Des peines et des plaisirs moraux considérés comme éléments de la puissance des lois.

CHAP. 16: > Of moral pains and pleasures considered as elements of the power of laws.

Laws are powers composed of diverse elements of force; but, in all of them, these elements are not of the same nature, and do not exist in the same proportion. The law or the power that determines fathers to feed and raise their children is not composed of the same elements of force as a law by virtue of which one conscripts these children to make them instruments of oppression or pillage. A law by virtue of which one takes from the laboring part of the population a third or a half of its means of existence is not composed of the same elements of force as a law that protects the properties of each from theft. A law that repels foreign merchandise from the frontiers of a State is not composed of the same elements of power as a law that guarantees to each the disposition of the products of his industry. The principal elements of force of some of these laws are found in the entire mass of the population, and are inherent in the nature of man. The principal elements of force of the others are found in the men who are in possession of power.

We have seen, in the various revolutions that France has experienced, moments when a government had lost all its power, before another had replaced it. In these short intervals, women remained united with their husbands, children obeyed their fathers, fathers fed their children, workers worked for masters, masters paid workers, in a word, all the operations necessary for the existence of a people continued to be executed. Why? For the reason that the principal elements of force of the social laws existed in the very bosom of the population; they existed in its needs, in its affections, in its judgments or in its ideas.

But if, in the number of established laws, there were some whose principal elements of force existed only in the needs, in the passions, or in the prejudices of the governing part of the people, those were suspended or destroyed as soon as the elements of force of which they were composed were dispersed. If they had for their object to prevent men from publicly manifesting certain opinions, from displaying certain signs, from invoking certain names, from abandoning certain flags, from reappearing in certain places, everyone could freely do what they had prevented until then: the most severe penalties they had pronounced remained ineffective, and no one even thought of demanding their application.

Laws, whatever the part of the population in which reside the principal elements of force of which they are composed, can be found only in the physical needs, in the moral affections, or in the opinions of the part of the population that governs, or of that which is subjected. In the preceding chapter, I have expounded how the passion or love of physical enjoyments, and the aversion to pains of the same nature, are among the elements of force that constitute laws. I must now expound how moral affections form another part of the same power, and how laws vary at the same time as these affections.

One observes that, in general, as the passion for physical enjoyments develops, generous affections are restricted, and that, on the contrary, the persons who are most severe with themselves are those whose benevolent affections embrace a larger part of the human race. The Stoics, who made it a glory to despise sensual pleasures and to train themselves in pain, are the first who proclaimed that one must prefer the happiness of a family to that of an individual, the happiness of a nation to that of a family, and the well-being of the human race to the well-being of a nation. The most ferocious tyrants have been men given over to the pleasures of the senses; and their cruelty has followed, in its increase, the same progression as their sensuality. If they had made a theory of morality, they would have reversed the doctrine of the Stoics: they would have preferred their nation to the human race, their family to their nation, and their individual to all the rest. The only emperors of whom Rome could be proud, Marcus Aurelius, Antoninus, Julian, were austere men. The same causes that concur to develop the passion for physical enjoyments therefore concur to restrict benevolent affections, and to extend or to fortify the contrary passions. From which it follows that the more a people gives to those who dominate it the means to procure, without labor, physical enjoyments, the more it can be assured that they will be without pity for it.

Whether the men who govern have been elected by the majority of a people, or whether they hold their power from their predecessors, one finds in the dispositions of the laws of which they are the principal force, the expression of most of their moral affections. If they are generous, trusting, the dispositions of the laws bear the imprint of their trust and their generosity: they leave to each the liberty of his opinions and his actions, in all that does not harm others, and inflict penalties only insofar as they are necessary to repress malevolent actions. If they are timid, suspicious, vindictive, one finds, in the dispositions of the laws, the expression of their fears, their suspicions, their vengeance: they prevent or repress the manifestation of thoughts, stifle publicity, hold citizens in a state of isolation, assure to the men of power the means of reaching and striking those whom they suppose to be their enemies. Finally, if they are credulous, superstitious, one finds, in the dispositions of the laws, the expression of their superstition and their credulity.There is, in a word, no passion that, when it dominates among men invested with public authority, does not end by manifesting itself in the dispositions of laws: ambition or the passion for conquests manifests itself in the laws on military service and on social organization; pride, in the laws on titles and the distinction of ranks; vanity, in the laws on the liveries of valets of all classes. These diverse passions can be found, and are indeed often found, in men who have come from the humblest classes, as well as in men who are born at the pinnacle of power. One must neither be surprised nor complain that things are thus; men cannot act otherwise than they feel, and they would be destitute of any principle of action, if they did not find one in their needs, in their affections, or in their judgments.

I have cited malevolent passions, as being among the elements of force of which a law is composed; but this case, which is not rare, is nevertheless not the most common among civilized peoples. There is a multitude of laws that draw their principal force from benevolent affections, such as those that determine the relations between members of families, that regulate the transmission of goods, that ensure the execution of contracts, that guarantee properties, that maintain public tranquility, and a great number of others.

Most moral affections being among the elements of force of which laws are composed, one must not be surprised if laws vary with passions. There was a time, for example, when the population was divided, in France, into two equally fanatical factions: the dominant passion of the stronger was the law, and this law commanded the proscription of the weaker. The cooling of fanaticism has produced freedom of worship, but if the same passion were to regain its former energy, and if it were equally widespread, it would be converted into law, and would bring about the same results.

The impossibility of satisfying a passion, whatever its nature, is a pain; the satisfaction of a passion, whatever it may be, is a pleasure. It is therefore as pains and as pleasures that passions are among the elements of which the power of laws is formed. But these pleasures and these pains are not always followed by the same results. The man who satisfies the passion of pity, by helping an unfortunate person, gives himself a pleasure; he who takes revenge on his enemy gives himself another. But the two actions have very different immediate or distant consequences, whether for the individual who executes them, or for those who are their object. I will expound later wherein these consequences differ, and how they influence the judgment we pass on the cause that produces them.

If I had to expound here what portion of force each of the passions of which man is susceptible gives to each law, it would be necessary to write a work that would have a great number of volumes. No less considerable a work would be needed if one wished to expound how certain laws vary with the passions of the men who are invested with public authority. To be convinced that the passions of the men who govern are one of the principal elements of which certain laws are composed, it is enough to compare the changes that operate in these men to those that operate in the laws. From the beginning of the French Revolution to this day, we have seen power pass into the hands of men agitated by diverse and often opposing passions. We have successively seen the Constituent Assembly, the Legislative Assembly, the Directory, the Empire, and the Restoration. Each of these epochs was marked by particular laws, and we could find, in most of these laws, the diverse affections that agitated the men whose influence was the most extensive.

The passions of the men in whom authority resides are sometimes thwarted by the passions of a part of the population. Then, the former manifest themselves with more or less energy, they pass more or less into the dispositions of the laws, according as the latter oppose more or less resistance. There are men who have made the whole talent of governing consist in the art of overcoming this resistance, whether by dividing the citizens, or by ravishing from them the election of all their magistrates, or by depriving them of the faculty of manifesting their opinions. When popular affections or sentiments are thus individualized, the affections of the men who govern, and of those who serve as their instruments, immediately take on the character of laws, and reign without obstacle.

When I expound the state of peoples at diverse degrees of civilization, one will see how their laws have varied with their passions: it is enough for me to have observed here that, whatever the state to which a people has arrived, the moral affections it experiences, whether they be agreeable or painful, form one of the principal elements of power of its laws, and that the action that is exercised upon it can reach it in these affections, as well as in its physical organs.