第四卷
第一章 论公意是不可摧毁的
只要聚集在一起的几个人认为他们自己是一个单独的团体,他们就有了一个针对他们共同生存和一般幸福的意志。到那时,国家所有充满活力的力量都变得朝气蓬勃、单纯朴素;其原则也都变得清清楚楚;它就不存在不可兼容或相互冲突的利益;共同的利益使其自身变得如此显而易见,其结果是,只需要共同的感觉来辩明共同的利益。和平、统一和平等都成为政治老手的敌人。正直朴素的人正因为他们的质朴而不会轻易受骗;战略战术上的争论都不可能说服他们;他们确实并不渺小到足以成为傻瓜。当我们在世上最幸福的人中看到一帮帮农民在一棵橡树下关心着国家事务,总是明智地行动时,对千方百计使自身即刻变得显赫而可耻的他国的高雅行为,我们会情不自禁地有某种蔑视吗?
因而,被统治国近乎无需法律,无论何时需要公布新法律,这种需要一眼就看得出来。提出如此法律的第一人只是对每个人已感觉到的东西发出呼吁,而不存在这样的问题:把人人都已经决意要做的事情变成法律,这既不是阴谋也不是雄辩问题,只要他能肯定别人也会照他这样做就可以了。
使理论家们误入岐途的是,由于只看到一开始就创建十分不好的国家,所以不可能因为维护这样一个政体而对他们有所打击。他们嘲笑所有像聪明的流氓或狡猾的雄辩家能劝诱巴黎人或伦敦人犯罪这样的愚蠢思想。他们意识到,克伦威尔不会被伯尔尼人安排去做强制性的工作,波弗特公爵也不会被日内瓦人监禁起来。
然而,当社会的束缚开始松懈,而国家变得衰弱时,当特殊利益开始使自身被感觉到,而部分社会开始对更大的社会施加影响时,共同利益就变得腐败并且满足反对派的要求;投票就不再是一致通过了;公意不再是大家的意志;矛盾与争端就出现了;甚至最好的意见也不许毫无异议地盛行。
最后,当处在覆灭边缘的国家只能以空洞虚幻的方式维护自身时,当社会契约在每个人的心中被打破时,当最自私的利益鲁莽地炫耀公共利益神圣的名称时,公意保持沉默:在神秘动机的促使下,每个人作为公民再也不发表言论了,仿佛国家永不存在;公民在法律的伪装下做出使私利成其唯一目标的不公正规定。
由此可见,公意将废止或腐败吗?不,公意总是不变的、不易败的、纯洁的,不过,公意从属于比它优先的其他意志。每个人在将个人利益从公共利益分离出来时清楚地明白,他无法将两种利益彻底分离,但是,他分享的公共恶行对他来说,与他试图使个人利益变成独有的利益相比,似乎什么都不是了。哪里不涉及个人私利,哪里个人就会像任何其他人一样热切渴望个人利益中的公共利益。甚至在为了金钱而出卖其投票权中,他不是压制自身内在的公意,而是回避公意。他所犯的错误不但在于改变提问方式,而且还在于答非所问。于是,投票之后他说:“这样那样的提议都应该加以采纳,对任何一方都是有益的,”而不说:“它对国家是有益的。”由于这种原因,为规定合情合理的公众集会规则,成为一项并不太愿意支持公意的规则,以保证该规则总被人发问,并且总在对提问作出回答。
在此我可能多谈谈关于每个主权行为中简单的投票权问题,这是一项没有什么可以从公民身上剥夺掉的权利。我也可能多谈谈关于发言权、建议权、分裂权和争论权的问题——政府始终十分在意给予自己成员的权利——不过,这个重要的主题需要单独论述,可我又无法将一切都搁进这一主题中。
第二章 论投票权
显然,根据上一章所说,管理公共事务所使用的方式,给予政体的道德品质和健康状况以十分明确的说明。公众集会中盛行的协调性越大,换句话说,公众意见越接近一致,公意就越受到控制;而在另一方面,长期的争论、分歧和骚乱表明特殊利益的增加和国家利益的减少。
似乎更不明显的是,当国家组织有两种或若干种社会等级时——像古罗马有贵族也有平民一样——这些人的争论甚至在共和国鼎盛时期常常扰乱公民大会;可是,社会等级这种例外的情况比真实的情况更明显,因为在古罗马,由于政体与生俱来的缺陷,在演讲方式中原来就存在两种情形:两者都不真实就等于各自真实。的确,甚至在那最骚动的年代,当元老院不干涉时,公民中的平民总是平静地继续前行。绝大多数人都被赋予了投票权。公民只有一个利益;公民只有一个意志。
全体一致再次出现在循环的另一端——这就是沦落到奴隶状态的公民再也没有自由或意志的时候。那么,敬畏和奉承将投票变成了赞同票;公民已不是在商讨问题,而是在崇拜人或者在诅咒人。在君主的统治下,元老院用这种可耻的方式对其主张发出呼吁。有时,元老院这样对付过荒谬的警惕。塔西佗讲过:在奥索的统治下,元老以憎恨来掩护维特里乌斯,不过同时又小心翼翼地制造出一种震耳欲聋的响声,结果是,万一维特里乌斯偶然间成为主人,他也无法辨别出他们中每个人说过什么。
这些不同的思考向人们提出:应该安排计票,并对意见进行比较,这不但取决于公意被认知的难易程度,而且还取决于国家处在衰弱中的大小程度。
仅存在一种按照自然需要一致赞成的法律。这就是社会公约:因为公民联合是世界上最自愿的行为;每个人都是生来自由的,并且都是自己的主人,而再也没有什么人可以任何的借口未经其同意使其屈从。断言奴隶的儿子天生是奴隶就等于断言他并非天生是人。
那么,如果在社会公约制定时有反对意见的话,这一对立面并不会使契约作废;它只不过是排除反对派;反对派们在公民当中成了陌生人。在国家创建之后,所在地就意味着认同:居住在哪块领土上就等于屈服于哪个主权者。 【1】
除了这种原始契约之外,大量的投票始终约束其余的人;这是契约本身产生的结果。然而,人们可能要问,一个人怎样才能马上成为自由人,而不用被迫遵从他人的意志。对立的少数人怎样才能做到既自由又服从于他们所不赞成的法律呢?
我的回答是,这个问题提得很糟糕。这就等于公民要赞成所有法律,甚至要赞成那些违背其意志而通过的法律,以及他要敢于违反其中任何一条就会受到惩罚的法律。国家所有公民赞成的意志就是公意;正是通过公意他们才成为公民,才变得自由。 【2】 当一条法律在公民大会上提出时,他们所问到的并非正好是他们批准还是拒绝的法律,而是这条法律与成为他们意志的公意是否一致;每个人都会通过投票就这一问题提出意见。票数的统计无不说明了公意。因此,当与我相反的意见占上风时,这仅仅表明,我犯了错误;我认为能成为公意的东西并非如此。如果我的特别看法有违公意而广为流行的话,我应该做了些我过去就希望做的事。那时我本不是一个自由人。
诚然,这预示公意的所有这些特征还将在多数人中找到;当这些特征不存在时,不管人们采取什么主张,就不再有什么自由可言了。
当本文前些章节表明特殊意志如何在公众商讨中逐渐取代公意时,我十分清楚地说明了什么可行的手段能够避免恶习。我下面将回到这一主题。至于需用来宣布公意投票比例数,我也已阐明该数量可加以确定所依据的种种原则。一票之差会破坏双方相等;一票反对也会破坏全体一致;可是,在全体一致与双方相等之间有许多数字不等的比例,而人们期望的比例可按条件并在政体需要时确定这些数字中的任何一个。
两条普遍的准则可适合确定这些比例:第一条准则是,要决定的事情越重要越严肃,盛行的意见应该越接近全体一致;第二条准则是,问题要求决断得越快,规定的多数许可变得越小;在必须立刻做出的决定中,人们中的多数必须得以满足。第一条准则似乎更适宜于法律的制定;第二条准则更适宜于管理事务的派遣。无论如何,正是通过这两条准则的结合,我们才能确定多数人的准确数目以解决任何问题。
第三章 论选举制
如我所述,君主和行政官的选举是一种纷繁复杂的活动,可以通过自愿或抽签两种方法进行筹备。这两种方法都曾在不同的共和国使用过,而其真正复杂的混和使用在威尼斯共和国执政者选举中仍可看到。孟德斯鸠说:“通过抽签选举对民主制来说是自然的。”这我同意。可为何选举会是如此呢?他继续说:“抽签是一种选举法,这种办法不伤害任何人,却给每个公民一个公道的报国希望。”不过,这些都不是充分的理由。
假如我们记得,行政官的选举是政府而不是主权的一项职能的话,我们就会明白,为何抽签法对民主制而言是自然的,由于在民主制中法令为数更少,所以管理机构在比例上都更为合理。
在每个真正的民主制中,行政官并不是一种特权,而是一副沉重的担子,以致于它不能公正地给这个人而不给那个人。惟独法律可以将这种担子强加给抽到签的人,因为在这种情况下,既然各种条件对大家都是平等的,选择又不取决于任何人的意志,所以法律的普遍性并不经过任何特别的适用而被扭曲。
在贵族制中,君主选择君主,政府靠自己的运作使自己永存不朽。那么,自愿的选举是合适的。
威尼斯共和国执政者选举的例子决不是破坏选举的差异性,而是对其有所加强:如此的混合形式适宜于混合政府。以为威尼斯共和国执政者是真正的贵族制,那就错了,因为威尼斯人没在政府中扮演角色时,威尼斯的高贵本身就在于一个民族。多数贫穷的巴纳比人从未接近过任何行政官,后者的高贵停留在阁下这空洞的头衔以及出席参议会的权利上。既然参议会像我们日内瓦的众议会一样多,所以其杰出的议员也并不比我们普通公民有更多的特权。因此,勿庸置疑,除两个共和国之间极度悬殊之外,日内瓦的资产阶级分子正好与威尼斯的贵族相符;我们本地人和居民相当于威尼斯的城市人和平民,而我们的农民就与大陆的臣民相一致;概而言之,除了威尼斯的面积大小之外,无论从什么观点来看这个共和国,它的政府跟我们的同样都不是贵族制。整个的区别在于我们没有掌管民生事务的首相。于是,我们同样不需要抽签选举法。
在真正的民主制中,抽签选举几乎没什么不利之处,因为当所有人在个性和才能上都平等,在原则和幸运上也都平等时,选举谁都没有什么关系了。不过,正如我曾说过,真正的民主制是生存不下去的。
自愿选举法和抽签选举法都加以使用时,选举应该用以填补需要特殊技能的位置,例如军事指挥,而对于需要常识、公正、正直品性的政治职位抽签就足够了,因为在一个体制健全的国家,这样的品性在所有的公民中都能找到。
在君主制的统治下,抽签选举和自愿选举都占有一席之地。既然君主按权利既是唯一的君主又是仅有的长官,其议员的选择都只属于他。当圣彼埃尔的神父建议增加法国国王的内阁阁臣,并通过投票选举成员时,他没有意识到他那时正在建议改变政权的形式。
我还想谈一谈投票和在公民大会中集中选票的方法,但是,或许对民主制来说,古罗马体制的历史更适合于我自己可能提出过的所有原则。比较仔细思考公众事务和个人事务在一个拥有二十万人的大会上如何进行,这对一个深思熟虑的读者来说并不在什么话下。
第四章 论古罗马公民大会
我们没有可信赖的古罗马早期历史记载,而大多数我们听说的故事可能都是传说。 【3】 的确,一般地说,各民族编年史大多有教育意义的部分都是他们的政体创建史,这是我们最缺少的部分。经验每天都在告诉我们帝国大变革的种种原因,可是,由于现在不再创建民族,所以我们就没有什么比推测更好的东西用来解释它们曾经是怎么创建的。
我们发现,已建立的惯例起码可以表明:这样的惯例必然有其源头。追溯这些源头的传统得到最权威的支持,并得到最理性的认可,这些传统应该最大程度上传递某种信息。在考问世上最自由最强大的人如何行使最高权力时,我试图遵循的原则就是如此。
古罗马创建之后,新生的共和国——即由奥尔本人、萨宾人和异乡人组成的建国者军队——分为三种人,因为这种区分,所以它们的名字就叫作部族。其中每一个部族进一步分为十个库里亚,每一个库里亚细分为若干德库里亚,它们的首领分别叫库里昂和德库里昂。
此外,从每个部族征集一支由一百个特权市民或骑士组成的团体,称为百人团。这表明,这些在城市几乎不必要的分类首先纯粹是军事上的。不过,似乎一种最大的本能引领古罗马小城用完全适合世界之都的体制开始自给自足。
然而,这种原始分类很快就产生不利的后果。奥尔本人和萨宾人的部族依然如故,而异乡人的部族则像更多异乡人招兵买马一样不断增长,不久它容纳的成员比其他两个部族合在一起的成员还要多。毛鲁斯找到纠正这个致命错误的良方是改变分类的依据。他引进了一种分类法,它以那三个部族中的一个所占据的城市行政区为基础,用来代替他所消除的部族差异。他将原来的三个部族分为四个部族,各自占领罗马的一个山岗,各取其名。因而,他既纠正了现存的不平等,又预防将来的不平等;为确保这种分类会是按人而不是按区进行,他禁止一个行政区的居民搬到另一个行政区,于是避免了不同部族的融合。
他还把自古以来的三个骑兵百人团增加了一倍,再加上十二个新成员,不过保留原有的名称;这是一种精明简单的手段,他用这种手段成功地将骑士主体与公民主体区分开来,而不使后者抱怨。
在这四个城市部族的基础上,毛鲁斯又增加了十五种乡村部族,因为它们都是由乡村居民构成,按许多国家行政区来排列。然后,由于许多新部族的建立,所以古罗马人发觉自身分类达到三十五个部族,这一数目直到共和国寿终正寝为止都没有改变过。
城市部族与乡村部族之间的区别之所以存在一个值得注意的现象,是因为没有关于它的其他实例,也是因为古罗马对此心存感激既出于道德的维护,又出于帝国的发展。可有人认为,城市部族肯定很快将权力和荣誉垄断,并且迅速缩小乡村部族的地盘。所发生的事情却恰恰相反。早期古罗马人乡村生活品味众所周知。这种品位源自他们智慧的创立者,这位创立者将自由结合到乡村劳动和兵役之中;在某种意义上说,他还将手工业、贸易、复杂的事务、财产和奴隶制转移到城市。
既然所有声名显赫的罗马人都居住在乡村耕田种地,把乡村看作共和国中流砥柱的观点变得司空见惯。由于这种生活方式原是大多数贵族的生活方式,它便得到大家的青睐;乡下人朴素的劳动生活比古罗马资产阶级分子宽松空闲的生活来得优越。一个除了是城里可怜的无产者外什么都不是的人,变成了一个像土地耕耘者那样受人尊重的公民。瓦戎说过,我们宽宏大量的祖先在乡村建立起那些强健者和勇敢者的托儿所,后者在战争期间保卫他们,在和平时期滋养他们,这是不无道理的。普林尼断然声明,乡村部族因为那些依附的人而受到尊敬;无论何时打算使胆怯者堕落,胆怯者就会被丢失脸面地转让给某一个城市部族。当萨宾人阿皮乌斯·克劳底乌斯在罗马逐渐身居要职时,他不断博得赞誉,并作为乡村部族的一员为后人所铭记,这个乡村部族后来采用了他家族的名字。最后,所有被释放的人加入城市部族,而绝非加入乡村部族。共和国上下没有一个例子能说明,被释放者中有一个人出任过什么行政官,即便他已经成了公民。
这种原则本来是很好的,但它被推行得太过火,最终发生了变化,必然在政体中被滥用。
首先,监察官将公民从一个部族转换到另一个部族的仲裁权长期占为己有,容许大多数人成为其所挑选的部族一员,这一让步肯定没有什么好处,它使审查制度丧失了其极大利益之一。况且,大权在握的高贵者都让他们自己成为乡村部族的一员,而被释放者却仍与普通人一起留在城市部族中,其结果是,这些部族通常没有了地方或领地基础,大家混杂在一起,人们不查登记表再也不可能确定任何人的身份。这就是为什么部族这个词逐渐有了个人的而非地域的含义,更准确地说,逐渐变得徒有虚名。
还发生过这样的事:更接近市中心的城市部族时常发现他们自己在公民大会中成为最强大的团体,并且非常屈尊地将国家出卖,以博得大会的乌合之众的投票。
至于库里亚,由于创立者早己在每个部族中成立了十个部族,那时封闭在城墙内的全体古罗马人由三十个库里亚组成,每个库里亚都有自己的神殿、自己的神
、自己的官员、自己的神甫以及自己的各种节日,这些节日称为大路节,类似后来乡村部族举办的乡村节。
当毛鲁斯引入他的新分类法时,他的四个部族无法平分为三十个,同时他也并不希望改变新的分类法;结果是,变得独立于部族的库里亚在罗马另立一类居民。不过,在乡村部族或属于部族的人当中不存在有关库里亚的问题,因为在部族成为纯粹的公民管理机构,新的征兵体制引入之后,罗穆卢斯的军事机构已被证实是多余的。因而,虽然每个公民都成为某一部族的成员,不是库里亚人的并不多。
毛鲁斯还做了与前两种毫无关系的第三种分类,这种分类从其结果看是三者中最重要的。他将整个罗马人分成六类,既不以人也不以其住处,而是以财富分类;其结果是,第一类挤满了富人;最后一类净是穷人;中间一类为中等财富的人。这六大类细分为193个团体,称为百人团。这些团体如此分类造成第一类占一半多的细分类,而最后一类却只有一个百人团。因而就发生人数最少的那一类拥有最多的百人团,而最后一类只作一个百人团的细分类来算,尽管它容纳罗马半数以上的居民。
为了人们更少地去充分感知这种分类的后果,毛鲁斯以军事形式掩饰它;他将两千军械士放进第二类,两千武器制造者放进第四类。在除最后一类的其他每个类别中,他在老少之间做划分,换句话说,划分负有扛枪责任的那些人与以年龄为由合法免除扛枪的那些人;这种比财富的区分更大的划分,使得有必要进行经常性的人口统计。最后,他规定集会应在玛尔斯教场上举行;所有那些兵役适龄者都应扛着武器参加集会。
他在最后一类老少之间不做同样区分的理由只是,属于这一类的普通人在为国效劳中不享受扛枪的荣誉;只拥有家庭生活的那些人有权保卫它们。在点缀当时国王军队的无数乞丐军团中,在士兵成为自由保卫者的那个年代,大概没有一个人不被蔑视地逐出古罗马军团。
然而,在最后一类中,他在无产者与那些被称作按人头计数的人之间做出区分。前者并非完全一无所有,他们至少给国家增添了公民,甚至往往在万分急需时给国家输送士兵。但是,那些一无所有并且只能当人头算的人不被视为存在的人,而马留乌斯是第一个屈尊招收他们的人。
在此不决定这第三种分类实际上是好是坏,我想,人们确实会说:它之所以是可行的,正是因为早期古罗马人简朴的习惯、对农业的感受、似乎对商业的蔑视以及对利益的追逐。现代民族贪得无厌,人心不安,耍弄阴谋,不断迁移,经常玩转财富,有哪个民族能够让这一体制持续二十年而未颠覆整个国家呢?还得记住的是:古罗马人的道德审查机构有力地纠正了这种体制的弊端;富人会发现自己因为太炫富而被转到穷人那一类。
从这一切不难理解,为何人们几乎只提到五种古罗马人的分类,虽然实际上有六类。第六类既不为军队输送士兵,也不为玛尔斯教场 【4】 提供选举人,因此事实上在共和国中不起作用,这样人们也就很少去考虑它了。
古罗马人的不同分类就是如此。让我们来关心一下这些类别在各种集会中所产生的影响。那些合法召集的集会称作公民大会,它们通常在古罗马公共会场或玛尔斯教场上举行,根据所采用的形式,它们分别称作库里亚大会、百人团大会和部族大会。库里亚大会和百人团大会分别由罗穆卢斯和毛鲁斯创立;部族大会则由民众领袖发明。若不是在公民大会上,法律就得不到通过,而且行政官就得不到选举。由于公民无不成为库里亚、百人团和部族的成员,所以由此可见,没有哪个公民被拒绝拥有投票权,古罗马人不但在法律上而且在事实上都是真正的主权者。
至于合法召集的公民大会及其有法律约束力的决策,人们必须看到三个条件:第一,召集集会的主体或行政官必须被授予必要的权力;第二,集会必须在法律许可的某一天举行;第三,占卜必须顺利。
其中第一个条件的理由无需解释。第二个条件是政策方面的事,集会之所以不允许在假日或集市日进行,是因为来罗马办事的乡村人白天没时间参加集会。第三个条件使得元老院可将一个傲慢而不安的民族遏制在手中,调节煽风点火的护民官之热情——尽管后者发现逃避审查的方式不止一种。
规则和首领的选举并非只是服从公民大会的裁决。既然古罗马人已篡夺了政府大多数重要职能部门的权力,人们可以说欧洲的命运就在那些集会上决定。公共事务的多样性说明公民大会根据必须决定的事务采用过的若干方式。
为了判断这些不同的方式,有必要将它们做一番比较。在建立库里亚的过程中,罗穆卢斯旨在使元老院处于平衡状态以防备公民,同时使公民处于平衡状态以防备元老院,而他本人好像控制着这两类人。在这样的精心筹划下,他赋予多数人一切的权力,以便平衡权力和他留给贵族的财富。不过,按照君主制的精神,他仍然给贵族带来极大的利益,因为他们可以雇用议员以对大多数人产生影响。这种妙不可言的庇护人制度和议员制度是政治家的杰作,没有了这一杰作,与共和国精神如此对立的贵族就无法生存。给予世界以这一崇高范例的荣誉当属古罗马人;这一范例从未被人滥用过,却也从未在其他地方被人仿效过。
库里亚的这种方式在历代国王的统治下延续到毛鲁斯。由于塔垦士最后的统治并不被认为是合法的,王室法令通常以库里亚法为人所知。
在共和国中,库里亚仍然限制在那四类城市部族范围内,并且仍然只包括罗马人,它既不取悦领导贵族的元老院,也不取悦领导较富有公民的护民官,尽管护民官是平民。因而,库里亚陷入了不被信任的尴尬境地,其实陷得不是那么深,以致于他们的三十个扈从去应付公民大会早该做的事。
百人团的分类对贵族制极为有利,因而最初不易看出,为何元老院始终不能在以百人团命名的公民大会中占优势,而审议会、监察官和其他行政官却借此名义当选。的确,在构成全体罗马人六个类别的193个百人团中,第一分类有98个百人团;既然投票只有百人团的算数,第一类别就比所有其他类别占了大多数。当所有这些百人团抱成一团时,剩余的投票甚至都不用计算了。已经由少数人决定的东西被看作多数人的决定;于是可以说,在百人团大会中,事事都由金钱多少来决定,而不由选票多少来决定。
可是,这种过多的权力在两个方面得到调节。第一,护民官通常在富人那一类,而大多数平民总是在有富人的一类,护民官和平民抑制了贵族在第一类中的影响。
第二,百人团并不总是召集起来按顺序或按等级投票,顺序或等级意味着投票从第一类别开始;而百人团是通过抽签选择的。 【5】 一个百人团进行选举,之后其他百人团按等级的顺序在不同的日子被召集起来重复该项选举。通常百人团都认可这种做法。因而,范例的权威根据民主制的原则由类别让给了机遇。
这种惯例还有另一个好处;它意味着来自乡村的居民在数次选举之间,有时间亲自了解暂时提名的候选人的优点,因而就不会在无知中投票。但是,在加快投票程序的籍口下,这一惯例最终被废除了。两次选举在同一天进行。
严格地说,部族大会才是古罗马人的议会。它只能由护民官召集,是选举护民官的集会。不但元老院在大会中没有地位,而且议员甚至无权参加。因而议员们被迫屈服于在他们没有发言权的情况下制定的法规,在那种程度上他们还不如最卑贱的公民来得自由。这种不公平完全是一种病态的构想,足以使主体的规定无效,结果是其成员不被接纳。假如所有贵族都出席议会的话,根据他们作为公民的权利,作为单纯的个体,他们对按人计数的投票不会产生巨大影响,因为在这里最卑贱的无产者与首席元老一样。
因而人们会明白,除收集那么多人投票的不同方法中出现的顺序之外,这几种方法本身并非微不足道;不过人们还会明白,每一种方法都会产生各种影响,这些影响与导致其被选的意见相关联。
我不想再深究细节,从已给的解释中显示出来的是,部族大会最有利于人民的政府;百人团大会最有利于贵族制。在库里亚大会中,古罗马平民只构成大多数,他们有利于暴政的倾向以及导致他们落下坏名声的坏计划,以致于甚至那些煽风点火的议员都回避这些大会,免得他们的出席会让人怀疑有所图谋。毫无疑问,古罗马人的尊严只有在百人团大会上才能显示得淋漓尽致;库里亚大会只是一种充分的集会,因为它把乡村部族排除在外;部族大会却拒元老院和贵族于门外。
古罗马人所使用的投票制就像他们的举止和道德一样简单,但好像不如斯巴达人简单。每个人以口头表决的方式投票,然后由一个书记员将票数记下来;在每个部族中,大多数的个人投票决定那个部族的决策,大多数的部族选票确定那个民族的决策;库里亚和百人团也是如此。只要诚实在公民中盛行,只要每个人耻于在大庭广众面前以不公正的理由或为一个不足道的候选人投票,这种投票方式不失为一种好办法。可是,当人们变得腐败并且贿赂选票时,这一口头投票方式就成了秘密掷票式投票的权宜之计,这样就能够用不信任来制止贿选者,并且也可以给那些流氓无赖们提供一种不至于沦为卖国贼的办法。
我意识到,西塞罗谴责这种方式的改变,他认为这种改变得为共和国的衰败承担部分责任。不过,当留意一下西塞罗本应承担的压力时,我不同意他的看法。相反,我认为正是几乎没有做如此的改变,才加速了国家的衰败。因为正像健康者的食物不合适给病人吃一样,所以人们不该试图利用适用于善良人民的法律来管理腐化的人民。没有什么会比威尼斯共和国的经久不衰更能证实这一原理了,这一政体仍旧保留着威尼斯共和国的影子,就是因为威尼斯的法律仅适用于坏人。
现在罗马公民在他们当中分发牌子,这样每个人可以在别人不知其意见时投票。罗马人还为收牌、计票、监表等做出新的安排。这并没有妨碍人们怀疑委以职责的官员不诚实。最后,设计好的布告大量散发,以防密谋和买卖选票,结果其数目之多说明了新方法毫无效率。
在共和国的最后几年,古罗马人常常被迫求助于特别的权宜之计以弥补法令的不足。人们往往祈求奇迹发生。可如果这种手段可以强加给公民的话,它就不会吓坏他们的统治者。有时在候选人有时间行贿之前,大会仓促召集;有时当看出人们已被引诱并即将做出一个错误的决策时,整个会议中止以阻碍议案通过。但是,雄心壮志终于克服了一切障碍;在所有的事实中最令人难以置信的是:在一片谩骂声中,多亏古老的次序法则,那么多的人仍继续选举行政官,制定法律,判决案件,经营私事,管理公务——公共事务拥有的设施跟元老院本身可能掌握的几乎一样多。
第五章 论保民官制
当不可能在国体的不同部分之间做精确的平衡时,或者当无法控制的因素继续改变它们之间的关系时,那么,就得设特别的行政官,以推动每个成分处于准确的平衡状态,并且不是在君主与人民之间就是在君主与主权者之间,如果有必要的话,同时在这两种情况之间起到联系或从中协调的作用。
我称之为保民官的这个主体,是法律和立法权的监护人。它有时起保护主权者以对抗政府的作用,就像护民官在罗马所起的作用一样;有时支持政府以对抗人民,就像现今十人会议在威尼斯所做的一样;有时在二者之间维持一种平衡,就像斯巴达的监察官所做的一样。
保民官制并不是共和国体制的一部分,它既不该分享立法权,也不该分享行政权,可正是由于这种原因,保民官制自身的权力才达到最大的极限,因为虽然它自身无所作为,但是它可以阻止他人作为。作为法律的保卫者,它比行使法律的君主或比立法的主权者更加神圣、更加令人崇拜。这一点十分清楚地体现在罗马的情形中,在罗马,傲慢的贵族总鄙视所有人民,却不得不在行使既不神圣也不合法权力的普通人民官员面前点头哈腰。
保民官假如控制得高明,是一个良好国体强有力的支柱,但是如果拥有超过所必要的最底限度的权力,它将颠覆一切。它本性上并不趋于衰弱。如果它什么都是的话,它该怎么样就会怎么样。
当保民官制取代了只是缓和剂的执法权时,当保民官制试图制定只应该保护的法律时,它就会退化为暴政。只要斯巴达维持其道德,监察官的巨大权力就不代表危险;一旦腐败开始出现,它就会促进腐败。暴君们流出的阿吉斯之血是其继任者报仇的结果;犯罪与对监察官的种种惩罚同样加速了共和国的崩溃。克利蒙特之后的斯巴达就算不了什么东西了。古罗马以同样的方式灭亡。保民官们所篡夺的过多权力,在为维护自由而制定的法律援助下,最后逐渐适合于保护那些真正毁掉自由的君主。至于威尼斯的十人会议,它是一个血腥的法庭,这种法庭对贵族和人民同样有害;它决不是给予现已降格的法律以最高的保护,而只是为还击没人敢面对的突然打击而服务。
像政府那样,保民官制随其成员的增加而受到削弱。当古罗马人的保民官——原来两个,后来增加到五个——试图再增加一倍时,元老院同意了,并自信可以利用一方控制另一方,这一招果然奏效。
阻止这样一个可怕主体篡权的最好方法——尽管它是任何政府从未使用过的方法——决不会使保民官制持久,却规定了其应仍处于暂停期的时间间隔。这些时间间隔,不该像给予种种谩骂滋生的时间间隔一样长,可在某种意义上——万一需要,它们可能被特别的职权所缩短——通过法律加以规定。
这种方法对我来说似乎存在什么缺点,因为既然保民官制如我所述决不是国体的一部分,可以删掉也毫无害处;既然一个刚上任的行政官不愿用前任所拥有的权力来执政,而只愿意用法律所赋予他的权力来执政,这种方法依我看来似乎是一种灵验的方法。
第六章 论独裁制
法律的不变性妨碍法律适应于环境,在某种情况下可能使法律变得腐败,在紧要关头还会导致国家的覆灭。法律形式循序渐进的过程需要一台环境所无法提供的计时器。可能会有许多事律师预见不到,而明白人们无法预知一切的道理却是深谋远虑必不可少的一部分。
由于这种原因,人们不应试图使政治制度变得如此僵化,以致于人们丧失中止政治制度实施的权力。即便是斯巴达有时也会让其法律处于休眠的状态。
然而,唯有最大的危险才值得去冒变更公共秩序的危险;法律神圣的权力决不应该被中止,除非当祖国安全处在危难之中。在这些极为罕见却显而易见的情况下,一道特别的法令会提供公共安全,它使得安全成为最杰出人物的职责。这种职责可以根据紧急事件的性质以两种方式来分配。
如果政府增加活动足以排除危险,那么这种活动应该集中在政府的一两个官员手中。在这种情况下,它并不是在减小的法律权威,而只是一种行政方式。可如果危险达到法律机器本身成为安全障碍的程度,那么就必须任命最高首领,赋予其压制一切的法律权力,以及暂时中止主权者的权力。在这种情况下,公意就不容置疑,因为很显然,人们主要关注的是国家的生死存亡。因而,中止立法权并非废止立法权;压制立法权的行政官不能成为立法权的代言人;他控制立法权,而不具有代表立法权的权力。除了立法外,他可以无所不为。
在根据一项神圣法则将共和国安全委托给两个执政官时,古罗马元老院使用这两种方法中的第一种;在这两个执政官之一提名一个独裁者时——古罗马已从阿尔巴那学会的手段,第二种方法得以使用。 【6】
在共和国初期,古罗马人常常采用独裁的手段,因为国家以其国体力量维护自身的各种状况尚未充分确定。人们的道德品质使得在其他时期可能需要的许多防范,在那个时期并不需要,于是人们不必担忧独裁者会滥用职权,也不担忧他会企图超限延长执政时间。相反,看来如此多的权力对那些行使权力的人来说倒是一个负担,因为他们急急忙忙想使自己摆脱这一负担,仿佛坐在法律这个位置上使这一负担成了一项极其沉重极其危险的职责。
所以,这并不是因为存在权力被滥用的一种危险,而是因为存在权力受到关注的危险,人们谴责轻率雇用共和国早期的这个最高行政官。由于当权力在选举、奉献以及纯粹形式的事情中被浪费时,人们有理由担心:当确实需要权力时,权力会变得更加软弱无力;人们会逐渐把独裁视为一种只用来给种种毫无用处的仪式冠以尊严而空洞的称号。
到共和国晚期,变得更加慎重的古罗马人在行使独裁政权的过程中变得十分吝啬,就像他们曾经几乎不需要什么理由奢侈一样。不难看出:他们的担忧没有确实的根据;首都的软弱那时成了一种自我保护,以对抗被迫夹在当中的行政官;独裁者在某种情况下可以保护公众自由,而决不可侵犯它;古罗马的羁绊在罗马,而不在古罗马军队曾被人遗忘;毛鲁斯无力抵抗苏拉和庞培·凯撒这件事清楚地表明,内部的权力在面临外部的力量时人们所能期待的后果。
这一过失导致古罗马人犯下极大的错误。例如,喀提林事件中留下了任命独裁者的败笔,因为既然这是一件只关系城市本身或者顶多是意大利省份的事,法律赋予独裁者的无限权力必将助长了人们准备粉碎的那场阴谋,其实那场阴谋只被一连串侥幸的意外事件遏止了,就像人类的节俭从不用人们去期待一样。
元老院十分满意地将其所有权力交给执政官,而不去任命独裁者,这是由于西塞罗为有效行动迫不得以在关键时刻超越权限。然而,在最初的狂喜中,古罗马人赞成他的举动,正是拥有了正义,后来他才被请去解释在违犯法律中公民的流血事件——这是一种不可能向独裁者提出的指责。不过,雄辩的执政官在他面前兜揽了一切。他本人尽管是一个古罗马人,可是他爱自己的荣耀胜过爱自己的国家;他企图在国务中为自己获得一切荣誉,而不去寻求一种报国的必然合法手段。 【7】 因而,他被公正地誉为罗马的解放者,也作为古罗马法律的违犯者受到了应有的惩罚。不管来自流放的记忆可能多么美好,毫无疑问,这就是一种宽恕的举动。
此外,这个重要委员会无论以什么方式被授予独裁政权,将其任期限制在一个不能延长的短期内,是绝对必要的;在需要建制的紧急情况下,国家很快要么失败要么得以解救。一旦这种急需没有了,独裁不是变成暴政就是变得一文不值。在古罗马,这个期限是六个月,大多数独裁者在期满之前辞职。假设这个期限延长的话,他们可能做出调整以进一步延长期限,就像任期一年的古罗马十大行政官那样。独裁者只有时间满足他被选为独裁者的需要,而没有时间考虑更长远的计划。
第七章 论监察官制
正如公意通过法律途径加以宣布一样,公众的意见是由监察官制加以体现的;公众的意见是一种法律形式,而监察官就是这种法律的执行者,按照君主的模式只将这种法律应用在特殊情况中。
那么,监察官制决不是公众意见的仲裁人,它只是代言人;一旦脱离了这一点,其种种决策就空洞无效。
将民族的道德与尊重的对象分隔开来是徒劳无益的,因为两者都源自同样的原理,有必要共同出现。在世上一切人当中,不是自然而是意见才决定他们对快乐的选择。改变人的看法吧!这样他们自身道德将得以净化。人们总是喜爱好东西或他们所认为的好东西,然而,正是在判断中他们才犯下错误;由此,正是他们的判断才应该加以调整。判断道德就是判断所给以荣誉的东西;判断所给以荣誉的东西就是把意见当作法律来看待。
一个民族的种种意见都来自其国体;尽管法律并不规定道德,然而正是立法才产生道德;当立法削弱时,道德就堕落;然后,监察官的裁决势必完成不了法律尚未完成的任务。
由此可见,在维护道德方面监察官制可能有所作为,但是在恢复道德方面绝对无能为力。当法律仍然充满活力时,建立起监察官制吧,因为活力一旦失去,一切就都无所指望;法律一旦不再具有力量,任何合法的东西也就不具有力量了。
通过防止各种意见遭到恶化,通过维持它们与英明裁决的结合,有时甚至通过决定无常的意见所依据的要点,监察官制以此来维护道德。决斗中助手的使用在法兰西王国被提升到热情洋溢的高度,却废止于国王的一道敕令:“至于那些胆怯到要找助手的人。”这个意见预见到公众意见,国王大笔一挥便了结此事。可当同样的敕令试图表明对抗决斗也是胆怯时——这千真万确,可在与大众意见发生分歧时——大众就会嘲笑对这件事的决策,因为他们已经形成对这件事的判断。
我在其他地方说过,既然公众意见并不屈从于强制力,在已建立起的代表自身的监察官制中就不该留下强制的痕迹。我们不能过分赞赏这种完全不同于现代手段所使用的技巧,古罗马人应用过这种手段,斯巴达人应用得甚至更好。
一旦性格不好的人在斯巴达内阁会议上提出一个很好的想法,对他不屑一顾的监督官却让一个善良的公民提出同样的想法。这对后者来说是怎样的荣誉,而对前者来说却是怎样的耻辱啊;然而,这二者既没受到表扬,也没受到责备。来自萨摩斯岛的某个醉鬼曾经弄脏监察官的席位;次日公共布告允许萨摩斯岛居民今后的肮脏行为。这种惩罚,要比真正的惩罚更为严厉。当斯巴达宣布什么是体面的和什么是不体面的时,希腊对其判断不予争辩。
第八章 论公民宗教
原始时期人们没有国王,却有神
。他们唯一的政权就是神权。他们像卡力古拉那样推理,既然是这样,他们就能正确地推理。在一个人决定接受一个自己同类的人作为主人,并说服自己在做此决定中做得完美无暇之前,需要有一个延长时期来改变其感觉,修正其观念。
由神被置于每个政治社会之首这一事实可见,过去神跟民族一样多。两个互相疏远、几乎总是敌对的民族,不可能长期认同同一个主人:两支参战的军队不可能服从同一个指挥官。因而,民族的分裂产生了多神教,这反过来便产生了宗教和公民的不宽容,而这些不宽容必然是相同的,正如我下面将解释到的那样。
古希腊人富于幻想——他们已找到自己的神
,诸神受到野蛮人的崇拜——源于希腊人的习惯,他们把自己看作那些相同民族的自然主权者。可在我们这个时代,研究不同民族神的身份这门学问却被混为一谈,这就像一首滑稽的打油诗:仿佛闪米族神、农神和克罗诺可以是相同的神;仿佛腓尼基人的邪神、希腊人的宙斯和古罗马人的朱庇特可以是同一个神;仿佛在不同名称的幻想生命之间可以存在共有的神!
可是,如果有人问,当每个国家有自己的宗教礼拜和自己的神
时,为何在信奉异教的情况下没有宗教战争。那么我的回答是:这是由于这样一个真实的情况——每个拥有自己的信仰和自己的政权的国家,并不区分自己的神
和法律。政治战争就像许多神学战争一样。比如,神的职权原来由不同民族的边界所决定。一个民族的神无权超越其他民族的神。异教徒的神决不是嫉妒之神;它们划分它们之间的世界帝国;甚至摩西人和希伯莱人有时以论及以色列的神来支持这个观念。诚然,他们没有认识到迦南人的神,迦南人是一个受排斥的民族,注定要毁灭,而他们却要占领迦南人的国家。但是,想一想他们是怎样谈论邻国民族的神性,又被阻止去进攻邻国吧。耶弗他对阿摩尼特斯人说:“属于你们的神基抹的东西不是你合法应得的东西吗?我们同样有权利占有我们耀武扬威的神已经夺走的土地。”
【8】
但是,犹太人以前屈从于巴比伦君主,后来屈从于叙利亚君主,当犹太人试图坚定不移地承认自己的神
,而不承认其他神
时,这番拒绝被视为一种对抗征服者的叛乱,并给犹太人带来我们在他们历史上所读到的那些迫害,我们尚未找到公元前像那样迫害的例子。
【9】
既然每种宗教都如此唯一地依附于规定宗教的自然法则,既然除了征服人就没有使人皈依宗教的手段,所以唯有传教士才是征服者;既然改变信仰的职责是征服法则的一部分,所以有必要在布道使人皈依之前就进行征服。人类决不为了神而战,而像在荷马书中所说的那样,正是诸神才为了人类而战;每个民族都会向神祈求胜利,并偿还神以新的祭坛。古罗马人在拿下一座城池之前,都会拜请那儿的神放弃城池;当他们允许塔伦土姆人维护他们愤怒的神时,正是在这种信仰之中那些神才屈从于他们的神,并被迫向他们表示敬意。他们让被征服者维护自己的神,就像他们让被征服者维护自己的法律一样。献给主神殿朱庇特的王冠往往就是他们勒索的唯一贡品。
最后,当古罗马人随帝国的扩张传播他们的信仰和他们的神,在赋予被征服者一切以及各式各样的公民权中,自己接受被征服者的神时,这个庞大帝国的各民族逐渐发现自己拥有许多的神
和信仰,这些神
和信仰无处不在,几乎一模一样;这就是异教何以会在整个已知的世界变成一个相同的宗教的原因之所在。
正是在这些情况下,耶稣教才逐渐在全球建立起一个精神王国;这个将神学体系与政治分离的王国,不但意味着国家已不是一个统一体,并且引起国内的区域划分,而不同的区域从未停止过对基督教教民的扰乱。既然另一世界王国的新观念可能从未灌输给异教徒,所以他们始终把基督教视为真正的叛乱者,这些叛乱者在虚情假意屈服的外衣下,只是伺机使他们自己独立称霸,并且狡猾地篡夺他们在软弱时表现出关注的权力。那场迫害的原因便是如此。
异教徒所担忧的事真的发生了;那时一切都变了样;谦卑的基督教徒改变了他们的调子,并且在一个抛头露面的首领统治下,所谓另一世界的王国很快变成这世上最暴力的专制。
然而,既然君主和民事法律继续存在,这个双重权力的结果已变成一场没完没了的司法冲突,这场冲突已使任何一种好的政府制度在基督教国家都变得不可能,因为在这些国家,人们从来就不知道他们是该服从公民的统治者,还是该听从神父。
许多民族,甚至在欧洲或其周边国家的民族,曾试图维护或重新建立古代的制度,可都没有成功:基督精神已大获全胜。宗教崇拜一直维护或恢复其主权者的独立,不过缺乏与国家的必要联系。穆罕默德有过很独到的见解,他小心翼翼地统一起他的政体,只要他的政体形式在他的继任者哈里发的掌权下持续,政体就不会被分割,在某种程度上这是一件好事。但是,变得富裕、有教养、文雅、柔弱、温和的阿拉伯人曾经被野蛮人征服过;然后两权分割重新开始。即使穆斯林之间的两权分割并不比基督教徒之间的明显,这种分割依然存在,尤其存在于阿里教派和像波斯那样的国家中,而人们一直都会感觉到这些地方的两权分割。
在我们当中,英国国王就像教皇和沙皇那样来确立自己的地位。可有了这个国王的称号,他们就不想使自己成为像大臣那样的主人,也不想获得太多的像保存教会那样的权利以改变教会;他们并不是立法者,而只是君主。无论牧师在哪里设立一个团体, 【10】 他在自己的机构中就是主人和立法者。因而,英国和俄国就有两种权力、两个主权者,就像在其他地方一样。
在所有基督教作家中,哲学家霍布斯是唯一清楚地看出邪恶及其根治方法的人,他敢于建议重新联合鹰派的两个领袖,彻底恢复政治统一,因为没有这一统一,国家和政府都无法健全。不过,他应该已看出基督教的主导精神与其体制互不相容,因为君主利益总是高于国家利益。并不是霍布斯体系如此可怕、虚假的部分,而是其合理、真实的部分,才使得该体系令人憎恨。 【11】
我相信,如果历史事实用这个观点来分析,我们就不难反驳贝尔和华伯登相互对立的信仰,他们一个认为宗教对政体无益,而另一个则认为基督教是政体的坚强后盾。通过表明国家没有宗教作为基础就无法创建的道理,我们可以驳斥第一个观点;通过表明基督法则其实对健全的国体不是有用而是腐蚀的道理,我们也可以驳斥第二个观点。为了使这一点得到明确的理解,我想我必须把宗教特别含混不清的观念说得更明确一点,因为它与我的主题有关。
从与普通社会或特别社会联系的角度看,宗教可以分为两种:人类宗教和公民宗教。人类宗教没有神殿、祭坛或礼节,受限于对至高无上神的内在忠诚和道德的外在义务,是纯洁朴素的福音宗教真正的一神论,可以称为神的自然法则。公民宗教是在某一国已建立的宗教;它给予那个国家以其神
和特别守护神;它有自己的教条、礼节、由法律规定礼拜的外在形式;对一个提倡这种宗教的国家来说,外在的一切都是失真的、相异的、野蛮的;只要它扩大了祭坛,它就拓展了人的权利与义务。所有早期的国教就是如此;我们可以给它取名为公民的或积极的神圣法则。
还有第三种或更多种古里古怪的宗教,它们给予人们两套立法规则、两位统治者、两个祖国,让人们承担两种相互矛盾的义务,并且阻止人们同时具有教民与公民的身份。拉马斯人的宗教如此,日本人的宗教如此,天主基督教也如此。人们可以称此为牧师的宗教。它产生一种混合的、反社会的法律体系,这种体系没有名称。
从政治观点看,在这三种宗教中,每一种都有其缺陷。第三种宗教显然如此恶劣到乐于说明其恶劣的人总是白费时间。破坏社会统一的一切事物都是毫无价值的;使人人自相矛盾的一切制度也都是毫无价值的。
第二种宗教是一种好宗教,因为它把拜神与守法相结合,还因为在公民赞美祖国的过程中,它教导我们为国家做贡献就是为护神做贡献。这是一种其中只有君主而没有主教、只有行政官而没有牧师的神学。那么,为自己国家而死的人必将成为一名殉道者;违法就是不虔诚;让罪人屈听公共诅咒就等于将其移交给神,让神对其发怒:sacer esto(让神诅咒他去吧!)。
不过,这种宗教也是恶劣的;既然它依赖谬误和谎言,它就会欺骗人们,使人们轻信、迷信;它在空洞的礼仪中将对神的真正崇拜掩盖起来。当它变得孤傲、残暴,并且使一个民族变得残忍、不可容忍时,它就更加恶劣了,这样人们只谈论谋杀和屠杀,只相信他们在杀害不接受他们的神的那些人中做一件神圣的大事。这使得有关的人进入与他人交战的自然状态,并且这是某种对自身安全具有危害的东西。
剩下的是人类的宗教,也就是基督教,不是现今讲的基督教,而是与现今完全不同的福音基督教。在这种神圣的、崇高的、真正的宗教影响下,人们作为同一个神的孩子,把其他人视为兄弟姐妹,并且把他们联合一起的那个社会至死都不会解体。
可是,这种宗教与政体并没有特定的联系,只好让法律自身所拥有的权力交给法律,而不给法律增加什么东西,所以就缺乏一种与任何特别社会结合的必要联系。更有甚者:因为这种宗教使公民的内心与国家分离,好像使其与这世上一切其他东西分离一样,而决不让其归属国家。我不知道还有什么会比这更加违反社会精神的了。
有人说一个真正基督教徒的民族总是建立可以想象的完美无缺的社会。我只看出这个假设中的一个大缺陷,即一个真正基督教徒的社会肯定不是一个人类社会。
我甚至还要说,这个想象的社会有尽善尽美的一切,不是最强大就是最持久。因为完美,所以它就没有联盟的结合;其致命的缺陷就在于其完美到极致。
人人都要履行义务;人人都要服从法律;统治者要公正温和;行政官要诚实廉洁;士兵要藐视死亡;既不能虚荣也不能奢侈;那一切都将十分美好。不过,让我们再往下瞧一瞧吧!
基督教是一种地地道道精神上的宗教,它只涉及天堂的东西;基督教徒的祖国并不是这个世界。基督教徒履行其义务,这一点也不假,可他是以对行为成就与否抱极冷漠的态度来履行义务。假如他对自己没什么好责备的话,这世上的一切是否顺利对他来说就无关紧要了。如果国家繁荣昌盛的话,他几乎不敢享受公众的快乐,而是害怕他会因国家的荣耀而骄傲起来;如果国家灭亡的话,他会祝福那只重压在他的人民身上的上帝之手。
为了使社会得以太平,和谐得以保持,每个公民毫无例外都必须成为好的基督徒。假如不幸出现一个野心勃勃的家伙、一个伪君子、一个谋反者,或者比如在他们当中出现一个克伦威尔的话,那个人一定会轻易地利用他虔诚的同胞。基督的仁慈不容许我们动不动就把我们的邻居往坏处想。当一个人狡猾到掌握了利用别人的技巧,并获得一部分公共权力时,看吧,就有一个人被授予荣誉;就有他应该受尊敬的神的意志;不久,我们就会看到一个有权力的人,以及他应该被服从的神的意志。假定他滥用了人们委托给他的权力呢?那么,他就成了神惩处孩子们的灾难。基督教徒会对驱逐篡夺者顾虑重重,因为那将意味着妨碍大家和睦相处、动用暴力、流血事件,而所有这些极不符合基督教的温和精神。一个人是自由人还是泪水汪汪的奴隶究竟有什么关系呢?重要的事就是要上天堂,而听天由命只不过是升到天堂的另一个手段而已。
假定爆发了一场对外战争,公民们会欣然上战场;他们当中没有人会想逃之夭夭;大家都会尽义务——不过他们不以胜利的激情来尽义务;他们知道如何去献身比如何去征服要好。他们是胜利者还是失败者对他们无关紧要。上帝难道不比他们更清楚什么是必要的吗?人们可以想象得到一个得意的、鲁莽的、易怒的敌人会从他们的斯多葛哲学中汲取到什么好处。让他们去作战以对抗一个宽厚的民族,那么他们的心就会被一股爱荣誉爱国家的强烈之情所吞没;设想一下你们的共和国遭遇斯巴达或古罗马,在你们虔诚的基督教徒有时间发挥他们的才智,或他们将拯救自己只寄托于敌人对他们的轻视之前,他们将遭挫败、受镇压并被消灭。
我自己认为,这是费比乌斯士兵接受到的豪言壮语;他们并不发誓要去征服他人还是要去为国献身,而要像征服者那样归来,他们说到做到。而基督教徒从来不敢这样做;他们会以为这是在试探上帝。
可是我在谈到基督教共和国时犯了错,因为这两个术语是相互矛盾的。基督精神只宣扬奴役和屈服。它的精神对暴政太有利了,以致于专制政治不能不利用它。真正的基督教徒被迫当奴隶;他们毫不犹豫地领会基督精神;可这种短暂的生活在他们眼里太没有价值了。
有人说基督教军队很出色。我否认这种说法。给我展示一下这些军队吧。就个人而言,我对此一无所知。人们可能会提到十字军东征。我不想去争论十字军东征的英勇无畏,可我必须说,他们决不是基督教徒。他们是僧侣兵,教派的公民;他们为了教派的精神家园而战,而教派却以某种奇特的方式使这个精神家园变得昙花一现。严格地说,这个教派归入异教名下;因为既然福音从不创立任何国教,所以在基督教徒当中打神战是不可能的。
在异教徒君主的统治下,基督教徒士兵个个骁勇善战。所有基督教徒作家都告诉我们这一点。我相信他们说的;那些士兵正是为了荣誉而抗击异教徒军队。一旦君主们都成为基督教徒,这种仿效就会终止;一旦十字架将鹰派驱赶出去,所有古罗马人的英勇无畏精神就会消失。
现在把政治考虑搁置一边,让我们回到关于权利问题上来;确定一下解决这个重要问题的种种原则。如我所说,社会公约给予主权者统治臣民的权利并没有超过公共实用的界限。 【12】 臣民没有义务向主权者说明他们的信仰,除了在那些信仰对共同体来说事关重大的时候。现在对国家很重要的是,每个公民都应该有一种使其热爱自己职责的宗教,但那种宗教的教条不是对国家有利,就是对成员有利,除非只要那些教条涉及到道德和义务,这些道德和义务就必然为每个以那种宗教为业者所履行。此外,每个人可能认为,无论什么意见他都满意,用不着主权者例行公事来加以认识,因为在另一个世界里主权者显得无能为力;只要臣民在未来的生活中当好公民,他们的命运不管会怎样,都跟主权者无关。
因而就有了一种信仰的职业,这种职业纯粹是公民的,而主权者的职能就是确定条条框框,它们并非严格得像宗教的教条,却像社会良知的表达,而没有社会良知,要想成为一个良好的公民或一个忠诚的臣民都是不可能的。 【13】 不能强迫人人都得相信这些条条框框,主权者可以将任何不相信它们的人驱逐出境;驱逐他不是由于他不敬,而是由于他是一个反社会的人,一个不能真诚热爱法律和正义的人,或是一个如有必要不能真诚殉职的人。如果每个人在已公开承认与那些条条框框相同的教条之后,举手投足间仿佛他并不相信它们,那么就把他处死吧,因为他犯下滔天大罪,即在法律面前撒谎的罪。
公民宗教的教条必须既简单又少量,表达精确,无需解释或评注。全能的、理智的、仁慈的、先知先觉神性的存在,来生,正义的快乐,惩罚罪人,社会契约和法律的圣洁——这些都是积极的教条。至于消极的教条,我把它们限于一条:即不可不宽容。不宽容属于我们已经拒绝的宗教之列。
依我看,那些区分公民和神学的不宽容的人都错了。不宽容的这两种形式是不可分割的。要与人们相信将受诅咒的人和睦相处,这是不可能的;爱戴他们就等于憎恨将要惩罚他们的神;不是赎回他们就是折磨他们,这是一项责无旁贷的义务。无论神学的不宽容在哪里为人所接受,它必然具有某种公民的重要性, 【14】 而当它有了这种重要性时,主权者就不再是主权者了,哪怕是短暂的一刻;在这个阶段,牧师成为真实的主人,而君主只不过成了牧师的办事员。
由于现在没有也不再可能有一个唯一的国教,所有自身容忍其他宗教的宗教都必须得到容忍,假如它们的教条不含任何与公民的义务相对立的东西。然而,凡是敢说:“在教堂之外没有拯救”的人应该从他的国家驱逐出去,除非那个国家就是教堂,并且君主就是主教。这样一种教条只有在神权政体中是好的;而在任何其他政体中却是有害的。据说亨利四世之所以接受了天主教,是因为他要使所有诚实的人都放弃天主教。
第九章 结论
在陈述了政治权利的真正原则,并且试图在这些原则基础上创建国家之后,我应该思考国家的对外关系,包括国际法、商业、战争权与征服权、公共法、联盟、谈判、条约等等,以此来结束我的研究。但是,所有这些都代表一个新主题,这个主题对才疏识浅的我来说显得太大了;我应该始终关注我力所能及的种种问题。
注 释
【1】 这应该始终理解为仅指自由的国家,因为在别处家庭、财产、缺乏庇护、必需品以及暴力,这些都可能勉强使一个居民留在国内;到那时纯粹的居住不再表示他是同意契约还是违背契约。
【2】 在热那亚,所有监狱的大门上和大帆船的锁链上,都可以看到“自由”这个词。把这个词当作座右铭来用真是美妙又恰当。其实,正是各国犯罪分子才妨碍公民得到自由。在一个所有这般人都在大帆船上的国家里,人们一定会享受到最完美的自由。
【3】 “罗马”这个名字,据说出自罗穆鲁斯,其实是希腊语,意思是“力量”;“努玛”这个名字也是希腊语,意思是“法律”。罗马城最早的两位国王应该在其执政前就有了与他们所从事的事业极其有关的名字,这很有可能吗?
【4】 我之所以说“玛尔斯教场”,是因为百人团大会在这里召开。至于集会的其他两种形式,人民在广场上或在别的地方开会,而“按人头计数”的人就具有跟一流公民那样的影响和权威。
【5】 被这样抽中的百人团享有“优先权”,因为要求它第一个投票;这就是我们所用的“特权”这个词的由来。
【6】 这一任命在夜间秘密进行,好像他们为把一个人凌驾于法律之上而感到羞耻。
【7】 如果他提出任命一名独裁者,他原本对此并无把握,因为他既不敢毛遂自荐,也无法确定他的同僚会提他的名。
【8】 “Nonne ea quae possidet Chamos deus tuus, tibi jure debentur?”这句话是拉丁文圣经的原文。贾立蔼神父将它译为:“你们难道不认为有权拥有属于你们的神基抹的东西吗?”我不知道希伯来原文写的是什么;可我注意到:在拉丁文中耶弗肯定地承认神基抹的权力,但是法语译文却增加了拉丁文本中所没有的“依你的说法”,从而削弱了原意。
【9】 那场号称圣战的福西人的战争并不是一场宗教战争。其目的是要惩罚渎神者,而不是要使不信教者屈从,这显然没有争论的余地。
【10】 应当注意到,把教士集中在一个团体中,这并不是很正式的集会(像法国的那样),倒更像是教会的圣餐。圣餐与开除教藉是教士们的社会契约;通过这个公约,他们始终既是人民的主人,又是国王的主人。所有一起沟通的牧师都是同胞公民,纵然他们身处地球的两极。这种发明成为政治的一大杰作。在异教的牧师当中未曾有过像这样的事,所以他们也就从未组织过教士团体。
【11】 此外,请看格老秀斯1643年4月11日给他兄弟的一封信,从中可以看出,在《公民论》一书中这位学者赞许什么,反对什么。诚然,他看在作者优点的份上很宽容地原谅了作者的缺点;可并非人人都如此宽宏大度。
【12】 阿冉松侯爵说过:“在共和国,每个人都可以完全自由地不做伤害别人的事。”这是一条不可更改的做人底线;人们无法更确切地表达这句话。尽管他的手稿并不为人所知,可是我一直无法否认有时引用他的手稿中时的愉快心情,以对这位卓越可钦的人物表示敬意,甚至作为首相,他还始终保持着一颗真正的公民之心,并且对本国政府持有一种公正、坚定的观点。
【13】 凯撒在为卡提里那辩护时,曾试图确立一种灵魂死亡的教条。卡图和西塞罗在反驳这一教条时,根本就不想费功夫用哲学去论证;他们满意地指出:凯撒像一个坏公民那样在发言,并提出一种有害于国家的学说。罗马元老院要判决的正是这一点,而不是什么神学问题。
【14】 例如,婚姻是一项公民契约,具有政治影响,没有了这项契约,社会本身想要生存下去是不可能的。现在让我们设想一下,在一个特定的国家,牧师居然获得婚姻许可权,而这种权利也是任何不宽容的宗教必然要争取的;他们就此在提高教会权威中取消君主的权威,那么君主所剩的只有牧师允许他拥有的臣民了,这不是很明显的吗?牧师可以根据人们是否接受这样那样的教义,承认或拒绝这样那样的婚姻,或者根据人们的虔诚程度,如果牧师精明地行事并坚定地执行,难道这不是明显地说,只有它才能适时处理继承、职位、公民等事务,甚至治理国家吗?因为全靠私生子组成的国家是不会长久生存下去的。可你们也许会说,我们可以号召现有的力量,发布命令,授予权利并占领教会财产。多么可怜的见解!如果牧师有一点点的常识——我不是说有一点点的勇气,它会任凭一切顺其自然;它可以安然地让别人去宣告,授权和接管,并且仍然像主人那样告终。我以为,当你有把握获得整体时,放弃局部并不算做出很大的牺牲。
Jean-Jacques Rousseau
The Social Contract
TRANSLATED BY MAURICE CRANSTON
PENGUIN BOOKS — GREAT IDEAS
Contents
Book Ⅰ
MY purpose is to consider if, in political society, there can be any legitimate and sure principle of government, taking men as they are and laws as they might be. In this inquiry I shall try always to bring together what right permits with what interest prescribes so that justice and utility are in no way divided.
I start without seeking to prove the importance of my subject. I may be asked whether I am a prince or a legislator that I should be writing about politics. I answer no: and indeed that that is my reason for doing so. If I were a prince or a legislator I should not waste my time saying what ought to be done; I should do it or keep silent.
Born as I was the citizen of a free state and a member of its sovereign body, the very right to vote imposes on me the duty to instruct myself in public affairs, however little influence my voice may have in them. And whenever I reflect upon governments, I am happy to find that my studies always give me fresh reasons for admiring that of my own country.
CHAPTER 1
The subject of Book Ⅰ
MAN was born free, and he is everywhere in chains. Those who think themselves the masters of others are indeed greater slaves than they. How did this transformation come about? I do not know. How can it be made legitimate? That question I believe I can answer.
If I were to consider only force and the effects of force, I should say: 'So long as a people is constrained to obey, and obeys, it does well; but as soon as it can shake off the yoke, and shakes it off, it does better; for since it regains its freedom by the same right as that which removed it, a people is either justified in taking back its freedom, or there is no justifying those who took it away.' But the social order is a sacred right which serves as a basis for all other rights. And as it is not a natural right, it must be one founded on covenants. The problem is to determine what those covenants are. But before we pass on to that question, I must substantiate what I have so far said.
CHAPTER 2
The First Societies
THE oldest of all societies, and the only natural one, is that of the family; yet children remain tied to their father by nature only so long as they need him for their preservation. As soon as this need ends, the natural bond is dissolved. Once the children are freed from the obedience they owe their father, and the father is freed from his responsibilities towards them, both parties equally regain their independence. If they continue to remain united, it is no longer nature, but their own choice, which unites them; and the family as such is kept in being only by agreement.
This common liberty is a consequence of man's nature. Man's first law is to watch over his own preservation; his first care he owes to himself; and as soon as he reaches the age of reason, he becomes the only judge of the best means to preserve himself; he becomes his own master.
The family may therefore perhaps be seen as the first model of political societies: the head of the state bears the image of the father, the people the image of his children, and all, being born free and equal, surrender their freedom only when they see advantage in doing so. The only difference is that in the family, a father's love for his children repays him for the care he bestows on them, while in the state, where the ruler can have no such feeling for his people, the pleasure of commanding must take the place of love.
Grotius denies that all human government is established for the benefit of the governed, and he cites the example of slavery. His characteristic method of reasoning is always to offer fact as a proof of right. 【1】 It is possible to imagine a more logical method, but not one more favourable to tyrants.
According to Grotius, therefore, it is doubtful whether humanity belongs to a hundred men, or whether these hundred men belong to humanity, though he seems throughout his book to lean to the first of these views, which is also that of Hobbes. These authors show us the human race divided into herds of cattle, each with a master who preserves it only in order to devour its members.
Just as a shepherd possesses a nature superior to that of his flock, so do those shepherds of men, their rulers, have a nature superior to that of their people. Or so, we are told by Philo, the Emperor Caligula argued, concluding, reasonably enough on this same analogy, that kings were gods or alternatively that the people were animals.
The reasoning of Caligula coincides with that of Hobbes and Grotius. Indeed Aristotle, before any of them, said that men were not at all equal by nature, since some were born for slavery and others born to be masters.
Aristotle was right; but he mistook the effect for the cause. Anyone born in slavery is born for slavery—nothing is more certain. Slaves, in their bondage, lose everything, even the desire to be free. They love their servitude even as the companions of Ulysses loved their life as brutes. 【2】 But if there are slaves by nature, it is only because there has been slavery against nature. Force made the first slaves; and their cowardice perpetuates their slavery.
I have said nothing of the King Adam or of the Emperor Noah, father of the three great monarchs who shared out the universe between them, like the children of Saturn, with whom some authors have identified them. I hope my readers will be grateful for this moderation, for since I am directly descended from one of those princes, and perhaps in the eldest line, how do I know that if the deeds were checked, I might not find myself the legitimate king of the human race? However that may be, there is no gainsaying that Adam was the king of the world, as was Robinson Crusoe of his island, precisely because he was the sole inhabitant; and the great advantage of such an empire was that the monarch, secure upon his throne, had no occasion to fear rebellions, wars or conspirators.
CHAPTER 3
The Right of the Strongest
THE strongest man is never strong enough to be master all the time, unless he transforms force into right and obedience into duty. Hence 'the right of the strongest'—a 'right' that sounds like something intended ironically, but is actually laid down as a principle. But shall we never have this phrase explained? Force is a physical power; I do not see how its effects could produce morality. To yield to force is an act of necessity, not of will; it is at best an act of prudence. In what sense can it be a moral duty?
Let us grant, for a moment, that this so-called right exists. I suggest it can only produce a tissue of bewildering nonsense; for once might is made to be right, cause and effect are reversed, and every force which overcomes another force inherits the right which belonged to the vanquished. As soon as man can disobey with impunity, his disobedience becomes legitimate; and as the strongest is always right, the only problem is how to become the strongest. But what can be the validity of a right which perishes with the force on which it rests? If force compels obedience, there is no need to invoke a duty to obey, and if force ceases to compel obedience, there is no longer any obligation. Thus the word 'right' adds nothing to what is said by 'force'; it is meaningless.
'Obey those in power.' If this means 'yield to force' the precept is sound, but superfluous; it will never, I suggest, be violated. All power comes from God, I agree; but so does every disease, and no one forbids us to summon a physician. If I am held up by a robber at the edge of a wood, force compels me to hand over my purse. But if I could somehow contrive to keep the purse from him, would I still be obliged in conscience to surrender it? After all, the pistol in the robber's hand is undoubtedly a power.
Surely it must be admitted, then, that might does not make right, and that the duty of obedience is owed only to legitimate powers. Thus we are constantly led back to my original question.
CHAPTER 4
Slavery
SINCE no man has any natural authority over his fellows, and since force alone bestows no right, all legitimate authority among men must be based on covenants.
Grotius says: 'If an individual can alienate his freedom and become the slave of a master, why may not a whole people alienate its freedom and become the subject of a king?' In this remark there are several ambiguous words which call for explanation; but let us confine ourselves to one — to 'alienate'. To alienate is to give or sell. A man who becomes the slave of another does not give himself, he sells himself in return for at least a subsistence. But in return for what could a whole people be said to sell itself? A king, far from nourishing his subjects, draws his nourishment from them; and kings, according to Rabelais, need more than a little nourishment. Do subjects, then, give their persons to the king on condition that he will accept their property as well? If so, I fail to see what they have left to preserve.
It will be said that a despot gives his subjects the assurance of civil tranquillity. Very well, but what does it profit them, if those wars against other powers which result from a despot's ambition, if his insatiable greed, and the oppressive demands of his administration, cause more desolation than civil strife would cause? What do the people gain if their very condition of civil tranquillity is one of their hardships? There is peace in dungeons, but is that enough to make dungeons desirable? The Greeks lived in peace in the cave of Cyclops awaiting their turn to be devoured.
To speak of a man giving himself in return for nothing is to speak of what is absurd, unthinkable; such an action would be illegitimate, void, if only because no one who did it could be in his right mind. To say the same of a whole people is to conjure up a nation of lunatics; and right cannot rest on madness.
Even if each individual could alienate himself, he cannot alienate his children. For they are born men; they are born free; their liberty belongs to them; no one but they themselves has the right to dispose of it. Before they reach the years of discretion, their father may, in their name, make certain rules for their protection and their welfare, but he cannot give away their liberty irrevocably and unconditionally, for such a gift would be contrary to the ends of nature and an abuse of paternal right. Hence, an arbitrary government would be legitimate only if every new generation were able to accept or reject it, and in that case the government would cease to be arbitrary.
To renounce freedom is to renounce one's humanity, one's rights as a man and equally one's duties. There is no possible quid pro quo for one who renounces everything; indeed such renunciation is contrary to man's very nature; for if you take away all freedom of the will, you strip a man's actions of all moral significance. Finally, any covenant which stipulated absolute dominion for one party and absolute obedience for the other would be illogical and nugatory. Is it not evident that he who is entitled to demand everything owes nothing? And does not the single fact of there being no reciprocity, no mutual obligation, nullify the act? For what right can my slave have against me? If everything he has belongs to me, his right is my right, and it would be nonsense to speak of my having a right against myself.
Grotius and the rest claim to find in war another justification for the so-called right of slavery. They argue that the victor's having the right to kill the vanquished implies that the vanquished has the right to purchase his life at the expense of his liberty — a bargain thought to be the more legitimate because it is advantageous to both parties.
But it is clear that this so-called right to kill the vanquished cannot be derived from the state of war. For this reason alone, that men living in their primitive condition of independence have no intercourse regular enough to constitute either a state of peace or a state of war; and men are not naturally enemies. It is conflicts over things, not quarrels between men which constitute war, and the state of war cannot arise from mere personal relations, but only from property relations. Private wars between one man and another can exist neither in a state of nature, where there is no fixed property, nor in society, where everything is under the authority of law.
Private fights, duels, skirmishes, do not constitute any kind of state; and as for the private wars that were permitted by the ordinances of Louis Ⅸ, King of France, and suspended by the Peace of God, these were no more than an abuse of feudal government, an irrational system if there ever was one, and contrary both to natural justice and to all sound polity.
War, then, is not a relation between men, but between states; in war individuals are enemies wholly by chance, not as men, not even as citizens, 【3】 but only as soldiers; not as members of their country, but only as its defenders. In a word, a state can have as an enemy only another state, not men, because there can be no real relation between things possessing different intrinsic natures.
This principle conforms to the established rules of all times and to the constant practice of every political society. Declarations of war are warnings not so much to governments as to their subjects. The foreigner —whether he is a king, a private person or a whole people — who robs, kills or detains the subjects of another prince without first declaring war against that prince, is not an enemy but a brigand. Even in the midst of war, a just prince, seizing what he can of public property in the enemy's territory, nevertheless respects the persons and possessions of private individuals; he respects the principles on which his own rights are based. Since the aim of war is to subdue a hostile state, a combatant has the right to kill the defenders of that state while they are armed; but as soon as they lay down their arms and surrender, they cease to be either enemies or instruments of the enemy; they become simply men once more, and no one has any longer the right to take their lives. It is sometimes possible to destroy a state without killing a single one of its members, and war gives no right to inflict any more destruction than is necessary for victory. These principles were not invented by Grotius, nor are they founded on the authority of the poets; they are derived from the nature of things; they are based on reason.
The right of conquest has no other foundation than the law of the strongest. And if war gives the conqueror no right to massacre a conquered people, no such right can be invoked to justify their enslavement. Men have the right to kill their enemies only when they cannot enslave them, so the right of enslaving cannot be derived from the right to kill. It would therefore be an iniquitous barter to make the vanquished purchase with their liberty the lives over which the victor has no legitimate claim. An argument basing the right over life and death on the right to enslave, and the right to enslave on the right over life and death, is an argument trapped in a vicious circle.
Even if we assumed that this terrible right of massacre did exist, then slaves of war, or a conquered people, would be under no obligation to obey their master any further than they were forced to do so. By taking an equivalent of his victim's life, the victor shows him no favour; instead of destroying him unprofitably, he destroys him by exploiting him. Hence, far from the victor having acquired some further authority besides that of force over the vanquished, the state of war between them continues; their mutual relation is the effect of war, and the continuation of the rights of war implies that there has been no treaty of peace. An agreement has assuredly been made, but that agreement, far from ending the state of war, presupposes its continuation.
Thus, however we look at the question, the 'right' of slavery is seen to be void; void, not only because it cannot be justified, but also because it is nonsensical, because it has no meaning. The words 'slavery' and 'right' are contradictory, they cancel each other out. Whether as between one man and another, or between one man and a whole people, it would always be absurd to say: 'I hereby make a covenant with you which is wholly at your expense and wholly to my advantage; I will respect it so long as I please and you shall respect it so long as I wish.'
CHAPTER 5
That We Must Always Go Back To an Original Covenant
EVEN if I were to concede all that I have so far refuted, the champions of despotism would be no better off. There will always be a great differece between subduing a multitude and ruling a society. If one man successively enslaved many separate individuals, no matter how numerous, he and they would never bear the aspect of anything but a master and his slaves, not at all that of a people and their ruler; an aggregation, perhaps, but certainly not an association, for they would neither have a common good nor be a body politic. Even if such a man were to enslave half the world, he would remain a private individual, and his interest, always distinct from that of the others, would never be more than a personal interest. When he died, the empire he left would be scattered for lack of any bond of union, even as an oak crumbles and falls into a heap of ashes when fire has consumed it.
'A people,' says Grotius, 'may give itself to a king.' Therefore, according to Grotius a people is a people even before the gift to the king is made. The gift itself is a civil act; it presupposes public deliberation. Hence, before considering the act by which a people submits to a king, we ought to scrutinize the act by which people become a people, for that act, being necessarily antecedent to the other, is the real foundation of society.
In fact, if there were no earlier agreement, how, unless the election were unanimous, could there be any obligation on the minority to accept the decision of the majority? What right have the hundred who want to have a master to vote on behalf of the ten who do not? The law of majority-voting itself rests on an agreement, and implies that there has been on at least one occasion unanimity.
CHAPTER 6
The Social Pact
I ASSUME that men reach a point where the obstacles to their preservation in a state of nature prove greater than the strength that each man has to preserve himself in that state. Beyond this point, the primitive condition cannot endure, for then the human race will perish if it does not change its mode of existence.
Since men cannot create new forces, but merely combine and control those which already exist, the only way in which they can preserve themselves is by uniting their separate powers in a combination strong enough to overcome any resistance, uniting them so that their powers are directed by a single motive and act in concert.
Such a sum of forces can be produced only by the union of separate men, but as each man's own strength and liberty are the chief instruments of his preservation, how can he merge his with others' without putting himself in peril and neglecting the care he owes to himself? This difficulty, in terms of my present subject, may be expressed in these words:
'How to find a form of association which will defend the person and goods of each member with the collective force of all, and under which each individual, while uniting himself with the others, obeys no one but himself, and remains as free as before.' This is the fundamental problem to which the social contract holds the solution.
The articles of this contract are so precisely determined by the nature of the act, that the slightest modification must render them null and void; they are such that, though perhaps never formally stated, they are everywhere the same, everywhere tacitly admitted and recognized; and if ever the social pact is violated, every man regains his original rights and, recovering his natural freedom, loses that civil freedom for which he exchanged it.
These articles of association, rightly understood, are reducible to a single one, namely the total alienation by each associate of himself and all his rights to the whole community. Thus, in the first place, as every individual gives himself absolutely, the conditions are the same for all, and precisely because they are the same for all, it is in no one's interest to make the conditions onerous for others.
Secondly, since the alienation is unconditional, the union is as perfect as it can be, and no individual associate has any longer any rights to claim; for if rights were left to individuals, in the absence of any higher authority to judge between them and the public, each individual, being his own judge in some causes, would soon demand to be his own judge in all; and in this way the state of nature would be kept in being, and the association inevitably become either tyrannical or void.
Finally, since each man gives himself to all, he gives himself to no one; and since there is no associate over whom he does not gain the same rights as others gain over him, each man recovers the equivalent of everything he loses, and in the bargain he acquires more power to preserve what he has.
If, then, we eliminate from the social pact everything that is not essential to it, we find it comes down to this: 'Each one of us puts into the community his person and all his powers under the supreme direction of the general will; and as a body, we incorporate every member as an indivisible part of the whole.'
Immediately, in place of the individual person of each contracting party, this act of association creates an artificial and corporate body composed of as many members as there are voters in the assembly, and by this same act that body acquires its unity, its common ego, its life and its will. The public person thus formed by the union of all other persons was once called the city, 【4】 and is now known as the republic or the body politic. In its passive role it is called the state, when it plays an active role it is the sovereign; and when it is compared to others of its own kind, it is a power. Those who are associated in it take collectively the name of a people, and call themselves individually citizens, in that they share in the sovereign power, and subjects, in that they put themselves under the laws of the state. However, these words are often confused, each being mistaken for another; but the essential thing is to know how to recognize them when they are used in their precise sense.
CHAPTER 7
The Sovereign
THIS formula shows that the act of association consists of a reciprocal commitment between society and the individual, so that each person, in making a contract, as it were, with himself, finds himself doubly committed, first, as a member of the sovereign body in relation to individuals, and secondly as a member of the state in relation to the sovereign. Here there can be no invoking the principle of civil law which says that no man is bound by a contract with himself, for there is a great difference between having an obligation to oneself and having an obligation to something of which one is a member.
We must add that a public decision can impose an obligation on all the subjects towards the sovereign, by reason of the two aspects under which each can be seen, while, contrariwise, such decisions cannot impose an obligation on the sovereign towards itself; and hence it would be against the very nature of a political body for the sovereign to set over itself a law which it could not infringe. The sovereign, bearing only one single and identical aspect, is in the position of a private person making a contract with himself, which shows that there neither is, nor can be, any kind of fundamental law binding on the people as a body, not even the social contract itself. This does not mean that the whole body cannot incur obligations to other nations, so long as those obligations do not infringe the contract; for in relation to foreign powers, the body politic is a simple entity, an individual.
However, since the body politic, or sovereign, owes its being to the sanctity of the contract alone, it cannot commit itself, even in treaties with foreign powers, to anything that would derogate from the original act of association; it could not, for example, alienate a part of itself or submit to another sovereign. To violate the act which has given it existence would be to annihilate itself; and what is nothing can produce nothing.
As soon as the multitude is united thus in a single body, no one can injure any one of the members without attacking the whole, still less injure the whole without each member feeling it. Duty and self-interest thus equally oblige the two contracting parties to give each other mutual aid; and the same men should seek to bring together in this dual relationship, all the advantages that flow from it.
Now, as the sovereign is formed entirely of the individuals who compose it, it has not, nor could it have, any interest contrary to theirs; and so the sovereign has no need to give guarantees to the subjects, because it is impossible for a body to wish to hurt all of its members, and, as we shall see, it cannot hurt any particular member. The sovereign by the mere fact that it is, is always all that it ought to be.
But this is not true of the relation of subject to sovereign. Despite their common interest, subjects will not be bound by their commitment unless means are found to guarantee their fidelity.
For every individual as a man may have a private will contrary to, or different from, the general will that he has as a citizen. His private interest may speak with a very different voice from that of the public interest; his absolute and naturally independent existence may make him regard what he owes to the common cause as a gratuitous contribution, the loss of which would be less painful for others than the payment is onerous for him; and fancying that the artificial person which constitutes the state is a mere fictitious entity (since it is not a man), he might seek to enjoy the rights of a citizen without doing the duties of a subject. The growth of this kind of injustice would bring about the ruin of the body politic.
Hence, in order that the social pact shall not be an empty formula, it is tacitly implied in that commitment — which alone can give force to all others — that whoever refuses to obey the general will shall be constrained to do so by the whole body, which means nothing other than that he shall be forced to be free; for this is the necessary condition which, by giving each citizen to the nation, secures him against all personal dependence, it is the condition which shapes both the design and the working of the political machine, and which alone bestows justice on civil contracts — without it, such contracts would be absurd, tyrannical and liable to the grossest abuse.
CHAPTER 8
Civil Society
THE passing from the state of nature to the civil society produces a remarkable change in man; it puts justice as a rule of conduct in the place of instinct, and gives his actions the moral quality they previously lacked. It is only then, when the voice of duty has taken the place of physical impulse, and right that of desire, that man, who has hitherto thought only of himself, finds himself compelled to act on other principles, and to consult his reason rather than study his inclinations. And although in civil society man surrenders some of the advantages that belong to the state of nature, he gains in return far greater ones; his faculties are so exercised and developed, his mind is so enlarged, his sentiments so ennobled, and his whole spirit so elevated that, if the abuse of his new condition did not in many cases lower him to something worse than what he had left, he should constantly bless the happy hour that lifted him for ever from the state of nature and from a stupid, limited animal made a creature of intelligence and a man.
Suppose we draw up a balance sheet, so that the losses and gains may be readily compared. What man loses by the social contract is his natural liberty and the absolute right to anything that tempts him and that he can take; what he gains by the social contract is civil liberty and the legal right of property in what he possesses. If we are to avoid mistakes in weighing the one side against the other, we must clearly distinguish between natural liberty, which has no limit but the physical power of the individual concerned, and civil liberty, which is limited by the general will; and we must distinguish also between possession, which is based only on force or 'the right of the first occupant', and property, which must rest on a legal title.
We might also add that man acquires with civil society, moral freedom, which alone makes man the master of himself; for to be governed by appetite alone is slavery, while obedience to a law one prescribes to oneself is freedom. However, I have already said more than enough on this subject, and the philosophical meaning of the word 'freedom' is no part of my subject here.
CHAPTER 9
Of Property
EVERY member of the community gives himself to it at the moment it is brought into being just as he is — he himself, with all his resources, including all his goods. This is not to say that possession by this act changes its nature in changing hands and becomes property in the grasp of the sovereign; but rather, that as the resources of the nation are incomparably greater than those of an individual, public possession is in simple fact more secure and more irrevocable than private possession, without being any more legitimate — at any rate, in the eyes of foreigners; for the state, vis-à-vis its own members, becomes master of all their goods by virtue of the social contract, which serves, within the state, as the basis of all other rights; while vis-à-vis other nations, the state has only the 'right of the first occupant', which it derives from individuals.
The 'right of the first occupant', although more real than the 'right of the strongest', does not become a true right until the institution of property. Every man has a natural right to what he needs; but the positive act which makes a man the proprietor of any estate excludes him from everything else. His share having once been settled, he must confine himself to it, and he has no further right against the community. Thus we see how 'the right of the first occupant', weak as it is in the state of nature, compels in political society the respect of all men. What this right makes one aware of is less what belongs to others than what does not belong to oneself.
As a general rule, to justify the right of the first occupant to any piece of land whatever, the following conditions must obtain: first, that the land shall not already be inhabited by anyone else; secondly, that the claimant occupies no more than he needs for subsistence; thirdly, that he takes possession, not by an idle ceremony, but by actually working and cultivating the soil — the only sign of ownership which need be respected by other people in the absence of a legal title.
It can, indeed, be said that tying 'the right of the first occupant' to need and work is stretching it as far as it will go. Can one really avoid setting limits on the right? Is it enough to put one's feet on a piece of common land in order to claim it at once as one's own? Is it enough to have the power to keep other men off for one moment in order to deprive them of the right ever to return? How could a man or a people seize a vast territory and keep out the rest of the human race except by a criminal usurpation — since the action would rob the rest of mankind of the shelter and the food that nature has given them all in common? When Nunez Balbao stood on the shore and took possession of the southern seas and of South America in the name of the crown of Castille, was that enough to dispossess all the inhabitants and to exclude all the other princes of the world? If so, such idle ceremonies would have had no end; and the Catholic King might without leaving his royal chamber have taken possession of the whole universe, only excepting afterwards those parts of his empire already belonging to other princes.
We can see how the lands of private persons, when they are united and contiguous, become public territory; and how the right of sovereignty, extending from the subjects to the soil they occupy, covers both property and persons; it makes the owners all the more dependent, and turns their own strength into the guarantee of their fidelity. This advantage seems to have eluded the ancient monarchs, who, in calling themselves simply the King of the Persians or the Scythians or the Macedonians, appear to have regarded themselves rather as rulers of men than as masters of their countries. Monarchs of the present day call themselves more shrewdly the King of France, or of Spain, or of England and so on; in holding thus the land, they are very sure of holding the inhabitants.
What is unique about the alienation entailed by the social contract is that the community in accepting the goods of an individual is far from depriving him of them; on the contrary it simply assures him of their lawful possession; it changes usurpation into valid right and mere enjoyment into legal ownership. Since every owner is regarded as a trustee of the public property, his rights are respected by every other member of the state, and protected with its collective force against foreigners; men have, by a surrender which is advantageous to the public and still more to themselves, acquired, so to speak, all that they have given up — a paradox which is easily explained by the distinction between the rights which the soverign has and which the owner has over the same property, as will be seen later.
It may also happen that men begin to unite before they possess anything, and spreading over a territory large enough for them all, proceed to enjoy it in common, or, alternatively, divide it among themselves either equally or in shares determined by the sovereign. In whatever manner this acquisition is made, the right of any individual over his own estate is always subordinate to the right of the community over everything; for without this there would be neither strength in the social bond nor effective force in the exercise of sovereignty.
I shall end this chapter — and Book Ⅰ — with an observation which might serve as a basis for the whole social system: namely, that the social pact, far from destroying natural equality, substitutes, on the contrary, a moral and lawful equality for whatever physical inequality that nature may have imposed on mankind; so that however unequal in strength and intelligence, men become equal by covenant and by right. 【5】
Note
【1】 'Learned researches on public law are often only the history of ancient abuses, and one is misled when one gives oneself the trouble of studying them too closely.' Traité manuscrit des intérêts de la France avec ses voisins by the Marquis d'Argenson.
【2】 See a short treatise of Plutarch entitled: That Animals use Reason.
【3】 The Romans, who understood and respected the rights of war better than any other nation, carried their scruples on this subject so far that a citizen was forbidden to volunteer without engaging himself expressly against the enemy and against an enemy specifically named. When the legion in which the younger Cato fought his first campaign under Popilius was re-formed, the elder Cato wrote to Popilius saying that if he wished his son to continue to serve under him, he should administer a fresh military oath, on the grounds that his son's first oath was annulled, and that he could no longer bear arms against the enemy. Cato also wrote to his son warning him not to go into battle without first taking the oath.
I realize that the siege of Clusium and other incidents from Roman history may be quoted against me, but I am citing laws and customs. No nation has broken its own laws less frequently than the Romans, and no nation has ever had such excellent laws.
【4】 The real meaning of this word has been almost entirely lost in the modern world, when a town and a city are thought to be identical, and a citizen the same as a burgess. People forget that houses may make a town, while only citizens can make a city. The Carthaginians once paid dearly for this mistake. I have never read of the title cives being given to the subject of any prince, not even to the Macedonians in ancient times or the English today, in spite of their being closer to liberty than any other people. The French alone treat the same 'Citizen' with familiarity, and that is because they do not know what it means, as their Dictionaries prove; if they did know, they would be guilty, in usurping it, of lèse-majesté; as it is, they use the word to designate social status and not legal right. When Bodin wanted to speak of citizens and burgesses, he made the gross error of mistaking the one for the other. Monsieur d'Alembert avoids this mistake; and in his article on 'Geneva' he correctly distinguishes between the four orders of men (five, if aliens are included) which are found in our town, and of which only two compose the republic. No other French author to my knowledge has understood the real meaning of the word 'citizen'.
【5】 Under a bad government, this equality is only an appearance and an illusion; it serves only to keep the poor in their wretchedness and sustain the rich in their usurpation. In truth, laws are always useful to those with possessions and harmful to those who have nothing; from which it follows that the social state is advantageous to men only when all possess something and none has too much.
Book Ⅱ
CHAPTER 1
That Sovereignty is Inalienable
THE first and most important consequence of the principles so far established is that the general will alone can direct the forces of the state in accordance with that end which the state has been established to achieve — the common good; for if conflict between private interests has made the setting up of civil societies necessary, harmony between those same interests has made it possible. It is what is common to those different interests which yields the social bond; if there were no point on which separate interests coincided, then society could not conceivably exist. And it is precisely on the basis of this common interest that society must be governed.
My argument, then, is that sovereignty, being nothing other than the exercise of the general will, can never be alienated; and that the sovereign, which is simply a collective being, cannot be represented by anyone but itself — power may be delegated, but the will cannot be.
For indeed while it is not impossible for a private will to coincide with the general will on some point or other, it is impossible for such a coincidence to be regular and enduring; for the private will inclines by its very nature towards partiality, and the general will towards equality. It is even more inconceivable that there could be a guarantee of harmony between the private and the general will, even if it were to continue always, for such lasting harmony would be the result of chance and not of design. The sovereign might say: 'What I want at present is precisely what this man wants, or at least what he says he wants'; but no sovereign could say: 'What this man is going to want tomorrow I too shall want', for it is absurd that anyone should wish to bind himself for the future, and it is a contradiction in terms to say that any human being should wish to consent to something that is the reverse of his own good. If a people promises simply and solely to obey, it dissolves itself by that very pledge; it ceases to be a people; for once there is a master, there is no longer a sovereign, and the body politic is therefore annihilated.
This is not to say that the commands of leaders may not pass for the general will if the sovereign, while free to oppose them, does not do so. In such a case the silence of the people permits the assumption that the people consents. This will be explained more fully in a later chapter.
CHAPTER 2
That Sovereignty is Indivisible
JUST as sovereignty is inalienable, it is for the same reason indivisible; for either the will is general 【1】 or it is not; either it is the will of the body of the people, or merely that of a part. In the first case, a declaration of will is an act of sovereignty and constitutes law; in the second case, it is only a declaration of a particular will or an act of administration, it is at best a mere decree.
Nevertheless, our political theorists, unable to divide the principle of sovereignty, divide it in its purpose; they divide it into power and will, divide it, that is, into executive and legislative, into the rights of levying taxation, administering justice and making war, into domestic jurisdiction and the power to deal with foreign governments. Sometimes our theorists confuse all the parts and sometimes they separate them. They make the sovereign a creature of fantasy, a patchwork of separate pieces, rather as if they were to construct a man of several bodies — one with eyes, one with legs, the other with feet and nothing else. It is said that Japanese mountebanks can cut up a child under the eyes of spectators, throw the different parts into the air, and then make the child come down, alive and all of a piece. This is more or less the trick that our political theorists perform —after dismembering the social body with a sleight of hand worthy of the fairground, they put the pieces together again anyhow.
The mistake comes from having no precise notion of what sovereign authority is, and from taking mere manifestations of authority for parts of the authority itself. For instance, the acts of declaring war and making peace have been regarded as acts of sovereignty, which they are not; for neither of these acts constitutes a law, but only an application of law, a particular act which determines how the law shall be interpreted — and all this will be obvious as soon as I have defined the idea which attaches to the word 'law'.
If we were to scrutinize in the same way the other supposed divisions of sovereignty, we should find that whenever we thought that sovereignty was divided, we had been mistaken, for the rights which are taken to be part of that sovereignty prove in fact to be subordinate to it, and presuppose the existence of a supreme will which they merely serve to put into effect.
This want of precision has obfuscated immeasurably the conclusions of our legal theorists when they have come to apply their own principles to determine the respective rights of kings and of peoples. Every reader of the third and fourth chapters of the first book of Grotius can see how that learned man and his translator, Barbeyrac, are trapped in their own sophisms, frightened of saying either too much or alternatively too little (according to their prejudices) and so offending the interests they wish to flatter. Grotius, a refugee in France, discontented with his own country and out to pay court to Louis XIII, to whom his book is dedicated, spares no pains to rob peoples of all their rights and to invest those rights, by every conceivable artifice, in kings. This would have been very much to the taste of Barbeyrac, who dedicated his translation of Grotius to the King of England, George Ⅰ. But unfortunately the expulsion of James Ⅱ — which Barbeyrac calls an 'abdication' — obliged him to speak with a marked reserve, to hesitate and equivocate, so as not to suggest that William Ⅲ was a usurper. If these two writers had adopted sound principles, all their difficulties would have vanished, and their arguments would have been logical; but then they would, alas for them, have told the truth and paid court only to the people. The truth brings no man a fortune; and it is not the people who hand out embassies, professorships and pensions.
CHAPTER 3
Whether the General Will Can Err
IT follows from what I have argued that the general will is always rightful and always tends to the public good; but it does not follows that the deliberations of the people are always equally right. We always want what is advantageous to us but we do not always discern it. The people is never corrupted, but it is often misled; and only then does it seem to will what is bad.
There is often a great difference between the will of all [what all individuals want] and the general will; the general will studies only the common interest while the will of all studies private interest, and is indeed no more than the sum of individual desires. But if we take away from these same wills, the pluses and minuses which cancel each other out, the balance which remains is the general will. 【2】
From the deliberations of a people properly informed, and provided its members do not have any communication among themselves, the great number of small differences will always produce a general will and the decision will always be good. But if groups, sectional associations are formed at the expense of the larger association, the will of each of these groups will become general in relation to its own members and private in relation to the state; we might then say that there are no longer as many votes as there are men but only as many votes as there are groups. The differences become less numerous and yield a result less general. Finally, when one of these groups becomes so large that it can outweigh the rest, the result is no longer the sum of many small differences, but one great divisive difference; then there ceases to be a general will, and the opinion which prevails is no more than a private opinion.
Thus if the general will is to be clearly expressed, it is imperative that there should be no sectional associations in the state, and that every citizen should make up his own mind for himself 【3】 — such was the unique and sublime invention of the great Lycurgus. But if there are sectional associations, it is wise to multiply their number and to prevent inequality among them, as Solon, Numa and Servius did. These are the only precautions which can ensure that the general will is always enlightened and the people protected from error.
CHAPTER 4
The Limits of Sovereign Power
IF the state, or the nation, is nothing other than an artificial person the life of which consists in the union of its members and if the most important of its cares is its preservation, it needs to have a universal and compelling power to move and dispose of each part in whatever manner is beneficial to the whole. Just as nature gives each man an absolute power over all his own limbs, the social pact gives the body politic an absolute power over all its members; and it is this same power which, directed by the general will, bears, as I have said, the name of sovereignty.
However, we have to consider beside the public person those private persons who compose it, and whose life and liberty are naturally independent of it. Hence we have to distinguish clearly the respective rights of the citizen and of the sovereign, 【4】 and distinguish those duties which the citizens owe as subjects from the natural rights which they ought to enjoy as men.
We have agreed that each man alienates by the social pact only that part of his power, his goods and his liberty which is the concern of the community; but it must also be admitted that the sovereign alone is judge of what is of such concern.
Whatever services the citizen can render the state, he owes whenever the sovereign demands them; but the sovereign, on its side, may not impose on the subjects any burden which is not necessary to the community; the sovereign cannot, indeed, even will such a thing, since according to the law of reason no less than to the law of nature nothing is without a cause.
The commitments which bind us to the social body are obligatory only because they are mutual; and their nature is such that in fulfilling them a man cannot work for others without at the same time working for himself. How should it be that the general will is always rightful and that all men constantly wish the happiness of each but for the fact that there is no one who does not take that word 'each' to pertain to himself and in voting for all think of himself? This proves that the equality of rights and the notion of justice which it produces derive from the predilection which each man has for himself and hence from human nature as such. It also proves that the general will, to be truly what it is, must be general in its purpose as well as in its nature; that it should spring from all for it to apply to all; and that it loses its natural rectitude when it is directed towards any particular and circumscribed object — for in judging what is foreign to us, we have no sound principle of equity to guide us.
For, indeed, whenever we are dealing with a particular fact or right, on a matter which has not been settled by an earlier and general agreement, that question becomes contentious. It is a conflict in which private interests are ranged on one side and the public interest on the other; and I can see neither the law which is to be followed nor the judge who is to arbitrate. It would be absurd in such a dispute to rely on an express decision of the general will; for a decision could only be a conclusion in favour of one of the contending parties, and it would be regarded by the other party as an alien, partial will, a will liable in such circumstances to be unjust and so to fall into error. So we see that even as a private will cannot represent the general will, so too the general will changes its nature if it seeks to deal with an individual case; it cannot as a general will give a ruling concerning any one man or any one fact. When the people of Athens, for example, appointed or dismissed its leaders, awarding honours to one, inflicting penalties on another, and by a multitude of particular decrees indiscriminately exercised all the functions of an administration, then the people of Athens no longer had what is correctly understood as a general will and ceased to act as sovereign and acted instead as magistrate. All this may seem at variance with commonly accepted notions; but I must be given time to expound my own.
It should nevertheless be clear from what I have so far said that the general will derives its generality less from the number of voices than from the common interest which unites them — for the general will is an institution in which each necessarily submits himself to the same conditions which he imposes on others; this admirable harmony of interest and justice gives to social deliberations a quality of equity which disappears at once from the discussion of any individual dispute precisely because in these latter cases there is no common interest to unite and identify the decision of the judge with that of the contending parties.
Whichever way we look at it, we always return to the same conclusion: namely that the social pact establishes equality among the citizens in that they all pledge themselves under the same conditions and must all enjoy the same rights. Hence by the nature of the compact, every act of sovereignty, that is, every authentic act of the general will, binds or favours all the citizens equally, so that the sovereign recognizes only the whole body of the nation and makes no distinction between any of the members who compose it. What then is correctly to be called an act of sovereignty? It is not a covenant between a superior and an inferior, but a covenant of the body with each of its members. It is a legitimate covenant, because its basis is the social contract; an equitable one, because it is common to all; a useful one, because it can have no end but the common good; and it is a durable covenant because it is guaranteed by the armed forces and the supreme power. So long as the subjects submit to such covenants alone, they obey nobody but their own will; and to ask how far the respective rights of the sovereign and the citizen extend is to ask how far these two can pledge themselves together, each to all and all to each.
From this it is clear that the sovereign power, wholly absolute, wholly sacred, wholly inviolable as it is, does not go beyond and cannot go beyond the limits of the general covenants; and thus that every man can do what he pleases with such goods and such freedom as is left to him by these covenants; and from this it follows that the sovereign has never any right to impose greater burdens on one subject than on another, for whenever that happens the matter becomes private and is outside the sovereign's competence.
Granted these distinctions, it becomes manifestly false to assert that individuals make any real renunciation by the social contract; indeed, as a result of the contract they find themselves in a situation preferable in real terms to that which prevailed before; instead of an alienation, they have profitably exchanged an uncertain and precarious life for a better and more secure one; they have exchanged natural independence for freedom, the power to injure others for the enjoyment of their own security; they have exchanged their own strength which others might overcome for a right which the social union makes invincible. Their very lives, which they have pledged to the state, are always protected by it; and even when they risk their lives to defend the state, what more are they doing but giving back what they have received from the state? What are they doing that they would not do more often, and at greater peril, in the state of nature, where every man is inevitably at war and at the risk of his life, defends whatever serves him to maintain life? Assuredly, all must now fight in case of need for their country, but at least no one has any longer to fight for himself. And is there not something to be gained by running, for the sake of the guarantee of safety, a few of those risks we should each have to face alone if we were deprived of that assurance?
CHAPTER 5
The Right of Life and Death
IT will be asked how individuals, who have no right whatever to take their own lives, can transfer to the sovereign a right they do not possess. This question looks difficult to answer only because it is badly formulated. Every man has the right to risk his own life in order to preserve it. Has it ever been said that a man who leaps out of a window to escape from a fire is guilty of suicide? Would the same crime be imputed to a man who perishes in a storm on the grounds that he knew of the danger when he embarked?
The purpose of the social treaty is the preservation of the contracting parties. Whoever wills the end wills also the means, and certain risks, even certain casualties are inseparable from these means. Whoever wishes to preserve his own life at the expense of others must give his life for them when it is necessary. Now, as citizen, no man is judge any longer of the danger to which the law requires him to expose himself, and when the prince says to him: 'It is expedient for the state that you should die', then he should die, because it is only on such terms that he has lived in security as long as he has and also because his life is no longer the bounty of nature but a gift he has received conditionally from the state.
The death-penalty inflicted on criminals may be seen in much the same way: it is in order to avoid becoming the victim of a murderer that one consents to die if one becomes a murderer oneself. Far from taking one's life under the social treaty, one thinks only of assuring it, and we shall hardly suppose that any of the contracting parties contemplates being hanged.
Moreover, since every wrongdoer attacks the society's law, he becomes by his deed a rebel and a traitor to the nation; by violating its law, he ceases to be a member of it; indeed, he makes war against it. And in this case, the preservation of the state is incompatible with his preservation; one or the other must perish; and when the guilty man is put to death, it is less as a citizen than as an enemy. Trial and judgement are the proof and declaration that he has broken the social treaty, and is in consequence no longer a member of the state. And since he has accepted such membership, if only by his residence, he must either be banished into exile as a violator of the social pact or be put to death as a public enemy: such an enemy is not a fictitious person, but a man, and therefore the right of war makes it legitimate to kill him.
But, it will be said, the condemnation of a criminal is an individual act. Agreed; and it follows that such duties do not pertain to the sovereign; condemnation of criminals is a right the sovereign can confer but not exercise himself. All my ideas hold together, but I cannot elaborate them all at once.
In any case, frequent punishments are a sign of weakness or slackness in the government. There is no man so bad that he cannot be made good for something. No man should be put to death, even as an example, if he can be left to live without danger to society.
As for the right of pardon, or of exempting a guilty man from the penalty prescribed by law and imposed by a judge, this belongs only to that entity which is superior to both the judge and the law, namely the sovereign; but even this right is not entirely clear and it will be exercised very seldom. In a well-governed state few are punished, not because there are many pardons but because there are few criminals. In a decaying state the very multiplicity of crimes assures impunity. Under the Roman Republic neither the Senate nor the consuls ever attempted to pardon criminals; nor did the people do so, though they sometimes revoked their own sentences. Frequent pardons signalize that crimes will soon need no pardon; and anyone can see what that must lead to. However, I can feel my heart whispering and restraining my pen; let us leave the discussion of these questions to the just man who has never erred and has therefore had no need of pardons.
CHAPTER 6
On Law
WE have given life and existence to the body politic by the social pact; now it is a matter of giving it movement and will by legislation. For the original act by which the body politic is formed and united does not determine what it shall do to preserve itself.
What is good and in conformity with order is such by the very nature of things and independently of human agreements. All justice comes from God, who alone is its source; and if only we knew how to receive it from that exalted fountain, we should need neither governments nor laws. There is undoubtedly a universal justice which springs from reason alone, but if that justice is to be acknowledged as such it must be reciprocal. Humanly speaking, the laws of natural justice, lacking any natural sanction, are unavailing among men. In fact, such laws merely benefit the wicked and injure the just, since the just respect them while others do not do so in return. So there must be covenants and positive laws to unite rights with duties and to direct justice to its object. In the state of nature, where everything is common, I owe nothing to those to whom I have promised nothing, and I recognize as belonging to others only those things that are of no use to me. But this is no longer the case in civil society, where all rights are determined by law.
Yet what, in the last analysis, is law? If we simply try to define it in terms of metaphysical ideas, we shall go on talking without reaching any understanding; and when we have said what natural law is, we shall still not know what the law of the state is.
I have already said that the general will cannot relate to any particular object. For such a particular object is either within the state or outside the state. If it is outside, then a will which is alien to it is not general with regard to it: if the object is within the state, it forms a part of the state. Thus there comes into being a relationship between the whole and the part which involves two separate entities, the part being one, and the whole, less that particular part, being the other. But a whole less a particular part is no longer a whole; and so as long as this relationship exists there is no whole but only two unequal parts, from which it follows that the will of the one is no longer general with respect to the other.
But when the people as a whole makes rules for the people as a whole, it is dealing only with itself; and if any relationship emerges, it is between the entire body seen from one perspective and the same entire body seen from another, without any division whatever. Here the matter concerning which a rule is made is as general as the will which makes it. And this is the kind of act which I call a law.
When I say that the province of the law is always general, I mean that the law considers all subjects collectively and all actions in the abstract; it does not consider any individual man or any specific action. Thus the law may well lay down that there shall be privileges, but it may not nominate the persons who shall have those privileges; the law may establish several classes of citizen, and even specify the qualifications which shall give access to those several classes, but it may not say that this man or that shall be admitted; the law may set up a royal government and an hereditary succession, but it may not elect a king or choose a royal family — in a word, no function which deals with the individual falls within the province of the legislative power.
On this analysis, it is immediately clear that we can no longer ask who is to make laws, because laws are acts of the general will; no longer ask if the prince is above the law, because he is a part of the state; no longer ask if the law can be unjust, because no one is unjust to himself; and no longer ask how we can be both free and subject to laws, for the laws are but registers of what we ourselves desire.
It is also clear that since the law unites universality of will with universality of the field of legislation, anything that any man, no matter who, commands on his own authority is not a law; even what the sovereign itself commands with respect to a particular object is not a law but a decree, not an act of sovereignty but an act of government.
Any state which is ruled by law I call a 'republic', whatever the form of its constitution; for then, and then alone, does the public interest govern and then alone is the 'public thing' — the res publica — a reality. All legitimate government is 'republican'. 【5】 I shall explain later what government is.
Laws are really nothing other than the conditions on which civil society exists. A people, since it is subject to laws, ought to be the author of them. The right of laying down the rules of society belongs only to those who form the society; but how can they exercise it? Is it to be by common agreement, by a sudden inspiration? Has the body politic an organ to declare its will? Who is to give it the foresight necessary to formulate enactments and proclaim them in advance, and how is it to announce them in the hour of need? How can a blind multitude, which often does not know what it wants, because it seldom knows what is good for it, undertake by itself an enterprise as vast and difficult as a system of legislation? By themselves the people always will what is good, but by themselves they do not always discern it. The general will is always rightful, but the judgement which guides it is not always enlightened. It must be brought to see things as they are, and sometimes as they should be seen; it must be shown the good path which it is seeking, and secured against seduction by the desires of individuals; it must be given a sense of situation and season, so as to weigh immediate and tangible advantages against distant and hidden evils. Individuals see the good and reject it; the public desires the good but does not see it. Both equally need guidance. Individuals must be obliged to subordinate their will to their reason; the public must be taught to recognize what it desires. Such public enlightenment would produce a union of understanding and will in the social body, bring the parts into perfect harmony and lift the whole to its fullest strength. Hence the necessity of a lawgiver.
CHAPTER 7
The Lawgiver
To discover the rules of society that are best suited to nations, there would need to exist a superior intelligence, who could understand the passions of men without feeling any of them, who had no affinity with our nature but knew it to the full, whose happiness was independent of ours, but who would nevertheless make our happiness his concern, who would be content to wait in the fullness of time for a distant glory, and to labour in one age to enjoy the fruits in another. 【6】 Gods would be needed to give men laws.
The same reasoning which Caligula used empirically, Plato used philosophically in his dialogue The Statesman to reach a definition of civil or kingly man. But if it is true that great princes seldom appear, how much more rare must a great lawgiver be? A prince has only to follow a model which the lawgiver provides. The lawgiver is the engineer who invents the machine; the prince is merely the mechanic who sets it up and operates it. Montesquieu says that at the birth of political societies, it is the leaders of the republic who shape the institutions but that afterwards it is the institutions which shape the leaders of the republic.
Whoever ventures on the enterprise of setting up a people must be ready, shall we say, to change human nature, to transform each individual, who by himself is entirely complete and solitary, into a part of a much greater whole, from which that same individual will then receive, in a sense, his life and his being. The founder of nations must weaken the structure of man in order to fortify it, to replace the physical and independent existence we have all received from nature with a moral and communal existence. In a word each man must be stripped of his own powers, and given powers which are external to him, and which he cannot use without the help of others. The nearer men's natural powers are to extinction or annihilation, and the stronger and more lasting their acquired powers, the stronger and more perfect is the social institution. So much so, that if each citizen can do nothing whatever except through cooperation with others, and if the acquired power of the whole is equal to, or greater than, the sum of the natural powers of each of the individuals, then we can say that law-making has reached the highest point of perfection.
The lawgiver is, in every respect, an extraordinary man in the state. Extraordinary not only because of his genius, but equally because of his office, which is neither that of the government nor that of the sovereign. This office which gives the republic its constitution has no place in that constitution. It is a special and superior function which has nothing to do with empire over men; for just as he who has command over men must not have command over laws, neither must he who has command over laws have command over men; otherwise, the laws, being offspring of the legislator's passions, would often merely perpetuate his injustices, and partial judgements would inevitably vitiate the sanctity of his works.
When Lycurgus gave laws to his country, he began by abdicating his monarchical functions. It was the habit of most Greek cities to confer on foreigners the task of framing their laws. The modern republics of Italy have often copied this custom; the republic of Geneva did so, and found that it worked well. 【7】 Rome in its happiest age saw all the crimes of the Tyranny revived within its borders, and came near to perishing simply because it had put both the legislative authority and the sovereign power in the same hands.
And yet even the decemvirs themselves never arrogated the right to make any law on their own authority alone. 'Nothing we propose to you,' they said to the people, 'can become law without your consent. Romans, be yourselves the authors of the laws which are to ensure your happiness.'
Thus the man who frames the laws has not nor ought to have any legislative right, and the people itself cannot, even should it wish, strip itself of this untransferable right; for, according to the fundamental compact, it is only the general will which binds individuals and there can be no assurance that an individual will is in conformity with the general will until it has submitted to the free suffrage of the people — I have said this already, but it is worth repeating.
And so we find in the work of the lawgiver two things which look contradictory — a task which is beyond human powers and a non-existent authority for its execution.
There is another difficulty which deserves mention. Those sages who insist on speaking in their own language to the vulgar instead of in the vulgar language will not be understood. For there are thousands of ideas which cannot be translated into the popular idiom. Perspectives which are general and goals remote are alike beyond the range of the common herd; it is difficult for the individual, who has no taste for any scheme of government but that which serves his private interest, to appreciate the advantages to be derived from the lasting austerities which good laws impose. For a newly formed people to understand wise principles of politics and to follow the basic rules of statecraft, the effect would have to become the cause; the social spirit which must be the product of social institutions would have to preside over the setting up of those institutions; men would have to have already become before the advent of law that which they become as a result of law. And as the lawgiver can for these reasons employ neither force nor argument, he must have recourse to an authority of another order, one which can compel without violence and persuade without convincing.
It is this which has obliged the founders of nations throughout history to appeal to divine intervention and to attribute their own wisdom to the Gods; for then the people, feeling subject to the laws of the state as they are to those of nature, and detecting the same hand in the creation of both man and the nation, obey freely and bear with docility the yoke of the public welfare.
This sublime reasoning, which soars above the heads of the common people, is used by the lawgiver when he puts his own decisions into the mouth of the immortals, thus compelling by divine authority persons who cannot be moved by human prudence. 【8】 But it is not for every man to make the Gods speak, or to gain credence if he pretends to be an interpreter of the divine word. The lawgiver's great soul is the true miracle which must vindicate his mission. Any man can carve tablets of stone, or bribe an oracle, claim a secret intercourse with some divinity, train a bird to whisper in his ear, or discover some other vulgar means of imposing himself on the people. A man who can do such things may conceivably bring together a company of fools, but he will never establish an empire, and his bizarre creation will perish with him. Worthless tricks may set up transitory bonds, but only wisdom makes lasting ones. The Law of the Hebrews, which still lives, and that of the child of Ishmael which has ruled half the world for ten centuries, still proclaim today the greatness of the men who first enunciated them; and even though proud philosophy and the blind spirit of faction may regard them as nothing but lucky impostors, the true statesman sees, and admires in their institutions, the hand of that great and powerful genius which lies behind all lasting things.
Even so, we must not conclude from this, with Warburton, that religion and politics have the same purpose among men; it is simply that at the birth of nations, the one serves as the instrument of the other.
CHAPTER 8
The People
JUST as an architect who puts up a large building first surveys and tests the ground to see if it can bear the weight, so the wise lawgiver begins not by laying down laws good in themselves, but by finding out whether the people for whom the laws are intended is able to support them. Such reasoning led Plato to refuse to provide laws for the Arcadians or the Cyreneans, because he well knew that those peoples, being rich, would not tolerate equality. Crete, too, provides an example of good laws and bad men, for the people Milos tried to discipline were dominated by their vices.
The world has seen a thousand splendid nations that could not have accepted good laws, and even those that might have accepted them could have done so only for short periods of their long history. Nations, 【9】 like men, are teachable only in their youth; with age they become incorrigible. Once customs are established and prejudices rooted, reform is a dangerous and fruitless enterprise; a people cannot bear to see its evils touched, even if only to be eradicated; it is like a stupid, pusillanimous invalid who trembles at the sight of a physician.
I am not denying that just as certain afflictions unhinge men's minds and banish their memory of the past, so there are certain violent epochs or revolutions in states which have the same effect on peoples that personal crises may have on individuals; only instead of forgetting the past, they look back on it in horror, and then the state, after being consumed by civil war, is born again, so to speak, from its own ashes, and leaps from the arms of death to regain the vigour of youth. Such was the experience of Sparta at the time of Lycurgus, of Rome after the Tarquins, and, in the modern world, of Holland and Switzerland after the expulsion of the tyrants.
But such events are unusual; they are exceptional cases to be explained by the special constitution of the states concerned. It could not even happen twice to the same people; because although a people can make itself free while it is still uncivilized, it cannot do so when its civil energies are worn out. Disturbances may then destroy a civil society without a revolution being able to restore it, so that as soon as the chains are broken, the state falls apart and exists no longer; then what is needed is a master, not a liberator. Free peoples, remember this maxim: liberty can be gained, but never regained.
For nations, as for men, there is a time of maturity which they must reach before they are made subject to law; but the maturity of a people is not always easily recognized; and something done too soon will prove abortive. Peoples differ; one is amenable to discipline from the beginning; another is not, even after ten centuries. The Russians will never be effectively governed because the attempt to govern them was made too early. Peter the Great had the talent of a copyist; he had no true genius, which is creative and makes everything from nothing. Some of the things he did were sound; most were misguided. He saw that his people was uncivilized, but he did not see that it was unready for government; he sought to civilize his subjects when he ought rather to have drilled them. He tried to turn them into Germans or Englishmen instead of making them Russians. He urged his subjects to be what they were not and so prevented them from becoming what they might have been. This is just how a French tutor trains his pupil to shine for a brief moment in his childhood and then grow up into a nonentity. The Russian Empire would like to subjugate Europe and will find itself subjugated. The Tartars, its subjects or neighbours, will become its masters — and ours. Such a revolution seems to me inevitable. All the kings of Europe are labouring in concert to hasten its coming.
CHAPTER 9
The People: Continued
JUST as nature has set bounds to the stature of a well-formed man, outside which he is either a giant or a dwarf, so, in what concerns the best constitution for a state, there are limits to the size it can have if it is to be neither too large to be well governed nor too small to maintain itself. In the body politic there is a maximum of strength which must not be exceeded, and which is often fallen short of as a result of expansion. The more the social bond is stretched, the slacker it becomes; and in general a small state is relatively stronger for its size than a large one.
A thousand considerations bear witness to the truth of this. First, administration becomes more difficult over great distances, just as a weight becomes heavier at the end of a long lever. Government becomes more burdensome as its area is enlarged, for each town has its own administration, which the people pays for, and each region has its administration, which the people also pays for, then each province has one, and so on up to the greater governments, the satrapies, the viceroyalties, each costing more the higher they rise and always paid for by the unfortunate populace; and then on top of all comes the supreme administration, bearing down on everyone. Such a great number of charges added to charges continually exhausts the subjects; and far from being better governed by this hierarchy of orders, they are much worse off than they would be if they had only one administration over them. As it is, there is hardly any public revenue available for emergencies, and when the state is faced with such a need, it trembles on the verge of ruin.
Nor is this all. Not only is the government less vigorous and swift in enforcing respect for the law, in preventing nuisances, correcting abuses and thwarting any seditious movements that may arise in distant quarters, but at the same time the people has less affection for governors whom it never sees, for a homeland that seems as vast as the world, and for fellow-citizens who are mostly strangers. The same laws will not suit so many various provinces, which, with their different customs and contrasting climates, cannot tolerate the same form of government. Having different laws only creates misunderstanding and confusion among peoples who live under the same governors and are in continuous communication with one another; they intermingle and intermarry, but if different sets of rules prevail, they will not even know if what they call their patrimony is really their own. Talents are hidden, virtues are ignored and vices remain unpunished when such a multitude of men, who do not know one another, is brought together in the same place by one single seat of supreme administration. The governors have too much to do to see everything for themselves; their clerks rule the state. And the measures needed to maintain a general authority, which so many scattered officials try to evade or exploit, absorb all political attention, so none is left to study the people's happiness, and hardly any left for its defence in case of need. This body which is too big for its constitution collapses and perishes, crushed by its own weight.
On the other hand, a state if it is to have strength must give itself some solid foundation, so that it can resist the shocks that it is bound to experience and sustain the exertions that it must make to preserve itself; for all peoples generate a kind of centrifugal force, by which they brush continuously against one another, and they all attempt to expand at the expense of their neighbours, like the vortices of Descartes. Thus the weak are always in danger of being swallowed up, and indeed no people can well preserve itself except by achieving a kind of equilibrium with all the others which makes the pressure everywhere the same for all.
This shows us that there are reasons for expansion and reasons for contraction; and indeed it is not the least part of political wisdom to judge, as between the one and the other, the precise balance which is most conducive to the preservation of the state. In general one might say that any reasons for expansion, which are exterior and relative, ought to be less compelling than the reasons for contraction, which are internal and absolute. A strong and healthy constitution is the first thing to look for because the strength which comes from good government is more reliable than the resources which large territories yield.
One may add that there have been states whose political structure was such that the necessity of conquest was part of their very constitution, states which, in order to maintain themselves at all, were obliged to enlarge themselves unceasingly. Possibly they have congratulated themselves on this, as a fortunate necessity; but reflection on the same necessity must also have shown them that at the end of their greatness lay the inevitable moment of their fall.
CHAPTER 10
The People: Continued
THERE are two ways of measuring a body politic, by the extent of its territory and by the number of its people; and there must be a certain balance between these two dimensions if the state is to achieve its best size. Men make the state and the soil nourishes men; thus the right balance requires that there be land enough to feed the inhabitants and as many inhabitants as the land can feed. It is in this proportion that the maximum strength of a given number of persons is brought forth; for if there is too much territory, care of it is burdensome, cultivation inadequate and produce excessive; and this soon becomes the cause of defensive wars; while if, on the other hand, there is too little land, the state must live on what it can import at the discretion of its neighbours, and this soon becomes the cause of offensive wars. Any people which has to choose between commerce and war is essentially weak; it depends on its neighbours; it depends on contingencies; it will never have more than a short, uncertain existence; either it conquers and ends its predicament, or it is conquered and exists no more. It can safeguard itself in freedom only by means of littleness or bigness.
One cannot specify the exact mathematical proportion there should be between the area of the land and the number of inhabitants, because of the different characteristics of different places, differences in degrees of fertility, in the nature of the produce, in the effects of climate; and also because of the differences there are between the temperaments of men who inhabit the different territories, some consuming little in a fertile country and others living well off a frugal soil. Again we should have to consider the greater or lesser fecundity of the women, the distinctive features of the land, whether more or less favourable to population; the number of immigrants that the lawgiver might hope to attract by his institutions. From this it follows that he must make his decisions in the light not of what he sees, but of what he foresees, calculating not so much the number of the existing population as the number which the population must naturally reach. Finally, there are a thousand occasions when some particular accident of situation demands or allows the assimilation of more land than appears necessary. In a mountainous country, where the type of cultivation — woodland and pastures — requires less work, where the women are shown by experience to be more fecund than in the plains, and where the steep slopes of hills leave only a marginal degree of that flat land which alone can be relied on for vegetation, men will spread out more widely. The contrary is the case on the edge of the sea, where men will draw together in a small area, even among rocks and sands that are almost barren; for fishing can make up for much of the deficiency of agricultural produce; and being close together enables such men the better to resist pirates; and they can easily rid themselves by overseas settlement of any surplus population.
There is yet another condition for the institution of a people, one condition which no other can replace and without which all the rest are unavailing: a peace and plenty must be enjoyed; for the period of the formation of a state, like that of the lining up of a regiment, is the time when it is least capable of resistance and most open to destruction. A state can defend itself more effectively amid total chaos than during the time of fermentation, when everyone is thinking about his own position and not about the common danger. If there is a war, famine or sedition during this critical period, the state will inevitably be overthrown.
It is true that many governments have been set up during such disturbances, but then it is the governments themselves which destroy the state. Usurpers always choose troubled times to enact, in the atmosphere of general panic, laws which the public would never adopt when passions were cool. One of the surest ways of distinguishing the work of a lawgiver from that of a tyrant is to note the moment he chooses to give a people its constitution.
Which people, then, is fit to receive laws? I answer: a people which, finding itself already bound together by some union of origin, interest or convention, has not yet borne the yoke of law; a people without deep-rooted customs or superstitions; one which does not fear sudden invasion, and which, without intervening in the quarrels of its neighbours, can stand up to any of them, or secure the help of one to resist another; a people in which every member may be known to all; where there is no need to burden any man with more than he can bear; a people which can do without other peoples and which other peoples can do without; 【10】 one which is neither rich nor poor, but has enough to keep itself; and lastly one which combines the cohesion of an ancient people with the malleability of a new one. What makes the task of the lawgiver so difficult is less what has to be established than what has to be destroyed; and what makes success so rare is the impossibility of finding the simplicity of nature together with the needs that society creates. It is difficult to combine all these conditions; and that is why so few well-constituted states exist.
There is still one country in Europe which is fit to receive laws, and that is the island of Corsica. The valour and fidelity with which this brave people has recovered and defended its freedom entitle it to be taught by some wise man how to preserve that freedom. I have a presentiment that this little island will one day astonish Europe.
CHAPTER 11
Various Systems of Law
IF we enquire wherein lies precisely the greatest good of all, which ought to be the goal of every system of law, we shall find that it comes down to two main objects, freedom and equality: freedom because any individual dependence means that much strength withdrawn from the body of the state, and equality because freedom cannot survive without it.
I have already explained what civil freedom is; as for equality, this word must not be taken to imply that degrees of power and wealth should be absolutely the same for all, but rather that power shall stop short of violence and never be exercised except by virtue of authority and law, and, where wealth is concerned, that no citizen shall be rich enough to buy another and none so poor as to be forced to sell himself; this in turn implies that the more exalted persons need moderation in goods and influence and the humbler persons moderation in avarice and covetousness. 【11】
Such equality, we shall be told, is a chimera of theory and could not exist in reality. But if abuse is inevitable, ought we not then at least to control it? Precisely because the force of circumstance tends always to destroy equality, the force of legislation ought always to tend to preserve it.
However, these general objectives of all institutions must be modified in each country to meet local conditions and suit the character of the people concerned. It is in the light of such factors that one must assign to each people the particular form of constitution which is best, not perhaps in itself, but for that state for which it is destined. For example, is your soil meagre and barren or the territory too narrow for its inhabitants? Then look to industry and crafts, so that manufactured goods may be exchanged for the natural resources that are lacking. Suppose, on the other hand, you have rich plains and fertile slopes, good land too little inhabited. Then concentrate on agriculture, to increase the population, and eschew artisanry, which invariably depopulates the countryside and brings the few inhabitants there are together in certain urban centres. 【12】 Have you a long and convenient coastline? Then fill the sea with ships, develop trade and navigation, and you will have a brilliant if short existence. Does the sea, along your shores, wash against almost inaccessible rocks? Then remain ichthyphagous barbarians; you will live more peacefully, better perhaps, and certainly more happily. In short, apart from those principles which are common to all, each people has its special reasons for adopting these principles in its own way and for having laws that are fitted to itself alone. Thus it was, in the past, that the Hebrews, and more recently the Arabs, took religion as their chief object, while the Athenians had literature, Carthage and Tyre trade, Rhodes seafaring, Sparta war, and Rome civic virtue. The author of L'Esprit des lois has shown with scores of examples how the art of the lawgiver directs the constitution towards each of its ends.
What makes the constitution of a state really strong and durable is such a close observance of conventions that natural relations and laws come to be in harmony on all points, so that the law, shall we say, seems only to ensure, accompany and correct what is natural. But if the lawgiver mistakes his object and builds on principles that differ from what is demanded by the circumstances; if his principle tends towards servitude while circumstances tend towards liberty, the one towards wealth and the other towards increased population, the one towards peace and the other towards conquest, then the laws will be weakened imperceptibly, the constitution will deteriorate, and the state will continue to be disturbed until it is finally destroyed or transformed, and invincible Nature regains her empire.
CHAPTER 12
Classification of Laws
FOR everything to be well ordered and the best possible form given to the republic, there are various relations to be considered. First, there is the action of the whole body politic on itself, that is to say, the relation of all with all, or of the sovereign with the state, and this relation, as we shall see, is made up of relations between intermediary bodies.
The laws which regulate this relation bear the name of Political Laws, and are also called Fundamental Laws — not unreasonably, if the laws are wise ones. For if in each state there is only one good way of regulating it, the people which has found that way ought to keep to it. But if the established order is bad, why should the laws which prevent its being good be regarded as fundamental? Besides, a people is in any case entirely at liberty to alter its laws, even its best laws; and if it chooses to do itself an injury, who has the right to prevent it from doing so?
The second relation is that of the members of the body politic among themselves, or of each with the entire body: their relations among themselves should be as limited, and relations with the entire body as extensive, as possible, in order that each citizen shall be at the same time perfectly independent of all his fellow citizens and excessively dependent on the republic — this result is always achieved by the same means, since it is the power of the state alone which makes the freedom of its members. It is from this second relationship that Civil Laws are born.
We may consider a third kind of relation between the person and the law, namely that of disobedience and its penalty. It is this which gives rises to the establishment of Criminal Laws, though at bottom these are less a specific kind of law than the sanction behind all laws.
To these three sorts of law must be added a fourth, the most important of all, which is inscribed neither on marble nor brass, but in the hearts of the citizens, a law which forms the true constitution of the state, a law which gathers new strength every day and which, when other laws age or wither away, reanimates or replaces them; a law which sustains a nation in the spirit of its institution and imperceptibly substitutes the force of habit for the force of authority. I refer to morals, customs and, above all, belief: this feature, unknown to our political theorists, is the one on which the success of all the other laws depends; it is the feature on which the great law-giver bestows his secret care, for though he seems to confine himself to detailed legal enactments, which are really only the arching of the vault, he knows that morals, which develop more slowly, ultimately become its immovable keystone.
Among these various classes of law, it is only Political Laws, which constitute the form of government, that are relevant to my subject.
Note
【1】 For the will to be general, it does not always have to be unanimous; but all the votes must be counted. Any formal exclusion destroys its universality.
【2】 'Every interest,' says the Marquis d'Argenson, 'has its different principles. Harmony between two interests is created by opposition to that of a third.' He might have added that the harmony of all interests is created by opposition to those of each. If there were no different interests, we should hardly be conscious of a common interest, as there would be no resistance to it; everything would run easily of its own accord, and politics would cease to be an art.
【3】 'Divisions,' says Machiavelli, 'sometimes injure and sometimes aid a republic. The injury is done by cabals and factions; the service is rendered by a party which maintains itself without cabals and factions. Since, therefore, it is impossible for the founder of a republic to provide against enmities, he must make the best provision he can against factions.' History of Florence, Book Ⅶ.
【4】 Please, attentive reader, do not hasten to accuse me of contradiction. I cannot avoid a contradiction of words, because of the poverty of language; but wait.
【5】 By this word I understand not only an aristocracy or democracy, but generally any government directed by the general will, which is law. If it is to be legitimate, the government must not be united with the sovereign, but must serve it as its ministry. So even a monarchy can be a republic. This will be clarified in Book Ⅲ.
【6】 A people does not become famous until its constitution begins to decline. We do not know for how many centuries the constitution of Lycurgus gave happiness to the Spartans before there was talk about them in the rest of Greece.
【7】 Those who think of Calvin merely as a theologian do not realize the extent of his genius. The codification of our wise edicts, in which he had a large share, does him as much credit as his Institutes. Whatever revolutions may take place in our church, the memory of that great man will not cease to be honoured among the adepts of that religion while the love of country and of liberty still lives among us.
【8】 'The truth is,' writes Machiavelli, 'that there has never been in any country an extraordinary legislator who has not invoked the deity; for otherwise his laws would not have been accepted. A wise man knows many useful truths which cannot be demonstrated in such a way as to convince other people.' (Discourses on Livy, Book Ⅴ, Chapter xi.) [In Italian in original. Trans.]
【9】 (Altered in Edition of 1782 to 'Most nations...' Trans.)
【10】 If two neighbouring peoples cannot do without one another the situation is hard for the one and dangerous for the other. Any wise nation, in such a case, will hasten to deliver the other from its dependence. The republic of Thlascala, an enclave within the Mexican Empire, preferred to do without salt rather than buy it from the Mexicans, rather even than take it from them when it was offered as a gift. The wise Thlascalians saw the trap concealed in the Mexican generosity. They kept their freedom; and their little state, locked within the territory of a great Empire, was in the end the instrument of that Empire's ruin.
【11】 Do you want coherence in the state? Then bring the two extremes as close together as possible; have neither very rich men nor beggars, for these two estates, naturally inseparable, are equally fatal to the common good; from the one class come friends of tyranny, from the other, tyrants. It is always these two classes which make commerce of the public freedom: the one buys, the other sells.
【12】 Any branch of foreign trade, says the Marquis d'Argenson, brings only an illusory advantage to the kingdom in general; it may enrich a few individuals, even a few big towns, but the nation as a whole gains nothing and the people is none the better for it.