Preface
Politics is perhaps the thorniest of all sciences, owing to the persistent difficulty of distinguishing what is stable from what is variable in its elements. It presents a deeply strange phenomenon, one well suited to make any wise person called to govern tremble: namely, that almost everything good sense first perceives as an obvious truth in this field turns out, once experience has spoken, to be not only false but ruinous.
Start with the foundations. If no one had ever heard of governments, and people were asked to deliberate on, say, hereditary versus elective monarchy, anyone who chose the former would rightly be considered a madman. The arguments against hereditary monarchy present themselves so naturally to reason that there’s no need to rehearse them here.
History, however, which is the experimental science of politics, demonstrates that hereditary monarchy is the most stable, the most fortunate, and the most natural form of government for human beings, while elective monarchy is, by contrast, the worst form of government known to man.
On questions of population, commerce, trade restrictions, and countless other important subjects, the most plausible theory is almost always contradicted and overturned by experience. A few examples will make this clear.
How does one go about building a powerful state? “Above all, we must promote population growth by every possible means.” In fact, the opposite is true: any law aimed directly at boosting population, without regard for other considerations, is a bad law. We should even work to cultivate within the state a certain moral force that tends to reduce the number of marriages and discourage hasty ones. The surplus of births over deaths recorded in statistical tables ordinarily proves nothing more than the scale of human misery, and so on. The French economists had begun to sketch out these truths; Mr. Malthus’s important work came to complete the picture.
How should famines and food shortages be prevented? “Nothing could be simpler. Prohibit the export of grain.” On the contrary, we must offer a bounty to those who export it. The example and authority of England have forced us to swallow this paradox.
How should the exchange rate be maintained in a country’s favor? “We must, no doubt, prevent specie from leaving the country; and, consequently, ensure through strong prohibitive laws that the state does not buy more than it sells.” On the contrary, these measures have never been used without causing the exchange rate to fall, or, which amounts to the same thing, without increasing the nation’s debt; and one will never take the opposite course without causing it to rise, that is to say, without demonstrating clearly that the nation’s claims on its neighbors have grown, etc., etc.
But it is in what is most substantial and most fundamental in politics, I mean in the very constitution of empires, that this observation recurs most frequently. I hear that German philosophers have coined the word metapolitics to stand in relation to politics as metaphysics stands in relation to physics. It seems that this new expression was very aptly invented to capture the metaphysics of politics; for such a thing exists, and this field deserves the full attention of serious observers.
An anonymous writer who was deeply occupied with these kinds of speculations, and who sought to probe the hidden foundations of the social order, believed himself entitled, nearly twenty years ago, to advance the following propositions as incontestable axioms, propositions directly opposed to the prevailing theories of his time.
1. No constitution results from deliberation: the rights of the people are never written down, or they are written down only as simple declarations of prior unwritten rights.
2. Human action is so constrained in these situations that the people involved are little more than instruments of circumstance.
3. The rights of peoples, properly speaking, almost always originate in concessions made by sovereigns, and can therefore be traced through historical records; but the rights of the sovereign and the aristocracy have no known origin date and no identifiable authors.
4. Even those concessions were always preceded by conditions that made them unavoidable, conditions that were never within the sovereign’s control.
5. Although written laws are never more than declarations of rights that already existed, it is far from true that all such rights can be committed to writing.
6. The more a nation writes its laws down, the weaker its institutions become.
7. No nation can grant itself liberty if it does not already possess it, because human influence extends no further than developing rights that are already present.
8. True legislators are extraordinary figures who perhaps belong only to the ancient world and to the early youth of nations.
9. Even these legislators, for all their remarkable power, never did more than gather together elements that already existed, and they always acted in the name of the Divine.
10. Liberty is, in one sense, a gift of kings, because almost all free nations were shaped and constituted by kings.
11. No free nation has ever existed without having, embedded in its natural constitution, seeds of liberty as old as the nation itself; and no nation has ever successfully used its written fundamental laws to develop any rights beyond those already present in its natural constitution.
12. No assembly of people, of any kind, can constitute a nation. An undertaking of that sort deserves to be counted among the most memorable acts of folly.
On this theme: “To write a law,” Demosthenes rightly said, “is nothing: it is MAKING IT WILLED that is everything” (Olynth. III). But if this is true of a sovereign in relation to the people, what are we to say of a nation; or rather, to put it as charitably as possible, of a handful of overheated theorists who would present a constitution to a legitimate sovereign the way one presents surrender terms to a besieged general? The whole enterprise would be indecent, absurd, and above all, completely without force.
Essay on the Generative Principle of Political Constitutions
1. One of the great errors of a century that prided itself on having them all was the belief that a political constitution could be written and created from scratch (a priori), whereas reason and experience together demonstrate that a constitution is a divine work, and that what is most fundamental and most essentially constitutional in the laws of a nation cannot be written down.
2. People have long found it amusing to ask the French in which book the Salic law was written; but Jerome Bignon answered quite aptly, and probably without realizing how right he was, that it was written in the hearts of the French. Consider what it would mean if a law of such importance existed only because someone had written it down: whatever authority put it in writing would have the equal right to erase it, and the law would therefore lack that quality of sanctity and permanence which distinguishes truly constitutional laws. The essence of a fundamental law is that no one has the right to abolish it; but how can it stand above everyone if someone created it? The consent of the people is impossible to obtain; and even if it were otherwise, an agreement is not a law and binds no one unless a superior authority stands behind it as guarantor. Locke sought the defining quality of law in the expression of united wills; one must be remarkably unlucky to land on precisely the characteristic that rules out the very idea of law. For united wills produce a regulation, not a law, which necessarily and plainly presupposes a superior will that commands obedience. “In the system of Hobbes” (the same system that enjoyed such remarkable success in our century under the pen of Locke), “the force of civil laws rests only on a convention; but if there is no natural law commanding that the laws one has made be carried out, what good are they? Promises, commitments, and oaths are mere words: it is as easy to break this flimsy bond as to form it. Without the belief in a God who is a lawgiver, all moral obligation is an illusion. Force on one side, powerlessness on the other: that is the whole bond of human societies.” What this wise and profound theologian says here about moral obligation applies with equal truth to political and civil obligation. Law is properly law, and carries genuine authority, only on the assumption that it flows from a superior will; so that its essential quality is not to be the will of all. Otherwise laws will be, as just noted, nothing but regulations; and, as the same author goes on to say, “those who had the freedom to make these agreements did not thereby give up the power to revoke them; and their descendants, who had no part in them, are even less bound to observe them.” This is why common sense, which fortunately predates sophistry, has everywhere sought the authority of laws in a power above humanity, whether by acknowledging that sovereignty comes from God, or by treating certain unwritten laws as coming from Him.
3. The compilers of Roman law inserted, without any pretension, in the first chapter of their collection, a remarkably striking fragment of Greek jurisprudence. Among the laws that govern us, this passage reads, some are written and others are not. Nothing could be simpler, and nothing could be more profound. Is there any known Turkish law that expressly permits the sovereign to order a man’s death on the spot, without the intervening judgment of a court? Is there any known written law, even a religious one, that forbids this to the sovereigns of Christian Europe? And yet a Turk is no more surprised to see his ruler order an immediate execution than to see him walk to the mosque. He believes, along with all of Asia, and indeed all of antiquity, that the power to order death without delay is a legitimate prerogative of sovereignty. But our princes would shudder at the very thought of condemning a man to death on their own authority; for, by our way of thinking, such a condemnation would be nothing less than abominable murder. And yet I doubt whether it would even be possible to forbid it to them through a written fundamental law, without producing greater evils than the ones such a law was meant to prevent.
4. Ask Roman history what the precise powers of the senate were, and it will give you no clear answer, at least not when it comes to the exact boundaries of that power. We can see well enough in general terms that the power of the people and the power of the senate balanced each other, and that the two sides never stopped struggling against one another. We can see that patriotism or exhaustion, weakness or violence eventually brought these dangerous conflicts to a close, but beyond that we know very little. When studying these great scenes of history, one is sometimes tempted to think that things would have gone far better if precise laws had been written to define and limit those powers. That, however, would be a serious mistake: such laws, constantly undermined by unforeseen circumstances and forced exceptions, would not have survived six months, or they would have brought the republic down entirely.
5. The English constitution offers an example closer to our own time, and therefore more instructive. Examine it carefully, and you will find that it only works by not working (if such a play on words can be forgiven). It holds together only through exceptions. Habeas corpus, for instance, has been suspended so often and for such extended periods that one might reasonably wonder whether the exception had not quietly become the rule. Suppose for a moment that the authors of that famous act had tried to specify in advance every situation in which it could be suspended; they would have destroyed it in the very act of writing it down.
6. During the sitting of the House of Commons on June 26, 1807, a lord cited the authority of a prominent statesman to argue that the King does not have the right to dissolve parliament while it is in session; but this view was immediately challenged. Where is the law on this? Try to write one, and to define in precise written terms exactly when the King holds this right, and you will trigger a revolution. The King, said one of the members at that moment, has this right when the occasion is important; but what exactly makes an occasion important? Try to answer that in writing.
7. But here is something even more remarkable. Everyone recalls the great question debated with such passion in England in 1806: it concerned whether the combination of a judicial office with a seat on the Privy Council was or was not consistent with the principles of the English constitution. In the session of that same House of Commons on March 3rd, a member observed that England is governed by a body (the Privy Council) which the constitution does not recognize. He added, however, that it lets it do as it pleases.
Here, then, in that wise and justly celebrated England, is a body that truly governs and does everything in practice, but which the constitution does not recognize. Delolme overlooked this detail, and I could support it with several others.
After this, let no one speak to us of written constitutions and constitutional laws made from first principles. It’s difficult to understand how any sensible person could seriously entertain the possibility of such a fantasy. If anyone were to propose a law in England giving the Privy Council a formal constitutional existence, then regulating and strictly defining its privileges and functions, with all the necessary safeguards to limit its influence and prevent its abuse, the entire state would be overturned.
The true English constitution is that public spirit: admirable, unique, infallible, beyond all praise, which guides everything and saves everything. What is written counts for nothing.
8. Near the end of the last century, loud protests were raised against a minister who had conceived the idea of introducing that same English constitution (or what was called by that name) into a kingdom in turmoil that was demanding some kind of constitution with near-frenzied urgency. He was wrong, if one insists, though at most only as wrong as a person acting in good faith can be, which we are perfectly entitled to assume, and which I believe wholeheartedly. But who, then, had the right to condemn him? Only two people, or no one at all (Vel duo, vel nemo). He never claimed he wanted to destroy anything on his own authority; he said only that he wished to replace something no one wanted any longer, and that in fact no longer existed, with something that seemed reasonable to him. If, moreover, one accepts the principle (and it was, in effect, widely accepted) that human beings can create a constitution, then this minister, who was certainly a human being, had as much right to make one as anyone else, and more right than most. Was there any serious doubt about the doctrine on this point? Did not everyone, on every side, believe that a constitution is a product of the intellect, like an ode or a tragedy? Had not Thomas Paine declared, with a profundity that delighted the universities, that a constitution does not truly exist so long as one cannot put it in one’s pocket? The eighteenth century suspected nothing and doubted nothing: that was its defining rule. I don’t believe it produced a single talented young man who, on leaving school, did not do three things: compose a neopaedia, draft a constitution, and create a world. If, therefore, a man in the full maturity of his age and abilities, deeply versed in economic science and the philosophy of his era, had undertaken only the second of these tasks, I would already have found him excessively modest. But I confess he strikes me as a genuine prodigy of wisdom and restraint when I see him, placing (at least as he believed) experience in the place of foolish theories, and respectfully asking the English for a constitution rather than simply inventing one himself. It will be said: that itself was not possible. I know it, but he did not know it, and how could he have known it? Let someone name for me the person who had told him so.
9. The more one examines the role of human action in the formation of political constitutions, the more one becomes convinced that it plays only an infinitely subordinate part, serving as little more than an instrument. I believe the following propositions are beyond serious dispute: 1. That the roots of political constitutions exist before any written law; 2. That a constitutional law is, and can only be, the development or ratification of a pre-existing, unwritten right; 3. That what is most essential, most genuinely constitutional, and truly fundamental is never written down, and in fact could not be written down without putting the state at risk; 4. That the weakness and fragility of a constitution are directly proportional to the number of written constitutional articles it contains.
10. We are misled on this point by a sophism so natural that it slips past us entirely. Because man acts, he assumes he acts alone; and because he is conscious of his freedom, he forgets how dependent he really is. In the physical world, he listens to reason. He can plant an acorn, water it, and tend to it, yet he is still capable of acknowledging that he does not make oak trees, because he watches the tree grow and reach maturity without any human power driving the process, and because, moreover, he did not make the acorn itself. But in the social world, where he is present and active, he comes to believe that he is the true and direct author of everything accomplished through him. It is, in a sense, the trowel imagining itself the architect. Man is intelligent, free, and genuinely remarkable, without question; but he is no less a tool of God (to borrow Plutarch’s well-chosen phrase, from a fine passage that comes naturally to mind here).
“One should not marvel,” he says, “if the greatest and most beautiful things in the world are accomplished by the will and providence of God, given that, in all the greatest and principal parts of the world, there is a soul; for the organ and instrument of the soul is the body, and the soul is THE INSTRUMENT OF GOD. And just as the body has of itself several motions, and the greater part of them, especially the noblest, it receives from the soul, so too the soul performs none of its operations, being moved of itself; in others, it allows itself to be handled, directed, and turned by God, as it pleases Him; being the most beautiful organ and the most skillful instrument that could ever be: for it would be a strange thing that the wind, the clouds, and the rains should be instruments of God, with which He nourishes and sustains many creatures, and also destroys and undoes many others, and that He should make no use whatsoever of animals to accomplish any of His works. But it is far more probable, given that they depend entirely upon the power of God, that they serve all His movements and second all His wills, more readily than bows accommodate themselves to the Scythians, or lyres to the Greeks, or oboes.”
No one could have put it better, and I don’t think these remarkable reflections find a more fitting application anywhere than in the formation of political constitutions, where one can say with equal truth that man does everything and does nothing.
11. If anything is well known, it is Cicero’s comparison regarding the system of Epicurus, who wanted to build a world from atoms falling at random through the void. I would sooner believe, said the great orator, that letters thrown into the air could arrange themselves as they fell so as to form a poem. Thousands of voices have repeated and celebrated this idea; yet I don’t see that anyone has thought to give it the complement it lacks. Suppose that printer’s type, thrown by the handful from the top of a tower, were to land on the ground forming Racine’s Athalie: what would follow from this? That an intelligence presided over the fall and arrangement of the type. Common sense will never reach any other conclusion.
12. Consider any political constitution you like, England’s for example. It certainly was not designed from first principles. No group of statesmen ever sat down together and said: Let us create three powers and balance them in such and such a manner, and so on; no one planned it that way. The constitution is the product of circumstances, and the number of those circumstances is infinite. Roman law, ecclesiastical law, feudal law; Saxon, Norman, and Danish customs; the privileges, prejudices, and ambitions of every social order; wars, revolts, revolutions, conquest, the Crusades; all the virtues, all the vices, all the knowledge, all the errors, all the passions: all these elements, acting together and producing through their mixture and mutual interaction combinations multiplied by myriads of millions, yielded at last, after several centuries, the most complex unity and the finest balance of political forces the world has ever seen.
13. Since these countless elements, projected into space, arranged themselves with such remarkable order, without a single one of the multitude of men who acted across that vast field ever knowing what he was doing in relation to the whole, or foreseeing what was to come, it follows that these elements were guided in their movement by an infallible hand superior to man. Perhaps the greatest folly of that foolish age was the belief that fundamental laws could be written a priori, when they are clearly the work of a force beyond human capacity, and the very act of writing them down, coming so much later, is itself the clearest sign of their nullity.
14. It is quite remarkable that God, having deigned to speak to men, has Himself confirmed these truths in the two revelations we hold from His goodness. A highly capable man who has made, in my opinion, a kind of landmark contribution to our century, by reason of the relentless struggle his writings reveal between the most entrenched prejudices of his age, his sect, and his habits on one side, and the purest intentions, the movements of a genuinely upright heart, and the most valuable knowledge on the other: this capable man, I say, declared “that an instruction coming immediately from God, or given only by His orders, should first of all certify to men the existence of that Being.” In fact, the opposite is true. The first characteristic of this instruction is that it reveals neither the existence of God nor His attributes directly, but presupposes the whole as already known, without explaining either why or how. It does not say: There is, or you shall believe in, only one eternal, all-powerful God, and so on. Instead, it says (and this is its very first word), in a purely narrative form: In the beginning God created, and so on; by which it presupposes that the doctrine is known before the Scripture even begins.
