The Lawmaker

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.¹ It would take gods to give men laws.

To discover the rules of society best suited to nations, we would need a superior intelligence. This intelligence would have to see all human passions without experiencing any of them. It would have to be entirely separate from human nature, yet understand human nature completely. Its happiness would have to be independent of ours, yet it would have to concern itself with our happiness. Finally, it would have to look ahead to distant glory as time passed. It would have to work in one century and be able to enjoy the rewards in the next.¹ It would take gods to give humans 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."²

Caligula based his argument on facts. Plato made the same argument on the basis of right in his dialogue Politicus, when defining the statesman or king. But if great princes are rare, how much rarer are great legislators? Princes only have to follow the model that legislators must create. The legislator is the engineer who invents the machine. The prince is merely the mechanic who assembles the machine and makes it run. "When societies first form," says Montesquieu, "the rulers of Republics establish institutions, and afterwards those institutions shape the rulers."²

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.

Anyone who dares to create a people's institutions should feel capable of changing human nature, so to speak. Each individual is a complete and independent whole. The lawmaker must feel capable of making each individual part of a greater whole. From that greater whole, the individual receives, in a sense, his life and being. The lawmaker must reshape human nature to strengthen it. He must replace the physical, independent existence nature gives us all with a moral existence as part of a whole. In short, he must take away people's own resources and replace them with new ones foreign to them. These new resources must be impossible to use without other people's help. The more completely these natural resources are destroyed, the greater and more lasting the acquired resources become. The new institutions also become more stable and more perfect. Thus, suppose each citizen is nothing and can do nothing without the others. Suppose also that the whole's acquired resources equal or exceed the combined resources of all the individuals. If these conditions are met, legislation may be said to have reached the highest possible 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.

The legislator holds an extraordinary position in the State in every respect. If his genius gives him this position, his office does so no less. His office is neither that of a magistrate nor that of the Sovereign. It establishes the Republic but has no place within the Republic’s constitution. It is a distinct, higher role, with nothing in common with ruling people. For if those who command people should not command the laws, neither should those who command the laws command people. Otherwise, the legislator’s laws would serve his passions and would often merely prolong his injustices. His private aims would inevitably corrupt the sacred character 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.³ 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.

When Lycurgus gave his country laws, he first stepped down from the throne. Most Greek towns traditionally trusted foreigners to draw up their laws. The republics of modern Italy often followed this example. Geneva did the same and benefited from doing so.³ At the height of its prosperity, Rome saw all the crimes of tyranny return and came close to destruction. This happened because Rome placed the authority to make laws and sovereign power in the same hands.

Nevertheless, the decemvirs 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."

Still, the decemvirs themselves never claimed the right to pass any law on their authority alone. "Nothing we propose to you," they told the people, "can become law without your consent. Romans, write for yourselves the laws meant 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.

Therefore, whoever drafts the laws has, or should have, no right to enact them. The people cannot give up this right, even if they wish to, because the right cannot be transferred. Under the fundamental compact, only the general will can bind individuals. And no one can be sure that a particular will agrees with the general will until the people vote freely on it. I have said this already, but it is worth repeating.

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.

So the task of making laws brings together two things that seem incompatible. The task is beyond human abilities, yet carrying it out requires an authority that has no real 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.

There is another difficulty worth considering. Wise men cannot make themselves understood if they address ordinary people in their own language rather than the people's language. A thousand kinds of ideas cannot be expressed in everyday language. Ideas that are too general and concerns that are too distant are equally beyond ordinary people's grasp. Each person wants only a form of government that serves his own interests. So he struggles to see the benefits he might gain from the constant sacrifices good laws require. For a newly formed people to appreciate sound political principles and follow the basic rules of government, the effect would have to become the cause. The community spirit these institutions should create would have to guide their very founding. And before living under laws, people would have to be what those laws should make them. The lawgiver therefore cannot appeal to either force or reason. Instead, he must turn to a different kind of authority, capable of compelling 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 is what has, in all ages, forced the founders of nations to appeal to divine intervention. They credited the gods with their own wisdom so that people would submit to state laws as to nature’s laws. The aim was for people to recognize the same power in the creation of cities as in human creation. People could then obey freely and willingly bear the burden of 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.⁴ 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.

This lofty reason lies far beyond the understanding of the common crowd. The legislator puts its judgments into the mouths of the gods. He does so to compel, through divine authority, those whom human wisdom could not persuade.⁴ But not just anyone can make the gods speak, or be believed when he claims to interpret their words. The legislator’s greatness of soul is the only miracle that can prove his mission. Any man can carve stone tablets or buy an oracle. He can pretend to communicate secretly with a god, or train a bird to whisper in his ear. Or he can find other crude ways to deceive the people. A man whose knowledge goes no further may perhaps gather a band of fools around him. But he will never found an empire, and his wild schemes will quickly die with him. Empty tricks create a temporary bond. Only wisdom can make that bond last. The Judaic law still survives. The law of the child of Ishmael has ruled half the world for ten centuries. Both laws still testify to the greatness of the men who established them. Philosophical arrogance or blind loyalty to a faction sees these laws as nothing more than successful frauds. But the true political thinker admires the great and powerful genius shown in the institutions these men established. Such genius guides the creation of things built 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.

We should not conclude from this, as Warburton does, that politics and religion share a common purpose in our society. Instead, we should conclude that, in nations’ early days, one is used as a tool for the other.