Commentary on Filangieri’s Work. Benjamin de Constant
or the egg? The only philosopher who expressed himself sensibly on this question was the one who said: We follow those who precede us and we precede those who follow us. It is with the mode of existence of each species as with existence itself. This mode is also a primordial fact, a law of nature. Religious people can attribute it to the creator’s will, unbelievers to necessity, but this fact is not explicable, as other phenomena are, by the succession of causes and effects.
Man is not social because he is weak, for there are weaker animals which are not at all sociable. He does not live in society because he has calculated the advantages society gives him, for in order to calculate those advantages,
[print edition page 30]
he would have had to have already known society. In all this there is a vicious circle and a petitio principii.1 Man is sociable because he is a man, as the wolf is unsociable because he is a wolf. It makes as much sense to ask why one walks on two legs and the other on four. Filangieri was therefore right to take society’s existence as a base, and to start from this first fact in order to examine how society should be constituted, what its purpose is, and what are the means of attaining this purpose.
His definition of the goal of society is fairly precise: it is preservation and tranquility. But here the author stops and does not draw the conclusions which ought to follow from this principle. If the purpose of society is the preservation and tranquility of its members, everything which is necessary so that this preservation is guaranteed and this tranquility untroubled is within the sphere of legislation, for legislation is nothing but society’s effort to fulfill the conditions of its existence. But everything which is not necessary for the preservation and maintenance of tranquility is beyond the social and legislative sphere.
Now two things are indispensible for the preservation and tranquility of societies: one, that the association be sheltered from internal disorders; the other, that it be safe from foreign invasions. It is therefore within the sphere of society’s responsibility to repress these disorders and repulse these invasions. Thus legislation should punish crimes, organize an armed force against external enemies, and impose on individuals the sacrifice of a portion of their personal property to pay for the expenses of these two purposes. Punishing crimes and resisting aggression—this is the sphere of legislation within the limits of the necessary.
It is even necessary to distinguish two kinds of crimes: actions harmful in themselves and actions which are harmful only as violations of contracted obligations. The jurisdiction of legislation over the former is absolute. It is only relative with regard to the latter. It depends on both the nature of the engagement and the demand of the individual who has been harmed. Even when the victim of a murder attempt or a robbery would like to pardon the guilty party, the law should punish him, because the action committed is harmful in and of itself. But when the breaking of an engagement is agreed to by all the contracting or interested parties, the law has no right to keep it
[print edition page 31]
in force, just as it does not have the right to dissolve it at the demand of only one of the parties.
It is clear that legislative jurisdiction must extend to these boundaries, and that it can stop there. One cannot imagine a people among whom individual crimes remained unpunished, and which would not have any means prepared for resisting attacks on it by foreign nations. But one can easily imagine a nation whose government had no other mission but to watch over these two objects. The existence of individuals and that of society would be perfectly assured. The necessary would be done.
Filangieri seems to have instinctively grasped this truth in several parts of his book, but he does not establish it clearly enough anywhere. He allows a vagueness to linger in all his expressions which has always been and is, in effect, the source of many abuses. To convince ourselves of this, let us reread the whole paragraph devoted to explaining, as the author says, “the origin and purpose of civil society, and the origin and purpose of laws, and consequently the sole and universal object of legislation.”
It was necessary to create a public strength from all individual strengths, superior to each of them individually. It was necessary to create a moral entity whose will represented all wills, whose strength was the assembly of all strengths, which, directed by public reason, interpreted natural law by developing its principles, fixing rights, regulating duties, and prescribing the obligations of each individual towards society and towards the members who compose it. This moral entity would establish a standard among citizens which would be the rule for their actions and the basis of their security. For the maintenance of order it would create and preserve balance between needs and the means of fulfilling them. Finally, it would have the power of permanently putting into men’s hands the instrument of their preservation and tranquility, the only purposes for which they had sacrificed their primitive independence.
When interpreting each of Filangieri’s expressions, it is undoubtedly possible to show that he restricts the competence of legislation within its just bounds. But by a different interpretation one could also extend that competence to everything. If legislation is a moral entity whose will always represents all wills, then all the wills thus represented no longer have any individual existence which belongs to them. If it is legislation which interprets natural law, it is only through that legislation, which is however something
[print edition page 32]
conventional and artificial, that man can know nature. An eternal silence is imposed on the internal feelings that nature has given man as a guide. If it is legislation which fixes each individual’s rights, individuals have only the rights which legislation agrees to leave them.
Understood in this way, Filangieri’s system does not differ at all from that of Rousseau, which I have opposed in another work, and whose terrible consequences and incalculable dangers I believe I have shown.2 Legislation would be an unlimited and despotic power, according to Filangieri, just like society according to Rousseau, for whose benefit the entire individual would be surrendered. One cannot object too strongly and too persistently to this doctrine. I will not repeat here the series of arguments which I used in the work just mentioned. I will limit myself to repeating the conclusions.
There is a part of human existence which necessarily remains individual and independent, and which by right is beyond all social or legislative competence. Society’s authority, and thus that of legislation, exists only to a relative and limited extent. At the point where the independence of individual existence begins, the authority of legislation stops. If legislation crosses this line, it usurps.
Individual rights are a part of human existence which should remain independent of legislation. They are rights which legislation should never touch, rights over which society has no jurisdiction, rights which it cannot invade without making itself as guilty of tyranny as the despot who has no other title to authority than a deadly sword. The government’s legitimacy depends on its purpose as much as on its source. When this authority is extended over purposes which are outside its sphere, it becomes illegitimate. When legislation brings an interfering hand to bear on that part of human existence which is not within its sphere of responsibility, does it matter from what source it comes, does it matter whether it be the work of a single man or of a nation? If it came from the entire nation, except the citizen it torments, its acts would not be any more legal. There are actions which nothing can clothe with legality.
Law has been defined (I borrow this just and profound remark from a writer whose name I have forgotten) as the expression of the general will. This definition is very false. The law is the declaration of men’s relations with each other.
[print edition page 33]
From the moment society exists, certain relationships among men are established. These relations are in conformity with human nature, for if they were not in conformity with human nature they would not be established. Laws are nothing but these relations experienced and observed. They are not the cause of these relations which on the contrary are prior to them. They declare that these relations exist. They are the declaration of a fact. They do not create, determine, or institute anything, except forms to guarantee what existed before their institution. It follows that no man, no portion of society, or even society as a whole can, properly speaking and in an absolute sense, attribute to itself the right