Читать книгу Encyclopedic Liberty - Jean Le Rond d'Alembert - Страница 35
Оглавление[print edition page 113]
This article contains a lucid summary of the proper scope of government, as seen by a mainstream establishment lawyer well versed in both French law and the natural-law tradition. See also Boucher d’Argis’s entry NATURAL LAW [Droit de la Nature] above.
PUBLIC LAW is law established for the common utility of the people considered as a political body, as distinct from private law, which is created for the utility of each person considered individually and independent of other men.
Public law is either general or particular.
That public law is called general which regulates the foundations of civil society that are common to most states, and the interests that these states have with each other.
Some people confuse general public law with the law of nations, which is not accurate, at least without making distinctions. For the law of nations, which has (as all law in general does) two purposes, public utility and private utility, is divided into the public law of nations and the private law of nations. Thus, the general public law is indeed a part of the law of nations and is the same thing as the public law of nations. But it does not include the whole law of nations, since it does not include the private law of nations. See below, DROIT DES GENS [Law of Nations].
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Particular public law is the law that regulates the foundations of each state; it differs in this respect both from general public law (which concerns the relations that the different states can have with each other) and from private or particular law per se (which concerns each of the members of a state separately).
Particular public law is composed, in part, of precepts from divine law and from natural law, which are invariable; in part, from the law of nations, which changes little (except over a long series of years); and finally, it is also composed of part of the civil law of the state concerned—that is, of the part of that law that has as its purpose the body of the state. Thus, a part of the particular public law is founded on ancient customs (written or unwritten), on laws, ordinances, edicts, declarations, charters, diplomas,1 etc. Being founded on positive human law, this part of particular public law can be changed according to time and circumstance by those who have the public power.
The purpose of the particular public law of each state is generally to establish and maintain that general administration2 necessary for the good order and tranquility of the state; to procure what is most beneficial to all the members of the state, considered collectively or separately—whether it concerns the goods of the soul, the goods of the body, or the goods of fortune.
The destiny of men in the providential order is to cultivate the earth and aspire to the sovereign good. Men inhabiting the same country, having sensed the necessity they were under to lend each other mutual assistance, joined together in society; this is what formed the different states.
To maintain good order in each of these societies or states, a certain form of government had to be established. And to make this form or general administration be observed, the members of each society or state were obliged to establish a public power above them.
This power was bestowed upon one man or several or all those who compose the state. In some places, it is perpetual; in others, those who are vested with this power exercise it for only a certain time fixed by the laws.
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Whence arises the distinction between monarchical, aristocratic, and democratic or popular states.3
The rights4 of the public power are: the legislative power; the right of causing the laws to be executed or dispensed with; of rendering and causing the rendering of justice; of granting favors, distributing employments and honors; establishing officers and dismissing them, having a fisc or a public patrimony, imposing taxes, coining money, allowing certain persons to form a political body together, regulating the social orders, making treaties of alliance, navigation, and commerce with foreigners; creating fortified places, levying troops and disbanding them, making war and peace.
These rights extend not only over those who are members of a state; most of these same rights extend also over foreigners, who are subject to the general laws of state administration during the whole time they live there, and to the laws concerning the property they possess there even when they are not living there.
The commitments of the person or persons on whom the public power is bestowed are to maintain good order in the state.
For their part, the members of the state must be subject to the public power, and to the persons who represent it in some section of government; likewise, they must be subject to the laws and observe them.
The common and particular good of each member of the state, which forms in general the object of the particular public law, includes within itself many objects belonging to the latter, which form some more or less substantial portion of it.
Everything connected to civil ecclesiastical government, military justice, or finance belongs therefore to the public law.
Thus, it is up to public law to regulate everything concerning religion, to prevent the disorders that the diversity of opinion can cause, to make people respect the holy places, observe the saints’ days, and other rules of discipline relative to religion; to preserve a fitting order and decency in pious ceremonies; to prevent abuses that can be committed during the
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holiest practices, and to prevent the formation of any new establishments in religious matters without approval by those who have the capacity to do this. One must merely pay heed that the task of maintaining religion in its purity, and of making its external ritual be observed, is entrusted to the two powers, spiritual and temporal—each according to the extent of its capacity.
From this standpoint, one must also include what concerns the clergy in general, the different bodies and individuals of which it is composed (whether secular or regular), and everything that has some connection to religion and piety, such as the universities, the secondary schools and academies for the instruction of youth, the poorhouses, etc.5
Likewise, public law has in view everything related to mores, such as luxury, intemperance, prohibited games, decency in public spectacles, debauchery, frequenting of bad places, swearing and blasphemy, judicial Astrology, and the imposters known by the name of soothsayers, witches, magicians, and those weak enough to allow themselves to be abused by these.
Just as public law provides for the goods of the soul—that is, for what touches religion and mores—it also provides for bodily goods. Whence the laws that have health as their object—that is, preserving or restoring the salubriousness of the air and the purity of the water, the good quality of the other things that nourish the body, the choice of remedies, the competence of doctors and surgeons; the precautions taken against contagious diseases.
It is also a continuation of the same object to provide for what concerns living provisions—such as bread, wine, meat, and the other foods—whether related to the husbandry (for those who need it) or to their protection, transportation, sale, and preparation, even for what is used in the feeding of the animals that serve in the cultivation of the land or in the transport.
Distinguishing among costumes according to the status and condition of persons, and the task of repressing luxury, are likewise objects of public law in every state.6
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The laws also contain many rules relating to clothing, such as whatever concerns the quality that the materials are supposed to have, the distinction among costumes according to status, and what tends toward the repression of luxury.
It also provides that buildings be constructed in a solid manner, and that nothing be made that is contrary to the decor of the city; that the streets and public ways be made secure and convenient, and not obstructed. This has produced a multitude of particular regulations whose object is to prevent sundry accidents that might occur due to the imprudence of the workers or the drivers of horses or wagons, etc.
One of the greatest objects of the public law of every state is the administration of justice in general. But not everything related to this belongs equally to public law. In this regard, one must distinguish form and content, civil matters and criminal matters.
The form of the administration of justice belongs to public law, in civil matters as well as in criminal matters. This is why individuals are not allowed to deviate from it.
But in substance, the arrangement of the laws concerning what touches individuals in civil matters belongs to private law. Thus, individuals can deviate from it by agreement—unless there is some contrary law, in which case this law forms part of public law.
As for the punishment of crimes and misdemeanors, it is entirely in the jurisdiction of public law. One does not include in this category certain acts that interest only individuals, but solely those that disturb public order, directly or indirectly—such as heresy, blasphemy, sacrilege, and other impieties; the crime of lèse-majesté, rebellions against justice, illicit assemblies, bearing of arms, and assaults;7 duels, the crime of embezzlement, extortion, and other official malfeasance; the crime of counterfeiting, assassination, homicide, poisoning, parricide, and other attacks on the life of others or one’s own; the exposure of children, robbery and larceny, fraudulent bankruptcy, the crime of forgery, attacks against modesty, slander, and other acts injurious to the government, etc.
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It is clear from what has just been said that whatever concerns the functions of judicial officials and other public officials is likewise a matter of public law.
The public law of each state also has as its object everything belonging to the governing of finances, such as the assignment and levying of taxes, the proportion that is to be maintained in their distribution, and the abuses that might slip into these operations or in the collection.
Finally, this same law embraces everything related to the common utility, such as shipping and commerce, colonies, manufactures, the sciences, arts and trades, workers of every kind, the power of masters over their servants and domestics, and the submission that the latter owe their masters, and everything that concerns the public tranquility, such as regulations made for the relief of the poor, for obliging able-bodied mendicants to work, for the confinement of vagabonds and vagrants.8
It would be very curious to detail all these matters, but since this could not be done without repeating part of the subject matter of the articles CRIME, GOUVERNEMENT, PUISSANCE PUBLIQUE [Public Power], and other similar ones, it will be enough to refer to those articles. (A)
