Commentary on Filangieri’s Work. Benjamin de Constant

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      This is not to say that laws are not altogether respectable when they limit themselves to their sphere. The possibility of legislative error is not a winning argument against the possible or rather the certain dissolution of all society, a dissolution which would result from the complete absence of laws. Furthermore, limited to what is strictly necessary, the laws’ intervention is simultaneously more necessary and less dangerous. When the laws limit themselves to the maintenance of external and internal security, they require only ordinary intelligence and education in order to be well made. This is really a very great advantage. In destining the multitude for mediocrity, nature wanted mediocrity to be in a position to understand the rules proper to preserving peace and good order in society. Just as in legal verdicts men find it sufficiently good to be judged by their peers, in matters of legislation they will find it sufficiently good that their peers have made the laws. But just as the questions submitted to juries should be simple and precise, so it is necessary for the laws’ object to be precise and simple.

      I foresee that the opinion I give here is of a nature to excite many loud objections. One of power’s tricks consists in always describing legislation, government, and the management of affairs as a very difficult task. The crowd believes this, because it believes docilely whatever is repeated to it. The holders of authority gain by making themselves into profound geniuses solely due to the fact that they are burdened with such arduous functions. But there is something remarkable in their charlatanism in this respect: at the same time that they pose the principle, they fight its most necessary consequence with all their strength. If power requires so much capacity in order to be exercised, is it not clear that it ought to be confided to the most capable?3 The masters of

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      the world are far from consenting to this. When it pleases them to be admired they speak of the obstacles they have to overcome, the pitfalls they avoid, the perspicacity, wisdom, superior understanding with which they must be endowed. But when one is led to conclude that one should look and see if in fact they possess these high qualities, this perspicacity, this wisdom, they immediately put themselves on another footing. They affirm that whatever the limits of their faculties, government belongs to them and that it is their property, their right, their privilege. It follows from their system both that the art of ruling men requires superhuman intelligence, and that one can trust in the most blind of all chances, birth, to confide the exercise of this art to the first comer.

      I think I am being more favorable to the rulers’ real interests than the rulers themselves by demonstrating that government restricted to its legitimate limits is not such a difficult thing. I think I am rendering an eminent service to hereditary constitutional monarchy by this demonstration. I do it freely, because at the present period of our species in Europe, hereditary constitutional monarchy can be the freest and most peaceful of governments.

      But to extend government’s jurisdiction to objects which are outside of its sphere is to distort the question. It is to entrust innumerable and unlimited functions to a small number of men, in no respect better than the rest. These functions are less necessary than the positive functions, since society would exist all the same if they were not performed. Yet they are almost impossible to perform well, since superior understanding is required, and more dangerous to perform badly, since they touch on the most delicate parts of our existence and can dry up the sources of prosperity. Therefore everything confirms my principle. Have positive laws, giving that expression the meaning given it by the marquis de Mirabeau, for you cannot exist without those laws. Do not have any speculative laws, for you can do without them.

      Above all, be extremely careful to reject the usual pretext for all laws of the latter kind, the argument of utility. Once this argument is accepted, you will be forced despite yourself toward all the problems inseparable from the blind and colossal force created under the name of legislation.

      Utilitarian reasons can always be found for all commands and prohibitions. To forbid citizens from leaving their homes would be useful, for this would prevent all kinds of crimes which are committed on the road. It would be useful to require everyone to present himself every morning before a magistrate,

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      because then one would more easily discover vagabonds and thieves who hide and wait for a chance to commit a crime. Twenty years ago this logic transformed France into a vast prison.

      Utility is not susceptible to exact proof. It is an object of individual opinion and thus of debate and of unlimited contestation. Nothing in nature is neutral. Everything has a cause, everything has an effect, everything has real or possible results, everything can be useful, everything can be dangerous. Once authorized to judge these possibilities, legislation has no limits and can have none. “You have never,” says a very intelligent Italian,4 “you have never in your life tied up anything at all with string or thread without giving it an extra turn or making an extra knot. It is our instinct, in small things as in great, to go beyond the natural measure.” Led by this tendency inherent in man, the legislator acts in every direction and commits those innumerable errors that Filangieri describes. As I have shown, he must commit them, for he is no more infallible than individuals. I say that he is not more infallible, and if I wanted I could prove that he is less.

      There is something in power which distorts judgment. Strength’s chances of error are much greater than those of weakness. Strength finds resources in itself, whereas weakness needs reason. Imagine two equally enlightened men, one vested with any kind of power, the other a simple citizen. Do you not feel that if the first were put in a prominent position, pressed into making decisions he must adopt at a given moment, and committed to these decisions that become public, he would have less time for reflection, more interest in persistence, and thus more chance of error than the second? The second man examines at leisure, makes no public commitment, has no motive for defending a false idea, has not compromised either his authority or his vanity, and finally, if he becomes impassioned for this false idea, has no means to make it triumph.5

      And do not expect to find a remedy in this or that form of government. Because in a representative government the people choose those who impose laws on them, you think that they cannot make a mistake. You are making a mistake yourself. Supposing a perfect system and the best-guaranteed freedom of election, it will follow that the opinion of the elected will be in

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      conformity with that of the voters. They will therefore be at the level of the nation. They will be no more infallible than it is.

      I will add that the qualities the people choose often do not include superior education. To conquer and above all to retain the multitude’s confidence, it is necessary to have tenacity in ideas, partiality in judgment, deference to prejudices still in favor, more strength than finesse, and more promptness to grasp the whole than delicacy in discerning the details. These qualities are sufficient for what is fixed, determined, and precise in legislation. But transported into the domain of intelligence and opinion, they are somewhat raw, unfinished, and inflexible, which thus works against the intended purpose of improvement or perfection.6

      A very witty Englishman said to me one day: In the House of Commons, the Opposition is more intelligent than the Ministry. Outside the House of Commons, the educated portion of the English people is more intelligent than the Opposition. In tolerating speculative laws—that is, taking legislation beyond the sphere of necessity—you thus subject the human race to the inevitable mistakes of men vulnerable to error, not only through the weakness inherent to everyone, but through the additional effect of their special position.

      What reflections I could add if I wanted to speak here of the flaws inseparable from all collective decisions, for they are nothing but forced compromises between prejudices and truth, interests and principles! Or if I wanted to examine the means legislation must use in order to be obeyed, to describe the СКАЧАТЬ