Commentary on Filangieri’s Work. Benjamin de Constant
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 influence of coercive or prohibitory laws on citizens’ morals, and the corruption which the multiplicity of laws introduces among the government’s agents! But I have already touched on this subject in another work,7 and furthermore I will be brought back to it in the course of this commentary.
To sum up: errors of legislation have multiple disadvantages. Independently of the direct harm they cause by forcing men to adapt to them and conform their habits and calculations to them, they are, as Filangieri observes, as dangerous to eliminate as to respect. Individuals can doubtless make mistakes, but if they stray, the laws are there to repress them. On the contrary, errors of legislation fortify themselves with the force of law itself. These errors are
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general and condemn man to obedience. The mistakes of private interest are individual: one person’s mistake has no influence on another’s conduct. Since all error harms the person who commits it, error is soon recognized and given up when the law remains neutral. Nature has given man two guides: interest and experience. He learns from his own losses. What motive for persistence would he have? Everything he does is private. Without anyone noticing, he can retreat, advance, change course—in sum, he can freely correct himself. The situation of the legislator is the reverse in everything. Further removed from the consequences of his measures and not feeling their effects so immediately, he discovers his mistakes later, and when he discovers them, he finds himself in the presence of hostile observers. He has reason to fear losing prestige if he corrects himself. Between the moment legislation deviates from the correct path and the moment when the legislator perceives it, much time passes; but between the latter moment and when the legislator decides to retrace his steps, even more time passes, and the very act of retracing his steps is not without danger for both the legislator and society.
Thus whenever there is no absolute necessity, whenever legislation does not have to intervene so that society will not be overthrown, whenever finally it is only a question of a hypothetical good, the law must abstain, allow things to happen,8 and be silent.
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CHAPTER TEN
Spain owes not only to the expulsion of the Moors … but to false principles of administration … the deplorable state of agriculture, industry, population and commerce.
BOOK 1, CHAPTER 3, P. 54.
Doubtless Filangieri is correct to include the expulsion of the Moors and the absurdity of several of the commercial laws which rule that kingdom among the causes of Spain’s decline. We will have more than one occasion to return to the disastrous influence of these prohibitive laws, of which all European governments formerly made such ample use. The lessons of experience and the efforts of all sensible men still cannot get rid of these laws, which are recommended by all governments’ flatterers, all the promoters, all the ignorant speculators, all the greedy businessmen. They frequently seduced Montesquieu himself. So hateful to governments is belief in freedom’s good effects! As for the expulsion of the Moors, today happily it is put alongside the St. Bartholomew’s Eve massacre and the revocation of the Edict of Nantes. Despite the shamelessness of writers in government pay, the progress of the century has gained this: were such measures repeated, they would perhaps find accomplices, but they would not meet with approval from afar.
Nevertheless, these causes, to which Filangieri assigns the destruction of an empire always favored by its climate and position, and for several centuries aided by a unique combination of circumstances, are only secondary and accidental. Or rather they are themselves the effect of a general and permanent cause, the gradual establishment of despotism and the abolition of all constitutional institutions.
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Spain did not suddenly fall into the state of weakness and degradation in which that monarchy was mired when Bonaparte’s invasion awoke a generous people from its stupor. Its decline dates from the destruction of its political freedom and the suppression of the Cortes. Formerly inhabited by thirty million people, it has seen its population gradually fall to nine million. Sovereign of the seas and mistress of innumerable colonies, it has seen its navy decline to the point where it was inferior to those of England, Holland, and France. Arbiter of Europe under Charles V, terror of Europe under Phillip II, it has seen itself crossed off the list of powers which have determined the world’s destiny during the last three centuries. All this did not happen in a day. It was done by the stubborn work and silent pressure of a government which limited human intelligence, and which, in order not to fear its subjects, paralyzed their faculties and kept them in a condition of apathy.
The proof of this is that if we look at England, we see commercial laws no less absurd, no less harmful, no less unjust among the English. In the massacres of Catholics, above all in Ireland, and in the execrable regulations which reduced all that portion of the Irish people to the condition of helots, we see the counterpart of the persecution and to a certain extent the banishment of the Moors, yet England has remained in the first rank of nations. It is the political institutions, the parliamentary discussions, and the freedom of the press which England has enjoyed without interruption for 126 years which have counterbalanced the vices of its laws and its government. Its inhabitants’ energy of character has been maintained because they were not disinherited from their participation in the administration of public affairs. This participation, even if it was almost imaginary, gave citizens a feeling of their own importance which kept up their activity. An England ruled almost without exception by Machiavellian ministers, from Sir Robert Walpole down to our own day, and represented by a corrupt parliament, has nevertheless preserved the language, the habits, and several of the advantages of freedom.
If one objects that the Spanish constitution was already nonexistent under Philip II, I would respond that despotism’s effect is not immediate. A nation which has been free, and which has