Saturday, February 04, 2006


IN order to discover the rules of society best suited to nations, a superior intelligence beholding all the passions of men without experiencing any of them would be needed. This intelligence would have to be wholly unrelated to our nature, while knowing it through and through; its happiness would have to be independent of us, and yet ready to occupy itself with ours; and lastly, it would have, in the march of time, to look forward to a distant glory, and, working in one century, to be able to enjoy in the next. It would take gods to give men laws.

What Caligula argued from the facts, Plato, in the dialogue called the Politicus, argued in defining the civil or kingly man, on the basis of right. But if great princes are rare, how much more so are great legislators? The former have only to follow the pattern which the latter have to lay down. The legislator is the engineer who invents the machine, the prince merely the mechanic who sets it up and makes it go. "At the birth of societies," says Montesquieu, "the rulers of Republics establish institutions, and afterwards the institutions mould the rulers."

He who dares to undertake the making of a people's institutions ought to feel himself capable, so to speak, of changing human nature, of transforming each individual, who is by himself a complete and solitary whole, into part of a greater whole from which he in a manner receives his life and being; of altering man's constitution for the purpose of strengthening it; and of substituting a partial and moral existence for the physical and independent existence nature has conferred on us all. He must, in a word, take away from man his own resources and give him instead new ones alien to him, and incapable of being made use of without the help of other men. The more completely these natural resources are annihilated, the greater and the more lasting are those which he acquires, and the more stable and perfect the new institutions; so that if each citizen is nothing and can do nothing without the rest, and the resources acquired by the whole are equal or superior to the aggregate of the resources of all the individuals, it may be said that legislation is at the highest possible point of perfection.

The legislator occupies in every respect an extraordinary position in the State. If he should do so by reason of his genius, he does so no less by reason of his office, which is neither magistracy, nor Sovereignty. This office, which sets up the Republic, nowhere enters into its constitution; it is an individual and superior function, which has nothing in common with human empire; for if he who holds command over men ought not to have command over the laws, he who has command over the laws ought not any more to have it over men; or else his laws would be the ministers of his passions and would often merely serve to perpetuate his injustices: his private aims would inevitably mar the sanctity of his work.

When Lycurgus gave laws to his country, he began by resigning the throne. It was the custom of most Greek towns to entrust the establishment of their laws to foreigners. The Republics of modern Italy in many cases followed this example; Geneva did the same and profited by it.13 Rome, when it was most prosperous, suffered a revival of all the crimes of tyranny, and was brought to the verge of destruction, because it put the legislative authority and the sovereign power into the same hands.

Nevertheless, the decemvirs (sic. Decimviri translating to 10 men, as in council of) themselves never claimed the right to pass any law merely on their own authority. "Nothing we propose to you," they said to the people, "can pass into law without your consent. Romans, be yourselves the authors of the laws which are to make you happy."

He, therefore, who draws up the laws has, or should have, no right of legislation, and the people cannot, even if it wishes, deprive itself of this incommunicable right, because, according to the fundamental compact, only the general will can bind the individuals, and there can be no assurance that a particular will is in conformity with the general will, until it has been put to the free vote of the people. This I have said already; but it is worth while to repeat it.

Thus in the task of legislation we find together two things which appear to be incompatible: an enterprise too difficult for human powers, and, for its execution, an authority that is no authority.

There is a further difficulty that deserves attention. Wise men, if they try to speak their language to the common herd instead of its own, cannot possibly make themselves understood. There are a thousand kinds of ideas which it is impossible to translate into popular language. Conceptions that are too general and objects that are too remote are equally out of its range: each individual, having no taste for any other plan of government than that which suits his particular interest, finds it difficult to realise the advantages he might hope to draw from the continual privations good laws impose. For a young people to be able to relish sound principles of political theory and follow the fundamental rules of statecraft, the effect would have to become the cause; the social spirit, which should be created by these institutions, would have to preside over their very foundation; and men would have to be before law what they should become by means of law. The legislator therefore, being unable to appeal to either force or reason, must have recourse to an authority of a different order, capable of constraining without violence and persuading without convincing.

This is what has, in all ages, compelled the fathers of nations to have recourse to divine intervention and credit the gods with their own wisdom, in order that the peoples, submitting to the laws of the State as to those of nature, and recognising the same power in the formation of the city as in that of man, might obey freely, and bear with docility the yoke of the public happiness.

This sublime reason, far above the range of the common herd, is that whose decisions the legislator puts into the mouth of the immortals, in order to constrain by divine authority those whom human prudence could not move. But it is not anybody who can make the gods speak, or get himself believed when he proclaims himself their interpreter. The great soul of the legislator is the only miracle that can prove his mission. Any man may grave tablets of stone, or buy an oracle, or feign secret intercourse with some divinity, or train a bird to whisper in his ear, or find other vulgar ways of imposing on the people. He whose knowledge goes no further may perhaps gather round him a band of fools; but he will never found an empire, and his extravagances will quickly perish with him. Idle tricks form a passing tie; only wisdom can make it lasting. The Judaic law, which still subsists, and that of the child of Ishmael, which, for ten centuries, has ruled half the world, still proclaim the great men who laid them down; and, while the pride of philosophy or the blind spirit of faction sees in them no more than lucky impostures, the true political theorist admires, in the institutions they set up, the great and powerful genius which presides over things made to endure.

We should not, with Warburton, conclude from this that politics and religion have among us a common object, but that, in the first periods of nations, the one is used as an instrument for the other.


Blogger JasonJ said...

This would almost seem an unusual concept in our society. The Legislator as neither magistrate nor sovereign, this is the clear separation of rule of law from the previous rule of men. A man who makes the law can have no power over the enforcement of the law; and a man who ministers the law can equally have no place in writing it. This would seem to be a fundamental agreement that is put in place to avoid the usurpation of power that would lead the state to despotism. Can we not all agree on this? So what do we make of current practice in our United Sates of America, where all too often the nature of the law and the wording of the very law is suggested to the legislature by the President (prince in Rousseau's term)? And what of legislative policy regarding industry when the very wording of the laws which are to be abided are written by members of the very industry they govern for the protection of the sovereign? But to counter, are these entities not members of the sovereign; and aren't the legislators bound to the wills of the governed? Where do these lines become blurred and where do we find the correct paths to take according to the wishes of our forefathers? How do we decide if even that route is the best for our future interests collectively?

Let us back up to the first problem. Article I of the US Constitution states that: All legislative powers herein granted shall be vested in a Congress of the United States which shall consist of a Senate and a House of Representatives. How often do we hear in the media that the President is pushing this bill or that bill such as the ambitious "Protection of Marriage Act" among others through congress? What does such a statement even mean? It appears to be a growing trend in American politics that every new president assume office with an 'agenda' in mind. A set of goals he, or perhaps someday she, desires to accomplish before leaving office. While I applaud people setting goals in their lives, I hardly see where it is fruitful to a nation for its most esteemed represetative to have a personal agenda set forth by the persons who funnelled money into the campaign coffers of this individual while trying to convince the citizens why he makes a good leader. I have looked at the Constitution numerous times and never found any reference to the president writing the laws he has taken an oath to uphold. Any attempt to legislate from the pulpit should be a clear sign to the proper legislative bodies and to the sovereign that this is an usurpation of the given authority that requires redress by the aforementioned bodies. This still has yet to be redressed by either in any meaningful manner. I am not just accusing the current Administrator of such grievances, indeed this has been a long standing policy of usurpation by a number of strong administrations which has just come to a head by a rather forceful Oval Office.

I next find fault in legislative committees whos decks are stacked with the corporate representatives from the industries they have been formed to regulate. This is such a huge problem that is never addressed by any governmental function that I do not even know where to begin, but for those who would like more information on this topic I would suggest reading "Democracy for the Few" by Michael Parenti.

So what about the notion that these are members of the state? Shouldn't they be able to make their voices heard? To this I would answer that all private individuals should have the right to be heard; but when one man can only whisper while another man has a bullhorn pointed in the ears of the decision makers the odds are not all that in favor of honest debate and two or more sided argument on the best path to choose. I do not wholly blame the private interests for voicing their opinions. I also fault the listener who has become much more in tuned with the voices padding their wallets while bending their ears. I assert that this very situation is destroying the very fabric of our society. If this is not a frightening prospect, then I would challenge anyone to show me one more frightening.

Good laws are few and far between. They are wise and written by wise and farsighted men. What we have lost in our America is the ability to think in terms that do not consider cash flow as the only deciding factor for right an wrong. What we have lost is a classical education in Philosophy, Science and Critical Thinking. They have been replaced by Pseudo-Science, Current Events, and Economics. Can we ever regain all we have lost?

I am reminded of another famous quote of Mr. Rousseau. Liberty can always be created, but once lost can never be regained.

How much liberty, how much humanity must we lose before we can muster the strenth to stand on our own two feet and say "Enough".

You tell me America.

Sat Feb 04, 10:08:00 AM CST  

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