it by foreign nations. But one can easily imagine a nation whose government had no other mission but to watch over these two objects. The existence of individuals and that of society would be perfectly assured. The necessary would be done.
Filangieri seems to have instinctively grasped this truth in several parts of his book, but he does not establish it clearly enough anywhere. He allows a vagueness to linger in all his expressions which has always been and is, in effect, the source of many abuses. To convince ourselves of this, let us reread the whole paragraph devoted to explaining, as the author says, “the origin and purpose of civil society, and the origin and purpose of laws, and consequently the sole and universal object of legislation.”
It was necessary to create a public strength from all individual strengths, superior to each of them individually. It was necessary to create a moral entity whose will represented all wills, whose strength was the assembly of all strengths, which, directed by public reason, interpreted natural law by developing its principles, fixing rights, regulating duties, and prescribing the obligations of each individual towards society and towards the members who compose it. This moral entity would establish a standard among citizens which would be the rule for their actions and the basis of their security. For the maintenance of order it would create and preserve balance between needs and the means of fulfilling them. Finally, it would have the power of permanently putting into men’s hands the instrument of their preservation and tranquility, the only purposes for which they had sacrificed their primitive independence.
When interpreting each of Filangieri’s expressions, it is undoubtedly possible to show that he restricts the competence of legislation within its just bounds. But by a different interpretation one could also extend that competence to everything. If legislation is a moral entity whose will always represents all wills, then all the wills thus represented no longer have any individual existence which belongs to them. If it is legislation which interprets natural law, it is only through that legislation, which is however something
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conventional and artificial, that man can know nature. An eternal silence is imposed on the internal feelings that nature has given man as a guide. If it is legislation which fixes each individual’s rights, individuals have only the rights which legislation agrees to leave them.
Understood in this way, Filangieri’s system does not differ at all from that of Rousseau, which I have opposed in another work, and whose terrible consequences and incalculable dangers I believe I have shown.2 Legislation would be an unlimited and despotic power, according to Filangieri, just like society according to Rousseau, for whose benefit the entire individual would be surrendered. One cannot object too strongly and too persistently to this doctrine. I will not repeat here the series of arguments which I used in the work just mentioned. I will limit myself to repeating the conclusions.
There is a part of human existence which necessarily remains individual and independent, and which by right is beyond all social or legislative competence. Society’s authority, and thus that of legislation, exists only to a relative and limited extent. At the point where the independence of individual existence begins, the authority of legislation stops. If legislation crosses this line, it usurps.
Individual rights are a part of human existence which should remain independent of legislation. They are rights which legislation should never touch, rights over which society has no jurisdiction, rights which it cannot invade without making itself as guilty of tyranny as the despot who has no other title to authority than a deadly sword. The government’s legitimacy depends on its purpose as much as on its source. When this authority is extended over purposes which are outside its sphere, it becomes illegitimate. When legislation brings an interfering hand to bear on that part of human existence which is not within its sphere of responsibility, does it matter from what source it comes, does it matter whether it be the work of a single man or of a nation? If it came from the entire nation, except the citizen it torments, its acts would not be any more legal. There are actions which nothing can clothe with legality.
Law has been defined (I borrow this just and profound remark from a writer whose name I have forgotten) as the expression of the general will. This definition is very false. The law is the declaration of men’s relations with each other.
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From the moment society exists, certain relationships among men are established. These relations are in conformity with human nature, for if they were not in conformity with human nature they would not be established. Laws are nothing but these relations experienced and observed. They are not the cause of these relations which on the contrary are prior to them. They declare that these relations exist. They are the declaration of a fact. They do not create, determine, or institute anything, except forms to guarantee what existed before their institution. It follows that no man, no portion of society, or even society as a whole can, properly speaking and in an absolute sense, attribute to itself the right to make laws. Laws are nothing but the expression of the relations which exist between men. These relations preceding the law, a new law is nothing other than a declaration which had not yet been made of what previously existed.
The law is therefore not at the legislator’s disposition. It is not a spontaneous creation. The legislator is to the moral universe what the physician is to the material universe. Newton himself could only observe the universe and tell us the laws he recognized or thought he recognized. He certainly did not imagine he was the creator of those laws.
As I have observed above, Filangieri frequently approaches these principles in the course of his book, but he never explicitly states them. In more than one chapter we will even see him accord legislation a broad competence to which he does not seemingly assign any limit. I will prove in my later discussion that the doctrine I establish is not dangerous to good order, and that government, restricted within its legitimate limits, is no less strong and attains its purpose even more surely. By allowing government to transgress these limits, one weakens and compromises it. Individual rights, in all their latitude and their inviolability, are never opposed to the just rights of associations over their members. The repose and happiness of all is better guaranteed by the independence of each, in everything which is not harmful to others, than by any of the attempts, open or disguised, violent or equivocal, which are constantly repeated by authority and unfortunately blessed by some short-sighted philosophers, to endow society, that abstract and fictive being, at the expense of individuals, the sole real and sensible beings.
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CHAPTER NINE
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
