Commentary on Filangieri’s Work. Benjamin de Constant

This is not only because Filangieri was, as Constant puts it in this Commentary, a man of “uncritical erudition, and a mediocre intelligence.”1 Those traits were no bar to his international success in the late eighteenth century. Constant’s Commentary on Filangieri’s Work helps us understand why Constant is remembered and Filangieri forgotten.

      [print edition page x]

      Filangieri’s Science of Legislation was a compendium of Enlightenment commonplaces. Constant by no means rejects the Enlightenment, and he often lauds Filangieri’s intentions, but the Commentary is a litany of corrections of the means Filangieri and many of his eighteenth-century contemporaries chose to attain their ends, informed by bitter experience, yet retaining hope and faith in human perfectibility and social progress. Constant’s critique of Filangieri is a young Liberal critique of a well-meaning but ignorant and bumbling Enlightened parent. What separates Filangieri from Constant is the abyss of the French Revolution, and we are on the same side of that abyss as Constant. The presence of Filangieri in the title and to some extent in the structure of the work has done much to limit the attention given to it.

      Why did Constant choose to comment on Filangieri? We do not know, exactly, but history and circumstances give some hints. Constant had been aware of Filangieri’s work for some time before he published the first volume of the Commentary in 1822. Constant had served briefly as a member of the Tribunate, one of the Napoleonic legislative chambers. The president of the Tribunate, Gauvin Gallois, was Filangieri’s translator. He, or simply the wide renown of Filangieri’s work, may have introduced it to the young Constant. But Constant’s acquaintance with Filangieri went beyond the superficial. From 1806 he refers to it in the manuscripts of the Principles of Politics Applicable to All Governments and with particular frequency in On Religion, where he takes Filangieri to task for his understanding of Greek religion, a theme he returns to in the Commentary. However, familiarity with the work does not explain the decision to write about it. That decision may have been encouraged by Filangieri’s resurgent popularity. The Science of Legislation was seen by many as a blueprint for a moderate constitutionalism, and in the Restoration era of the 1820s, this led to three Spanish and three Italian editions being published between 1820 and 1822, culminating in a new French edition by Constant’s publisher in 1822. After the second part of the Commentary was published in 1824, it was bound and printed together with this edition. At the time Constant wrote it, a commentary on Filangieri might reasonably have seemed both a timely subject and a good means of creating a summary of his own views, in contrast to those of the Enlightenment represented by Filangieri.2

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      The Commentary is indeed a summary of the conclusions of a lifetime of reflection. In his book on Constant, Stephen Holmes writes that “throughout this study I have taken the Commentaire as a yardstick by which to gauge Constant’s mature views.” But it is noteworthy that this remark appears in a footnote. Other leading commentators have referred to the Commentary as the “most complete and bold statement” of Constant’s economic views, and his “ultima verba” in political philosophy. Nevertheless, while scholars have always been aware of the work, from the time of its publication onwards it has been the subject of little or no sustained discussion in its own right.3

      This is despite the fact that the Commentary treats subjects, such as poverty, immigration, and the slave trade, that drew a great deal of attention as the nineteenth century went on. Like his fellow French liberal, Alexis de Tocqueville, Constant fell into a certain mitigated obscurity in the decades after his death, and for somewhat analogous reasons. Both Tocqueville and Constant suffered in the public imagination for what was perceived to be their lack of interest in social questions, particularly poverty and class struggle, during a period when those questions increasingly preoccupied French society. Speaking of Constant, Helena Rosenblatt writes that “indeed, there is very little about poverty or class antagonism in Constant’s writings, which gives him the appearance of having been relatively unaware of or unaffected by working-class misery and industrial unrest.” The Commentary is counter-evidence to this statement. Had the work been better known in its time, Constant might have retained more interest. Like Tocqueville, Constant was preserved from complete oblivion by the enduring reputation of a single work. What Democracy in America did for Tocqueville, Adolphe, his romantic novel, did for Constant. But Adolphe did nothing for Constant as a social and political theorist.4

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      However, readers will also see reasons why, despite the fascinating material it contains, the Commentary may have had difficulty in attracting attention. The book’s organization is loosely patterned after Filangieri’s. The Science of Legislation consists of five long volumes of an unfinished seven-volume work, and the Commentary effectively consists of two short volumes (the two parts of 1822 and 1824). The resulting problems of organization were never really solved. As Constant says in the opening “Plan of the Commentary,” his chief point of diversion from Filangieri is that he prefers to leave to free choice what Filangieri wishes to see regulated by the state. But if the plan states Constant’s overall perspective, it never provides the reader with any scheme of organization for the discussion. Constant bases each chapter on a topic and passage taken from Filangieri, and he follows Filangieri’s order of proceeding, without ever giving an overview of the topics Filangieri discussed, and indeed skipping most of them. The result is that Constant’s work does not have a very clear order, although very roughly the first two parts concentrate on the proper sphere of government, part one mostly devoted to legislation in general, and part two mostly devoted to economic regulation in particular. Parts three and four center even more loosely on criminal law and religion. The lack of focus that often afflicted Constant’s writing is evident in the Commentary as well.

      Nevertheless, the Commentary is a work of great interest, partly for what it says in itself, and partly for what it says about Constant, who since his period of relative obscurity in the late nineteenth and early twentieth centuries has come into his own as one of the leading figures in the creation of modern liberalism after the French Revolution. If Emile Faguet perhaps went too far in claiming that Constant “invented liberalism,” he certainly played a seminal role. His well-known distinction between the freedom of the ancients and the freedom of the moderns—the former based on the primacy of the public sphere in antiquity, the latter based on the primacy of the private sphere in modern commercial societies—has become fundamental to much political thought.5 That distinction was made in Constant’s famous Royal Athenaeum speech of 1819 and in a less-famous passage in his Principles of Politics of 1810.

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      It is present in the Commentary. But Constant’s work covered much more than that.

      The Commentary is founded on the view that government should be limited to a strictly negative role in society: “… the functions of government are purely negative. It should repress disorder, eliminate obstacles, in a word prevent evil from arising. Thereafter one can leave it to individuals to find the good.” “The functions of government are negative: it should repress evil, and let the good take care of itself.” These two statements are found near the beginning and end of the Commentary, respectively. They act as bookends for all that comes between. This is Constant’s political and economic credo, which finds expression in the Commentary in a variety of ways. Most of part one and much of the book as a whole is taken up with debunking Filangieri’s and by extension much of the Enlightenment’s and many of Constant’s (and our) contemporaries’ belief that legislation is all powerful, and that the legislator can single-handedly shape human societies in the desired way. The limits of legislation is a theme Constant repeatedly returns to, coupled with the corollary that in attempting to legislate for the good of humanity, despotism is often the unintended consequence. From legislation in general, Constant finds his way in part two to economic regulation in particular. The transition between politics (legislation) and economics passes through a relatively brief but ferocious denunciation of the evils of slavery and the slave trade in the French colonies. After this passionate plea in favor of government intervention (with the negative aim of preserving freedom), Constant proceeds to an extensive discussion of economic regulation. Here the first thing to be said is that Constant takes a resolutely liberal, laissez-faire et laissez-passer (a phrase he quotes, in whole or in part, on several occasions) view. The Commentary shows