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CHAPTER NINE On Errors in Legislation

Nothing is easier than to commit an error in legislation: but there is nothing more deadly to peoples, nothing more dangerous from which to cure them. The loss of a province and all the ill-successes of a war are short-lived misfortunes. A moment of good fortune, a single battle, sometimes repairs the losses of several years, but a political or legislative error is the inextinguishable source of a century of hardships, and its destructive influence extends for centuries to come.

BOOK I, CHAPTER 3, P. 53.

From the fact that it is easy to commit errors in legislation, and that errors of this kind are a thousand times more harmful than all other calamities, it seems to me that one should decrease the chance of these errors as much as possible. If to decrease this chance men are reduced to sacrificing a portion of the advantages which they hope to obtain from legislative action, they must resign themselves to the sacrifice, provided that it does not entail the destruction of the social state. One should consent to laws doing perhaps a little less good, in order to be assured that they will cause much less evil. In restricting their intervention within the fairly narrow limits of public security, this goal is attained. The fewer occasions the legislator has to act, the less he will be exposed to error.

In the first chapter of L’Ami des hommes, the marquis de Mirabeau established a very just distinction between positive and speculative laws. He said that positive laws limit themselves to maintaining; speculative laws extend to directing. He did not draw any broad conclusions from this distinction. His purpose was not to set the limits of legislation, and although in the rest of his book he was constantly led by the force of circumstances to restrict the speculative

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functions of legislators, he nevertheless accepted their rights. He only tried to indicate how these functions could be usefully and advantageously exercised. My purpose is different. But I will adopt the same distinction in order to follow its incontestable results to the end.

When the government or legislation punishes a harmful action, or when they repress the violation of a contractual agreement, they fulfill a positive function. When they rigorously punish an action which is not harmful under the pretext that it could indirectly lead to an action which would be harmful; when they impose on individuals certain obligations or rules of conduct which are not a necessary part of the agreements contracted by these individuals; when they hinder the disposition of property or the exercise of industry; when they try to take over education, or dominate opinion, whether by punishments or rewards, they arrogate to themselves a speculative function.

In his positive functions the legislator does not act spontaneously. He reacts to facts and previous actions which have taken place independently of his will. But in his speculative functions he does not react to facts or actions already committed; rather, he foresees future actions. He therefore acts spontaneously, and his action is the product of his will. The positive functions of the legislator are of an infinitely simple nature, and in their exercise the action of power is neither equivocal nor complicated. His speculative functions are of a different nature. They have no fixed basis or clear limit. They are not exercised on facts, but are based on hopes or fears, on probabilities, on hypotheses—in a word, on speculation. For that reason alone they can be infinitely varied, extended, and complicated.

The positive functions often permit the government to remain motionless. The speculative functions never permit it rest. Its hand, which sometimes limits, sometimes directs, sometimes creates, and sometimes restores, can sometimes be invisible, but it can never remain still. One after another, you see the legislator put up barriers of his choice this side of crime in order to establish punishments for crossing these barriers later, or else prohibit actions neutral in themselves, but whose indirect consequences seem dangerous. Or he makes coercive laws to force men to do what seems most useful to him. At other times he extends his authority over opinion, or modifies or limits the enjoyment of property. He arbitrarily regulates its forms and determines, orders, or prohibits its transmission. He subjects the exercise of industry to numerous hindrances, alternatively encouraging or limiting it. Thus actions,

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speeches, writings, errors, truths, religious ideas, philosophical systems, moral affections, intimate feelings, customs, habits, mores, institutions—what is most vague in man’s imagination, most independent in his nature—all become the legislator’s domain. His authority spreads over our entire existence, confirms or combats our most uncertain conjectures, and changes or directs our most fleeting impressions.

There is therefore this difference between the speculative and positive functions: the latter have fixed limits, whereas as soon as they are accepted, the former have none. The law sending citizens to the frontier in order to defend the border when attacked would be a positive law, for its purpose would be to repel aggression and prevent the territory from being invaded. The law authorizing the government to make war on all peoples suspected of contemplating an attack is a speculative law, for there would be no previous fact, no action committed. There would be a presumed action, speculation, conjecture. Note also how in the first case the function of the legislator and of the executor of the laws would be limited. The one would not pronounce except against a fact, the other could not act if the fact did not exist. But in the second hypothesis, authority would be limitless, for conjecture would always be at the discretion of the holder of authority.

From this difference between positive and speculative laws, it obviously follows that when the legislator limits himself to the former, he cannot go wrong. Conversely, by venturing into the second he exposes himself to all sorts of mistakes. A law against murder and theft, punishing well-defined actions, can be more or less well made; it can be either too indulgent or too severe, but it cannot go in a direction opposite to its purpose. A law to prevent the decline of trade or remedy the stagnation of industry runs the risk of mistaking for means of encouragement things which are the opposite. By trying to encourage commerce, it can destroy commerce; by trying to favor industry, it can obstruct it.

If therefore the grave, varied, and prolonged harm done by mistaken legislation ought to lead us to reduce the possibility of these errors as much as possible, it is clear that everything which relates to the speculative functions should be excluded from the legislative domain. By this route, as by all others, we thus arrive at this sole, unchanging result, the only reasonable and salutary one: repression and defense are the legitimate, that is to say necessary, purposes of the law. The rest is luxury, and harmful luxury.

In restricting the law’s action to this narrow circle, we doubtless give up the

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realization of many brilliant dreams and put an end to a thousand gigantic hopes. The imagination can conceive of an extremely useful employment of legislation, in its indefinite extent, by supposing that it will always be exercised in favor of reason, the common interest, and justice; that it will always choose means of a noble nature and certain success that it will succeed in subjecting human faculties without degrading them; that it will act, in a word, like Providence as the devout conceive it, by combining the force which commands and the conviction which penetrates the bottom of hearts. But to adopt this seductive supposition, one must accept a principle that the facts are far from proving, which is that those who make the laws are necessarily more enlightened than those who obey them.

It may be thus among the savage hordes that colonists bring under orderly government, but it is not the same with civilized peoples. When a small group of people, which as yet possess only the basic ideas necessary to physical existence, receive by conquest or in any other way laws which teach them the basic elements and subject them to the basic rules of the social state, the authors of these laws are certainly more enlightened than those whom they instruct. Thus one may believe that Cecrops, if he existed, had more knowledge than the Athenians, Numa than the Romans, Mohammed than the Arabs.

In my view, to apply this reasoning to an association which is already ordered is a great mistake. It is true that in such an association a substantial number educates itself only with great difficulty, devoted as they are by the nature of circumstances to mechanical occupations. The men charged with making laws are incontestably superior to that portion. But there is also an educated class to which these legislators belong and of which they make up only a small part. It is not between them and the ignorant class, it is between them and the instructed class that the comparison should be made. Reduced to these terms, the question cannot turn to the advantage of the legislator. “If you suppose,” says Condorcet, that “the public authorities are more enlightened than the mass of the people, you must suppose them less enlightened than many individuals.”1

If this is the case, if the legislator does not have the privilege of distinguishing better than the individuals subject to his power what is advantageous and what is harmful, what will we gain for happiness, order, or morals by

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extending his attributes? We create a blind force whose use is abandoned to chance. We draw lots between good and evil, between error and truth, and chance decides who will be invested with power.2

This is not to say that laws are not altogether respectable when they limit themselves to their sphere. The possibility of legislative error is not a winning argument against the possible or rather the certain dissolution of all society, a dissolution which would result from the complete absence of laws. Furthermore, limited to what is strictly necessary, the laws’ intervention is simultaneously more necessary and less dangerous. When the laws limit themselves to the maintenance of external and internal security, they require only ordinary intelligence and education in order to be well made. This is really a very great advantage. In destining the multitude for mediocrity, nature wanted mediocrity to be in a position to understand the rules proper to preserving peace and good order in society. Just as in legal verdicts men find it sufficiently good to be judged by their peers, in matters of legislation they will find it sufficiently good that their peers have made the laws. But just as the questions submitted to juries should be simple and precise, so it is necessary for the laws’ object to be precise and simple.

I foresee that the opinion I give here is of a nature to excite many loud objections. One of power’s tricks consists in always describing legislation, government, and the management of affairs as a very difficult task. The crowd believes this, because it believes docilely whatever is repeated to it. The holders of authority gain by making themselves into profound geniuses solely due to the fact that they are burdened with such arduous functions. But there is something remarkable in their charlatanism in this respect: at the same time that they pose the principle, they fight its most necessary consequence with all their strength. If power requires so much capacity in order to be exercised, is it not clear that it ought to be confided to the most capable?3 The masters of

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the world are far from consenting to this. When it pleases them to be admired they speak of the obstacles they have to overcome, the pitfalls they avoid, the perspicacity, wisdom, superior understanding with which they must be endowed. But when one is led to conclude that one should look and see if in fact they possess these high qualities, this perspicacity, this wisdom, they immediately put themselves on another footing. They affirm that whatever the limits of their faculties, government belongs to them and that it is their property, their right, their privilege. It follows from their system both that the art of ruling men requires superhuman intelligence, and that one can trust in the most blind of all chances, birth, to confide the exercise of this art to the first comer.

I think I am being more favorable to the rulers’ real interests than the rulers themselves by demonstrating that government restricted to its legitimate limits is not such a difficult thing. I think I am rendering an eminent service to hereditary constitutional monarchy by this demonstration. I do it freely, because at the present period of our species in Europe, hereditary constitutional monarchy can be the freest and most peaceful of governments.

But to extend government’s jurisdiction to objects which are outside of its sphere is to distort the question. It is to entrust innumerable and unlimited functions to a small number of men, in no respect better than the rest. These functions are less necessary than the positive functions, since society would exist all the same if they were not performed. Yet they are almost impossible to perform well, since superior understanding is required, and more dangerous to perform badly, since they touch on the most delicate parts of our existence and can dry up the sources of prosperity. Therefore everything confirms my principle. Have positive laws, giving that expression the meaning given it by the marquis de Mirabeau, for you cannot exist without those laws. Do not have any speculative laws, for you can do without them.

Above all, be extremely careful to reject the usual pretext for all laws of the latter kind, the argument of utility. Once this argument is accepted, you will be forced despite yourself toward all the problems inseparable from the blind and colossal force created under the name of legislation.

Utilitarian reasons can always be found for all commands and prohibitions. To forbid citizens from leaving their homes would be useful, for this would prevent all kinds of crimes which are committed on the road. It would be useful to require everyone to present himself every morning before a magistrate,

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because then one would more easily discover vagabonds and thieves who hide and wait for a chance to commit a crime. Twenty years ago this logic transformed France into a vast prison.

Utility is not susceptible to exact proof. It is an object of individual opinion and thus of debate and of unlimited contestation. Nothing in nature is neutral. Everything has a cause, everything has an effect, everything has real or possible results, everything can be useful, everything can be dangerous. Once authorized to judge these possibilities, legislation has no limits and can have none. “You have never,” says a very intelligent Italian,4 “you have never in your life tied up anything at all with string or thread without giving it an extra turn or making an extra knot. It is our instinct, in small things as in great, to go beyond the natural measure.” Led by this tendency inherent in man, the legislator acts in every direction and commits those innumerable errors that Filangieri describes. As I have shown, he must commit them, for he is no more infallible than individuals. I say that he is not more infallible, and if I wanted I could prove that he is less.

There is something in power which distorts judgment. Strength’s chances of error are much greater than those of weakness. Strength finds resources in itself, whereas weakness needs reason. Imagine two equally enlightened men, one vested with any kind of power, the other a simple citizen. Do you not feel that if the first were put in a prominent position, pressed into making decisions he must adopt at a given moment, and committed to these decisions that become public, 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.