Distinction entre un régime arbitraire et un régime légal. De ce qui constitue la différence.

CHAP. 13: > Distinction between an arbitrary regime and a legal regime. Of what constitutes the difference.

In considering, in their own nature, the laws that govern peoples, one can see in them only forces composed of a multitude of diverse elements. The seat of these forces can be found only in men or in things; and it is impossible to know them well otherwise than by observation. To have knowledge of them, one must study the diverse ways in which men act with regard to one another; the causes that are the principles of their actions, and the consequences that these actions produce. One must study, moreover, the general action that things exercise on men, that which men in their turn exercise on things, and the diverse effects that result from these actions.

When one proceeds thus, one is necessarily led to distinguish four things in a law: the diverse elements of power of which it is composed; the immediate result of this power, or what is vulgarly called the disposition of the law; the diverse ways in which men and things are affected by this result or by this disposition; and finally, the description of the elements of the law, of the action it exercises, or of the other effects it produces. The first three parts are essential to the existence of any law; the last is not, since it is only very late, as we have seen, that the dispositions of laws began to be described.

In all countries and in all positions, the individuals of whom the human race is composed are subject to the action of one another: they are subject to it in their relations as husband or wife, child or father, master or slave, ruler or ruled; in all countries and in all positions, they are equally subject to the action of things, and in their turn they act continually upon them, either to make them fit to satisfy their needs immediately, or to make instruments of them. It is therefore impossible for us to escape the forces that act continually upon us, and which have their principle either in our fellow men, or in the things in the midst of which we are placed, or in our own nature. These forces are laws from which we cannot escape: we judge them good or bad, not by the degree of intensity or power that is in them, but by the nature of the effects that result from them.

A distinction has been made between peoples subject to arbitrary powers and those subject to legal powers; and between despotic governments and governments that act in conformity with the laws. There is often less difference between the one and the other than one is generally inclined to believe: a nation can pass from an arbitrary regime to what is called a legal regime, without being much better off for it. Herein lies the difference; it is essential to observe it, because it will help us to form just ideas of the nature of laws, and of the influence exercised by the description of their dispositions.

Laws, we have said, are powers that are composed of diverse elements, and that act in such or such a manner on men. Among the elements of which these powers are composed, we have included the ideas, prejudices, needs, and passions of the most influential classes of the population, and particularly of the men designated by the names of princes, ministers, soldiers, magistrates, and many others. These elements of power are not equally numerous among all peoples: but, to a greater or lesser degree, they are found everywhere, and everywhere they act more or less upon nations. If these elements of force emerge from the bosom of the people, and are the product of the ideas, needs, or passions of the greatest number, one can say that it is the population acting on itself, by means of instruments it has chosen. But one must not conclude from this that the action it exercises is necessarily salutary to it: an ignorant and passionate population can harm itself just as an individual harms himself. If the same elements of force are formed by a prince and by his court, or by the individuals who direct them, this is also not sufficient to establish that the result is malevolent: this result is salutary or baneful, according to the enlightenment and the intentions of those by whom these forces are set in motion.Since it is force or power that forms the law, it follows that wherever we find one part of the population constantly acting upon another, we also find laws. The Russians, the Turks, the Egyptians, the Persians, are therefore subject to laws, as are the French and the English; for, among the former as among the latter, one encounters the greatest part of the elements of force of which laws are composed. But there exists a remarkable difference between them: the action that results, among the former, from the exercise of power, is almost never described: among the latter, on the contrary, it is described in most cases where it is to be exercised. It results from this difference that, among the former, this action is subject to all the instantaneous variations experienced by the power that produces it, and that, consequently, it is often irregular and disordered: whereas, among the latter, the description of the action of the power or of the law, contributes to rendering this action more uniform and more regular.

A few examples will make the difference better felt: I suppose that a sultan and an emperor of Austria both need to raise a tax on their subjects, to make a war, to enslave or exterminate a nation. Both are moved by the same principle; they tend toward the same goal; they dispose of the same forces: their subjects must equally give up a part of their means of existence. On both sides, we find clerks with hands to receive or to take the subjects’ money; armed men disposed to lend a strong hand to the clerks; on both sides, we find collectors with coffers to put this money in, and soldiers to guard it; we find, moreover, ministers who draw this money to themselves, and who distribute it according to their pleasure or according to the direction given to them; on both sides, finally, we find a master who gives or is supposed to give motion to the entire machine.

All these elements of force, whose union forms the law, resemble each other in the two countries: the only difference between the one and the other is that, in one, the action of this power or of this law has been described, in all cases where it is to be exercised; whereas it has not been in the other. In the country where the action of the power has been described in advance, each of the elements of force of which it is composed, from the last clerk to the first minister, regulates its action by the description that has been given to it; and each of the subjects experiences from this action only the portion that has been assigned to him by the description. In the country where the action of the power has not been described in advance, its movements are more disordered: each of the elements of which this power is formed acts with more or less violence, with more or less partiality.

The government that acts without having described in advance the diverse kinds of action it tends to exercise could be compared to a steam engine that lacked a regulator; its movements are irregular, by turns slow or abrupt. The government that, on the contrary, acts only after having described the actions it wishes to produce, moves in an equal manner: the description it publishes is, in a way, the regulator that gives uniformity to its movements. But one must be very careful not to believe that the addition of the regulator to the machine of government changes its nature or its effects; if it is set up to draw the people's subsistence toward the men of power, the more regular it is in its movements, the better it will fulfill its office; it will be more durable and more energetic for it. A people can therefore have described laws and authorities that observe them; it can have a government whose action is uniform, and nevertheless be excessively oppressed. One can put regularity into pillage and into the sharing of booty, as one can put it into anything else; but one must not believe that, for that reason, the individuals who are pillaged are any happier for it; there is only more uniformity in the extortions.

The laws that govern peoples are a power, and this power can produce bad effects just as it can produce good ones. To say of a people that it is subject to an arbitrary regime is therefore to say nothing other than that it is subject to an irregular and disordered force. If, by its nature, this force is malevolent, the harm it does is not equally grave in all similar cases. To affirm, on the other hand, that a people is subject to a legal regime, is to say quite simply that the force or power to which it obeys acts in an equal manner in all similar cases. If this force is malevolent, it does to all those it reaches and who find themselves in the same position a harm that is nearly the same. These are the principal differences one can observe, in a great number of cases, between what is called the arbitrary regime and the legal regime; they are sometimes as bad as one another; perhaps it is not even impossible that a certain arbitrary regime may be preferable to a certain regime that calls itself legal. To submit to the laws of a State is to submit to the power that reigns there; it is to obey necessity: but this submission is not necessarily a good thing.

There are writers who have exaggerated to the point of ridicule the advantages of the regime they call legal. These advantages, in effect, are immense for peoples who are subject only to good laws; but they are null for peoples subject to laws that are malevolent. A proprietor can put regularity into the management of a farm; he can trace for each of his agents the rules they must follow in the administration of his herds; he can determine the hours at which they will be led to pasture, the times at which they will be shorn, the time at which it will be permitted to mate them, and even the age at which they will be delivered to the butcher. If he has slaves, he can make, for them, regulations analogous to those he will have made for his herds; he can determine the hours of work they will owe per day, the quantity of food that will be left to them, the number of lashes of the whip that will be given to them in determined circumstances; he can make, in a word, a regulation as well written and as provident as the most admired code. When everything has been thus regulated, the beasts and the men will be subject to a legal regime; that is to say, the action of the power to which they will be subject will have been described in advance; but must we conclude that they are much better off for it? Will they, for that reason, have a greater sum of liberty? If, to be free and to be well, it were enough to be subject only to laws whose dispositions were described, it would not be worth the trouble to argue: the least accommodating governments could consent to it, without losing anything of their power. The question cannot, therefore, be whether one will be subject only to laws, but whether one will be subject only to good laws.

Laws being only force, one can judge them well only by examining the diverse ways in which they act on men, whether they affect them directly, or whether they affect them only in an indirect manner, by acting on the things that are for their use. It is therefore necessary, to know their effects, to expound how they can reach the men who are subject to them.