Commentary on Filangieri’s Work. Benjamin de Constant

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      In the first chapter of L’Ami des hommes, the marquis de Mirabeau established a very just distinction between positive and speculative laws. He said that positive laws limit themselves to maintaining; speculative laws extend to directing. He did not draw any broad conclusions from this distinction. His purpose was not to set the limits of legislation, and although in the rest of his book he was constantly led by the force of circumstances to restrict the speculative

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      functions of legislators, he nevertheless accepted their rights. He only tried to indicate how these functions could be usefully and advantageously exercised. My purpose is different. But I will adopt the same distinction in order to follow its incontestable results to the end.

      When the government or legislation punishes a harmful action, or when they repress the violation of a contractual agreement, they fulfill a positive function. When they rigorously punish an action which is not harmful under the pretext that it could indirectly lead to an action which would be harmful; when they impose on individuals certain obligations or rules of conduct which are not a necessary part of the agreements contracted by these individuals; when they hinder the disposition of property or the exercise of industry; when they try to take over education, or dominate opinion, whether by punishments or rewards, they arrogate to themselves a speculative function.

      In his positive functions the legislator does not act spontaneously. He reacts to facts and previous actions which have taken place independently of his will. But in his speculative functions he does not react to facts or actions already committed; rather, he foresees future actions. He therefore acts spontaneously, and his action is the product of his will. The positive functions of the legislator are of an infinitely simple nature, and in their exercise the action of power is neither equivocal nor complicated. His speculative functions are of a different nature. They have no fixed basis or clear limit. They are not exercised on facts, but are based on hopes or fears, on probabilities, on hypotheses—in a word, on speculation. For that reason alone they can be infinitely varied, extended, and complicated.

      The positive functions often permit the government to remain motionless. The speculative functions never permit it rest. Its hand, which sometimes limits, sometimes directs, sometimes creates, and sometimes restores, can sometimes be invisible, but it can never remain still. One after another, you see the legislator put up barriers of his choice this side of crime in order to establish punishments for crossing these barriers later, or else prohibit actions neutral in themselves, but whose indirect consequences seem dangerous. Or he makes coercive laws to force men to do what seems most useful to him. At other times he extends his authority over opinion, or modifies or limits the enjoyment of property. He arbitrarily regulates its forms and determines, orders, or prohibits its transmission. He subjects the exercise of industry to numerous hindrances, alternatively encouraging or limiting it. Thus actions,

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      speeches, writings, errors, truths, religious ideas, philosophical systems, moral affections, intimate feelings, customs, habits, mores, institutions—what is most vague in man’s imagination, most independent in his nature—all become the legislator’s domain. His authority spreads over our entire existence, confirms or combats our most uncertain conjectures, and changes or directs our most fleeting impressions.

      There is therefore this difference between the speculative and positive functions: the latter have fixed limits, whereas as soon as they are accepted, the former have none. The law sending citizens to the frontier in order to defend the border when attacked would be a positive law, for its purpose would be to repel aggression and prevent the territory from being invaded. The law authorizing the government to make war on all peoples suspected of contemplating an attack is a speculative law, for there would be no previous fact, no action committed. There would be a presumed action, speculation, conjecture. Note also how in the first case the function of the legislator and of the executor of the laws would be limited. The one would not pronounce except against a fact, the other could not act if the fact did not exist. But in the second hypothesis, authority would be limitless, for conjecture would always be at the discretion of the holder of authority.

      From this difference between positive and speculative laws, it obviously follows that when the legislator limits himself to the former, he cannot go wrong. Conversely, by venturing into the second he exposes himself to all sorts of mistakes. A law against murder and theft, punishing well-defined actions, can be more or less well made; it can be either too indulgent or too severe, but it cannot go in a direction opposite to its purpose. A law to prevent the decline of trade or remedy the stagnation of industry runs the risk of mistaking for means of encouragement things which are the opposite. By trying to encourage commerce, it can destroy commerce; by trying to favor industry, it can obstruct it.

      If therefore the grave, varied, and prolonged harm done by mistaken legislation ought to lead us to reduce the possibility of these errors as much as possible, it is clear that everything which relates to the speculative functions should be excluded from the legislative domain. By this route, as by all others, we thus arrive at this sole, unchanging result, the only reasonable and salutary one: repression and defense are the legitimate, that is to say necessary, purposes of the law. The rest is luxury, and harmful luxury.

      In restricting the law’s action to this narrow circle, we doubtless give up the

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      realization of many brilliant dreams and put an end to a thousand gigantic hopes. The imagination can conceive of an extremely useful employment of legislation, in its indefinite extent, by supposing that it will always be exercised in favor of reason, the common interest, and justice; that it will always choose means of a noble nature and certain success that it will succeed in subjecting human faculties without degrading them; that it will act, in a word, like Providence as the devout conceive it, by combining the force which commands and the conviction which penetrates the bottom of hearts. But to adopt this seductive supposition, one must accept a principle that the facts are far from proving, which is that those who make the laws are necessarily more enlightened than those who obey them.

      It may be thus among the savage hordes that colonists bring under orderly government, but it is not the same with civilized peoples. When a small group of people, which as yet possess only the basic ideas necessary to physical existence, receive by conquest or in any other way laws which teach them the basic elements and subject them to the basic rules of the social state, the authors of these laws are certainly more enlightened than those whom they instruct. Thus one may believe that Cecrops, if he existed, had more knowledge than the Athenians, Numa than the Romans, Mohammed than the Arabs.

      In my view, to apply this reasoning to an association which is already ordered is a great mistake. It is true that in such an association a substantial number educates itself only with great difficulty, devoted as they are by the nature of circumstances to mechanical occupations. The men charged with making laws are incontestably superior to that portion. But there is also an educated class to which these legislators belong and of which they make up only a small part. It is not between them and the ignorant class, it is between them and the instructed class that the comparison should be made. Reduced to these terms, the question cannot turn to the advantage of the legislator. “If you suppose,” says Condorcet, that “the public authorities are more enlightened than the mass of the people, you must suppose them less enlightened than many individuals.”1

      If this is the case, if the legislator does not have the privilege of distinguishing better than the individuals subject to his power what is advantageous and what is harmful, what will we gain for happiness, order, or morals by

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      extending his attributes? We create a blind force whose use is abandoned to chance. We draw lots between good and evil, between error and СКАЧАТЬ