Commentary on Filangieri’s Work. Benjamin de Constant

Laws are nothing but the expression of the relations which exist between men. These relations preceding the law, a new law is nothing other than a declaration which had not yet been made of what previously existed.

      The law is therefore not at the legislator’s disposition. It is not a spontaneous creation. The legislator is to the moral universe what the physician is to the material universe. Newton himself could only observe the universe and tell us the laws he recognized or thought he recognized. He certainly did not imagine he was the creator of those laws.

      As I have observed above, Filangieri frequently approaches these principles in the course of his book, but he never explicitly states them. In more than one chapter we will even see him accord legislation a broad competence to which he does not seemingly assign any limit. I will prove in my later discussion that the doctrine I establish is not dangerous to good order, and that government, restricted within its legitimate limits, is no less strong and attains its purpose even more surely. By allowing government to transgress these limits, one weakens and compromises it. Individual rights, in all their latitude and their inviolability, are never opposed to the just rights of associations over their members. The repose and happiness of all is better guaranteed by the independence of each, in everything which is not harmful to others, than by any of the attempts, open or disguised, violent or equivocal, which are constantly repeated by authority and unfortunately blessed by some short-sighted philosophers, to endow society, that abstract and fictive being, at the expense of individuals, the sole real and sensible beings.

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       CHAPTER NINE On Errors in Legislation

      Nothing is easier than to commit an error in legislation: but there is nothing more deadly to peoples, nothing more dangerous from which to cure them. The loss of a province and all the ill-successes of a war are short-lived misfortunes. A moment of good fortune, a single battle, sometimes repairs the losses of several years, but a political or legislative error is the inextinguishable source of a century of hardships, and its destructive influence extends for centuries to come.

      BOOK I, CHAPTER 3, P. 53.

      From the fact that it is easy to commit errors in legislation, and that errors of this kind are a thousand times more harmful than all other calamities, it seems to me that one should decrease the chance of these errors as much as possible. If to decrease this chance men are reduced to sacrificing a portion of the advantages which they hope to obtain from legislative action, they must resign themselves to the sacrifice, provided that it does not entail the destruction of the social state. One should consent to laws doing perhaps a little less good, in order to be assured that they will cause much less evil. In restricting their intervention within the fairly narrow limits of public security, this goal is attained. The fewer occasions the legislator has to act, the less he will be exposed to error.

      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.