Individual Rights

by Benjamin Constant

WIP

(Original French version: Des droits individuels. Editor's note: This text by Benjamin Constant has never been translated to English or published as it is. However, parts of the text were reused by him from his other texts, which were. Thus I used the relevant English translations from the existing translation of Principe des politique, Principles of Politics Applicable to All Governments).

A writer much to be recommended for the depth, precision, and originality of his thinking, Jeremy Bentham, has recently protested against the idea of rights and above all of natural, inalienable, and imprescriptible rights. He has claimed that this idea is liable only to mislead us, and that in its place should be put the idea of utility, which he sees as simpler and more intelligible.

Since this preferred route of his has led him to conclusions just the same as mine, I would rather not dispute his terminology. I must take issue with it, however, because the principle of utility, in the way Bentham presents it to us, seems to me to have the drawbacks common to all vague locutions, and moreover to have its own special dangers.

No doubt by defining the word “utility” appropriately, one can contrive to base on this notion exactly the same rules as those which flow from the idea of natural right and justice. A careful examination of all the questions which seem to put what is useful in opposition to what is just, leads one always to the finding that what is not just is never useful. It is nonetheless true, however, that the word “utility,” in its common meaning, summons up a different notion from that conveyed by justice or right. Now, when usage and common reason attach a fixed meaning to a word, it is dangerous to change that meaning. In vain you go on to explain what you meant. The word stays what it was and your explanation is forgotten.

“One cannot,” says Bentham(1), “reason with fanatics armed with a natural right each one understands as he sees fit, and applies as it suits him.” But by his own admission, the utility principle is quite as susceptible to multiple interpretations and contradictory applications. Utility, he says(2), has often been misapplied. Taken in a narrow sense, it has lent its name to crimes. “But we must not cast back on the principle faults which are contrary to it and which it alone can put right.” Why should this apologia be relevant to utility and not to natural right?

The principle of utility has this further danger natural right does not, that it awakens in the human heart the hope of advantage rather than the feeling of duty. Now, the evaluation of an advantage is arbitrary: it is the imagination which settles it. But neither its errors nor its whims can change the idea of duty.

Actions cannot be more or less just; but they can be more or less useful. In hurting my fellow men, I violate their rights. This is an incontestable truth. But if I judge this violation only by its utility, I can get the calculation wrong, and find utility in the violation. The principle of utility is thus much vaguer than the principle of natural rights.

Far from adopting Bentham’s terminology, I should like as far as is possible to separate the idea of right from the notion of utility. This may be only a difference of wording; but it is more important than one might think.

Right is a principle; utility is only a result. Right is a cause; utility is only an effect. To wish to make right subject to utility is like making the eternal laws of arithmetic subject to our everyday interests.

It is no doubt useful for the general transactions of men between themselves that numbers involve unalterable relationships. If we claimed, however, that these relationships exist only because it is useful that this should be so, there would be lots of opportunities for proving that it would be infinitely more useful if these relationships were manipulable. We would forget that their constant utility comes from their invariant character, and ceasing to be unalterable, they would cease to be useful. Thus utility, by having been too favorably treated on superficial grounds, and turned into a cause, rather than being left properly as an effect, would soon vanish totally.

Morality and right are like that too. You destroy utility simply by placing it in the first rank. It is only when the rule has been demonstrated that it is good to bring out its utility.

I ask of the very author I am refuting. Do not the expressions he wants to forbid to us refer to better grounded and more precise ideas than those he claims should replace them? Say to a man: you have the right not to be put to death or arbitrarily plundered. You will give him quite another feeling of security and protection than you will by telling him: it is not useful for you to be put to death or arbitrarily plundered. One can show, as I have already acknowledged, that that is indeed never useful. But in speaking of right, you present an idea independent of any calculation. In speaking of utility, you seem to invite that the whole question be put in doubt, by subjecting it to a new verification.

What could be more absurd, cries Bentham’s ingenious and learned collaborator(3), than inalienable rights which have always been alienated, or imprescriptible rights which have been taken away or abandoned? But to say that such rights are inalienable or imprescriptible is only to say that they should not be alienated or taken away or abandoned. One is talking of what ought to be the case, not of what is the case.

By reducing everything to the principle of utility, Bentham condemned himself to an artificial evaluation of the results of all human actions, an evaluation which goes against the simplest and most customary ideas. When he speaks of fraud, theft, etc., he has to admit that if there is loss on one side, there is gain on the other. Then his principle, in order to reject the charge of identical actions, has to be that the benefit of the gain is not equivalent to the ill of the loss.9 The benefit and the ill being separate, however, the man who commits the theft will find that his gain matters more to him than another’s loss. Any idea of justice being now out of the question, he will henceforth calculate only his gain. He will say: for me my gain is more than equivalent to the loss by other people. He will thus be held back by nothing except fear of discovery. This theory wipes out all moral motivation.

In repudiating Bentham’s first principle, I am far from belittling that writer’s merits. His work is full of original ideas and profound perspectives. All the consequences he derives from his principle are precious truths in themselves. It is not that the principle is false; it is only the terminology which is wrong. Once he manages to detach himself from his terminology, he brings together in a most admirable structure the soundest notions on political economy, on the caution with which governments should intervene in people’s lives, on population, on religion, on commerce, on the penal laws, on the appropriateness of punishments to crimes. He happened, however, like many estimable writers, to mistake a rewording for a discovery, a rewording to which he then sacrificed everything.

Resistance can be of two kinds, negative disobedience or disobedience to the law, positive resistance or active opposition to government.

Let us deal first with negative resistance, a less complicated question [477] and less dangerous to examine than that of positive resistance. It has nevertheless its own particular difficulty.

The authority of government can be limited in a precise way, because law can limit it. The limitation is external. It is easy to see if it is transgressed. It is not the same with the jurisdiction of the law, however. The law being the only written rule which can exist, it is much less easy to say what constitutes a transgression in it.

Pascal,1 Chancellor Bacon,2 and many others like them have cut short the discussion, by positing that in principle one must obey the law without 399 questioning because it is the law. To refute this assertion, we need only identify its strict meaning.

Is the claim that the name “law” always suffices to enforce obedience? If a number of men or even one man with no official function call the expression of their individual wills the law, are the other individuals in society obliged to conform to this? An affirmative answer is absurd, but a negative one implies that the title “law” does not impose a duty to obey and that this duty supposes an anterior identification of the source from which that law derives.

Is the claim that questioning is permitted, when it is a matter of establishing that what is presented to us as law derives from a legitimate authority; [478] but that this last point being cleared up, examination has no further place regarding the actual content of the law?

In the first place, if we wish always to allow for the inevitable abuse of all the faculties man has been granted, the examination of the legitimacy of legislative authority will open the way to disturbances just as great as examination of the law itself.

Secondly, an authority is legitimate only in virtue of the function given to it. A municipality and a police court magistrate are legitimate authorities. They would cease to be such, nevertheless, if they assumed the right to make laws. In all systems, therefore, individuals must be granted the use of their intelligence, whatever the system, not only for the understanding of the characters of the authorities but for judging their actions. This means the content of law must be examined, along with its sources.

We see therefore that Pascal’s proposition is illusory, once we do not want it to lead to absurdity.

Man has the right to use his learning, for it is the only instrument of understanding he has, to evaluate the source of a law. If you refuse him this, you lay yourself open to his stabbing you at the will of the first brigand calling himself a lawmaker.

Moreover, man possesses the right to examine the content of a law, since it is only in terms of the content that he can determine the legitimacy of its source. If you challenge his right here, you allow the most subaltern of authorities endless and disorderly encroachments on all existing authority.

Note that the very people who declare implicit obedience to the laws to be strictly binding always make an exception to the rule of what touches them. Pascal excepted religion. He absolutely did not bow to civil authority in religious matters; and he braved persecution for his disobedience in this respect.

400 [479] Driven by the determination not to recognize any natural law, Bentham necessarily had to maintain that law alone created offenses, that any action prohibited by law became a crime;3 and in this way pigheadedness kept this writer, who, it must be added, stands out on every page against the mistakes and encroachments of government, back in the ranks of the apologists of the most absolute and servile obedience.

Fortunately, he refutes himself in his definition of offenses. “An offense,” he says, “is an act from which ill results.”4 But does the law which forbids an action from which no ill results create an offense? Yes, he replies, for in attaching a penalty to that action, it ensures that an ill results.5 On this reckoning, the law can attach a penalty to my saving my father’s life, to my not killing him. Would this suffice to make filial devotion a crime, and parricide an obligation? And this example, horrible though it be, is not an empty speculation. Have we not seen the condemnation, in the name of the law, in a thousand political revolutions, of fathers for having saved their children, of children for having succored their father?

Bentham refutes himself much better, when he speaks of imaginary offenses.6 If the law created offenses, no offense created by the law would be imaginary. Anything the law had declared criminal would be such.

The English author makes use of a comparison very apt for clarifying the question. Certain actions innocent in themselves, he says, are ranked among the offenses, just as among certain peoples healthy foods are treated as poisons or unclean things.7 Does it not follow that, just as the mistake of these peoples does not turn into poison the healthy food they envisage as such, the law’s mistake does not convert into offenses the innocent 401 actions [480] it declares guilty? It endlessly happens that when we are talking abstractly about law, we assume it is what it ought to be. When we are practically concerned with what it is, we find it to be quite other. Hence the endless contradictions in theories and terms.

The word “law” is as vague as the word “nature.” To abuse the latter is to overthrow society. To abuse the former is to tyrannize individuals. If we have to choose between the two, at least the word “nature” evokes an idea virtually the same for all men. The word “law” can be applied to entirely opposite ideas.

When our orders have included murder, informing, and spying, these orders have not been in the name of nature. Everyone would feel that there was contradiction in the terms; these have been demanded of us in the name of the law, so there was no longer a contradiction.

To wish to leave nature entirely out of account in a legislative system is to take away from the laws simultaneously their sanction, their basis, and their limit. Bentham even goes so far as to say that any action, however neutral, being liable to prohibition by law, then we must owe to the law the freedom to sit down or stand upright, to enter or leave, to eat or not eat, because the law could forbid us these.8 We owe this freedom to the law, just as the vizier who gave thanks every day to his highness that his head was still on his shoulders was indebted to the sultan for not having been beheaded.9 But any law which pronounced on these unimportant actions would have pronounced illegitimately; it would not have been a law.

[481] Obedience to the law is without doubt a duty; but this duty is not absolute, but relative. It rests on the supposition that the law flows from its natural source and is confined within legitimate limits. This duty does not cease absolutely when the law deviates from this rule only in a few respects. Public peace is worthy of many sacrifices. We would be morally blameworthy if through too inflexible an attachment to our rights, we resisted all the laws which seemed to us to threaten them. No duty, however, binds us to 402 these so-called laws, whose corrupting influence menaces what is noblest in our being, to these laws which not only restrain our legitimate freedoms and stand in the way of actions they have no right to forbid, but require from us ones contrary to the eternal principles of justice and pity, ones man cannot adhere to without being false to his nature.

The political theorist we have refuted above himself agrees with this truth.10 If the law, he says, is not what it ought to be, should it be obeyed or violated? Should we stay neutral between the law which requires evil and morality which forbids it? We have to see whether the probable ills of obedience are less than the probable ills of disobedience. He recognizes in this passage the rights of individual judgment he denies elsewhere.

The doctrine of boundless obedience to the law has perhaps been the cause of more evil than all the other errors which have led men astray. The most execrable passions have dug in behind this convention, on the surface impassive and impartial, and indulged in every excess. Do you want to bring together under a single viewpoint the consequences of your doctrine of blind and implicit obedience to the law? Remember that the Roman emperors made laws, that Louis XI made laws, that Richard III made laws, that the Committee of Public Safety made laws! There exists no natural sentiment that a law has not forbidden, no duty whose fulfillment a law has not prohibited, no virtue a law has not proscribed, no affection a law has not punished, no treason a law has not remunerated, no heinous crime a law has not ordered. It is therefore necessary to put [482] limits on this alleged duty of obedience. It is necessary to identify those characteristics which mean that a law is not a law.

Retrospective operation is the first of these. Men have consented to the fetters of law only in order to attach to their actions definite consequences, according to which they might direct and choose the line of behavior they wished to follow. Retroactivity robs them of this benefit. It violates the terms of social agreement. It conceals the price of the sacrifice it has imposed. Governments, having neglected the safeguards they should have taken, often think they can make good their fault by extending the influence of laws which experience has shown them to be necessary over the past itself. The atrocious aspect of a crime, the indignation it incites, the fear that a guilty person’s going unpunished, as he takes advantage of the law’s silence, may encourage other guilty people, even after the law has pronounced, these sometimes lead wise men to justify this extension of government. This is the 403 annihilation of all justice, making the governed pay the penalty for the lack of foresight of their governors. Better to let a man guilty of the most odious crime escape than to punish an action not prohibited by an existing law.

A second feature of illegality in the laws is the prescription of immoral actions. Any law demanding informing or denunciation is not a law. Any law which interferes with the propensity of man to give refuge to anyone asking for shelter is not a law. Government is instituted to oversee things. It has the means of accusation, pursuit, exposure, handing over, and punishment. It does not have the right to make these duties, necessary but painful, fall on the individual, who occupies no official position. It must respect that sensibility in citizens, the most precious part of our being, which leads us to unquestioning pity and help for the weak oppressed by the strong.

It is to make individual pity inviolable that we have made the authority of government commanding. We wanted to conserve in ourselves feelings of sympathy, by charging government with the severe duties which might have wounded or withered these feelings. I make an exception, nevertheless, of crimes against which even sympathy itself rises up. There are actions so atrocious that all men are disposed to agree on their punishment. [483] Then the prosecution of guilty people is not repugnant to their affections, nor does it dull their sensibilities, nor diminish their moral sense. But these actions are very few. We can positively rank in this category only criminal assaults against human life. Attacks on property, although very criminal, do not at all rouse in us sufficient indignation to stifle all pity. As for misdemeanors which we might call artificial, in the sense that they are misdemeanors only because they infringe certain positive laws, to force individuals to support prosecution of these is to harass and degrade them. I have sometimes wondered what I would do if I were trapped in a town where it was forbidden under pain of death to give shelter to citizens accused of political crimes. My answer to myself was that if I wanted to make my life secure, I would give myself up to imprisonment as long as that measure was in force.

Any law which divides the citizens into groups, which punishes them for what is not within their control, which makes them responsible for other actions than their own, any such law is not a law.

It is not, let us repeat, that the resort to resistance, always dangerous, is to be recommended. It puts society in peril. Let it be forbidden, not out of deference to a usurping government, but out of consideration for the citizens who are deprived of the benefits of living in society by continual 404struggle. As long as a law, although bad, does not tend to deprave us, as long as the encroachments of government demand only sacrifices which render us neither base nor savage, we can acquiesce in them. We compromise only on our own behalf. If the law demands, however, that we trample on our affections or duties, if, on the absurd pretext of a gigantic and false devotion to what it by turns calls monarchy or republic, or prince, or nation, it forbids us fidelity to friends in need, if it demands from us treachery to our allies, or even the persecution of vanquished foes, then anathema and disobedience to this corrupting government and to the drafting of injustices and crimes which it decorates with the name of law.

[484] A positive duty, general and unreserved, whenever a law seems unjust, is not to become its executor. This passive resistance entails neither upheavals, nor revolutions, nor disorders. It would be a fine spectacle to see a criminal government in vain drafting sanguinary laws, mass banishments, and deportations and finding in the vast and silent nation trembling under its power no executor of its injustices, no accomplice of its heinous crimes.

Nothing excuses the man who lends assistance to a law he believes wicked, the judge who sits in a court he believes illegal or pronounces a sentence of which he disapproves, the minister who gets a decree carried out against his conscience, the satellite who arrests a man he knows to be innocent to hand him over to his executioners. Under one of the most oppressive governments which has ruled France, a man seeking a post exonerated himself from this move by saying that his only alternative was between obtaining a position or stealing on the public highway. But if the government refuses your requests, someone replied to him, will you take to stealing then?

Terror is no more valid an excuse than all the other base passions. Woe betide those eternally compromised men, on their own say-so, tireless agents of all the present tyrannies, and posthumous denunciators of all those overthrown ones.

We have innumerable proofs of this. These men never get over the dishonor they have accepted. Their broken spirit never regains an independent outlook. We pretend in vain, whether out of calculation, or kindness, or pity to listen to their wretched, faltering excuses. In vain we seem to be convinced that by some inexplicable marvel they have suddenly regained their long since vanished courage. They themselves do not believe it. They no longer have the ability to hope on their own behalf. [485] They drag after them the profound memory of their inexpiable opprobrium, and their heads, bent under the yoke they have carried, stoop by habit, and helplessly so, to receive another yoke.

405 They tell us that they serve as executors to unjust laws only to lessen their severity, that the government whose depositories they agree to become would do worse ill still if it were remitted to less pure hands. Mendacious dealings which open the way to a boundless career for all crimes. Each man trades with his conscience and for each level of injustice the tyrants find worthy executors. I do not see why, on such arguments as these, one should not become the executioner of innocence, on the grounds that one would strangle it more gently. It is a thousand times better that atrocious laws should be carried out only by obviously criminal men. ⚓ ✪

These dubious though as yet untainted men lessen the odium of the most horrible institutions in the eyes of the people, who thus become accustomed to putting up with them. Without them, without the prestige of their overvaunted names, the institutions would be overthrown from the start by public indignation. Then, when the evil gets to a pitch, these worthy souls withdraw, leaving the field free to scoundrels. In this fashion, the service they do us is to cover assassins who are still weak with a shield, to give them time to become the strongest kind.