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| 8 | Discourse on Public Opinion and the General Will * |
Here are two phrases as often repeated in republics as silenced in absolute monarchies, perhaps because their true meaning constitutes the compelling strength of the first and is the implied censure and most constant threat against the existence of the second. But see at the same time two phrases humanity and philosophy will never pronounce without trembling, because in their name horrible crimes have been perpetrated in the world, and because they have been and will always be the cloak of demagogues, the deadly defense of factions and favorite watchword of all revolutionaries, similar to the comets, innocent stars like all the others, but which lent barbarism the occasion to cause, through impassioned imaginations, damages in which they did not take any part whatsoever. These phrases serve malice as a horrific weapon to get its way with their sacrilegious intentions, even when nothing corresponding to the phrases exists except sound devoid of all reality.
Just because the significance of these terms is so respectable, it is enough to pronounce them to make absolute governments tremble and fill with suspicious distrust and silence popular governments and make them lower their heads; but be careful, be careful with carrying that respect beyond its limits in such a way that it prevents us from approaching the intended object that must produce it (as almost always happens), for that way an illusion will generally intimidate us; we would worship a shadow instead of the divinity we imagine.
In no government is that examination more necessary than in the popular, and never more interesting than in times like, unfortunately, the present, in which diverse factions argue over the benefit of their opposing interests. As, then, each one of them defends his intentions with those
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respectable phrases, it is indispensible to know well their full value to determine if none, some, and which of the rivals possesses such treasure.
Let us attempt, then, to do for the government and the Mexican public a most interesting service, examining what those terms signify; if what they signify can exist and in which cases; if there will be sure indications to recognize their existence; and, finally, if it is assumed, whether there will always be an obligation to yield to their rule, or if one will be able to or even should resist it at some time.
These questions deserve all the attention and study of our fellow citizens, particularly the legislators and public officials, because on their erroneous resolution rest a thousand future woes of the patria and the noisy or silent undermining of the institutions on which it bases, with reason, its stability and its fate. Let us now get to the subject so that our reflections might contribute abundant material to whomever can speak with greater knowledge.
What do these phrases signify?
In metaphysics, opinion is adherence of the understanding to a proposition or propositions through solid foundations that one is convinced to be the truth, but not so clearly and evidently that they free it completely from the fear that it might be its contradiction. There are, for example, reasons for believing that the ebb and flow of the sea is the result of the attraction of the moon, but there are other, opposing reasons. He who on the basis of the first set of reasons decides to attribute such an effect to the moon without completely resolving the second is said to embrace opinion. Of him who repeats that proposition for no reason other than having heard it, what can be said with accuracy is that he does not know, and at most, that he believes, if his entire foundation for regarding the proposition as certain is the regard he has for the person from whom he heard it.
The significance of the word “opinion” does not change when it carries over into the political. There, the same as anywhere else, the term denotes adopt, embrace as true a proposition based on foundations that seem solid to the understanding, and more solid than those foundations that persuade of the opposite, although it cannot provide them a completely satisfactory response.
The word “will” is well understood by everyone; it always signifies the attachment of our soul to some object that the understanding has
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conceived as good. The intensity of love or desire is proportionate to the degrees of goodness that we apprehend in the object and those of the clarity with which the understanding presents that good to us.
These ideas are very clear; they are those that all philosophers assert and what all men experience. From them we deduce, then, the truths that pertain to our case.
To this point we are proceeding well, and we will not be contradicted. The difficulty begins with the adjectives in these phrases, because delving deeply into what “public” means in the first and “general” in the second, it is necessary that the spell vanish with which the unwary are deceived so as to make them blind instruments of destruction, who will, in their turn, be destroyed.
These phrases, “public opinion,” and “general will,” either signify nothing that can serve demagogic purposes, or they must denote the opinion and the will, at least, of the greater number of citizens who make up a republic, but not the absolute total, as it seems it should be.
Notice that the classical authors, when they use these phrases to establish their doctrines, seem not to give so much latitude to their meaning, but rather they understand by them the opinion and will more generalized among those who are capable of forming it with respect to each subject; but we, whose intention is to combat the frequent anarchic applications, give them generally the sense of coincidence of opinions and desire of all, or even the considerable majority of the citizens regarding a specific object. Having given this warning and the terms now defined, let us consider the second question.
Is there a subject regarding which a uniformity of opinions and the desire of the greater part of the citizens can be verified?
It has been said already that there is not desire or love with respect to objects that are not known, and that there is no opinion as long as the understanding has not settled on foundations whose solidity is sufficient to persuade it. So, therefore, there will not be uniformity in the thinking and desiring of the greater number of citizens of a republic, but rather only with respect to those objects that are within the reach of that majority, that is to say, in the reach of all men. How many objects of that class will there be? Will they exceed the number of fingers of the hands if we use them to count?
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It can be established as a general rule that only certain experimental truths and simple first principles can be conceived uniformly by the majority; but at the moment when objects become complicated in their relationships, and in proportion to how these relationships multiply, how they get in the way of each other, and how the terms recede away to a greater distance, the impossibility of uniformity arises and grows. The majority abandon it, and their examination does not even occur to them, and the few who have an ability and dedicate themselves to the examination see them from different angles and, for that reason, establish on the basis of them very diverse and even, many times, contradictory principles.
All men have the same faculties, but perhaps no two apply them in the same way to their aims, from which grows such a multitude of passions, such a diversity of desires, and the infinite variety of concepts. Everyone experiences pleasures, but each in his own way; everyone suffers pain, but in how different a way, and how many times does the same object that provides pleasures to some, cause anguish and repugnance in others! So, about the only agreement we have is on the vague and indefinite desire to be happy, child of abstract, confused, and general understanding of happiness. But when it comes to realizing or satisfying that desire, each one goes by a very different road and believes himself able to find this treasure in objects very distant from one another. Let us agree, then, that if the truth is not practical and experimental or exceedingly simple, we waste time looking for it with respect to the true opinion and will of the greater number.
As societies and republics are nothing more than the consolidation of families, and these of individuals, it is necessary to acknowledge that public opinion and general will, if they exist, must have the same sources as individual opinion and will, and those can be verified only if the source of these others is identical. Well, now, let us examine the men, or better let each man examine himself, and tell us which were the sources of the opinions they embraced in their lives, which have produced lasting opinions and which transient, and all will respond that their opinions have arisen either from education or from respectful habits that they acquired from their education or from their perceptions or from their reflective meditations and study; that those which originate from this last source are generally readily changeable because, even when they are certain, they are accompanied by fear, because of the experience of other errors and mistakes; that those which originate in the other three primary sources create deep roots and, even should they be false, are set aside with difficulty.
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Assuming this, and it being impossible that the greater part of the citizens dedicate themselves to reflective meditation and study, there only remains to us, as origins of public opinion, general education, sensations, and respectful acquiescence, repeating in regard to this last that it is more likely the source of faith than of opinion because, not providing us with direct foundations, it makes us defer to what the person or persons to whom we give credit present to us as certain.
Sensations provide us only with experimental truths, for example that the sun gives light, that fire burns; and so, putting these to one side, there can be public opinion only with respect to those objects that might have been subjects of general education.
From this, anyone will infer very correctly that, it being unfortunately undeniable, there has never been among us popular education; that the fruits of what is sown today will be gathered twelve or twenty years from now; that the majority of our people did not go to the few and bad schools; that those who went to them learned only and at most the catechism of Ripalda, badly explained most of the time; and that popular instruction has been relative only to religion—and would that they presented it in all its purity!—will infer, we repeat, that, besides the truths of immediate experience, there is among Mexican citizens uniformity of thoughts and desires only in matters of religion, because they drink it with mother’s milk, and in independence of all foreign domination, because it is such a simple object, so perceptible, and because of its deprivation misfortunes came to us through all the senses. Excepted from this rule are neither the few that there may still be who have lost their sense of civic responsibility, longing for the sepulchral calm of the time of slavery, nor some who, for their misfortune and ours, detestable books have corrupted, which they read with neither principles nor criticism, and those books have made them waver in and even abjure the holy religion they professed.
The well-off class among our youth and the humblest and poorest among our citizens provide the confirmation of these truths. Observe the former carefully since our independence and you will note the yearning with which this class searches for works of the sciences whose names we did not previously know; the promptness with which it adopts the principles of each new work that arrives; the ease with which they are applied despite overrunning everything; and the equal ease with which they are abandoned with the arrival of another work
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that establishes different principles. From what does this changeability arise? From an excess of ingenuity and a lack of experience in scientific education. The desire to know and the necessity of governing ourselves make us devour whatever comes to our hands, and not being well rooted in the true principles, because they never gave them to us, nor did we learn them ourselves, we wander from theory to theory, and the same thing will happen to us until sufficient time has passed for reflective meditation and experience to root us in the solid truths which we still distrust. Therefore, for now we must not allege public opinion with such satisfaction and generality, not even in speaking of the well-to-do and studious class, because what we do not acquire in education only study and experience can give us, and those require a greater passage of time than what has passed since we have become free.
In the poorest class, which is incomparably the greater, the assertion is still more palpable: whoever goes out to deal with the people of the country or enters into artisan workshops to explore what they think about the innumerable questions of politics, economics, and morality that legislators must handle daily, will see that some respond only with the smile of suspicion, indicating that they fear one wants to make fun of them; and others, more simple, respond: And what do I know of that? There is no need to give this too much thought. Our people are almost uniquely generally satisfied with religion, with independence, with the desire to pay as little as possible in taxes or nothing if that is possible; with whatever will allow them to work and freely pursue their lives; that their personal security be stable; that they can enjoy their possessions in peace; and they become involved in nothing else, not even to inform themselves about government provisions; they respect their legislators, the government, and the subordinate authorities and let them do their work.
It seems very certain, then, and it is among us even if it might not be everywhere, that the only objects of common opinion are those that derive from popular education, those that come through the senses, that is to say empirical truths, or that are directly deduced from them, and those very few which, because of their simplicity and total lack of relational complication with other objects, are offered to the majority and are perceptible to everyone; but speculative truths, complex and difficult truths like those the science of government embraces, are neither objects of the opinion of the greater number, nor is there regarding them that uniformity
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of the majority, except in the case in which they adopt them by tradition, instilled by three or four people who are referred to as entourage. Then, the majority believes, does not opine; is incited mechanically, does not incite; and thus their thought, as their desire, does not generally last longer than that of the voices with which those who have set themselves up as coryphaeuses urge them on.
The law, we will be told, is the expression of the general will; then how can there be so few objects of public opinion and consequently so few objects of that will? If that maxim, taken from Rousseau, were absolutely true, says the very profound Bentham,1 “there is not a country that would have laws, for neither in Geneva nor in the small democratic cantons does the right of suffrage have that universality, nor is that right of suffrage of the true majority of the total number of inhabitants ever verified.” If, through such a principle, one wants to indicate that those with responsibility for making the laws received from the people that very august investiture or that, given the law, the citizens accept it, those obligated to it by their social pacts, then, yes, it has a just and true meaning, and the will to carry out what the law prescribes is perfectly understood as the primitive will to observe what those whom the peoples elected for that very important end decree. Everything that is not this is neither intelligible nor philosophically sustainable and is the eternal breeding ground of anarchy and its consequent misfortunes.
It remains, then, to resolve the third question, and what has been said until now will shorten much of the road that we have to walk in examining
If there will be some fixed signs by which to recognize whether public opinion has been formed.
On this matter it is easier to say what is not than what is; the negative rules are very certain and, on the contrary, the positive ones are ambiguous, and generally their application to the practical can produce only probabilities.
It has been said that there is no public opinion if the question or proposition with which it deals is not practical and experimental or so simple as to be within the reach of the majority of people, and consequently there
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is not public opinion except, as we will state later on, over propositions that, although practical, have complication of circumstances and aims that, in order to combine them, require more than trivial attention and some thorough reflective meditation, for it is clear that the generality of citizens is not capable of this.
In questions and propositions that are speculative, complicated, and profound, there can be no true public opinion unless these questions and propositions have been the object of popular, constant, and generalized education, in which case, although they come to be adopted traditionally and generally without proofs, the way of thinking is uniform, although it cannot strictly be called opinion, given what has just been said.
Self-love is the universal passion of all men, and in the judgment of even the great philosophers, all the other passions, to which are given different names according to the object to which it applies, are the very same. What is beyond doubt is that, if not every man is lascivious nor vindictive, etc. . . . every man loves himself and seeks his well-being wherever it may be and in all his actions, so that, although the objects of the application and reflective meditation of men might be infinitely varied, and although the exercise of study might be for so very few, there is no man at all for whom his individual interest does not require of him attention, deliberations, and frequent periods of thinking; and as meditation is a source of opinion, it follows that there can be public opinion on objects of common interest or utility.
The wise Bentham was, then, quite correct when, referring to legislation, he said public utility was the surest criterion of public opinion,2 an expression that we convert into a negative maxim, saying: no measure whatsoever that is not in the common interest, immediate and readily perceptible, is a proper object of true public opinion.
Focus for a moment on the expression immediate and readily perceptible because there are innumerable measures that will surely produce general well-being and happiness; but because this has not been their immediate outcome nor has it yet been experienced, they do not have in their favor the majority of the people, for whom only experience is the foundation for believing and thinking, and for whom good and evil have either to enter through the senses or they enter them almost never.
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Bayle3 observed, before us, that it is almost natural in men not to think for themselves and that a quasi-innate apathy makes them form an idea of one or some individuals to allow them to know and hold for certain what those individuals tell them they have thought. Generally we pay that respectful deference to our parents, masters, and superiors, in whom we are accustomed to imagining more learning and talent. Thus, we experience, generally, that the opinion of the father is that of the sons, the opinion of the master that of his servants, and the opinion of a leader of a community, if he is well liked, that of those who are his subordinates. Besides these relationships, sources of opinion, there are others that, in order to distinguish them from those, we could call artificial. Among every people, individually if the people is not very numerous, one or some inhabitants acquire a following because of their generosity, because of their honesty, because of their beneficence, and even sometimes because of some reprehensible vice. Such as these also become sources of beliefs and persuasions, and their way of thinking spreads among their cronies, who by tradition embrace it. Opinions adopted and generalized in this way do not merit, as I have already repeated, the name of opinion, but it is appropriate to call them belief or persuasion; and we say that it can be taken as common persuasion what is felt to be so by the greater part of those individuals who have a following in their towns.
Nonetheless the previous rule is very open to ambiguities, principally in times of factions, for well known are the efforts that each one of them makes to win over those popular coryphaeuses, those who, won over by fairly well-known means repeat, many times against their conscience, the favorite axioms of the faction that won them. Their followers hear them, and they do the same thing. Be advised, however, that the voices are not diverse; it is one voice with various echoes, a very interesting observation, especially for legislators whom the situation always subjects to torments from which they will not emerge well except with rules that we will present in the fourth question, anticipating them now, the celebrated maxim and eternal truth of the immortal Bentham, “Good faith and justice are the most healthy politics and the most lasting.”4
Neither of each individual alone, nor of all or most of them taken
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together, can it be said that they have opinion, as long as understandings vacillate and wander uncertain over the truths under discussion. In order that there be opinion it is necessary that the understanding be decided, and not willfully, but because of foundations so solid that they must have compelled assent despite not having found a satisfactory response to the conflicting ones; and when the understanding has been settled for reasons of this nature, neither has it done so instantaneously, but rather by a slow and reflective process, nor does it change opinion easily, and so long as another reflective meditation, yet slower than the first, does not present new and more solid reasons in opposition.
One must understand that constancy is not the same as invariability, and thus when we establish as a rule that one cannot have public opinion without constancy, that is to say without the majority of the citizens being constantly advised of it (which is known either, first, when the same opinion is observed despite varying circumstances or, then, when it is being repeated notwithstanding the passage of time), we do not mean that the public cannot change its opinions, but rather that it has to change them in the same way it formed them, slowly and gradually and (the same as each individual) by this silent examination of the opposing foundations with which public opinion can sometimes be changed; but this is neither frequent nor the work of a moment, but rather worked out over a long time.
This reliable rule should allow us to give their legitimate value to those popular and tumultuous surges, principles of revolutions and exclusive work of ambitious demagogues. They will never be the mark of public opinion and the general will, because among other qualities they are lacking stability and firmness; they will be passing thoughts and desires, because always suggested by the depraved, but they will not be the public desire. A stirred up and deceived multitude will applaud the death of the Gracii in Rome; in Paris it will carry off to the guillotine the most enlightened and virtuous men; it will request, in Mexico, the elevation of a caudillo to the throne,5 but none of these things will be the effect of public opinion, but rather “the echo of seduction, the cry of the scoundrels and whores who will climb higher, as a famous journalist explains, the better the coryphaeuses of the factions have paid them.”6
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The most essential character of public opinion is liberty. Human understanding is the power most jealous of its independence, it does not bear fetters; to want to put them on things that are subject to its ability is the greatest and most intolerable tyranny. This quality of public opinion is deduced from the definition of its essence in the same way as the previous one. Can there be opinion in the particular individual when he is not allowed to reflect and if he does not have all the freedom necessary to weigh the reasons that have to resolve it? Surely not; for his opinion must always be the fruit of a calm reflective meditation; and even regarding faith, although he cannot reflect on its immediate object, he should do so on the foundations of credibility; therefore if public opinion is nothing other than the coming together of individual opinions, it is necessary to acknowledge that there is not, nor can there be, public opinion when it does not exist, and about objects relative to which there is not liberty.
Infer from this that, in a time of bloody factions, during which not only is it not lawful to say what one thinks but not even to think in a way other than what suits the coryphaeus of the dominant faction; that when the sobriquets of seditious, enemy of the patria, and others of this sort that are maliciously invented on such occasions emerge with all the retinue of calumnies, abuses, and satires to stifle the voices that do not agree to be echoes of the powerful faction; and above all, that when the government declares itself for one of the factions, the allegation public opinion is to present an illusion beyond all reality. No, there is not such public opinion, because there has not been freedom to create it. On the contrary, true public opinion will be stifled; it will triumph in the long run, and the same people will take revenge for it on their oppressors; but in the meantime it does not exist, nor can it be alleged.
Well-known writers, particularly when they speak of the benefits of freedom of the press, consider public papers as a sure thermometer for knowing public opinion, and this is one of the benefits with which they most extol that institution. No, we will not deny an assertion so authoritative and rational; but unfortunate experiences cause us to assert that, to apply it without immediate fear of error, some criticism is needed.
Of course, public papers do not make law in the countries where the power to publish thoughts by means of printing is not free; but let us note that that is proven true not only where despotism subjects writers to prior censorship, but also where one hinders writing by direct or indirect
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means, unless it is in a specified way. What does it matter that the constitution of a country establishes freedom to publish ideas if a dominant faction will manage with certainty to ruin anyone who writes against its interest? What does it matter that that liberty is guaranteed, establishing that writings can be judged only by individuals chosen by the people, who, it is supposed, will vote for those of greater education and probity, if the spirit of faction alone manages to preside over the election, making it fall to the members most attached to it, and that as a consequence, they will let pass neither a statement nor a truth that hurts the faction? This happens few times in popular governments and in which the laws of election are well thought out, but it happens, and when the circumstance arises, freedom of the press is nominal. It should be able but cannot say what it thinks; the fear of persecution and punishments silences most of the citizens. Few are those who have all the courage necessary to speak the truth but almost never with impunity. We say, then, that when there is no true freedom of the press, be it in one way or another, public opinion cannot be deduced from public papers, which of course must express only the judgment of the tyrant, be this an absolute king, a vizier, or a popular faction. Public papers can be a thermometer of public opinion when they can produce it, should it not be formed, and when, of the qualities we have determined public opinion to have and to serve as a mark to recognize it when it does exist, are derived directly those that the papers must have in order to produce or show it. In truth, if public opinion must be and cannot be less than the free and spontaneous outcome of calm reflective meditation on the solid foundations that persuade one of a truth, almost always practical and generally simple and perceptible, papers will produce public opinion only if they were written in complete freedom, with simplicity, impartiality, firmness, and circumspection, showing what they are trying to prove, not threatening and forcing what is to be believed; letting reason speak through them and time mature their assertions, not presenting a scimitar to cut off heads that do not bow at their voice. When the writers of a nation, or the greater part of them, especially journalists, see themselves as respecting these qualities in what they produce, and they discover uniformity regarding some assertion, they can believe they will establish public opinion, and they can believe that they speak the truth if they announce that it now exists. On the other hand, if the nation is divided into bloody factions, villainous writers sell themselves, dipping their pens in blood
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and black bile, hurling sarcasms and threats, shamefully tearing away the always respectable veil of domestic mysteries, then neither is there public opinion, nor can the writers produce it, nor can it be known through the writings. “A writer,” says the judicious journalist already cited,
who provokes the struggle of the factions, who shows himself attached to one of them, who wants to tyrannize public opinion, lavishing insults on those who do not think as he, or silencing them by means of threats, is a man who presages despotic dispositions; he is a man unworthy of the esteem and confidence of a nation that aspires to liberty and that knows that the most sacred right is that of thought. Much more odious must be those who, in their writings, images of their atrocious souls, sow calumnies and satires against the virtuous citizen who is not of their faction and try to make those who differ from them in their public opinions look like enemies of the nation. . . . Where there are certain favorite errors of a dominant faction against which it is not lawful to speak, where it is not lawful to discuss even truths themselves, there is no public opinion.
We dwelled on this third question more than we intended, but its importance excuses us, and let us now proceed to gather the fruit in the resolution of the fourth.
Is there always an obligation to submit oneself to public opinion and the general will?
We have already indicated that, whenever there are existing parties, popular factions, an inability to base a measure or resolution that one desires in solid arguments and in the eternal principles of equity and justice, the defenders appeal to public opinion; they cry out as loud as they can, the people want this, the people desire that, and always the clamoring faction tries to identify with the generality of the nation, secure in obtaining its aims or, at least, of imposing them.
“Let us distinguish carefully the popular voice from public opinion: the first is formed with the same ease as the clouds of spring, but with the same ease it vanishes. It is produced by violence, terror, factions, ignorance, a thousand other accidental causes that can be destroyed by opposing interests. . . . [T]he cries of a people deceived or subdued by
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terror are not public opinion; they are their ephemeral and false images, invented by the power and perfidy to delude the nations.”7 In confirmation of truths so undeniable, we need nothing more than to remember the multitude of contradictory cries, unjust and of all manner that, with the greater appearance of universal, we have heard through the streets of Mexico since 1808 amidst the clamoring of the bells, the noisy din of artillery, etc., etc., demanding first . . . and then . . . Should we forget the history of our disgraces it will serve us only to repeat them at each step. Take care, much care, in believing and calling public opinion and general will what commanded and brazen bands implore on certain occasions.
It has already been understood that those difficult moments, as they do not contain public opinion, are not included in the present matter; nor do they need any principle other than unwavering firmness so as not to give in to the disorganizing torrents. It is equally understood that neither do we speak here of the multitude of occasions on which the application of the principles that we have established show that no opinion exists although it is alleged by the interested parties. Let us pass, then, to the case of the question at hand and we see what the obligation of a legislator is when there is public opinion or at least much probability that an opinion is generalized.
Those who argue for the obligation to yield to it and always to follow it appeal to the sovereignty of the nation because, they say, the people is sovereign, and the will of the sovereign must always be obeyed. We ask ourselves, where does sovereignty reside? Is it not true that it resides not in some, not in many, nor even in most, but rather in the absolute totality of the nation? Therefore, so that the alleged will might obligate as sovereign, it was necessary to show in each case that all and each one of the citizens wanted that thing. How will it be possible ever to provide such a proof and, much less, to deliberating bodies in whose very breast there are many representatives who oppose one another? Or is it only the will of the deputies that should be counted for nothing when the suppositions, perhaps imaginary and always indemonstrable from outside, count for so much?
Seeing the impossibility that there might be, and setting aside the impossibility of showing that universal will, one will perhaps appeal to the will of the majority, saying that the lesser number is obligated to
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yield to the greater. If there is no more than this, we say that the mind of the majority alone, without other aggregates, cannot produce obligation to yield. In effect, no matter how much the defenders of those doctrines rack their brains, reason will never see in the majority alone anything but force and power, inasmuch as it is normal that the greater number can do more than the lesser. But is force alone, or does force give legitimate right? We believe that free republicans will not even have to grant it as a hypothesis; then if right and obligation are correlative, and in the majority as such there is no right to command, in the minority there is no obligation to submit.
Some considerations and circumstances can be attached to the preceding case that alter the question and its resolution; for example, when in a rigorously democratic government there has been an explicit social pact to submit everyone to the opinion and will of the majority. In this case there will be an obligation proceeding from the pact, but it will not be the case in question nor will it be ours. Perhaps it will happen that the will of the majority can be resisted only violently and by the road of revolution, and then the obligation to preserve social order and that of avoiding truly major woes can compel the minority to tolerate, endure, and acquiesce to the will of the majority. For this case political moralists give very good rules that are not to our present purpose, and those who would like will be able to see them in Locke, Paley, and others. We repeat, then, that the will of the majority, for its mere sake, cannot be obligatory.
This being so, someone will say, a representative of the general congress, a government, and a public agent are not bound, even when opinion and generalized will exist, which seems incompatible with the character of mandataries of the people, and no other rule of their conduct can be conceived if it is not that from which they always operate as they choose, which truly is a very clear despotism.
Before responding and determining the rules, we must dismiss a most unfortunate error that the demagogues and anarchists have spread and repeated without cease: they, ignoring the true essence of the representative system, believe, or feign to believe, that a representative is nothing more than a mandatary of the people that elects him; that he has to receive instructions, rules, and orders from them that he cannot violate; that the people can revoke his powers when they consider it wise; in a word, that he is a simple passive organ of the desires or caprices of his constituents.
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The famous Martinez Marina has given a motive for some of this. Martinez Marina who, completely conversant and steeped in all the old courts of Spain (where the agents of the cities who had a vote in them went not to deliberate but rather to present petitions of the city councils and to promote purely municipal interests, and at times as ridiculous as adding a figure to a coat of arms, etc., etc.), called deputies mandataries and wished to apply to them some of the attributes that civil jurisprudence gives to the common mandate.
It is neither the only nor the principal reason for the establishment of deliberative congresses and for the enthusiasm of the politicians in examining the representative system, justly regarding it as the most sublime endeavor of philosophy, that in which all the citizens of a society, many in number and spread over immense terrains, could not assemble and deliberate to decide, and it was necessary to adopt the expedient by which they would elect some from among themselves so that in the name of all and on their behalf, they would take part in the creation of laws and in systematizing all public welfare. The true origin of the modern representative system is the immense division of labors and occupations to which citizens now exclusively dedicate themselves for the civilization and progress of enlightenment of the people; each industry, each position, has been divided and subdivided into different branches, and each one of them is the sole occupation of a certain number of individuals who, dedicating all their attention to them, have raised the arts and sciences to the degree of perfection in which we see them. Since then, philosophy, economics, and jurisprudence also formed separate branches, whose intense study the multitude of citizens left to a very small number, and since then, there are few who acquire and have the capability to think through and work out the most difficult points of a civil government and to face up to public administration. Few, very few, are those who can have on their shoulders the charge of working out the laws, and of those, very few are the ones the people elect for the purpose of doing so, choosing not just mouths so that they go to express what their constituents suggest to them, but rather their consciences and minds, so that they might reflect on and understand what the constituents are not capable of understanding or even of giving it their attention, all of them employed in very different enterprises. Their conscience and wisdom, we repeat, are what peoples elect, so that without ever prostituting the first, and guided always by the second, they discover and decide what is
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best and most suitable for the common good, and everyone submits to the resolution and will of these experts. Here is the theory of the divine representative system, which we have fortunately adopted, for which the nations that have it are happy, and for which all those who lack it yearn.
The democracy of modern peoples has nothing to do with that of the ancients; they are of a very different nature. The latter was barbarous, filled with all the vices and defects, always degenerating into anarchy and involved in the disorders resulting from the tumultuous gathering of dull peoples in the plazas of Athens and Rome, where they all cast individual votes on matters of great seriousness. The democracy of the modern republics is now purged of all the defects that discredited it, even to the extent of showing it as horrible among the Greeks and Romans—Everyone a legislator! Everyone giving an opinion on matters over which they had never reflected and that require study by an ordinary man for his entire life! Let us distance ourselves for that reason from Greece, Rome, small cantons, always in uprising, always in disorder! A puzzling thing, very puzzling. If to a man of letters, merchant, etc. one proposes he make a statue or some other artifact, not only will he say without the least shame, and what do I understand of that, when did I learn that job? But he would even take it as an insult; and when it is a matter of making laws, the most sublime work of wisdom, everyone considers himself fit, and they would even show themselves offended if one said to them that they are not suitable to be legislators! Will perhaps a bust be more difficult than a good law, or will it require having had greater apprenticeship? Distinguished youth! May the famous social contract of the very profound Genevan not instill its errors in you, but rather its brilliant truths. Read, reread once and many times Book 2, chapter 7. Learn there what a legislator is and what is required to be one; and far from seeking, each one will tremble if the honorable misfortune of being elected deputy falls to him. But let us return to the subject.
The idea of mandatary and of mandate being false and dangerous applied to the representatives of a national congress (on which we could expound, drawing obvious terrible consequences, which perhaps we will do another time), it seems to us that if one wants to take from common jurisprudence some idea as the source of maxims and apply it, with less danger of absurdities, to modern congresses and their members, one should rather have laid one’s hands on that idea of independent arbiters through whose judgment the parties to a lawsuit are obliged to pass than
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that of mandataries and mandates. Nor is this exact, but it is much less dangerous.
Let us listen, in corroboration of everything said, to one of the greatest politicians that a nation fertile with them has had, the immortal Burke, speaking to the electors of Bristol who had named him member of Parliament and wanted to give him instructions for his conduct:
It is his [the representative’s] to sacrifice his repose, his pleasures, his satisfactions, to theirs [constituent]; and above all, ever, and in all cases, to prefer their interests to his own. But, his unbiassed opinion, his mature judgement, his enlightened conscience, he ought not to sacrifice to you; to any man, or to any set of men living. These he does not derive from your pleasure; no, nor from the Law and the Constitution. They are a trust from Providence, for the abuse of which he is deeply answerable. . . . If Government were a matter of Will on any side, yours, without question, ought to be superior. But Government and Legislation are matters of reason and judgement, and not of inclination; and, what sort of reason is that, in which the determination precedes the discussion; in which one set of men deliberate, and another decide; and where those who form the conclusion are perhaps three hundred miles distant from those who hear the arguments?
To deliver an opinion is the right of all men; that of Constituents is a weighty and respectable opinion, which a Representative ought always to rejoice to hear; and which he ought always most seriously to consider. But authoritative instructions; Mandates issued, which the Member is bound blindly and implicitly to obey, to vote, and to argue for, though contrary to the clearest conviction of his judgement and conscience—these are things utterly unknown to the laws of this land, and which arise from a fundamental mistake of the whole order and tenour of our Constitution.
Parliament is not a Congress of Ambassadors from different and hostile interests; which interests each must maintain, as an Agent and Advocate, against other Agents and Advocates; but Parliament is a deliberative Assembly of one Nation, with one Interest, that of the whole; where, not local Purposes, not local Prejudices ought to guide, but the general Good, resulting from the general Reason of the whole. You choose a Member indeed; but when you have chosen
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him, he is not Member of Bristol, but he is a Member of Parliament. If the local Constituent should have an Interest, or should form an hasty opinion, evidently opposite to the real good of the rest of the Community, the Member for that place ought to be as far, as any other, from any endeavour to give it Effect.
These truths assumed, and the pernicious error dismissed, let us proceed to give definite rules that might direct the legislator, whether it is a matter of adopting a bad measure in order to agree with the common opinion and desire, or of rejecting a good measure to go against it.
It is the first and principal rule that, even if it be possible that there is true public opinion on a measure notoriously unjust and contrary to the eternal principles of equity and reason, not only can the representative not submit to such opinion and vote for it, but rather he has a very strict obligation to oppose it, under pain of committing a crime before God and being a traitor to his own seduced constituents, who, sooner or later, will detest him and make him suffer the penalty of his criminal complaisance. This truth does not need much justification: God must be obeyed before men; no unjust command deserves the name of such, nor should it be obeyed. The holy scriptures, the priests, and moral and political philosophers are full of these and similar maxims. Well, if in unjust matters not even he who can mandate must be obeyed, how should public opinion be obeyed, which, as we have shown, must not be the compulsory rule of a representative? The preconceived notion, says Bentham, “can be an excuse for the common people but not for public men: it, at least, will not be justified when it might be the source or occasion for errors,” and now this same profound politician warns what happens in those assertions of public opinion: “It even manages,” he says, “to remove measures from examination; and what begins to demonstrate the bad faith is that they try to support them with all the power and influence of government.”
The second very definite rule is that, if public opinion is for a measure which, although it might not be absolutely contrary to the immutable principles of reason and justice, the representative believes or knows will be detrimental to the nation in some way, he must not approve it but rather oppose it. For this he was elected; his obligation is to examine and decide only what can lead to the common good; he does not have to answer to God or to men for another’s judgment, but only for his own; and he must say to those arguing the contrary public opinion what Valentiano
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said to the army that had just elected him emperor and required him to join with Valente in rule: Vestrum fuit, o milites, cum imperator nullis esset, imperii mihi habens tradere, sed postquam illud suscepi meum deinceps, non vestrum est publicis rebus prospicere.
The third maxim is from the same very profound Bentham: The representative, if he must never vote for a measure that he believes unjust, never for one he considers will cause public misfortunes, neither must he insist on the adoption of a measure that, although in his judgment beneficial, might be contrary to general opinion; in this case he should not give it up completely, but instead defer it to a better time. “Public opinion,” says this learned man, “being only that of the greater number, without other evidence, is an argument without force: for the legislator it is not good reasoning, but rather respectable. It is not a reason to renounce the measure, but rather to defer it in order to enlighten minds, using legitimate means to combat the error, for the truth, daughter of time, secures it all from her father.”8
To these three rules that include everything we will add now, only for light in dark matters of factions, two maxims from the same author repeated also by Paley and various others. “It is always boasting,” he says, “to see veracity in politics as the morality of small minds and proof of simplicity and ignorance of the world; and men fearful of looking like fools adopt, relative to their conduct, public principles that they condemn in the ordinary actions of their life. A faction is, in some respects, a very vigilant and active guard; but if its principal aim is to seize power, it will be in its interest to perpetuate the abuses and will see them in advance as fruits of its victory.”
We have concluded, if not with the dignity that the matter requires, or with the profundity with which we would like to have treated it, giving more than enough points so that true scholars and teachers of political science might be inspired to enlighten us in these very important questions. Neither the limits of the journal nor our competence permits us more; but what we have said is enough for those who reflect on our assertions with maturity, shedding preconceived notions and partialities unworthy of a philosopher.
