and should be punished. All the rest should remain free. Furthermore, when a nation is in its infancy, its legislators are in infancy. The title of legislator does not confer any intellectual privilege.3
Legislation should not try to “fix wealth” in the state and to “distribute it equitably.” Wealth is fixed in a state when there is freedom and security, and in order for there to be these two things, it is enough to repress crime. Wealth is distributed and divided by itself in perfect equilibrium, when the division of property is not limited and the exercise of industry does not encounter any hindrances. But the best thing that could happen to either is the neutrality, the silence of the law. Legislation (as I already said in chap. 3) is not needed to “protect agriculture.” Agriculture is effectively protected when all classes have guaranties and are sheltered from persecution. The law has no need “to prevent excessive opulence,” because excess is only introduced among a people when the law solicits it and in a certain sense calls for it. It is usually with the help of laws, institutions, and hereditary privileges that colossal fortunes are formed and maintained. Afterwards one makes laws to oppose their immoderate
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growth, and that is another evil. Get rid of laws which favor them, and you will not need laws to repress them. This will be a double advantage. For the first torment and debase the poor man, while the second torment and corrupt the rich. The first arm the various classes of citizens against each other. The second arm the class of citizens who serve as an example to the rest against the institutions. The distribution of “honor and shame” is exclusively the province of opinion. When the law wants to intervene, opinion balks and annuls legislative decrees. “Education” belongs to parents, to whom children are confided by nature. If these parents prefer domestic education, the law cannot oppose it without being a usurper. Finally, “talents” do not need the law to give them “direction.” “Passions” should be repressed when they lead to actions contrary to public order but the law should not meddle with them, either to create them or use them, “and the productive force of virtues” is not the law, but freedom.
In the outline of his book and in several parts of the book itself all of Filangieri’s expressions are essentially vague and incorrect: this is the work’s great flaw. One can see clearly that the author’s ideas were not sufficiently developed. He had realized that almost all the obstacles to men’s happiness and the development of their faculties come from the very measures that governments take under the pretext of aiding their development and assuring their happiness. However, he was not sufficiently convinced that the obstacles were not to be overcome by different governmental measures, but through the absence of all positive measures. In correctly exposing the problem with what existed, he constantly used expressions which implied direct action. This flaw in the writing keeps the work from having a clear impact and the reader from reaching the conclusion confirmed by all the facts, which is that the functions of government are purely negative. It should repress disorder, eliminate obstacles, in a word, prevent evil from arising. Thereafter one can leave it to individuals to find the good.
I will come back to each of these goals, briefly indicated here, when Filangieri’s chapters successively lead me to them. Here I have only sought to announce the fundamental truth. The examination of each particular question will only bolster this truth with more evidence.
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I take care not to suppose a state of nature previous to society.… Society is born with man: but this primitive society was very different from civil society.… It was necessary to create a public strength superior to each of them out of all individual strengths … which had the power to forever place the instrument of their preservation and tranquility in men’s hands.
BOOK I, CHAPTER 1, P. 43.
We ought to be grateful to Filangieri for having put aside questions relative to man’s primitive state. The writers of the eighteenth century made these questions very fashionable, but they are both insoluble and futile. In the history of all origins there are primordial facts whose cause one should not look for behind their existence. Existence is a fact that must be accepted without trying to explain it. All attempts at explanation send us back to that trivial and comic problem which nevertheless defies reason: which came first, the chicken or the egg? The only philosopher who expressed himself sensibly on this question was the one who said: We follow those who precede us and we precede those who follow us. It is with the mode of existence of each species as with existence itself. This mode is also a primordial fact, a law of nature. Religious people can attribute it to the creator’s will, unbelievers to necessity, but this fact is not explicable, as other phenomena are, by the succession of causes and effects.
Man is not social because he is weak, for there are weaker animals which are not at all sociable. He does not live in society because he has calculated the advantages society gives him, for in order to calculate those advantages,
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he would have had to have already known society. In all this there is a vicious circle and a petitio principii.1 Man is sociable because he is a man, as the wolf is unsociable because he is a wolf. It makes as much sense to ask why one walks on two legs and the other on four. Filangieri was therefore right to take society’s existence as a base, and to start from this first fact in order to examine how society should be constituted, what its purpose is, and what are the means of attaining this purpose.
His definition of the goal of society is fairly precise: it is preservation and tranquility. But here the author stops and does not draw the conclusions which ought to follow from this principle. If the purpose of society is the preservation and tranquility of its members, everything which is necessary so that this preservation is guaranteed and this tranquility untroubled is within the sphere of legislation, for legislation is nothing but society’s effort to fulfill the conditions of its existence. But everything which is not necessary for the preservation and maintenance of tranquility is beyond the social and legislative sphere.
Now two things are indispensible for the preservation and tranquility of societies: one, that the association be sheltered from internal disorders; the other, that it be safe from foreign invasions. It is therefore within the sphere of society’s responsibility to repress these disorders and repulse these invasions. Thus legislation should punish crimes, organize an armed force against external enemies, and impose on individuals the sacrifice of a portion of their personal property to pay for the expenses of these two purposes. Punishing crimes and resisting aggression—this is the sphere of legislation within the limits of the necessary.
It is even necessary to distinguish two kinds of crimes: actions harmful in themselves and actions which are harmful only as violations of contracted obligations. The jurisdiction of legislation over the former is absolute. It is only relative with regard to the latter. It depends on both the nature of the engagement and the demand of the individual who has been harmed. Even when the victim of a murder attempt or a robbery would like to pardon the guilty party, the law should punish him, because the action committed is harmful in and of itself. But when the breaking of an engagement is agreed to by all the contracting or interested parties, the law has no right to keep it
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in force, just as it does not have the right to dissolve it at the demand of only one of the parties.
It is clear that legislative jurisdiction must extend to these boundaries, and that it can stop there. One cannot imagine a people among whom individual crimes remained unpunished, and which would not have any means prepared for
