THE COMPETENT LEGISLATOR.
Democracy, in its modern form, encroaches first upon the executive and
then upon the administrative authorities, and reduces them to subjection
by means of its delegates, the legislators, whom it chooses in its own
image, that is to say, because they are incompetent and governed by
passion, just as in the words of Montesquieu, though he perhaps
contradicts himself a little: "The people is moved only by its
passions."
What ought then the character of the legislator to be? The very
opposite, it seems to me, of the democratic legislator, for he ought to
be well informed and entirely devoid of prejudice.
He ought to be well informed, but his information should not consist
only of book learning, although an extensive legal knowledge is of the
greatest use, as it will prevent him from doing, as so often happens,
the exact opposite of what he intends to do. He should also understand
intimately the temperament and character of the people for whom he
legislates.
For a nation should only be given the laws and commandments that it can
tolerate, as Solon said: "I have given them the best laws that they
could endure," and the God of Israel said to the Jews: "I have given you
precepts which are not good," that is to say, they have only the
goodness which your wickedness will tolerate. "This is the sponge," says
Montesquieu, "which wipes out all the difficulties that can be raised
against the laws of Moses."
The legislator, then, ought to understand the temperament and genius of
the people because he has to frame its laws. As the Germans say, he
ought to be an expert on the psychology of races. Further, he ought to
understand the temperament, peculiarities and character of the people,
without sharing its temperament himself. For where the passions and
inclinations are concerned, experience is not knowledge. On the
contrary, experience prevents us from really knowing; and indeed one of
the conditions of knowledge is absence of an experience which may be
another word for bias.
The ideal legislator, or indeed any legislator worthy of the name, ought
to understand the general tendencies of his people, but he ought to be
able to view them from a position of detachment and to be able to
control them, because it is his business partly to satisfy and partly to
combat these tendencies.
_He has partly to satisfy them_, or at least, to consider them, because
a law which outraged the national temperament would be like Roland's
mare, which had every conceivable good quality with this one serious
defect, that she was dead, and born dead. Suppose the Romans had been
given an international law decreeing respect for conquered peoples, it
would have been a dead letter, and by a sort of contagion it would have
led to the neglect of other laws. Suppose the French were given a
liberal law, a law prescribing respect for the individual rights of the
man and the citizen. Liberty, the object of such a law, is for the
French, as Baron Joannes has remarked: "The right of each man to do what
he likes and to prevent other men from doing what they like." In France
such a law would never obtain any but a very grudging allegiance, and it
would certainly lead to the neglect of other laws.
The legislator ought therefore to understand the natural idiosyncrasies
of his people in order to know how far he dare venture to oppose them.
_Partly he must combat them_, because law should be to a nation, or
otherwise it is merely a police regulation, what the moral law is to an
individual. Law should be a restraint imposed continuously in the hope
of future improvements. It should be a curb on dangerous passions and
injurious desires. It should aid the warfare of enlightened selfishness
against the selfishness of which all are ashamed. That is what
Montesquieu meant when he said that morals should correct climate, and
laws should correct morals.
The law, therefore, to a certain extent should correct national
tendencies, it should be loved a little because it is felt to be just,
feared a little because it is severe, hated a little because it is to a
certain degree out of sympathy with the prevalent temper of the day, and
respected because it is felt to be necessary.
This is the law that the legislator has to frame, and therefore he ought
to have expert knowledge of the genius of the people for whom he
legislates. He must understand both those tendencies which will resist
and those which will welcome him. He must know how far he can go
unopposed and how much he can venture without forfeiting his authority.
This is the principal and essential qualification for the legislator.
The second, as we said before, is that he must be impartial. The very
essence of the legislator is that he should have moderation, that virtue
on which Cicero set so high a value, which is so rare, if we look to its
real meaning, _the perfect balance of soul and mind_. "It seems to me,"
said Montesquieu: "_and I have written this book solely to prove it_,
that the spirit of moderation is essential in a legislator, for
political, as well as moral right, lies between two extremes."
Nothing is more difficult for a man than to control his passions, or
more difficult for a legislator than to control the passions of the
people of whom he forms a part, to say nothing of his own. "Aristotle,"
says Montesquieu, "wanted to gratify, first, his jealousy of Plato and
then his love for Alexander. Plato was horrified at the tyranny of the
Athenians. Machiavel was full of his idol, the Duke of Valentinois.
Thomas More, who was wont to speak of what he had read rather than of
what he had thought, wanted to govern every state upon the model of a
Greek city. Harrington could think of nothing but an English republic,
while hosts of writers thought confusion must reign wherever there was
no monarchy. Laws are always in contact with the passions and prejudices
of the legislator, whether these are his alone, or common to him and to
his people. Sometimes they pass through and merely take colour from the
prejudice of the day, sometimes they succumb to it and make it part of
themselves."
This is just the opposite of what should be. The legislator should be to
the people what conscience is to the heart of the individual. He should
understand its besetting passions in all their bearings and not be
deceived by subterfuge or hypocrisy. Sometimes he must attack them
boldly, sometimes play off one against another, or favour one at the
expense of another which is less influential, now yielding ground, now
recovering it, but he must ever be skilful and impartial and never be
intimidated, diverted from his purpose, nor deceived by his natural
enemies.
He should be, so to speak, more conscientious than conscience itself,
because he must never forget that he has to obey to-morrow the law which
he makes to-day--_semel jussit semper paruit_. He must, therefore, be
absolutely disinterested, a thing most difficult for him, but for which
conscience requires no effort.
Not only must he be without passion, but he must have trained himself to
be impervious to passion, which is much more. We must conceive of him as
a conscience that has risen from the ashes of passion.
As Rousseau said, "to discover the perfect ruler for human society we
must find a superior intelligence who has seen all the passions of man
but has experienced none of them, who has had no sort of relations with
our nature but who knows it to the core, whose happiness is not
dependent on us, but who wishes to promote our welfare, in a word, one
who aims at a distant renown, in a remote future, and who is content to
labour in one age and to enjoy in another."
This is why the ingenious Greeks imagined certain legislators going into
exile to some remote and unknown retreat, as soon as they had made the
people adopt and swear obedience to their laws until their return. It
may have been to bind the citizens by this oath, but is it not equally
probable that they wished to escape from the laws which they themselves
had made? Possibly they felt that they could make them all the stricter
with the prospect of being able to evade obedience of them by flight.
Proudhon said: "I dream of a republic so liberal that in it I shall be
guillotined as a reactionary." Lycurgus was perhaps like Proudhon, in
that he founded so severe a republic that he knew he could not live
under it and resolved to leave it as soon as it was established. Solon
and Sylla remained in the states to which they had given laws; we must
therefore place them higher than Lycurgus who has perhaps this excuse
for himself that in all probability he never existed at all.
But the legend remains to show that the legislator should be so
superior to his own passions and to the passions of his people, that, as
legislator, he should make laws before which, as a man, he should stand
in awe.
This moderation, in the sense in which we use the term, has sometimes
led the legislator to suggest or insinuate laws rather than impose them.
This is not always possible, but it is so occasionally. Montesquieu
tells us the following of St. Louis: "Seeing the manifold abuses of
justice in his time he endeavoured to make them unpopular. He made many
regulations for the courts in his own domain, and in those of his
barons, and he was so successful, that only a short time after his death
his methods were adopted in the courts by many of his nobles. Thus this
prince attained his object, although his regulations were not
promulgated as a general law for the whole kingdom, but merely as an
example which any one might follow in his own interest. He got rid of an
evil by making patent the better way. When men saw in his courts and in
those of his nobles more reasonable and natural forms of procedure, more
conformable to religion and morality, more favourable to public
tranquillity and to the security of persons and property, they adopted
the substance and abandoned the shadow. _To suggest where you cannot
compel, to guide where you cannot demand, that is the supreme form of
skill._"
Montesquieu adds with some optimism though no doubt the idea is
encouraging: "Reason has a natural empire, we resist it, but it triumphs
over our resistance; we persist in error for a time but we always have
to return to it."
The instance above quoted is very remote, and can hardly be applied to
anything in our day. But consider, for instance, the law of Sunday
observance which has been revived from the ecclesiastical law. It was a
mistake to include it in the Code because it was antagonistic to many
French customs, and, in many ways, to the national temperament. The
result is what might have been expected, namely, that it has only been
carried out in rare instances, and with an infinity of trouble. It might
have been made the subject of an edict without being included in the
Code. The State might have given a holiday on Sunday to all its
officials, employees and workmen. It might have been made quite clear
simply by a circular from the Minister of Justice that a workman would
not be punished for breach of contract by refusing to work on a Sunday.
The law of a weekly day of rest would then have existed, without being
formally promulgated, and would have been limited precisely where it
should be, by agreement between masters and men who would submit to
working on Sundays when they saw that it was necessary and inevitable.
Moreover this law would be strong enough to modify without destroying
the ancient customs of the people.
Here is another instance which occurs within the law laid down by the
Code, where the legislator makes use of a method of suggestion and
recommendation. Early in the nineteenth century the legislator
considered that it was seemly for a husband who surprised his wife in
adultery to kill both her and her accomplice. The sentiment is perhaps
questionable, but at all events, it was current. Was it given legal
sanction? No, not precisely. It is inserted in the law in the form of an
insinuation, a discreet recommendation and affectionate encouragement.
The legislator wrote these words: "In _flagrante delicto_ murder is
excusable." I am not approving the sentiment, but only this manner of
indicating rather than enforcing the law and what is thought to be a
wholesome practice, and in other instances I should think it excellent.
Finally, one of the essential qualities of the legislator is to show
discretion in changing existing laws, and for this purpose he should be
immune from the passions of men or at all events complete master of
those which beset him. For law has no real authority unless it is
ancient. Where a law is merely a custom which has become law, it is
invested with considerable authority from the first, because it gains
strength by the antiquity of the original custom. When on the other hand
a law is not an old custom but runs counter to custom, then, before it
can have any authority, it must grow old and become a custom itself.
In both cases it is on its antiquity that the law must depend for its
strength. The law is like a tree, at first it is a tender sapling, then
it grows up, its bark hardens, and its roots go deep into the ground and
cling to the rock.
We ought to consider carefully before we venture to replace the forest
tree by the young sapling. "Most legislators," said Usbek to Rhedi,[A]
"have been men of limited abilities, owing their position to a stroke of
fortune, and consulting nothing but their own whims and prejudices. They
have often abolished established laws quite unnecessarily, and plunged
nations into the chaos that is inseparable from change. It is true that,
owing to some odd chance arising out of the nature rather than out of
the intelligence of mankind, it is sometimes necessary to alter laws,
but the case is very rare and when it does arise it should be handled
with a reverent touch. When it is a question of changing the law, much
ceremony should be observed, and many precautions taken, in order that
the people may be naturally persuaded that laws are sacred things, and
that many formalities must precede any attempt to alter them."
In this passage, as so often elsewhere, Montesquieu is quite
Aristotelian, for Aristotle wrote: "It is evident that at times certain
laws must be changed, but this requires great circumspection for, when
there is little to be gained thereby, inasmuch as it is dangerous that
citizens should be accustomed to find it easy to change the law, it is
better to leave a few errors in our magisterial and legislative
arrangements than to accustom the people to constant change. The
disadvantage of having constant changes in the law is greater than any
risk that we run of contracting a habit of disobedience to the law." For
the law assuredly will be disobeyed, if we regard it as ephemeral,
unstable, and always on the point of being changed.
Some knowledge of the laws of the most important nations, a profound
knowledge of the temperament, character, sentiments, passions, opinions,
prejudices and customs of the nation to which he belongs, moderation of
heart and mind, judgment, impartiality, coolness, nay even a measure of
stolidity, these are the attributes of the ideal legislator. Rather they
are the necessary qualifications of every man who purposes to frame a
good law; they are, indeed, the elementary attributes of a legislator.
We have seen that it is the very opposite quality that democracy likes
and expects of its legislators. It selects incompetent and almost
invariably ignorant men, I have explained why; and its nominees are of a
double distilled incompetence in that their passions would certainly
neutralise their efficiency if they possessed any.
Further we have to observe this curious fact. So entirely does democracy
choose its legislators, because they are dominated by passion, and not
in spite of the fact, chooses them indeed precisely for the reasons for
which it ought to reject them, that any moderate, clear-headed,
practical man who wants to be elected and make use of his powers, has to
start by dissembling his moderation, and by making a noisy display of
factious violence. If he wants to be nominated to a post where it will
be his business to defend and guarantee public security, he has to begin
by advocating civil war: to become a peacemaker he must first pose as a
rebel.
Every popular favourite passes through these two phases, and has to
complete one stage before he starts on the next. Is it not better, you
will ask, that a man's whole career should be spent in defence of law
and order rather than the latter part of it? Not at all, because you
cannot exercise any influence as a friend of law and order unless you
have begun as an anarchist.
These changes of opinion occur so frequently that they merely raise a
smile. They have, however, this drawback, that the friend of law and
order, with a seditious past, never has an undisputed authority, and he
spends half his time explaining the reasons for his defection, and this
is a sore let and hindrance to his subsequent career.
The people always elects men swayed by real or simulated passion. These
will either always remain in a state of frenzied excitement, and they
are the great majority, or they will become moderate men, largely
disqualified and handicapped, as we have above shown, for their new
career. The vast majority of these sentimentalists rush into politics
instead of studying them with deliberation, judgment and wisdom. The
canons of good government as above set out are entirely subverted. The
law does not control and restrain the passions of the populace.
Legislation becomes little more than an expression of their frenzy, a
series of party measures levelled by one faction against the other. The
introduction of a bill is a challenge; the passing of an act is a
victory; definitions which at once damn the legislator, and convict the
system.
[A] Characters in Montesquieu's _Lettres Persanes_. Letter
cxxix.