental action, according to which the government might send citizens to the frontiers to defend these when they are attacked, would be a law or positive government action, since obviously its purpose would be to repel an aggression committed and prevent the native territory being invaded. The law or government action according to which the government might oblige citizens to carry the war into the country of another nation, which it suspected of considering an attack, would be a law or action of a speculating government, since that government would not be acting on a factual basis, against some committed action, but following a speculation, against a presumed one. So, in the first case, government authority would be limited, since the government could not take action against a fact, if there were no such fact. In the second, on the contrary, government authority would be limitless, speculation always being at the government’s discretion.
Another difference between positive and speculative functions is that when the government limits itself to the former, it cannot make mistakes; but when it arrogates the latter to itself, it exposes itself to error of every kind.
When government passes a law against assassination or theft, since its severity is directed only against determinate actions, it cannot go astray. If, however, government makes laws against the decay of trade or the stagnation of industry, it runs the risk of taking for means of encouragement things which are not such. A law against theft or assassination can be more or less perfect and therefore more or less attain its purpose. It is impossible, however, that it will work completely against this purpose. A law to encourage trade can destroy it. A law to favor production can run counter to it.
There is therefore in the speculative functions of government a double drawback. Not being susceptible to limitation, they lay themselves open to arbitrariness. Obliging government to act on suppositions, they multiply the chances of mistakes.
1. freely set himself straight. Nature has given our errors two great correctives, personal interest and experience. If personal interest makes mistakes, the very losses incurred will enlighten it. What our interests have undergone will put them on a far more secure track than prohibitions could. The man with a vested interest will not have seen proof that prohibitions are necessary. For him their value exists only in the foreboding of governments. Individual interest will never see them as safeguards, only as obstacles.
2. it is better to run the natural risk of individual mistakes. “Everything man does for himself,” says Godwin, Political Justice, VI, Ch. 8, 30 “is a good. Everything his fellow citizens or country do for him, against his consent, is an ill.” Godwin is right, and it is an ill in several respects. First, there is a violation of each person’s rights. Justice prefers that every man be judge of what constitutes his own happiness. When you strike a blow against this individual prerogative, even if you are right a thousand times over in the individual case, you are spurning a general principle, which cannot be upturned without the widest and most serious consequences. Secondly, however, it is very doubtful whether, even in the individual circumstance, you are likely to be right. You are subject to error every bit as much as the man whose interest you claim to know better than he himself. On this matter you are much more liable to error than he, for he is very much better acquainted with the overall details of his existence than you who perceive only one side of it, you to whom that one-sided and incomplete awareness can suggest very wrong notions. Thirdly and finally, nothing is beneficial save by consequence, persistence, and agreement and unless it lasts. Now, what you do for a man, against his will, he will undo. Whatever work you have built up at the expense of part of his freedom, with the remainder of that freedom, he will try to destroy it. There will therefore be no cohesion, no continuity, no persistence: instead there will be struggle. If you are right and the violence you are doing the man really is in his interest, do you know what the result will be? It is that you will separate him from his interests and he will not be wrong to separate himself from them. For the interest of his independence is much more important to his happiness than the individual interest in whose name you are claiming to subjugate him. If he gave in to you in this case, in which you are right, you would demand the same submission in another case in which perhaps you would be wrong. It is therefore in his lasting interest to resist you, even when you are acting in his interest of the moment.
1. calmly set out again to make what they called laws. We have seen better still. We have seen our legislative assemblies forget the laws they have passed and pass them a second time.
The laws have been defined as the expression of the general will. This is a very false definition. The laws are the declaration of men’s relations between themselves. From the moment society exists, it establishes certain relations between men. These relations are true to their nature, for if they were not true to their nature, they would not become established. These laws are nothing other than these relationships observed and voiced. They are not the cause of these relationships, which on the contrary are anterior to them; on the contrary, they declare that these relationships exist. They are the declaration of a fact. They create, determine, and institute nothing, except forms and procedures such as to guarantee that which existed before their institution. It follows that no man, no fraction of society, nor even the whole society can, properly speaking and in an absolute sense, attribute to itself the right to make laws. The laws being only the expression of relations which exist between men and these relations being determined by their nature, to make a new law is only a new declaration of what existed previously.
The law is not in the gift of the legislator. It is not his spontaneous work. The legislator is to social order what the physician is to nature. Newton himself was able only to observe it and tell us the laws he recognized or thought he recognized. He did not to all appearances delude himself that he was the creator of these laws.
One thing excuses governments for the proliferation of the laws. This, that everybody solicits them to this end. Does a man think up a new project? Soon he is asking the government for it. Men who most favor freedom are not free from this error. The economists, etc.
The complicated institutions of government and legislation have created such a number of artificial relations between men that there is no longer room for their true nature. Their moral existence, their will, their judgment find themselves choking under their civil, political, and legal existence, an existence if not opposite to the former, at least totally modified. There has been done for the entire life of man what constitutions did for primary assemblies. 31 Reports have been drafted in advance, in which only the name and the date have been left blank and on the basis of which the human race resigns itself docilely to modeling all its actions. Men today have nothing in their own right. In the case of the inner life, there are positive religious dogmas. For external activity there is the law; with the result that when law or religion collapse, men no longer have any guidance and no longer know what they must do.
I read in the Declaration of Rights that no man is a good person if he does not strictly and rigorously observe the laws. 32 Does this mean that if I am a good son, a good husband, a good father, a good friend, 33 but I forget or I break one of the thirty-two thousand laws which compose our code, I will not be a good man? I perceive in this doctrine a morality every bit as artificial as that of the fakirs of India, who attach virtue or crime to the observance or nonobservance of practices with no value or danger.
The more a government measure is contrary to justice and reason, the more it entails disorder and violence, and then the need for the measure is justified in terms of this disorder and violence. If, on the grounds that most crimes are committed on the highways and that by forcing citizens to stay at home in their houses we would prevent these crimes, the law told them not to leave their homes and put guards everywhere to arrest the lawbreakers, the citizens, condemned either to neglect the looking after of their interests and to interrupt their reciprocal dealings or to disobey the law, would probably take the second course. The guards would come forward to arrest them and they would put up some resistance. Brawls, threats, fighting on the highways would multiply more than ever and the legislator would conclude from this the necessity of the law which was the initial cause of all these calamities. He would take the effect for the cause: this is the history of many laws.
Often, when the execution of a law meets a thousand obstacles, people imagine these obstacles could be lifted by a new law. This new law is eluded in turn. This is remedied by a third law. You go on like this to infinity. If after you are worn out with fruitless attempts you go back to the first law, fertile source of so many secondary laws, and try to repeal it, you will for the most part see that everything would go better for it, and you would succeed by this repeal, not only in freeing yourself from a bad law, but from a whole series of laws necessary to assure, even imperfectly, the carrying out of your first law.
“You have never in your life,” says the Abbé Galiani, p. 250, “bound anything, whether with string or with thread, without giving it one twist too many or making one extra knot. It is in our instinct, whether we are small or great, always to go beyond the natural measure, following the force of our intention.” 34 I conclude from this that one should bind things as lightly as possible.
After the earthquake at Lisbon, 35 the marquis de Pombal, in order to prevent the people leaving en masse, set up a cordon of cavalry on the banks of the Tagus and had the roads leading out into the country guarded by large detachments of infantry. No quake occurred, and so these precautions had no inconvenient consequences. If it had been repeated, however, it is clear that the obstacles put in the way of the people’s flight would have increased the despair and unhappiness, since one would have had to battle against the soldiers as well as the elements.
Even when the government stays strictly within the limits prescribed by its purposes, it always more or less corrupts the instruments it uses. To corrupt is to substitute for moral considerations, which would decide for us if they were the only ones to make themselves heard, considerations of another kind. Any addition to, any change in, the motives which must determine men’s conduct, any threat, any promise, be it of pecuniary recompense, or of power, is a form of corruption. Now, this form of corruption is inseparable from government, within whatever narrow limits you enclose it. It needs agents who, sometimes, function without thought and obey without conviction. These agents are necessarily corrupted. If, along with the natural functions with which it is invested, the government adds functions which do not belong to it, such as, for example, influencing the opinions and outlook of the governed, the corruption of its agents will increase indefinitely. When the government is only an instrument of repression, punishing crimes people have been able to commit, its agents have only little latitude. They are in the inevitably wrong and unhappy situation of obeying without being convinced, and for motives of a quite different nature from conviction. Nothing is left to their arbitrary decision, however. In everything which is not purely repression, though, the solitary barrier having once been breached, despotism no longer finds anything to slow down its march. There results from this a much wider terrain for the corruption of agents. This corruption is aggravated further by the contempt it arouses. The natural feeling that the government should leave citizens free in the occupational, wealth-seeking, and moral part of their lives is so strong that the very men who have not adopted this political view look on the agents of the other approach with nothing but aversion and disdain. Now, this contempt tends to corrupt them more and more. In this way, through its wrong measures, the government, in order to achieve a good which it does not attain, and which it is not in its capacity to attain, creates a real ill. Its true purpose is not to do good but to prevent ill and to do so by way of penal laws. It corrupts in this case only a very small number of those who carry out these laws, and the dealings of these men with society being neither frequent nor complicated and always hostile, the corruption penetrates the social body less. Whereas when the government wants to do positive good, since it corrupts its agents in the same way and since there are more of them, and their dealings with society are more frequent, more various, and less hostile, the harm is much greater.
Coercive laws, intended to force the governed to such and such an action, have one further drawback than prohibitive laws, intended only to forbid such and such an action to the governed. The absence of action is more difficult to determine than the action itself. Against this negative crime a more constant, positive, and inquisitorial surveillance is called for.
In cases where coercive laws were absolutely necessary, rewards should be attached to obedience rather than punishments attached to transgression. Since the State cannot be lavish with rewards, however, there should at the same time be as few as possible laws of this kind.
There were excesses in our old institutions. There are still more in our present ones. Most of the time it is a matter not of adding to them, but reducing them. I deliver you from a ferocious animal, said Voltaire, and you ask me what I am putting in its place. 36 This witticism could be applied to many laws. Let us guard against concluding, from the host of laws which have been established, that a host of laws is necessary to public order. Let us consider which laws would seem indispensable to us if the idea of the laws came up for the first time.
It is in Ch. 15 of Livre XXVI of The Spirit of the Laws that Montesquieu establishes principles much more favorable to property than to freedom. Examining his arguments carefully, however, we see that they apply with as much force to freedom as to property. “It is,” he says, “a paralogism to say that the individual good must yield to the public good. That holds only in the cases where it is a question of the authority of the city, that is to say, the freedom of the citizen. This does not hold in cases where the ownership of goods is at stake, because the public good is always that each person invariably keeps the property which the civil laws bestow on him.” How is it, however, that Montesquieu has not felt that the public good was always also that each person keeps his legitimate freedom? Why is it untoward that, on the grounds of the public good, blows should be struck at property? It is because a single attack of this kind takes away from all property all guarantee and because the whole system of property is destroyed. It is the same, however, with freedom. “Let us take it as a maxim,” he continues, “that when it is a question of the public good, the public good is never that one should deprive an individual of his goods nor even that one should take away the least portion of them.” 37 We can say as much for freedom, and experience shows it.
1. government suspicions. The need to prevent crimes is sometimes only a pretext for government idleness, its members sometimes preferring to enchain us than to survey us. They must learn, however, that government is painstaking work and that it is to us, the governed, that peace and freedom belong, while the portion of the governors is enthrallment, anxiety, and work. Governments too often mistake public security and individual safety. Legislators and magistrates in all countries, the peace of the State depends on the sacrifice of your peace. If you must be spared all alarm, freed from all solicitude, released from every care, your work has lost its whole point, and what will you have left then? Prestige and power. No, this is not what your portion is. The society which raises you to the post you occupy commits you thereby to an indefatigable watchfulness. It is to you to watch the sky and the winds, to avoid rocks, to steer the ship and hold the rudder unremittingly. It is not right to leave the passengers to their anxieties, in order to give the pilot a chance to sleep.