LAWS UNDER DEMOCRACY.
The truth of my contention is proved by the fact that nowadays all our
laws are emergency laws, a thing that no law should ever be. Montesquieu
advised people to be very chary and to think twice before they destroyed
old laws or pulled down an old house to run up a tent, but his advice is
completely ignored. New laws are made for every change in the weather,
for every little daily incident in politics. We are getting used to this
hand-to-mouth legislation. Like the barbarian warrior, of whom
Demosthenes tells us, who always protected that portion of his person
which had just received a blow, holding his shield up to his shoulder,
when his shoulder had been struck, down again to his thigh when the blow
fell there, the dominant faction only makes laws to protect itself
against an adversary who is, or is thought to be, already in the field,
or it introduces a hurried, ill-digested reform under the pressure of an
alleged scandal.
If an aspirant to the tyranny, as they used to say in Athens, is
nominated deputy in too many constituencies, instantly a law is passed
prohibiting multiple candidatures. For the same reason, for fear of the
same man, _scrutin de liste_ is hurriedly replaced by _scrutin
d'arrondissement_.[B]
If an accused woman is supposed to have been ill-treated at her
examination, taken too abruptly before the interrogatory of the
president, or if the counts are ineptly set out by the public
prosecutor, instantly the whole of the criminal procedure is radically
reformed.
It is the same everywhere. The legislative workshops turn out only "the
latest novelties" of the season. Or perhaps a newspaper would be a still
better simile. First there is the 'interpellation,'[C] once at least
every day; that corresponds to the leading article. Then there are
questions for ministers on this, that and the other trivial occurrence;
that is the serial or short story. Then there is a bill brought in about
something that happened the night before, that is the special article.
Then some deputy assaults his neighbour, this is the general news
column.
You could not have a more faithful representation of the country.
Everything that happens in the morning is dealt with in the evening as
it might be in the village pot-house. The legislative chamber is an
exaggerated reflection of the gossiping public. Now it ought not to be a
copy of the country, it ought to be its soul and brain. But when a
national representative assembly represents only the passions of the
populace it cannot be otherwise than what it is.
In other words modern democracy _is not governed by laws_ but by
decrees, for emergency laws are no better than decrees. A law is an
ancient heritage, consecrated by long usage, which men obey without
stopping to think whether it be law or custom. It forms part of a
coherent, harmonious and logical whole. A law improvised for an
emergency is merely a decree. This is one of the things that Aristotle
saw better than any one. He comments frequently upon the essential and
fundamental distinction between the two, and explains how it is as
dangerous to misunderstand as to ignore it. I quote the passage in which
he brings this out most forcibly: "A fifth form of democracy is that in
which not the law but the multitude has the supreme power, and
supersedes the law by its decrees. This is a state of affairs brought
about by the demagogues. For in democracies which are subject to the
law, the best citizens hold the first place and there are no demagogues;
but where the laws are not supreme, there demagogues spring up. For the
people becomes a monarch and is many in one; and the many have the power
in their hands, not as individuals but collectively.... And the people,
who is now a monarch, and no longer under the control of law, seeks to
exercise monarchical sway, and grows into a despot; the flatterer is
held in honour; this sort of democracy being relatively to other
democracies what tyranny is to other forms of monarchy.
"The spirit of both is the same, and they alike exercise a despotic rule
over the better citizens. The decrees of the Demos correspond to the
edicts of the tyrant, and the demagogue is to the one what the flatterer
is to the other. Both have great power--the flatterer with the tyrant,
the demagogue with democracies of the kind which we are describing. The
demagogues make the decrees of the people override the laws, and refer
all things to the popular assembly. And therefore they grow great,
because the people has all things in its hands and they hold in their
hands the votes of the people, who is too ready to listen to them. Such
a democracy is fairly open to the objection that it is not a
constitution at all; for _where the laws have no authority there is no
constitution_. The law ought to be supreme over all. So that if
democracy be a real form of government, _the sort of constitution in
which all things are regulated by decrees is clearly not a democracy in
the true sense of the word_, for decrees relate only to particulars."
This distinction between true law, that is to say, venerable law, framed
to endure, part of a co-ordinate scheme of legislation, and an emergency
law which is merely a decree like the wishes of a tyrant, constitutes
the whole difference, if we could realise it, between the sociologists
of antiquity and those of to-day. By the term Law, the ancient and the
modern sociologists mean two different things and this is the reason for
so many misunderstandings. When he speaks of law, the modern sociologist
means the expression of the general will at such and such a date, 1910
for instance. The ancient sociologist would consider that the expression
of the general will in the second year of the 73rd Olympiad was not law
at all, but a decree. A law to him would be a paragraph of the
legislation of Solon, Lycurgus or Charondas. Whenever in a Greek or
Roman political treatise we meet the expression--"a State governed by
laws," the only way to translate it is--"a State governed by a very
ancient and immutable legislation." This gives the true meaning to the
famous personification of laws in the Phaedo, which would be quite
meaningless if the Greeks had understood what we do by the term. Are
laws the expression of the general will of the people? If so why should
Socrates have respected them, he who despised the people to the day he
was condemned? It would be absurd. These laws which Socrates respected
were not the decrees of the people contemporary with Socrates; they were
the ancient gods of the city, which had protected it from the earliest
days.
These laws may err in that they seemed to sanction the verdict that
condemned Socrates to death, but they were honourable, venerable and
inviolate, because they had been the guardians of the city for
centuries, and guardians of Socrates himself until the day when they
were misapplied against him.
A "constitution," therefore, to adopt Aristotle's terminology, is a
State which obeys laws, that is to say, laws framed by its ancestors.
It is, then, an aristocracy, for it is even more aristocratic to obey
our ancestors themselves by obeying the thoughts which they embedded in
legislation, five centuries ago, than to obey the inheritors of their
tradition, the aristocrats of to-day. For aristocrats of to-day belong
only partly to tradition, in that they live in the present. Whereas a
fifteenth century law belongs to the fifteenth century and to no other
period. To obey law as understood by the ancient sociologists, did not
mean obeying Scipio who has just passed us on the _Via Sacra_. It meant
to obey his grandfather's great grandfather! All this is
ultra-aristocratic.
Precisely! _Law is an aristocratic thing;_ only _the emergency law_, the
_decree_, is democratic. For this reason Montesquieu always speaks of a
monarchy as being limited, and, at the same time, maintained by its law.
What did this mean in his day, when there was no "expression of the
general will" to limit monarchy, and when royalty possessed legislative
power, and could at will make and remake laws? It could only mean one
thing, namely, that Montesquieu's conception of law was the same as that
of the ancient sociologists,--law far older than his time, "fundamental
laws" as he calls them, of the ancient monarchy, which still bind and
ought so to bind the monarch, whose rule without them would be despotism
or anarchy. Law is essentially aristocratic. It ordains that rulers
should govern the people, and that the dead should govern the rulers.
The very essence of aristocracy is the rule of those who have lived over
those who live, for the benefit of those who shall live hereafter.
Aristocracy, properly so called, is an aristocracy in the flesh. Law is
a spiritual aristocracy. Aristocracy, as represented by the aristocrats
of to-day, only represents the dead by tradition, inheritance,
education, physiological heredity of temperament and characteristics.
Law does not represent the dead, it is the dead themselves, it is their
very thought perpetuated in immutable script.
A nation is aristocratic both in form and spirit which preserves its old
aristocracy and maintains its vitality by careful infusions of new
blood. Still more is that nation aristocratic which maintains its old
legislation inviolate, adding to it, reverently and discreetly, new laws
which combine something of the modern spirit with the spirit of the old.
_Homines novi, novae res. Homo novus_ means the man without ancestors who
is worthy to be added to the ranks of the nobly born. _Novae res_ are
things without antecedents, nay revolution itself. _Novae res_ should
only be introduced partially gradually, insensibly and progressively
into ancient things, as "new men" into the community of the old
nobility. Law is more aristocratic than aristocracy itself, hence
democracy is the natural enemy of laws and can only tolerate decrees.
Our examination of modern democracy has brought us to the following
conclusions. The representation of the country is reserved for the
incompetent and also for those biassed by passion, who are doubly
incompetent. The representatives of the people want to do everything
themselves. They do everything badly and infect the government and the
administration with their passion and incompetence.
[B] See _France_, by J. E. C. Bodley, 1899, pp. 334, 335. Under
_Scrutin de liste_ "the department is the electoral unit, each having
its complement of deputies allotted to it in proportion to its
population, and each elector having as many votes as there are seats
ascribed to his department, without, however, the power to cumulate."
_Scrutin d'arrondissement_ is election by single-member constituencies.
The _arrondissement_ is the electoral unit.
[C] This is a question put to a minister by a deputy. "The
effect ... is somewhat similar to a motion to adjourn the house in the
English Parliament." Bodley, p. 445.