5. What Ought to Have Been Done: Principles on This Subject

“In morality nothing can take the place of the simple and natural means. But the more time man has lost in useless trials, the more he dreads the idea of beginning again; as if it were not always better to begin once more and finish, than to remain at the mercy of events and of artificial expedients, with which one will be for ever beginning again without ever getting any further!”

In every free nation — and every nation ought to be free — there is only one way of settling the disputes that arise concerning the constitution. It is not to Notables that recourse must be had, but to the nation itself. If we lack a constitution, one must be made; the nation alone has the right to make it. If we have a constitution, as some obstinately maintain, and if by it the National Assembly is divided, as they claim, into three deputations of three orders of citizens, it cannot at least be overlooked that there is, on the part of one of these orders, so strong a protest that it is impossible to take one step further without judging it. Now, to whom does it belong to decide such disputes?

A question of this nature can seem indifferent only to those who, counting just and natural means for little in social matters, value only those artificial expedients, more or less iniquitous, more or less complicated, which everywhere make the reputation of what are called statesmen, great politicians. For our part, we shall not depart from morality; it must govern all the relations that bind men to one another, to their particular interest and to their common or social interest. It is for morality to tell us what ought to have been done; and, after all, it alone can tell it. One must always come back to simple principles, as more powerful than all the efforts of genius.

The social mechanism will never be understood unless one decides to analyse a society like an ordinary machine, to consider each part of it separately, and then to put them all together again in the mind, one after another, so as to grasp their correspondences and understand the general harmony that must result. We have no need here to undertake so extensive a work. But since one must always be clear, and one is not clear when discoursing without principles, we shall at least ask the reader to consider, in the formation of a political society, three periods, the distinction between which will prepare the way for some necessary clarifications.

In the first, we imagine a more or less considerable number of isolated individuals who wish to unite. By this fact alone they already form a nation: they have all its rights; it remains only to exercise them. This first period is characterised by the play of individual wills. The association is their work; they are the origin of all power.

The second period is characterised by the action of the common will. The associates wish to give consistency to their union; they wish to fulfil its aim. They therefore confer together and agree among themselves on the public needs and the means of providing for them. It is plain that here power belongs to the public. Individual wills are still its origin and form its essential elements; but taken separately their power would be nil. It resides only in the whole. The community needs a common will; without unity of will it would not succeed in making a whole that wills and acts. Certainly, too, this whole has no right that does not belong to the common will.

But let us leap over the intervals of time. The associates are too numerous, and spread over too wide an area, to exercise their common will easily themselves. What do they do? They detach from it whatever is necessary to watch over and provide for public concerns; and the exercise of this portion of the national will, and consequently of power, they entrust to some among them. Here we are at the third period, that is, the period of a government exercised by proxy. Let us note several truths about this. 1. The community does not divest itself of the right to will: that is its inalienable property; it can only commit its exercise. This principle is developed elsewhere. 2. The body of delegates cannot even have the fullness of this exercise. The community could entrust to it, out of its total power, only that portion which is necessary to maintain good order. Nothing superfluous is given in this kind. 3. It does not, therefore, belong to the body of delegates to alter the limits of the power entrusted to it. It is plain that such a faculty would contradict itself.

I distinguish the third period from the second in that it is no longer the real common will that acts; it is a representative common will. Two indelible characteristics belong to it; they must be repeated. 1. This will is not full and unlimited in the body of representatives; it is only a portion of the great common national will. 2. The delegates do not exercise it as a right of their own; it is the right of others; the common will is there only in commission.

For the present I leave aside a host of reflections to which this exposition would quite naturally lead us, and I go on to my aim. The question is to know what ought to be understood by the political constitution of a society, and to note its proper relations with the nation itself.

It is impossible to create a body for an end without giving it an organisation, forms and laws fitted to make it fulfil the functions for which one intended it. That is what is called the constitution of this body. It is evident that it cannot exist without one. It is therefore evident too that every delegated government must have its constitution; and what is true of government in general is true also of all the parts that compose it. Thus the body of representatives, to which the legislative power, or the exercise of the common will, is entrusted, exists only with the mode of being the nation has chosen to give it. It is nothing without its constitutive forms; it acts, it directs itself, it commands only through them.

To this need to organise the body of the government, if it is to exist or to act, must be added the nation’s interest in ensuring that the delegated public power can never become harmful to those who commissioned it. Hence a multitude of political precautions that have been mixed into the constitution, which are so many essential rules for the government, without which the exercise of power would become illegal.

One thus perceives the twofold necessity of subjecting the government to fixed forms, both internal and external, which guarantee its fitness for the end for which it is established and its inability to stray from it.

But let anyone tell us from what point of view, from what interest, a constitution could have been given to the nation itself. The nation exists before everything; it is the origin of everything. Its will is always legal; it is the law itself. Before it and above it there is only natural law. If we wish to form a correct idea of the series of positive laws, which can emanate only from its will, we see in the first rank the constitutional laws, which are divided into two parts: some regulate the organisation and the functions of the legislative body; the others determine the organisation and the functions of the different active bodies. These laws are called fundamental, not in the sense that they can become independent of the national will, but because the bodies that exist and act through them cannot touch them. In each part, the constitution is not the work of the constituted power but of the constituent power. No kind of delegated power can change anything in the conditions of its delegation. It is in this sense, and in no other, that constitutional laws are fundamental. The first, those that establish the legislature, are founded by the national will before any constitution; they form its first degree. The second must likewise be established by a special representative will. Thus all the parts of the government answer to the nation, and depend on it in the last analysis. We offer here only a fleeting idea, but it is accurate.

It is easy to see next how laws properly so called, those that protect citizens and decide the common interest, are the work of the legislative body, formed and moving according to its constitutive conditions. Although we present these laws only in the second rank, they are nevertheless the most important; they are the end, of which the constitution is only the means. They may be divided into two parts: immediate or protective laws, and mediate or directive laws. This is not the place to develop this analysis further.

We have seen the constitution arise in the second period. It is clear that it relates only to the government. It would be ridiculous to suppose the nation itself bound by the formalities, or by the constitution, to which it has subjected its mandatories. If it had had to wait for a positive mode of being in order to become a nation, it would never have been one. The nation is formed by natural law alone. The government, on the contrary, can belong only to positive law. The nation is all that it can be by the mere fact that it is. It does not depend on its will to grant itself more rights or fewer than it has. In its first period it has all those of a nation. In the second it exercises them; in the third it has its representatives exercise all of them that is necessary for the preservation and good order of the community. If one departs from this series of simple ideas, one can only fall from absurdity to absurdity.

The government exercises real power only in so far as it is constitutional; it is legal only in so far as it is faithful to the laws that have been imposed on it. The national will, on the contrary, needs only its reality to be always legal; it is the origin of all legality.

Not only is the nation not subject to a constitution, but it cannot be, it must not be; which again amounts to saying that it is not.

It cannot be. From whom, indeed, could it have received a positive form? Is there a prior authority that could have said to a multitude of individuals: “I unite you under such and such laws; you will form a nation on the conditions I prescribe for you”? We are not speaking here of brigandage or domination, but of legitimate association, that is to say voluntary and free.

Will it be said that a nation can, by a first act of its will, independent indeed of all form, bind itself to will in future only in a determined manner? First, a nation can neither alienate nor forbid itself the right to will; and whatever its will may be, it cannot lose the right to change it as soon as its interest requires. Secondly, towards whom would this nation have bound itself? I can see how it can oblige its members, its mandatories and everything that belongs to it; but can it in any sense impose duties on itself towards itself? What is a contract with oneself? Since both parties are the same will, it is plain that it can always release itself from the supposed engagement.

Even if it could, a nation must not put itself in the shackles of a positive form. That would be to risk losing its liberty beyond recall, for tyranny would need only a moment’s success to deliver the peoples, on the pretext of a constitution, to a form such that it would no longer be possible for them to express their will freely, and consequently to shake off the chains of despotism. Nations on earth must be conceived as individuals outside the social bond, or, as it is said, in the state of nature. The exercise of their will is free and independent of all civil forms. Existing only in the natural order, their will needs only to bear the natural characteristics of a will in order to take full effect. In whatever manner a nation wills, it is enough that it wills; all forms are good, and its will is always the supreme law. Since, to imagine a legitimate society, we have supposed that purely natural individual wills had the moral power to form the association, how could we refuse to recognise a similar force in a common will that is equally natural? A nation never leaves the state of nature, and amid so many perils it can never have too many possible ways of expressing its will. Let us not be afraid to repeat it: a nation is independent of every form; and in whatever manner it wills, it is enough that its will should appear for all positive law to cease before it, as before the source and supreme master of all positive law.

But there is a still more pressing proof of the truth of our principles, though they could do without further proofs.

A nation must not and cannot bind itself to constitutional forms, for at the first dispute that arose between the parts of that constitution, what would become of a nation so disposed and ordered that it could act only according to the disputed constitution? Let us consider how essential it is, in the civil order, that citizens should find in one branch of the active power a prompt authority to settle their lawsuits. In the same way, the various parts of the active power must, among a free people, have the liberty of invoking the decision of the legislature in all unforeseen difficulties. But if your legislature itself, if the different parts of this first constitution, do not agree among themselves, who will be the supreme judge? For there must always be one, or else anarchy succeeds to order.

How can anyone imagine that a constituted body could decide on its own constitution? One or several integral parts of a moral body are nothing separately. Power belongs only to the whole. As soon as one part protests, the whole no longer exists; and if it does not exist, how could it judge? Thus it must be felt that there would no longer be any constitution in a country at the least trouble that arose between its parts, if the nation did not exist independently of every rule and every constitutional form.

With the help of these clarifications, we can answer the question we put to ourselves. It is certain that the parts of what you believe to be the French constitution are not in agreement with one another. To whom, then, does it belong to decide? To the nation, independent, as it necessarily is, of every positive form. Even if the nation had its regular Estates-General, it would not be for this constituted body to pronounce on a dispute that touches its constitution. That would be a begging of the question, a vicious circle.

The ordinary representatives of a people are charged with exercising, in the constitutional forms, that whole portion of the common will that is necessary for the maintenance of a good social administration. Their power is confined to the affairs of the government.

Extraordinary representatives will have whatever new power it pleases the nation to give them. Since a great nation cannot really assemble itself every time that circumstances outside the common order might require it, it must entrust to extraordinary representatives the powers necessary on such occasions. If it could gather before you and express its will, would you dare to dispute that will with it because it was not exercising it in one form rather than another? Here reality is everything, form nothing.

A body of extraordinary representatives takes the place of the assembly of that nation. It need not, no doubt, be charged with the fullness of the national will; it needs only a special power, and in rare cases; but it takes the place of the nation in its independence of all constitutional forms. It is not necessary here to take so many precautions to prevent the abuse of power; these representatives are deputed for one matter only, and for a limited time. I say that they are not bound by the constitutional forms on which they have to decide. 1. That would be contradictory, for these forms are undecided; it is for them to settle them. 2. They have nothing to say in the kind of business for which positive forms had been fixed. 3. They are put in the place of the nation itself, which has to settle the constitution. They are independent of it as the nation is. It is enough for them to will as individuals will in the state of nature; in whatever manner they are deputed, assemble and deliberate, provided that it cannot be unknown (and how could the nation that commissions them not know it?) that they are acting by virtue of an extraordinary commission from the people, their common will shall be worth that of the nation itself.

I do not mean that a nation cannot give its ordinary representatives the new commission in question here. The same persons may no doubt take part in forming different bodies, and exercise successively, by virtue of special mandates, powers which by their nature must not be confused. But it remains true that an extraordinary representation does not resemble the ordinary legislature. They are distinct powers. The latter can move only in the forms and on the conditions imposed on it. The former is subject to no particular form: it assembles and deliberates as the nation itself would do if, being composed of only a small number of individuals, it wished to give its government a constitution. These are not useless distinctions. All the principles we have just set out are essential to the social order; it would not be complete if a single case could arise for which it could not indicate rules of conduct able to provide for everything.

It is time to return to the title of this chapter. What ought to have been done amid the embarrassment and the disputes over the coming Estates-General? Call Notables? No. Let the nation and its affairs languish? No. Manoeuvre with the parties concerned to get each of them to give way on its side? No. Recourse should have been had to the great means of an extraordinary representation. It was the nation that should have been consulted.

Let us answer two questions that still present themselves. Where is the nation to be found? To whom does it belong to consult it?

1. Where is the nation to be found? Where it is: in the forty thousand parishes that take in the whole territory, all the inhabitants and all who pay tribute to the commonwealth; that, without doubt, is the nation. A territorial division would have been indicated, to make it easier to form, through first deputies, districts of twenty to thirty parishes. On a similar plan, the districts would have formed provinces, and these would have sent to the capital true extraordinary representatives, with special power to decide the constitution of the Estates-General.

Will you say that this means would have caused too many delays? No more, truly, than that series of expedients which has only ended in muddling affairs. Besides, the point was to take the true means of reaching one’s goal, not to bargain with time. If people had wished, or had known how, to pay homage to sound principles, more would have been done for the nation in four months than the course of enlightenment and of public opinion — which I nonetheless suppose very powerful — will be able to do in half a century.

But, you will say, if the majority of citizens had named the extraordinary representatives, what would have become of the distinction of the three orders? What would become of privileges? What they ought to become. The principles I have just set out are certain. Either all social order must be given up, or they must be recognised. The nation is always master of reforming its constitution. Above all, it cannot avoid giving itself a definite one when its constitution is disputed. Everyone agrees on this today; and do you not see that it would be impossible for it to touch it if it were itself only a party to the quarrel? A body subject to constitutive forms can decide nothing except according to its constitution. It cannot give itself another. It ceases to exist from the moment it moves, speaks or acts otherwise than in the forms imposed on it. The Estates-General, even if they were assembled, are therefore incompetent to decide anything about the constitution. This right belongs to the nation alone, independent, we never cease to repeat, of all forms and all conditions.

The privileged, as we see, have good reasons for confusing ideas and principles on this matter. They will maintain today, with intrepidity, the contrary of what they were asserting six months ago. Then there was only one cry in France: we had no constitution, and we were asking to form one. Today we not only have a constitution, but, if the privileged are to be believed, it contains two excellent and unassailable provisions. The first is the division of citizens into orders; the second is equality of influence for each order in the formation of the national will. We have already proved sufficiently that, even if all these things formed our constitution, the nation would always be master of changing them. It remains to examine more particularly the nature of this equality of influence that people would like to attribute to each order over the national will. We shall see that this idea is the most absurd possible, and that there is no nation that could put anything of the kind into its constitution.

A political society can only be the whole body of the associates. A nation cannot decide that it will not be the nation, or that it will be so only in one manner: for that would be to say that it is not so in any other. In the same way, a nation cannot ordain that its common will shall cease to be its common will. It is unfortunate to have to state propositions whose simplicity would seem foolish if one did not think of the consequences people want to draw from them. Therefore a nation can never have ordained that the rights inherent in the common will, that is to say in the majority, should pass to the minority. The common will cannot destroy itself. It cannot change the nature of things and make the opinion of the minority the opinion of the majority. It is plain that such a statute, instead of being a legal or moral act, would be an act of madness.

If, then, it is claimed that it belongs to the French constitution that two hundred thousand individuals should make up, out of twenty million citizens, two-thirds of the common will, what can one answer, except that someone is maintaining that two and two make five?

Individual wills are the only elements of the common will. One can neither deprive the greater number of the right to take part in it, nor decree that ten wills shall count for only one against ten others that count for thirty. These are contradictions in terms, real absurdities.

If one abandons for a single instant this principle of first evidence, that the common will is the opinion of the majority and not that of the minority, there is no use talking reason. By the same title one may decide that the will of one man alone shall be called the majority, and there is no further need of Estates-General, or of a national will, etc.… For if the will of a noble can be worth ten, why should that of a minister not be worth a hundred, a million, twenty-six million? With such reasons one may very well send all the national deputies home, and stifle all the people’s demands.

Need we insist further on the natural consequence of these principles? It is certain that in the national representation, ordinary or extraordinary, influence can only be in proportion to the number of heads that have the right to be represented. The representative body is always, for what it has to do, in the place of the nation itself. Its influence must keep the same nature, the same proportions and the same rules.

Let us conclude that all the principles are in perfect agreement in deciding: 1. that only an extraordinary representation can touch the constitution, or give us one; 2. that this constituent representation must be formed without regard to the distinction of orders.

2. To whom does it belong to consult the nation? If we had a legislative constitution, each of its parts would have the right to do so, for the reason that recourse to the judges is always open to litigants; or rather because the interpreters of a will are bound to consult those who commissioned them, whether to have their mandate explained, or to inform them of circumstances that would require new powers. But for nearly two centuries we have been without representatives, supposing that we had any then. Since we have none, who will take their place before the nation? Who will warn the people of the need to send extraordinary representatives? The answer to this question can embarrass only those who attach to the word convocation the jumble of English ideas. It is not a question here of royal prerogative, but of the simple and natural meaning of a convocation. This term covers notice to be given of the national need and the appointment of a common meeting place. Now, when the safety of the fatherland presses upon all citizens, shall we lose time inquiring who has the right to convoke? We ought rather to ask: who does not have it? It is the sacred duty of all who can do anything towards it. All the more, then, can the executive power do it, being much better placed than private individuals to give notice to the generality of citizens, to designate the place of assembly, and to remove all the obstacles that corporate interest might put in the way. Certainly the prince, in his capacity as first citizen, has a greater interest than anyone else in convoking the people. If he is incompetent to decide on the constitution, it cannot be said that he is incompetent to call for that decision.

Thus there is no difficulty about the question: What ought to have been done? The nation ought to have been convoked so that it might send to the capital extraordinary representatives with a special mandate to settle the constitution of the ordinary national assembly. I should not have wished these representatives to have, in addition, powers to form themselves afterwards, in another capacity, into the ordinary assembly, in accordance with the constitution they themselves had fixed; I should have feared that, instead of working solely for the national interest, they might pay too much attention to the interest of the body they were about to form. In politics it is the mixing, the confusion of powers, that will constantly make it impossible to establish social order on earth; just as, once people set out to separate what ought to be distinct, they will succeed in solving the great problem of a human society arranged for the general advantage of those who compose it.

I may be asked why I have dwelt so long on what ought to have been done. The past is past, it will be said. I answer, first, that knowing what ought to have been done may lead to knowing what will be done. Secondly, it is always good to present true principles, above all on a subject so new to most minds. Finally, the truths of this chapter may serve to explain better those of the following chapter.