De la puissance qui appartient à chacun des éléments de force dont une loi se compose ; de l’étendue

CHAP. 20: > Of the power that belongs to each of the elements of force of which a law is composed; of the extent of moral laws, and of the limits posed, by the very nature of man, to the action of governments.

At every instant, we execute useful actions, or we abstain from executing baneful actions, without being excited or restrained by the action of public authority; we act, or we abstain from acting, for the sole reason that these actions appear to us good or bad. No one needs to command us to take food when hunger presses us; and, when we are afflicted with an illness, we have recourse to the physician, without waiting for the magistrate’s order. Every time that the good and the evil of an action do not extend beyond him who executes it or who abstains from it, one can rely, for the preservation of the species, on the need that each feels to preserve his individual, if moreover he has the means.

Our conduct is the same in many cases where it has, on the fate of other men, a more or less extensive influence. A farmer plows, sows, and harvests his field, without anyone having given him the order; a manufacturer opens his workshops, and a merchant his shops, without a police commissioner inviting them to do so; a physician visits and cares for his patients, without being led to them by the gendarmerie. Their inaction could, however, be baneful to other men; if the farmers did not cultivate their lands, famine would not be long in making itself felt; if the manufacturers closed their workshops, and the merchants their shops, multitudes of workers would die of hunger, and we would lack the most necessary things; if the physicians refused to visit their patients, many people would be exposed to perishing. How have peoples not dreaded calamities of this kind? Do the inhabitants of the cities not have to fear that, to play a bad trick on them, the inhabitants of the countryside will let their field lie fallow, and cease to bring wheat to the market? Do the inhabitants of the countryside not have to fear, for their part, that the inhabitants of the cities will close their shops to them? The sick, that the physicians will form a coalition to deprive them of the aid of their art?

Nowhere do similar fears exist, and it is not difficult to see the reason; it is that, in each of these cases, the action carries with it its reward, and the inaction its punishment. The good that results from the cultivation of lands doubtless spreads over the entire society; but the most immediate and most considerable part of this good is gathered by the cultivator. The evil that would result from the lack of cultivation would infallibly fall upon all; but the most considerable portion of this evil would fall first on the first who would wish to let his lands lie fallow.

We can say as much of the manufacturer, of the merchant, and even of the physician; for the sick are no less necessary to the prosperity of physicians, than physicians are to the cure of the sick. Thus, at the same time that each feels that he cannot do without others, he is convinced that others cannot do without him. He does not fear an evil that they can do to him only by doing to themselves a much more considerable evil. He feels himself protected against them by the very interest of their preservation and their prosperity. His security therefore requires nothing on the part of the government; the establishment of a penal law would be an addition of evil in society, but would procure no good.

There is a multitude of other circumstances where men need, to act well, only to be enlightened, and to be delivered over to the impulse that their sentiments or their interests give them. We have seen previously that even in countries where there exists little enlightenment, much misery and many vices, parents care for and raise their children, without public authority meddling in it, and that one can even reasonably doubt whether the direct action of this authority, exercised with a view to seconding the natural affection of parents, would not produce more evil than good. We have likewise seen that the causes that produce the habit of economy have sufficed to create and preserve all the riches that nations possess; and that the regulations to which has been given the name of sumptuary laws, have never produced anything but hindrance and sufferings: the action of authority has not only been useless; it has been baneful.There are many other cases where the government’s action appears very great, and where it nonetheless reduces to almost nothing. There are countries where, after having decreed that fathers would feed and raise their children, it was also decreed that they would leave them their property after their death. From this, one may be led to conclude that if children succeed their fathers, it is principally because public authority has so willed it. But to know what the influence of this authority reduces to in this regard, one must examine what happens in countries where parents enjoy, as in the United States, the unlimited faculty of disposing of their property even by an act of last will; one will see that, out of a hundred thousand individuals, there is perhaps not one who does not leave his property to his children, though he could deprive them of it. If a law were made to prevent property from leaving families, the influence of public authority, compared to the influence exercised by the spirit of preservation, would therefore not be in the proportion of one hundred thousand to one; and, in the case where this authority was exercised, it could still be doubtful whether it is good that it should be [114].

The forces that direct men in the preceding cases also direct them in most of the relations that exist between them. A multitude of conventions are formed and executed without the concurrence of any force other than that of the needs, interests, and probity of the contracting parties. At every instant, treaties or conventions are made that could be broken without any fear of the tribunals; they are executed nonetheless, because otherwise one could not live. Not only are they executed without public authority exercising any influence; but, in the greatest number of cases, they would be executed even if it wished to oppose them. We would pay the baker who had delivered us bread, the butcher who had delivered us meat, even if it were forbidden to us by authority; because we would care less about obeying it than about not lacking bread and meat. If, therefore, conventions take the place of law for those who have made them, it is not for the reason that such and such a code has said so; but such and such a code has said so, because it is so, and because it could not be otherwise.

In analyzing all the good laws that exist in a country, we would find that the actions they command or forbid are commanded or forbidden by the interests, sentiments, or habits of a more or less considerable part of the population. We would arrive at a similar result if we were to analyze vicious laws; we would find that they are the expression of the interests, passions, and prejudices of the most influential part of society. In either case, the action of authority has no other effect than to generalize actions that are already very common; to have executed by force by a few, what others execute voluntarily and by choice. If public authority exercised no influence, the same actions would therefore be executed; but they would be so in a less general manner; a greater number of individuals would adopt another way of acting.

In every law, there are therefore, as we have seen previously, forces of two kinds: on the one hand, we count the sentiments, interests, opinions, prejudices, and habits of the population, considered from a general point of view; we count, on the other hand, the diverse forces at the government's disposal, and the wills that give them motion. To simplify the language, allow me to give to the former the name of moral forces, and to the latter the name of material forces. All that is regulated by the forces of the first class forms the customs of a people, or its moral laws; all that is regulated by the combined forces of the first and second class forms its civil laws. It results from this that the field of legislation is much less extensive than that of morality: the first circumscribes only the actions that are the common product of the two kinds of force; the second circumscribes these same actions, plus all those that occur independently of public authority.

I have shown, for example, that the forces of the first class, the moral forces, determine parents to feed their children, to raise them, to transmit their property to them; that they determine men to create, multiply, and preserve their riches; that they also determine them to execute most of their conventions. If the forces by which these effects are produced do not cease to act even when public authority thwarts them, it is evident that their action must not cease when it seconds them. The action of moral laws therefore extends as far as the action of public authority; but although the action of public authority can extend very far, it can never go as far as the action of moral laws: there is a host of facts that public authority has no means of having executed; there is a number no less great that it could not prevent.

It is not enough, for facts to be produced by the action of public authority, that they be commanded in a book of laws; it is necessary, moreover, that this action be able to produce each of these facts, in all cases where they must take place. Governments have tried to regulate, for example, the relations that exist between husband and wife, between parents and children. They have said: the wife owes obedience to her husband; the husband owes protection to his wife; children must respect their parents. The practice of these maxims and other similar ones can be the result of moral forces; but it cannot be a consequence of the action exercised by public authority. No one could, in effect, determine in a precise manner either the individual facts that constitute obedience, protection, or respect, or the moment when each of these facts must be executed. Now since public authority can exercise no action, it is evident that the facts must be produced by forces other than its own. A government can act only when it is a question of ordering or punishing a precise and well-determined fact.

Moral forces regulate each of the movements to which we give ourselves over; they govern us even when we believe we must remain inactive. The forces of public authority regulate only a small number of our actions; they act only at long intervals. In a civilized state, a man can sometimes reach the end of a long career without having been directed a single time by their direct influence. He may have abstained from any punishable action without having been restrained by the fear of any legal punishment; he may have fulfilled all his obligations by the sole consideration of his duties and his interest. But, although moral forces have great power, especially in a state advanced in civilization, one cannot hope that they will act in all cases, and on all members of society, with equal energy. The question is to know what are the useful or baneful actions that can be produced or repressed only with the concurrence of public force. Those alone belong to the domain of government; the others remain under the exclusive empire of moral forces.

We have seen, at the beginning of this chapter, that there are useful actions that man executes, and baneful actions from which he abstains, without being constrained to do so otherwise than by his own sentiments, or by the good or evil that results from them for himself. If we examine what are the actions of this kind, we will see that they are first of all those of which he is at once the object and the agent. As long as an individual acts only on himself, or on the things that are his, abuses of power on his part are little to be feared. If he governs himself well, he is rewarded for it by the advantages that result; if he governs himself badly, it is upon him that the punishments first fall. It is true that he can hardly harm himself without at the same time harming others; by diminishing his capacity or dissipating his fortune, he deprives several of his fellows of the services he owed them, or that they could expect from him. But, at the same time, he deprives himself of the services he could expect from them, and the evil he does to himself, and which is concentrated particularly on his person, is a repressive penalty strong enough to restrain him, if he has an intelligence sufficiently developed to see the consequences of his conduct.

When, instead of acting on himself or on the things that are his, a man acts on his children or on the things that belong to them, the good and evil that result from his actions can be felt by them before they are by him, and affect them more keenly than they affect him. In general, a father suffers when he punishes his children; he experiences pleasure when he causes them some enjoyment. It is not impossible, however, that, in the case of punishment, the child’s pain may be more keen and more immediate than the father’s, and that it may be the same in the case of a reward. Thus, we see that governments that have not thought it necessary to set bounds to the power a man has over himself and his properties, have thought it useful to set limits to the power of fathers over their children and over the things that belong to them. All have not, however, thought themselves in this necessity: there are several, on the contrary, who have not supposed that it was more dangerous to leave without limits the power of a father over his children, than not to limit that which he has over his own person. Grave inconveniences have never resulted from this power, at least in countries where the natural sentiments of man have not been stifled by despotism or by a false religion. The reason is that man is hardly less attached to the preservation of his posterity than to his personal preservation; he is sometimes even more so. It is the sentiment that nature has given to all animate species, a sentiment without which they would not have been preserved. A man who sees his children experience pleasure or pain does not experience the same kind of pleasure or pain as they do; but he is affected for good or for ill in his moral affections; and since our moral faculties are as much a part of ourselves as our physical faculties, it follows that the same power that protects an individual against himself also protects his children against the abuses of his power: the same motives that determine him to watch over his interests act with no less force in favor of the interests of his descendants [115].

But, when the action of an individual is directed toward others than himself and his children, he can be affected in a different manner than the very person on whom he acts. If he exercises vengeance upon that person, if he takes his property from him, he can experience, at least for the moment, a certain enjoyment, while the other will experience a pain. If he pays a debt, if he executes an obligation, he can experience a pain, while the person toward whom he discharges his obligation will experience a pleasure. Thus, although the actions that a man exercises on himself and sometimes even on his children need, to be well regulated, only to be abandoned to his own direction, it is not the same in the case where it is on other persons that he acts. It is then necessary that the forces at the public authority’s disposal can, if need be, constrain him either to execute certain facts, or to abstain from certain actions. But what are the cases where it is useful for constraint to be employed? Must one make use of it to repress all baneful inclinations, and to second all useful inclinations?

If we observe all men attentively, we will see that there is none in whom there do not exist two kinds of inclinations: some, good or virtuous; others, bad or vicious. The individual whom we judge most estimable is not he whose inclinations are all directed toward the good; for, on this condition, we could esteem no one; it is he whose good inclinations always have more force than the bad ones. Likewise, he who inspires in us the most contempt or aversion is not he who has only vicious inclinations, since the existence of such an individual is perhaps not possible; it is he whose bad inclinations habitually prevail over the good. The degree of esteem we grant to a man is in proportion to the weakness of the baneful inclinations that are in him, and to the force of his virtuous inclinations. The degree of contempt or aversion he inspires in us is, on the contrary, in proportion to the force of his vicious inclinations, and to the weakness of his good inclinations. All the goods and all the evils that result from human actions are produced by one or the other of these two kinds of inclinations [116].

No government has ever been found that imagined that the action of public authority should be employed to second all the good inclinations of man, or to repress all his vicious inclinations. An individual can form the resolution to follow such a kind of life, or to give his children such or such an education; if he does not have the force to execute what he has resolved, if his desires, however useful they may be, do not have enough power to determine his conduct, he will find outside himself no force to second him. Likewise, if his inclinations lead him to laziness, intemperance, avarice, or other actions that harm his person or his fortune, his bad inclinations will not be repressed by the force of public authority. This force will no more repress his vanity, his pride, or his indiscretion, although these vices may cause him various prejudices, and are sometimes offensive to several members of society.

Several peoples have attempted, however, to fortify virtuous inclinations and to combat vicious inclinations by the force of public authority. The censorship, among the Romans, had no other object. “A censor,” says Plutarch, “has the law to inquire into the life, and to reform the customs of each one, because the Romans esteemed that it should not be permissible for each, to marry, to beget children, to live at home in private, nor to hold feasts and banquets at his will, without fear of being reprimanded for it [117].” This regime could be tolerable for a military people that needed to be subjected to the discipline and arbitrariness of the camps, even in the interior of domestic life; but it would have been as useless as it was insufferable among an industrious and civilized nation. The effect it produced with regard to customs was completely null; for it is doubtful that there has ever existed a nation that had more vices than the people of Rome. The attempts that have been made among modern nations to reform customs by the direct action of public authority have been no less vain. The sometimes excessive penalties that have been pronounced against certain vicious actions, the regulations by means of which it has been attempted to set bounds to private expenses, have produced no good, and it has been necessary to renounce them.

If one seeks the causes that have made governments renounce supporting all virtuous inclinations, and repressing all malevolent actions, by the action of public authority, one will see first that, in general, they have renounced it through the impossibility of succeeding; one will see, in the second place, that the sum of evil produced by this action has always exceeded the sum of good.

Whenever the action or inaction of an individual does not extend beyond himself, there is no way to reach him, since there is no means of convicting him. One would have to either prevent men from finding themselves in a state of isolation, or have as many supervisors as there were individuals. It is hardly easier to repress actions that take place between two persons by their common accord, when a third party is affected only by reason of the evils they do to themselves. Actions that take place in the interior of families are equally beyond the reach of magistrates, unless they leave in their wake marks by which they can be evidently recognized, such as serious acts of violence [118].The action a man exercises on the things that are his is, in certain cases, easier to ascertain than the action he exercises on himself. Thus, even in countries where they have renounced repressing certain vicious actions by public force, it has been believed that it was not impossible to prevent a man from consuming his property in foolish expenses. There exist, in France, laws that threaten prodigals with interdiction; that forbid them from contracting debts or alienating certain properties. But, if one takes the trouble to examine what are, in reality, the effects of these so-called laws, one will be convinced that they are completely null. If a man who is not afflicted with madness, and who has the disposition of his property, has resolved to ruin himself, it is as impossible to prevent him from doing so as it is impossible to prevent him from taking his own life, if he has the desire and the power. The penalties pronounced against suicide are no longer to be feared when one has incurred them; it is nearly the same with those by means of which it has been attempted to set bounds to prodigality: the harm is done when the magistrate arrives, and the action of the authority does not even have the advantage of being a scarecrow.

The acts of governments that have wished to effect by the use of public force what can only be effected by the force of customs have been judged by the same rules as all human habits and actions: they have been condemned, every time it has been perceived that the sum of the evils resulting from them exceeded the sum of the goods, taking into consideration the intensity, duration, certainty, and proximity of the ones and the others, and especially the number of persons affected by them.

It results from this that there are evils that one must not hope to destroy by the use of force, and goods that such a means cannot produce. There are baneful actions or habits that one is obliged to tolerate, unless one wishes to produce an evil more grave than that which results from these habits or actions. On the other hand, there are advantageous actions or habits that one cannot demand by the use of force, unless one wishes to lose goods greater than those it is possible to obtain by this means.

I have said previously that the action of moral laws can extend much further than the action of public authority; and from this is drawn the consequence that the point where the government’s action can no longer be exercised without producing more evil than good, is the point that separates legislation from morality. This is incontestable, in effect, whenever one sees in legislation only the art of applying to men or to things the action of public authority. But when one considers legislation as a science, that is to say, as the knowledge of the chain of facts of a certain order, it is no longer possible to restrict oneself within such limits. One would know a law only in the most imperfect manner if one were ignorant, on the one hand, of the portion of force or power it receives from customs or opinions, and if one were ignorant, on the other hand, of the action it exercises on the physical, intellectual, and moral faculties of the diverse classes of the population.