The Cult of Incompetence Part 3

Under the extreme form and under the complete form of this regime, that is to say under socialism, everyone will be a government official.

Consequently, say the Socialist theorists, all the alleged drawbacks above mentioned will disappear. The State, the democracy, the dominant party, whatever you choose to call it, will no longer be obliged to select its servants, as you say it does, by reason of their subservience and their incompetence, because every citizen will be an official. Thus too will disappear that dual social system, under which half the population lives on the State, while the other half is independent, and prides itself on its superiority in character, in intelligence and in efficiency. Socialism solves the problem.

I do not agree. Under socialism, the electoral system, and, therefore, the party system will still exist. The citizens will choose the legislators, the legislators will choose the Government, and the Government will choose the directors of labour and the distributors of the means of subsistence. Parties, that is, combinations of interests, will still exist, and each party will want to capture the legislature in order to secure the election, from its own number, of the directors of labour and the distributors of the means of subsistence. These directors and distributors will be the new aristocrats of socialism, and they will be expected to arrange "soft jobs" and ampler rations for the members of their own group or party.

Except that wealth and the last vestiges of liberty have been suppressed, nothing has been changed, and all the objections above mentioned still hold. There is no solution here.

If it were a solution, then the socialist government could not long remain elective. It would have to reign by divine right, like the Jesuits in Paraguay. It would have to be a despotism, not only in its policy but in its origin, in fact a monarchy. No intelligent king has any inducement to choose incompetent men as his officials. His interest would lead him to do exactly the opposite. You will say that an intelligent king is a very rare, even an abnormal thing. I readily agree. Except in a very few instances, which history records with amazement, a king has exactly the same reasons as the people for selecting as his favourites men who will not eclipse nor contradict him, and who consequently seldom turn out to be the best of citizens either in respect of intelligence or character. Elective socialism and despotic socialism have the same faults as democracy as we understand the term.

Besides, in truth, the drift of democracy towards socialism is nothing but a reversion to despotism. If socialism were established, it would begin by being elective, and as every elective system lives and breathes and has its being in the party system, the dominant party would elect the legislature, consequently it would const.i.tute the Government and would extort from that Government, simply because it has the power to extort it, every conceivable form of privilege. Exploitation of the country by the majority would result, as in every country where elective government prevails.

A socialist government therefore is primarily an oligarchy of directors of labour and distributors of subsistence. It is a very close oligarchy, for those beneath it are quite defenceless, levelled down to an equality of poverty and misery. It is a form of government very difficult to replace, for it holds in its hands the threads of such an intricate organisation that it must be protected against crude attempts to change it, and so it tends to be a permanent oligarchy. It would therefore concentrate very quickly round a leader, or at any rate, relegate to the second rank the national representatives and the electorate.

Such a course of events would be very similar to what occurred under the First Empire in France, when the military caste eclipsed and domineered over everything. It became continuously necessary to the State, and though that necessity pa.s.sed away, it was soon recalled. The caste then closed its ranks round the leader who gave it unity, and the strength of unity.

So under socialism, more slowly and perhaps after the lapse of a generation, the directors of labour and the distributors of food, peaceful Janissaries of the new order, would form themselves into a caste, very close, very coherent, and (unlike legislators for whom an executive council can always be subst.i.tuted), quite indispensable, and would close their ranks round a chief who would give them unity and the strength of unity.

Before we knew socialism, we used to say that democracy tended naturally to despotism. The situation seems somewhat changed, and we might now say that it tends to socialism: really nothing has changed. For in tending towards socialism it is towards despotism that it tends. Socialism is not conscious of this, for it imagines that it is journeying towards equality, but out of these utopias of equality it is ever despotism that emerges.

But this is a digression which refers to the future; let us return to the matter in hand.

CHAPTER IV.

THE COMPETENT LEGISLATOR.

Democracy, in its modern form, encroaches first upon the executive and then upon the administrative authorities, and reduces them to subjection by means of its delegates, the legislators, whom it chooses in its own image, that is to say, because they are incompetent and governed by pa.s.sion, just as in the words of Montesquieu, though he perhaps contradicts himself a little: "The people is moved only by its pa.s.sions."

What ought then the character of the legislator to be? The very opposite, it seems to me, of the democratic legislator, for he ought to be well informed and entirely devoid of prejudice.

He ought to be well informed, but his information should not consist only of book learning, although an extensive legal knowledge is of the greatest use, as it will prevent him from doing, as so often happens, the exact opposite of what he intends to do. He should also understand intimately the temperament and character of the people for whom he legislates.

For a nation should only be given the laws and commandments that it can tolerate, as Solon said: "I have given them the best laws that they could endure," and the G.o.d of Israel said to the Jews: "I have given you precepts which are not good," that is to say, they have only the goodness which your wickedness will tolerate. "This is the sponge," says Montesquieu, "which wipes out all the difficulties that can be raised against the laws of Moses."

The legislator, then, ought to understand the temperament and genius of the people because he has to frame its laws. As the Germans say, he ought to be an expert on the psychology of races. Further, he ought to understand the temperament, peculiarities and character of the people, without sharing its temperament himself. For where the pa.s.sions and inclinations are concerned, experience is not knowledge. On the contrary, experience prevents us from really knowing; and indeed one of the conditions of knowledge is absence of an experience which may be another word for bias.

The ideal legislator, or indeed any legislator worthy of the name, ought to understand the general tendencies of his people, but he ought to be able to view them from a position of detachment and to be able to control them, because it is his business partly to satisfy and partly to combat these tendencies.

_He has partly to satisfy them_, or at least, to consider them, because a law which outraged the national temperament would be like Roland's mare, which had every conceivable good quality with this one serious defect, that she was dead, and born dead. Suppose the Romans had been given an international law decreeing respect for conquered peoples, it would have been a dead letter, and by a sort of contagion it would have led to the neglect of other laws. Suppose the French were given a liberal law, a law prescribing respect for the individual rights of the man and the citizen. Liberty, the object of such a law, is for the French, as Baron Joannes has remarked: "The right of each man to do what he likes and to prevent other men from doing what they like." In France such a law would never obtain any but a very grudging allegiance, and it would certainly lead to the neglect of other laws.

The legislator ought therefore to understand the natural idiosyncrasies of his people in order to know how far he dare venture to oppose them.

_Partly he must combat them_, because law should be to a nation, or otherwise it is merely a police regulation, what the moral law is to an individual. Law should be a restraint imposed continuously in the hope of future improvements. It should be a curb on dangerous pa.s.sions and injurious desires. It should aid the warfare of enlightened selfishness against the selfishness of which all are ashamed. That is what Montesquieu meant when he said that morals should correct climate, and laws should correct morals.

The law, therefore, to a certain extent should correct national tendencies, it should be loved a little because it is felt to be just, feared a little because it is severe, hated a little because it is to a certain degree out of sympathy with the prevalent temper of the day, and respected because it is felt to be necessary.

This is the law that the legislator has to frame, and therefore he ought to have expert knowledge of the genius of the people for whom he legislates. He must understand both those tendencies which will resist and those which will welcome him. He must know how far he can go unopposed and how much he can venture without forfeiting his authority.

This is the princ.i.p.al and essential qualification for the legislator.

The second, as we said before, is that he must be impartial. The very essence of the legislator is that he should have moderation, that virtue on which Cicero set so high a value, which is so rare, if we look to its real meaning, _the perfect balance of soul and mind_. "It seems to me,"

said Montesquieu: "_and I have written this book solely to prove it_, that the spirit of moderation is essential in a legislator, for political, as well as moral right, lies between two extremes."

Nothing is more difficult for a man than to control his pa.s.sions, or more difficult for a legislator than to control the pa.s.sions of the people of whom he forms a part, to say nothing of his own. "Aristotle,"

says Montesquieu, "wanted to gratify, first, his jealousy of Plato and then his love for Alexander. Plato was horrified at the tyranny of the Athenians. Machiavel was full of his idol, the Duke of Valentinois.

Thomas More, who was wont to speak of what he had read rather than of what he had thought, wanted to govern every state upon the model of a Greek city. Harrington could think of nothing but an English republic, while hosts of writers thought confusion must reign wherever there was no monarchy. Laws are always in contact with the pa.s.sions and prejudices of the legislator, whether these are his alone, or common to him and to his people. Sometimes they pa.s.s through and merely take colour from the prejudice of the day, sometimes they succ.u.mb to it and make it part of themselves."

This is just the opposite of what should be. The legislator should be to the people what conscience is to the heart of the individual. He should understand its besetting pa.s.sions in all their bearings and not be deceived by subterfuge or hypocrisy. Sometimes he must attack them boldly, sometimes play off one against another, or favour one at the expense of another which is less influential, now yielding ground, now recovering it, but he must ever be skilful and impartial and never be intimidated, diverted from his purpose, nor deceived by his natural enemies.

He should be, so to speak, more conscientious than conscience itself, because he must never forget that he has to obey to-morrow the law which he makes to-day--_semel jussit semper paruit_. He must, therefore, be absolutely disinterested, a thing most difficult for him, but for which conscience requires no effort.

Not only must he be without pa.s.sion, but he must have trained himself to be impervious to pa.s.sion, which is much more. We must conceive of him as a conscience that has risen from the ashes of pa.s.sion.

As Rousseau said, "to discover the perfect ruler for human society we must find a superior intelligence who has seen all the pa.s.sions of man but has experienced none of them, who has had no sort of relations with our nature but who knows it to the core, whose happiness is not dependent on us, but who wishes to promote our welfare, in a word, one who aims at a distant renown, in a remote future, and who is content to labour in one age and to enjoy in another."

This is why the ingenious Greeks imagined certain legislators going into exile to some remote and unknown retreat, as soon as they had made the people adopt and swear obedience to their laws until their return. It may have been to bind the citizens by this oath, but is it not equally probable that they wished to escape from the laws which they themselves had made? Possibly they felt that they could make them all the stricter with the prospect of being able to evade obedience of them by flight.

Proudhon said: "I dream of a republic so liberal that in it I shall be guillotined as a reactionary." Lycurgus was perhaps like Proudhon, in that he founded so severe a republic that he knew he could not live under it and resolved to leave it as soon as it was established. Solon and Sylla remained in the states to which they had given laws; we must therefore place them higher than Lycurgus who has perhaps this excuse for himself that in all probability he never existed at all.

But the legend remains to show that the legislator should be so superior to his own pa.s.sions and to the pa.s.sions of his people, that, as legislator, he should make laws before which, as a man, he should stand in awe.

This moderation, in the sense in which we use the term, has sometimes led the legislator to suggest or insinuate laws rather than impose them.

This is not always possible, but it is so occasionally. Montesquieu tells us the following of St. Louis: "Seeing the manifold abuses of justice in his time he endeavoured to make them unpopular. He made many regulations for the courts in his own domain, and in those of his barons, and he was so successful, that only a short time after his death his methods were adopted in the courts by many of his n.o.bles. Thus this prince attained his object, although his regulations were not promulgated as a general law for the whole kingdom, but merely as an example which any one might follow in his own interest. He got rid of an evil by making patent the better way. When men saw in his courts and in those of his n.o.bles more reasonable and natural forms of procedure, more conformable to religion and morality, more favourable to public tranquillity and to the security of persons and property, they adopted the substance and abandoned the shadow. _To suggest where you cannot compel, to guide where you cannot demand, that is the supreme form of skill._"

Montesquieu adds with some optimism though no doubt the idea is encouraging: "Reason has a natural empire, we resist it, but it triumphs over our resistance; we persist in error for a time but we always have to return to it."

The instance above quoted is very remote, and can hardly be applied to anything in our day. But consider, for instance, the law of Sunday observance which has been revived from the ecclesiastical law. It was a mistake to include it in the Code because it was antagonistic to many French customs, and, in many ways, to the national temperament. The result is what might have been expected, namely, that it has only been carried out in rare instances, and with an infinity of trouble. It might have been made the subject of an edict without being included in the Code. The State might have given a holiday on Sunday to all its officials, employees and workmen. It might have been made quite clear simply by a circular from the Minister of Justice that a workman would not be punished for breach of contract by refusing to work on a Sunday.

The law of a weekly day of rest would then have existed, without being formally promulgated, and would have been limited precisely where it should be, by agreement between masters and men who would submit to working on Sundays when they saw that it was necessary and inevitable.

Moreover this law would be strong enough to modify without destroying the ancient customs of the people.

Here is another instance which occurs within the law laid down by the Code, where the legislator makes use of a method of suggestion and recommendation. Early in the nineteenth century the legislator considered that it was seemly for a husband who surprised his wife in adultery to kill both her and her accomplice. The sentiment is perhaps questionable, but at all events, it was current. Was it given legal sanction? No, not precisely. It is inserted in the law in the form of an insinuation, a discreet recommendation and affectionate encouragement.

The legislator wrote these words: "In _flagrante delicto_ murder is excusable." I am not approving the sentiment, but only this manner of indicating rather than enforcing the law and what is thought to be a wholesome practice, and in other instances I should think it excellent.

Finally, one of the essential qualities of the legislator is to show discretion in changing existing laws, and for this purpose he should be immune from the pa.s.sions of men or at all events complete master of those which beset him. For law has no real authority unless it is ancient. Where a law is merely a custom which has become law, it is invested with considerable authority from the first, because it gains strength by the antiquity of the original custom. When on the other hand a law is not an old custom but runs counter to custom, then, before it can have any authority, it must grow old and become a custom itself.

In both cases it is on its antiquity that the law must depend for its strength. The law is like a tree, at first it is a tender sapling, then it grows up, its bark hardens, and its roots go deep into the ground and cling to the rock.

We ought to consider carefully before we venture to replace the forest tree by the young sapling. "Most legislators," said Usbek to Rhedi,[A]

"have been men of limited abilities, owing their position to a stroke of fortune, and consulting nothing but their own whims and prejudices. They have often abolished established laws quite unnecessarily, and plunged nations into the chaos that is inseparable from change. It is true that, owing to some odd chance arising out of the nature rather than out of the intelligence of mankind, it is sometimes necessary to alter laws, but the case is very rare and when it does arise it should be handled with a reverent touch. When it is a question of changing the law, much ceremony should be observed, and many precautions taken, in order that the people may be naturally persuaded that laws are sacred things, and that many formalities must precede any attempt to alter them."

In this pa.s.sage, as so often elsewhere, Montesquieu is quite Aristotelian, for Aristotle wrote: "It is evident that at times certain laws must be changed, but this requires great circ.u.mspection for, when there is little to be gained thereby, inasmuch as it is dangerous that citizens should be accustomed to find it easy to change the law, it is better to leave a few errors in our magisterial and legislative arrangements than to accustom the people to constant change. The disadvantage of having constant changes in the law is greater than any risk that we run of contracting a habit of disobedience to the law." For the law a.s.suredly will be disobeyed, if we regard it as ephemeral, unstable, and always on the point of being changed.

Some knowledge of the laws of the most important nations, a profound knowledge of the temperament, character, sentiments, pa.s.sions, opinions, prejudices and customs of the nation to which he belongs, moderation of heart and mind, judgment, impartiality, coolness, nay even a measure of stolidity, these are the attributes of the ideal legislator. Rather they are the necessary qualifications of every man who purposes to frame a good law; they are, indeed, the elementary attributes of a legislator.