Commentary on Filangieri’s Work. Benjamin de Constant

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СКАЧАТЬ all those who had invoked it have declared themselves its opponents, and all the signs of improvement that Filangieri pompously lists for us have fled like vain glimmers of light.

      As we see, this backward movement was inevitable, and it shows us a very important truth: reforms which come from above are always deceptive. If interest is not the motivation of all individuals, because some individuals’ nobler nature rises above the narrow ideas of egoism, interest is the motivation of all classes. One can never expect anything effective or complete from a class which seems to act against its own interest. It may well abjure its interest

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      momentarily, but it will always come back to it, and as soon as the moment comes to permanently consummate the sacrifice, it will retreat, voicing reservations and qualifications which it did not suspect itself amid its protestations of sacrifice and devotion. This is what we are witnessing today. The absolute monarchy, the clergy, the nobility, all want to take back the prerogatives they surrendered, accusing the people of theft for having taken what was offered, crying out against injustice and trickery with a precious naiveté, solely because they were taken at their word.

      But should we infer from these recent efforts that our hopes are forever disappointed and that humanity’s cause is lost beyond appeal? Certainly not. We should be grateful for the passing enthusiasm and vain imprudence of the various privileged classes. They popularized the principles they now condemn. In order to begin a war against the institutions which oppress them, nations often need leaders from the classes which profit from these institutions. Too much humiliation robs people of courage, and those who profit from abuses are sometimes the only ones capable of attacking them. These leaders call up the popular army, discipline it, and train it. It is lucky when they remain faithful to it! But if they desert, the army is [still] nevertheless in being. It easily replaces the apostates who abandoned it with men taken from its midst, and more identified with its cause. Thus, while victory may perhaps be delayed, it becomes more certain and more complete because there are no longer foreign interests among the victors who slow down the march or distort the goal.

      Therefore fear nothing from momentary coalitions and declarations of circumstance, the forces ostentatiously deployed to frighten us. One does not abandon the philosophical flag without cost. Despotism, aristocratic pride, clerical power, all wanted to have the honor of it: they must also bear the costs. These costs can be decreased by a rational resignation. They can be cruelly increased by resistance. But the fate of the human species is decided. The reign of privilege is over.

      Tyranny is only formidable, says an English author, when it smothers reason in its childhood. Then it can stop its progress and keep men in a long imbecility. But there is only a moment when all-powerful reason can be successfully proscribed. Once the moment has passed, all efforts are vain, the struggle has begun, the truth appears to all minds. Opinion separates itself from the government, and the government, rejected by opinion, resembles those bodies struck by lightning which contact with the air reduces to dust.

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       CHAPTER SIX On the Union of Politics and Legislation

      It is really astonishing that among the many writers who have devoted themselves to studying law … each has only considered a portion of this immense edifice.

      INTRODUCTION, P. 12.

      Filangieri’s phrase contains the germ of a great truth, but he seems to have neither sufficiently understood it nor sufficiently developed it. He criticizes writers who have treated legislation separately from politics mostly from a literary angle, because they have not understood how to consider their subject as a whole, rather than from the much more serious perspective of the dangerous mistake they propagate. This mistake is all the more essential to combat because governments also propagate it with all their might. Governments would like to persuade peoples that good laws, ones appropriate for maintaining order among individuals, are all that is needed for security and general prosperity, without any need for recourse to constitutional institutions to protect these laws. This is to claim that a building’s foundations are not necessary for its stability. Legislation separated from politics offers the governed no shelter, and presents no obstacle to the governors. Outside political guaranties there are no means of preventing those who hold power from violating the laws they have established. Also, the despots who are the most jealous of their absolute domination have not failed to give their slaves marvelous law codes, sure that these codes would have only the value that the master’s will allowed. Two pages of a book, two words from a podium are better safeguards than the best-written law codes, those most perfect in appearance. They are better not only for freedom but also for justice, for that

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      justice which each individual needs every day. For a law code is a dead and inert thing until the moment when men put it into practice. But if despots have to conform to it only when they feel like it, if no one can protest when they depart from it, all the merit of a law code vanishes.

      This is the case with the distinction between legislation and politics, and equally with that which so many people want to establish between civil and constitutional freedom. The best legislation is worthless if a good political organization does not guarantee it, just as there is no civil liberty if constitutional liberty does not take it under its wing. Doubtless, even in countries ruled by arbitrary governments, all the civil liberties of all the inhabitants are not infringed upon, just as in all the countries ruled by the Turkish sultan, not all heads are cut off. But it is enough that such an infringement is possible, without any means of stopping it, for security to be nonexistent.

      Today let us therefore challenge more than ever all efforts to distract our attention from politics and fix it on legislation. I say today more than ever, because today more than ever this trick is used as a last resort to fool us and give us the slip. When governments offer legislative improvements to peoples, peoples ought to respond by asking for constitutional institutions. Without a constitution, peoples cannot have any certainty that the laws will be obeyed. It is in constitutions, in the punishments they pronounce against unfaithful holders of authority, in the rights they assure citizens, in the universal publicity they ought to hold sacred, that the coercive force resides which is necessary to force the government to respect the laws. When there is no constitution, not only does the government make the laws it wishes, but it observes them as it wishes; that is, it observes them when convenient and violates them when advantageous. Then the best laws, like the worst, are only a weapon in the rulers’ hands. They become the scourge of the governed, whom they strangle without protecting, and whom they deprive of the right of resistance without giving the benefit of protection.

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       CHAPTER SEVEN On the Influence Which Filangieri Attributes to Legislation

      Annotated plan of the work, p. 15.

      Since the annotated plan Filangieri puts at the beginning of his book is nothing but an abridged analysis of the whole book, and therefore all the ideas contained in this analysis are found in the book itself, I thought I should abstain from any detailed observations here. But there is one observation which regards the writer’s general system, which, even though indicated in the earlier chapters, needs to be restated and developed.

      As I have said elsewhere, Filangieri fell into an error common to many well-intentioned philosophers. From the fact that government can do much evil, he concluded that it could equally do much good. In a certain country, he saw СКАЧАТЬ