Commentary on Filangieri’s Work. Benjamin de Constant

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 laws lending strength to superstition and limiting the growth of individuals’ faculties. In another country he saw laws encouraging bad and absurd forms of education; in yet another country giving commerce, industry, and individual speculation the wrong direction. He thought that governments which took the opposite course would be as good for the happiness and progress of the human race as the others were harmful. Consequently, Filangieri’s work constantly considers the legislator as a separate being, above the rest of humanity, necessarily better and more enlightened than they. Becoming enthusiastic about this figment of his imagination, Filangieri gave the legislator an authority over the beings subject to his orders which he only occasionally thought of containing or limiting. Thus he speaks to us “of the different tone which legislation should take among different peoples in different times” (p. 5); “of the manner in which, in destroying harmful errors, it should support with one hand what it destroys with the other” (p. 6); “of the laws which

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      must be adapted to nations’ childhood, follow the changes of their adolescence, wait for their maturity and guard their old age” (ibid.); “of the care the legislator must take to keep wealth in the state and distribute it equitably” (p. 11); “of the protection which must be given agriculture without neglecting the arts” (p. 12); “of the means of legally preventing excessive opulence which leads to excessive poverty” (p. 15); “of the official distribution of honor and shame, in order to powerfully influence opinion” (p. 18); “of the obstacles it is desirable to oppose to domestic education, independent of the laws, which should not be allowed except for a small number of citizens” (p. 21); “of the direction to give talents, the use which the legislator can make of passions, and the productive strength of virtues” (ibid.).

      Thus, in this part of his system Filangieri confers on the legislator almost limitless sway over human existence, while elsewhere he objects very forcefully to “government encroachments.” He holds this contradiction in common with a great many writers whom freedom nevertheless counts among her most zealous defenders. To explain this inconsistency, some discussion is necessary, and I need to ask my readers for a little attention.

      Without realizing it, all those who have written about governments have simultaneously looked at them from two perspectives and have judged them, often in the same sentence, sometimes as they are, and sometimes as they would like them to be. In judging governments as they are, these writers have treated them very severely. They have exposed to public hatred and indignation the vices, mistakes, false calculations, bad intentions, obstinate ignorance, and envious passions of men clothed in power. But when they judged governments as they wanted them to be, they expressed themselves completely differently. Their imagination presented rulers as abstractions, and made them into beings of a different species than the governed, enjoying an incontestable superiority in virtue, wisdom, and education. Once noticed, this double perspective is easily explained. Since everyone wants to see his own opinion triumph, no one completely gives up on attracting the government’s support, and the man who is thwarted by that authority does not want to see it destroyed, but only displaced.

      Pick at random one of our most famous philosophers—Mably, for example. He devotes six volumes to retracing, history of France in hand, the misfortunes of peoples and the crimes of power. The facts he gathers and comments on certainly do not show the rulers to be better than the ruled. Every fair

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      mind would be led to conclude from these facts that government should be limited as much as possible, and that the whole portion of human existence which does not absolutely have to be subjected to it should be exempt from its harmful action.

      But now follow Mably in his theories. The authority that he found so harmful and dangerous in practice he suddenly depicts as beneficial, equitable, enlightened. He surrenders man entirely to it as to a protector, a guardian, and a guide. The law, he says (and he ignores that the law is not made by itself and that it is the work of governments), should seize hold of us from the first moments of our lives, surround us with examples, precepts, rewards, and punishments. It should direct, improve, and enlighten that numerous and ignorant class which, not having the time for examination, is condemned to accept truth itself by faith and like prejudices. All the time the law abandons us is time that it leaves