Reading about all that the law should do, who would not believe that it descended from heaven, pure and infallible, without need of intermediaries whose errors falsify it, whose personal calculations disfigure it, whose vices sully and pervert it? But this is not the case if the law is the work of men. If it is stamped with men’s imperfections, weakness, and perversity, who does not realize that the work does not merit more confidence than its authors, and that they themselves have no right to inspire us more in one capacity than another? We fear them as rulers because they are despots; we fear them
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as peoples because they are blind and ignorant. A change of name does not change their nature at all. It seems to me that here are strong enough reasons to mistrust men, even when they find it convenient to call themselves legislators.
Long ago I said,2 and I repeat: abstract and obscure language has created illusions for writers. One could say that they had been duped by the impersonal verbs they used. They thought they were saying something when they said: men’s opinions must be directed; men should not be left to the wanderings of their minds; thought must be influenced; there are opinions which can be usefully used to trick men. But these words—“one must,” “one should,” “one should not”—are they not used about people? One would think that they were about a different species. However, all these phrases imposed on us amount to saying that men should direct the opinions of men; men should not leave men to their own devices; there are opinions which men can use to trick men. The impersonal verbs seem to have persuaded our philosophers that there were some beings other than men who governed.
It is assuredly far from my mind to want to weaken respect for the law when it is applied to objects within its competence. I will describe them soon. But extending the law’s competence to everything, as Mably, Filangieri, and so many others do, is to organize tyranny and to return, after so many long declamations, to the state of slavery from which we were hoping to free ourselves. It is once again to subject men to unlimited force, which is equally dangerous whether we call it by its true name, despotism, or by a gentler name, legislation.
I therefore reject all this part of Filangieri’s system, from which, furthermore, he himself departs as soon as he goes into detail. Legislation, like government, has only two purposes: first, to prevent internal disorder, and second, to repulse foreign invasion. Everything beyond this limit is usurpation. Legislation therefore ought not to “take a different tone among different peoples or among the same peoples in different times.” In all times, real violations—that is, acts which harm another—ought to be repressed, and those which do not harm anyone ought not to be. Legislation ought not to be “concerned with destroying errors,” nor, when it destroys errors, “with supporting with one hand what it destroys with another.” Errors should be destroyed only
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by themselves, and they are destroyed only by experience and examination; legislation has nothing to do with it. There should be no question of laws “which are adapted to the childhood of nations, to their adolescence, to their maturity, their old age,” because once again, in the childhood as in the adolescence, maturity, or old age of peoples, attempts against life, property, and security are crimes and should be punished. All the rest should remain free. Furthermore, when a nation is in its infancy, its legislators are in infancy. The title of legislator does not confer any intellectual privilege.3
Legislation should not try to “fix wealth” in the state and to “distribute it equitably.” Wealth is fixed in a state when there is freedom and security, and in order for there to be these two things, it is enough to repress crime. Wealth is distributed and divided by itself in perfect equilibrium, when the division of property is not limited and the exercise of industry does not encounter any hindrances. But the best thing that could happen to either is the neutrality, the silence of the law. Legislation (as I already said in chap. 3) is not needed to “protect agriculture.” Agriculture is effectively protected when all classes have guaranties and are sheltered from persecution. The law has no need “to prevent excessive opulence,” because excess is only introduced among a people when the law solicits it and in a certain sense calls for it. It is usually with the help of laws, institutions, and hereditary privileges that colossal fortunes are formed and maintained. Afterwards one makes laws to oppose their immoderate
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growth, and that is another evil. Get rid of laws which favor them, and you will not need laws to repress them. This will be a double advantage. For the first torment and debase the poor man, while the second torment and corrupt the rich. The first arm the various classes of citizens against each other. The second arm the class of citizens who serve as an example to the rest against the institutions. The distribution of “honor and shame” is exclusively the province of opinion. When the law wants to intervene, opinion balks and annuls legislative decrees. “Education” belongs to parents, to whom children are confided by nature. If these parents prefer domestic education, the law cannot oppose it without being a usurper. Finally, “talents” do not need the law to give them “direction.” “Passions” should be repressed when they lead to actions contrary to public order but the law should not meddle with them, either to create them or use them, “and the productive force of virtues” is not the law, but freedom.
In the outline of his book and in several parts of the book itself all of Filangieri’s expressions are essentially vague and incorrect: this is the work’s great flaw. One can see clearly that the author’s ideas were not sufficiently developed. He had realized that almost all the obstacles to men’s happiness and the development of their faculties come from the very measures that governments take under the pretext of aiding their development and assuring their happiness. However, he was not sufficiently convinced that the obstacles were not to be overcome by different governmental measures, but through the absence of all positive measures. In correctly exposing the problem with what existed, he constantly used expressions which implied direct action. This flaw in the writing keeps the work from having a clear impact and the reader from reaching the conclusion confirmed by all the facts, which is that 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.
I will come back to each of these goals, briefly indicated here, when Filangieri’s chapters successively lead me to them. Here I have only sought to announce the fundamental truth. The examination of each particular question will only bolster this truth with more evidence.
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I take care not to suppose a state of nature previous to society.… Society is born with man: but this primitive society was very different from civil society.… It was necessary to create a public strength superior to each of them out of all individual strengths … which had the power to forever place the instrument of their preservation and tranquility in men’s hands.
BOOK I, CHAPTER 1, P. 43.
We ought to be grateful to Filangieri for having put aside questions relative to man’s primitive state. The writers of the eighteenth century made these questions very fashionable, but they are both insoluble and futile. In the history of all origins there are primordial facts whose cause one should not look for behind their existence. Existence is a fact that must be accepted without trying to explain it. All attempts at explanation send us back to that trivial and comic problem which nevertheless defies reason: