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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 the passions to tempt us, seduce us, and subjugate us. The law should excite a love of work, engrave respect for morals in the souls of the young, strike the imagination by well-coordinated institutions, reach to the bottom of our hearts to tear out guilty thoughts. Instead of limiting itself to repressing harmful actions, the law should prevent crimes rather than punish them. The law should regulate our least movements, preside over the spread of knowledge, over the development of industry, and over the perfection of the arts; it should lead as if by the hand the blind crowd that must be instructed and the corrupt mass that must be corrected.1

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.