The Law.

The law perverted! The law--and, in its wake, all the collective forces of the nation--the law, I say, not only diverted from its proper direction, but made to pursue one entirely contrary! The law become the tool of every kind of avarice, instead of being its check! The law guilty of that very iniquity which it was its mission to punish! Truly, this is a serious fact, if it exists, and one to which I feel bound to call the attention of my fellow-citizens.

What, then, is law? As I have said elsewhere, it is the collective organization of the individual right to lawful defence.

Collective right, then, has its principle, its reason for existing, its lawfulness, in individual right; and the common force cannot rationally have any other end, or any other mission, than that of the isolated forces for which it is substituted. Thus, as the force of an individual cannot lawfully touch the person, the liberty, or the property of another individual--for the same reason, the common force cannot lawfully be used to destroy the person, the liberty, or the property of individuals or of classes.

Nothing, therefore, can be more evident than this:--The law is the organization of the natural right of lawful defence; it is the substitution of collective for individual forces, for the purpose of acting in the sphere in which they have a right to act, of doing what they have a right to do, to secure persons, liberties, and properties, and to maintain each in its right, so as to cause justice to reign over all.

Unhappily, law is by no means confined to its own department. Nor is it merely in some indifferent and debateable views that it has left its proper sphere. It has done more than this. It has acted in direct opposition to its proper end; it has destroyed its own object; it has been employed in annihilating that justice which it ought to have established, in effacing amongst Rights, that limit which was its true mission to respect; it has placed the collective force in the service of those who wish to traffic, without risk, and without scruple, in the persons, the liberty, and the property of others; it has converted plunder into a right, that it may protect it, and lawful defence into a crime, that it may punish it.

How has this perversion of law been accomplished? And what has resulted from it?

The law has been perverted through the influence of two very different causes--bare egotism and false philanthropy.

Self-preservation and development is the common aspiration of all men, in such a way that if every one enjoyed the free exercise of his faculties and the free disposition of their fruits, social progress would be incessant, uninterrupted, inevitable.

But there is also another disposition which is common to them. This is, to live and to develop, when they can, at the expense of one another. This is no rash imputation, emanating from a gloomy, uncharitable spirit. History bears witness to the truth of it, by the incessant wars, the migrations of races, sacerdotal oppressions, the universality of slavery, the frauds in trade, and the monopolies with which its annals abound. This fatal disposition has its origin in the very constitution of man--in that primitive, and universal, and invincible sentiment which urges it towards its well-being, and makes it seek to escape pain.

Now, labour being in itself a pain, and man being naturally inclined to avoid pain, it follows, and history proves it, that wherever plunder is less burdensome than labour, it prevails; and neither religion nor morality can, in this case, prevent it from prevailing.

When does plunder cease, then? When it becomes less burdensome and more dangerous than labour. It is very evident that the proper aim of law is to oppose the powerful obstacle of collective force to this fatal tendency; that all its measures should be in favour of property, and against plunder.

But the law is made, generally, by one man, or by one class of men. And as law cannot exist without the sanction and the support of a preponderating force, it must finally place this force in the hands of those who legislate.

This inevitable phenomenon, combined with the fatal tendency which, we have said, exists in the heart of man, explains the almost universal perversion of law. It is easy to conceive that, instead of being a check upon injustice, it becomes its most invincible instrument. It is easy to conceive that, according to the power of the legislator, it destroys for its own profit, and in different degrees, amongst the rest of the community, personal independence by slavery, liberty by oppression, and property by plunder.

It is in the nature of men to rise against the injustice of which they are the victims. When, therefore, plunder is organised by law, for the profit of those who perpetrate it, all the plundered classes tend, either by peaceful or revolutionary means, to enter in some way into the manufacturing of laws. These classes, according to the degree of enlightenment at which they have arrived, may propose to themselves two very different ends, when they thus attempt the attainment of their political rights; either they may wish to put an end to lawful plunder, or they may desire to take part in it.

Woe to the nation where this latter thought prevails amongst the masses, at the moment when they, in their turn, seize upon the legislative power!

Up to that time, lawful plunder has been exercised by the few upon the many, as is the case in countries where the right of legislating is confined to a few hands. But now it has become universal, and the equilibrium is sought in universal plunder. The injustice which society contains, instead of being rooted out of it, is generalised. As soon as the injured classes have recovered their political rights, their first thought is, not to abolish plunder (this would suppose them to possess enlightenment, which they cannot have), but to organise against the other classes, and to their own detriment, a system of reprisals,--as if it was necessary, before the reign of justice arrives, that all should undergo a cruel retribution,--some for their iniquity and some for their ignorance.

It would be impossible, therefore, to introduce into society a greater change and a greater evil than this--the conversion of the law into an instrument of plunder.

In the first place, it would efface from everybody's conscience the distinction between justice and injustice.

No society can exist unless the laws are respected to a certain degree, but the safest way to make them respected is to make them respectable. When law and morality are in contradiction to each other, the citizen finds himself in the cruel alternative of either losing his moral sense, or of losing his respect for the law--two evils of equal magnitude, between which it would be difficult to choose.

It is so much in the nature of law to support justice, that in the minds of the masses they are one and the same. There is in all of us a strong disposition to regard what is lawful as legitimate, so much so, that many falsely derive all justice from law. It is sufficient, then, for the law to order and sanction plunder, that it may appear to many consciences just and sacred. Slavery, protection, and monopoly find defenders, not only in those who profit by them, but in those who suffer by them. If you suggest a doubt as to the morality of these institutions, it is said directly--"You are a dangerous innovator, a utopian, a theorist, a despiser of the laws; you would shake the basis upon which society rests."

Another effect of this deplorable perversion of the law is, that it gives to human passions and to political struggles, and, in general, to politics, properly so called, an exaggerated preponderance.

In fact, if law were confined to causing all persons, all liberties, and all properties to be respected--if it were merely the organisation of individual right and individual defence--if it were the obstacle, the check, the chastisement opposed to all oppression, to all plunder--is it likely that we should dispute much, as citizens, on the subject of the greater or less universality of suffrage? Is it likely that it would compromise that greatest of advantages, the public peace? Is it likely that the excluded classes would not quietly wait for their turn? Is it likely that the enfranchised classes would be very jealous of their privilege? And is it not clear, that the interest of all being one and the same, some would act without much inconvenience to the others?

But if the fatal principle should come to be introduced, that, under pretence of organisation, regulation, protection, or encouragement, the law may take from one party in order to give to another, help itself to the wealth acquired by all the classes that it may increase that of one class, whether that of the agriculturists, the manufacturers, the shipowners, or artists and comedians; then certainly, in this case, there is no class which may not pretend, and with reason, to place its hand upon the law, which would not demand with fury its right of election and eligibility, and which would overturn society rather than not obtain it. Even beggars and vagabonds will prove to you that they have an incontestable title to it. They will say--"We never buy wine, tobacco, or salt, without paying the tax, and a part of this tax is given by law in perquisites and gratuities to men who are richer than we are. Others make use of the law to create an artificial rise in the price of bread, meat, iron, or cloth. Since everybody traffics in law for his own profit, we should like to do the same. We should like to make it produce the right to assistance, which is the poor man's plunder. To effect this, we ought to be electors and legislators, that we may organise, on a large scale, alms for our own class, as you have organised, on a large scale, protection for yours. Don't tell us that you will take our cause upon yourselves, and throw to us 600,000 francs to keep us quiet, like giving us a bone to pick. We have other claims, and, at any rate, we wish to stipulate for ourselves, as other classes have stipulated for themselves!" How is this argument to be answered? Yes, as long as it is admitted that the law may be diverted from its true mission, that it may violate property instead of securing it, everybody will be wanting to manufacture law, either to defend himself against plunder, or to organise it for his own profit. The political question will always be prejudicial, predominant, and absorbing; in a word, there will be fighting around the door of the Legislative Palace. The struggle will be no less furious within it. To be convinced of this, it is hardly necessary to look at what passes in the Chambers in France and in England; it is enough to know how the question stands.

Is there any need to prove that this odious perversion of law is a perpetual source of hatred and discord,--that it even tends to social disorganisation? Look at the United States. There is no country in the world where the law is kept more within its proper domain--which is, to secure to every one his liberty and his property. Therefore, there is no country in the world where social order appears to rest upon a more solid basis. Nevertheless, even in the United States, there are two questions, and only two, which from the beginning have endangered political order. And what are these two questions? That of slavery and that of tariffs; that is, precisely the only two questions in which, contrary to the general spirit of this republic, law has taken the character of a plunderer. Slavery is a violation, sanctioned by law, of the rights of the person. Protection is a violation perpetrated by the law upon the rights of property; and certainly it is very remarkable that, in the midst of so many other debates, this double legal scourge, the sorrowful inheritance of the Old World, should be the only one which can, and perhaps will, cause the rupture of the Union. Indeed, a more astounding fact, in the heart of society, cannot be conceived than this:--That law should have become an instrument of injustice. And if this fact occasions consequences so formidable to the United States, where there is but one exception, what must it be with us in Europe, where it is a principle--a system?

But this is not the case. The law sometimes takes its own part. Sometimes it accomplishes it with its own hands, in order to save the parties benefited the shame, the danger, and the scruple. Sometimes it places all this ceremony of magistracy, police, gendarmerie, and prisons, at the service of the plunderer, and treats the plundered party, when he defends himself, as the criminal. In a word, there is a legal plunder, and it is, no doubt, this which is meant by M. Montalembert.

This plunder may be only an exceptional blemish in the legislation of a people, and in this case, the best thing that can be done is, without so many speeches and lamentations, to do away with it as soon as possible, notwithstanding the clamours of interested parties. But how is it to be distinguished? Very easily. See whether the law takes from some persons that which belongs to them, to give to others what does not belong to them. See whether the law performs, for the profit of one citizen, and, to the injury of others, an act which this citizen cannot perform without committing a crime. Abolish this law without delay; it is not merely an iniquity--it is a fertile source of iniquities, for it invites reprisals; and if you do not take care, the exceptional case will extend, multiply, and become systematic. No doubt the party benefited will exclaim loudly; he will assert his acquired rights. He will say that the State is bound to protect and encourage his industry; he will plead that it is a good thing for the State to be enriched, that it may spend the more, and thus shower down salaries upon the poor workmen. Take care not to listen to this sophistry, for it is just by the systematising of these arguments that legal plunder becomes systematised.

And this is what has taken place. The delusion of the day is to enrich all classes at the expense of each other; it is to generalise plunder under pretence of organising it. Now, legal plunder may be exercised in an infinite multitude of ways. Hence come an infinite multitude of plans for organisation; tariffs, protection, perquisites, gratuities, encouragements, progressive taxation, gratuitous instruction, right to labour, right to profit, right to wages, right to assistance, right to instruments of labour, gratuity of credit, &c., &c. And it is all these plans, taken as a whole, with what they have in common, legal, plunder, which takes the name of socialism.

Now socialism, thus defined, and forming a doctrinal body, what other war would you make against it than a war of doctrine? You find this doctrine false, absurd, abominable. Refute it. This will be all the more easy, the more false, the more absurd and the more abominable it is. Above all, if you wish to be strong, begin by rooting out of your legislation every particle of socialism which may have crept into it,--and this will be no light work.

But how is it that M. Montalembert does not see that he is placing himself in a vicious circle? You would oppose law to socialism. But it is the law which socialism invokes. It aspires to legal, not extra-legal plunder. It is of the law itself, like monopolists of all kinds, that it wants to make an instrument; and when once it has the law on its side, how will you be able to turn the law against it? How will you place it under the power of your tribunals, your gendarmes, and of your prisons? What will you do then? You wish to prevent it from taking any part in the making of laws. You would keep it outside the Legislative Palace. In this you will not succeed, I venture to prophesy, so long as legal plunder is the basis of the legislation within.

It is absolutely necessary that this question of legal plunder should be determined, and there are only three solutions of it:--

1. When the few plunder the many.

Partial plunder, universal plunder, absence of plunder, amongst these we have to make our choice. The law can only produce one of these results.

And, in all sincerity, can anything more be required at the hands of the law? Can the law, whose necessary sanction is force, be reasonably employed upon anything beyond securing to every one his right? I defy any one to remove it from this circle without perverting it, and consequently turning force against right. And as this is the most fatal, the most illogical social perversion which can possibly be imagined, it must be admitted that the true solution, so much sought after, of the social problem, is contained in these simple words--Law is organised Justice.

Now it is important to remark, that to organise justice by law, that is to say by force, excludes the idea of organising by law, or by force any manifestation whatever of human activity--labour, charity, agriculture, commerce, industry, instruction, the fine arts, or religion; for any one of these organisations would inevitably destroy the essential organisation. How, in fact, can we imagine force encroaching upon the liberty of citizens without infringing upon justice, and so acting against its proper aim?

Here I am encountering the most popular prejudice of our time. It is not considered enough that law should be just, it must be philanthropic. It is not sufficient that it should guarantee to every citizen the free and inoffensive exercise of his faculties, applied to his physical, intellectual, and moral development; it is required to extend well-being, instruction, and morality, directly over the nation. This is the fascinating side of socialism.

But, I repeat it, these two missions of the law contradict each other. We have to choose between them. A citizen cannot at the same time be free and not free. M. de Lamartine wrote to me one day thus:--"Your doctrine is only the half of my programme; you have stopped at liberty, I go on to fraternity." I answered him:--"The second part of your programme will destroy the first." And in fact it is impossible for me to separate the word fraternity from the word voluntary. I cannot possibly conceive fraternity legally enforced, without liberty being legally destroyed, and justice legally trampled under foot. Legal plunder has two roots: one of them, as we have already seen, is in human egotism; the other is in false philanthropy.

I do not take it, as it often is taken, in a vague, undefined, relative, or metaphorical sense. I use it in its scientific acceptation, and as expressing the opposite idea to property. When a portion of wealth passes out of the hands of him who has acquired it, without his consent, and without compensation, to him who has not created it, whether by force or by artifice, I say that property is violated, that plunder is perpetrated. I say that this is exactly what the law ought to repress always and everywhere. If the law itself performs the action it ought to repress, I say that plunder is still perpetrated, and even, in a social point of view, under aggravated circumstances. In this case, however, he who profits from the plunder is not responsible for it; it is the law, the lawgiver, society itself, and this is where the political danger lies.

When law and force keep a man within the bounds of justice, they impose nothing upon him but a mere negation. They only oblige him to abstain from doing harm. They violate neither his personality, his liberty, nor his property. They only guard the personality, the liberty, the property of others. They hold themselves on the defensive; they defend the equal right of all. They fulfil a mission whose harmlessness is evident, whose utility is palpable, and whose legitimacy is not to be disputed. This is so true that, as a friend of mine once remarked to me, to say that the aim of the law is to cause justice to reign, is to use an expression which is not rigorously exact. It ought to be said, the aim of the law is to prevent injustice from reigning. In fact, it is not justice which has an existence of its own, it is injustice. The one results from the absence of the other.

But when the law, through the medium of its necessary agent--force, imposes a form of labour, a method or a subject of instruction, a creed, or a worship, it is no longer negative; it acts positively upon men. It substitutes the will of the legislator for their own will, the initiative of the legislator for their own initiative. They have no need to consult, to compare, or to foresee; the law does all that for them. The intellect is for them a useless lumber; they cease to be men; they lose their personality, their liberty, their property.

You say, "There are men who have no money," and you apply to the law. But the law is not a self-supplied fountain, whence every stream may obtain supplies independently of society. Nothing can enter the public treasury, in favour of one citizen or one class, but what other citizens and other classes have been forced to send to it. If every one draws from it only the equivalent of what he has contributed to it, your law, it is true, is no plunderer, but it does nothing for men who want money--it does not promote equality. It can only be an instrument of equalisation as far as it takes from one party to give to another, and then it is an instrument of plunder. Examine, in this light, the protection of tariffs, prizes for encouragement, right to profit, right to labour, right to assistance, right to instruction, progressive taxation, gratuitousness of credit, social workshops, and you will always find at the bottom legal plunder, organised injustice.

Socialism, like the old policy from which it emanates, confounds Government and society. And so, every time we object to a thing being done by Government, it concludes that we object to its being done at all. We disapprove of education by the State--then we are against education altogether. We object to a State religion--then we would have no religion at all. We object to an equality which is brought about by the State--then we are against equality, &c., &c. They might as well accuse us of wishing men not to eat, because we object to the cultivation of corn by the State.

In fact, they begin by supposing that men are devoid of any principle of action, and of any means of discernment in themselves; that they have no moving spring in them; that they are inert matter, passive particles, atoms without impulse; at best a vegetation indifferent to its own mode of existence, susceptible of receiving, from an exterior will and hand, an infinite number of forms, more or less symmetrical, artistic, and perfected.

Moreover, every one of these politicians does not scruple to imagine that he himself is, under the names of organiser, discoverer, legislator, institutor or founder, this will and hand, this universal spring, this creative power, whose sublime mission it is to gather together these scattered materials, that is, men, into society.

Whilst mankind tends to evil, they incline to good; whilst mankind is advancing towards darkness, they are aspiring to enlightenment; whilst mankind is drawn towards vice, they are attracted by virtue. And, this granted, they demand the assistance of force, by means of which they are to substitute their own tendencies for those of the human race.

It is only needful to open, almost at random, a book on philosophy, polities, or history, to see how strongly this idea--the child of classical studies and the mother of socialism--is rooted in our country; that mankind is merely inert matter, receiving life, organisation, morality, and wealth from power; or, rather, and still worse--that mankind itself tends towards degradation, and is only arrested in its tendency by the mysterious hand of the legislator. Classical conventionalism shows us everywhere, behind passive society, a hidden power, under the names of Law, or Legislator (or, by a mode of expression which refers to some person or persons of undisputed weight and authority, but not named), which moves, animates, enriches, and regenerates mankind.

Fenelon.--Reared in the study and admiration of antiquity, and a witness of the power of Louis XIV., Fenelon naturally adopted the idea that mankind should be passive, and that its misfortunes and its prosperities, its virtues and its vices, are caused by the external influence which is exercised upon it by the law, or by the makers of the law. Thus, in his Utopia of Salentum, he brings the men, with their interests, their faculties, their desires, and their possessions, under the absolute direction of the legislator. Whatever the subject may be, they themselves have no voice in it--the prince judges for them. The nation is just a shapeless mass, of which the prince is the soul. In him resides the thought, the foresight, the principle of all organisation, of all progress; on him, therefore, rests all the responsibility.

Vulgar infatuation may exclaim, if it likes:--"It is Montesquieu! magnificent! sublime!" I am not afraid to express my opinion, and to say:--"What! you have the face to call that fine? It is frightful! it is abominable! and these extracts, which I might multiply, show that, according to Montesquieu, the persons, the liberties, the property, mankind itself, are nothing but materials to exercise the sagacity of lawgivers."

And, in fact, what is the political work which we are endeavouring to promote? It is no other than the instinctive effort of every people towards liberty. And what is liberty, whose name can make every heart beat, and which can agitate the world, but the union of all liberties, the liberty of conscience, of instruction, of association, of the press, of locomotion, of labour, and of exchange; in other words, the free exercise, for all, of all the inoffensive faculties; and again, in other words, the destruction of all despotisms, even of legal despotism, and the reduction of law to its only rational sphere, which is to regulate the individual right of legitimate defence, or to repress injustice?

"The principle of the Republican Government is virtue, and the means to be adopted, during its establishment, is terror. We want to substitute, in our country, morality for egotism, probity for honour, principles for customs, duties for decorum, the empire of reason for the tyranny of fashion, contempt of vice for contempt of misfortune, pride for insolence, greatness of soul for vanity, love of glory for love of money, good people for good company, merit for intrigue, genius for wit, truth for glitter, the charm of happiness for the weariness of pleasure, the greatness of man for the littleness of the great, a magnanimous, powerful, happy people, for one that is easy, frivolous, degraded; that is to say, we would substitute all the virtues and miracles of a republic for all the vices and absurdities of monarchy."

One of the strangest phenomena of our time, and one which will probably be a matter of astonishment to our descendants, is the doctrine which is founded upon this triple hypothesis: the radical passiveness of mankind,--the omnipotence of the law,--the infallibility of the legislator:--this is the sacred symbol of the party which proclaims itself exclusively democratic.

The pretensions of organisers suggest another question, which I have often asked them, and to which I am not aware that I ever received an answer:--Since the natural tendencies of mankind are so bad that it is not safe to allow them liberty, how comes it to pass that the tendencies of organisers are always good? Do not the legislators and their agents form a part of the human race? Do they consider that they are composed of different materials from the rest of mankind? They say that society, when left to itself, rushes to inevitable destruction, because its instincts are perverse. They pretend, to stop it in its downward course, and to give it a better direction. They have, therefore, received from heaven, intelligence and virtues which place them beyond and above mankind: let them show their title to this superiority. They would be our shepherds, and we are to be their flock. This arrangement presupposes in them a natural superiority, the right to which we are fully justified in calling upon them to prove.

You must observe that I am not contending against their right to invent social combinations, to propagate them, to recommend them, and to try them upon themselves, at their own expense and risk; but I do dispute their right to impose them upon us through the medium of the law, that is, by force and by public taxes.

I have no hesitation in answering, Law is common force organised to prevent injustice;--in short, Law is Justice.

Law is justice.

The law is justice.

Nothing can be more clear and simple, more perfectly defined and bounded, or more visible to every eye; for justice is a given quantity, immutable and unchangeable, and which admits of neither increase or diminution.

Depart from this point, make the law religious, fraternal, equalising, industrial, literary, or artistic, and you will be lost in vagueness and uncertainty; you will be upon unknown ground, in a forced Utopia, or, which is worse, in the midst of a multitude of Utopias, striving to gain possession of the law, and to impose it upon you; for fraternity and philanthropy have no fixed limits, like justice. Where will you stop? Where is the law to stop? One person, as M. de Saint Cricq, will only extend his philanthropy to some of the industrial classes, and will require the law to dispose of the consumers in favour of the producers. Another, like M. Considerant, will take up the cause of the working classes, and claim for them by means of the law, at a fixed rate, clothing, lodging, food, and everything necessary for the support of life. A third, as, M. Louis Blanc, will say, and with reason, that this would be an incomplete fraternity, and that the law ought to provide them with instruments of labour and the means of instruction. A fourth will observe that such an arrangement still leaves room for inequality, and that the law ought to introduce into the most remote hamlets luxury, literature, and the arts. This is the high road to communism; in other words, legislation will be--what it now is--the battle-field for everybody's dreams and everybody's covetousness.

And it is under the law of justice, under the reign of right, under the influence of liberty, security, stability, and responsibility, that every man will attain to the measure of his worth, to all the dignity of his being, and that mankind will accomplish, with order and with calmness--slowly, it is true, but with certainty--the progress decreed to it.

And have I not experience on my side? Cast your eye over the globe. Which are the happiest, the most moral, and the most peaceable nations? Those where the law interferes the least with private activity; where the Government is the least felt; where individuality has the most scope, and public opinion the most influence; where the machinery of the administration is the least important and the least complicated; where taxation is lightest and least unequal, popular discontent the least excited and the least justifiable; where the responsibility of individuals and classes is the most active, and where, consequently, if morals are not in a perfect state, at any rate they tend incessantly to correct themselves; where transactions, meetings, and associations are the least fettered; where labour, capital, and production suffer the least from artificial displacements; where mankind follows most completely its own natural course; where the thought of God prevails the most over the inventions of men; those, in short, who realise the most nearly this idea--That within the limits of right, all should flow from the free, perfectible, and voluntary action of man; nothing be attempted by the law or by force, except the administration of universal justice.

God has implanted in mankind, also, all that is necessary to enable it to accomplish its destinies. There is a providential social physiology, as well as a providential human physiology. The social organs are constituted so as to enable them to develop harmoniously in the grand air of liberty. Away, then, with quacks and organisers! Away with their rings, and their chains, and their hooks, and their pincers! Away with their artificial methods! Away with their social workshops, their governmental whims, their centralization, their tariffs, their universities, their State religions, their gratuitous or monopolising banks, their limitations, their restrictions, their moralisations, and their equalisation by taxation! And now, after having vainly inflicted upon the social body so many systems, let them end where they ought to have begun--reject all systems, and make trial of liberty--of liberty, which is an act of faith in God and in His work.