Montesquieu then describes, in the strongest and liveliest colors, a republican state where the laws have ceased to be enforced.
“They were free with the laws; they wish to be free without them. Each citizen is as a slave escaped from the house of his master. What before was called maxim, is now called severity; what was rule is now annoying restraint; what was attention, is now fear. The republic has become booty, and its strength is no longer anything more than the power of a few and the license of all.”
In the republics of Athens and Rome, as long as they were prosperous and great, the empire of the laws was admirable. Socrates, in his prison, gave of this a sublime example. He was unjustly condemned by his fellow-citizens to drink the hemlock, namely, to die by poison. Meanwhile, his friends pressed him to resort to flight; and everything leads to the belief that this would have been quite easy, as the judges themselves almost wished to be relieved of the responsibility of his death. Yet Socrates resisted, and refused to employ this means of safety. The principal reason given by him was, that, having been condemned by the laws of his country, he could save himself only by violating these laws.
This is what Plato has expressed in the dialogue entitled Crito. The laws of the country are represented as addressing a speech to Socrates; it is called the Prosopopœia[62] of Crito:
“Socrates,” they will say to me, “was that our agreement, or was it not rather that thou shouldst submit to the judgments rendered by the republic?... What cause of complaint hast thou against us that thou shouldst try to destroy us? Dost thou not, in the first place, owe us thy life? Was it not under our auspices that thy father took to himself the companion that gave thee birth? If thou owest us thy birth and education, canst thou deny that thou art our child and servant? And if this be so, thinkest thou thy rights equal to ours; and that thou art permitted to make us suffer for what we make thee suffer? What! in the case of a father or a master, if thou hadst one, thou wouldst not have the right to do to him what he would do to thee; to speak to him insultingly if he insulted thee; to strike him, if he struck thee, nor anything like it; and thou shouldst hold such a right toward thy country! and if we had sentenced thee to death, thinking the sentence just, thou shouldst undertake to destroy us!... Does not thy wisdom teach thee that the country has a greater right to thy respect and homage, that it is more august and more wise before the gods and the sages, than father, mother, and all ancestors; that the country in its anger must be respected, that one must convince it of its error through persuasion, or obey its commands, suffer without murmuring whatever it orders to be suffered, even to be beaten and loaded with chains?... What else then dost thou do?” they would proceed to say, “than violate the treaty that binds thee to us, and trample under foot thy agreement?... In suffering thy sentence, thou diest an honorable victim of the iniquity, not of the laws, but of men; but if thou takest to flight, thou repellest unworthily injustice by injustice, evil by evil, and thou violatest the treaty whereby thou wert under obligation to us: thou imperilest those it was thy duty to protect, thou imperilest thyself, thy friends, thy country, and us. We shall be thy enemies all thy life; and when thou shalt descend to the dead, our sisters, the laws of Hades, knowing that thou hast tried thy best to destroy us here, will not receive thee very favorably.”
Pretended Exceptions.—The duty of obedience to the laws must then be admitted as a principle; but is this duty absolute? is it not susceptible of some exceptions? A learned theologian of the XVI. century, a Jesuit, Suarez (Traité des lois, III., iv.), admits three exceptions to the obedience due to the law: 1, if a law is unjust—for an unjust law is no law—not only is one not obliged to accept, but even, when accepted, one is not obliged to obey it; 2, if it is too hard; for then one may reasonably presume that the law was not made by the prince with the absolute intention that it should be obeyed, but rather as an experiment; now, under this supposition one can always begin by not observing it;—3, if, in fact, the majority of the people have ceased to observe it, even though the first who had commenced should have sinned; the minority is not obliged to observe what the majority has abandoned: for one cannot suppose the prince to intend obliging such or such individuals to observe it, when the community at large have ceased observing it.
These exceptions, proposed by Suarez, are inadmissible, at least the two first. To authorize disobedience to unjust laws is introducing into society an inward principle of destruction. All law is supposed to be just, otherwise it is arbitrariness and not law. Every man finds always the law that punishes him unjust. If there are unjust laws, which is possible, we must ask their abrogation; and, in these our days, the liberty of the press is ready to give satisfaction to the need of criticism; but, in the meantime, we must obey. The second exception is not tenable either. To say that it is permitted to disobey a law when it is too hard, in supposing that the prince only made it for an experiment, is to permit the eluding of all the laws: for every law is hard for somebody; and there is, besides, no determining the hardness of laws. Such an appreciation is, moreover, fictitious; a prince who makes a law is supposed a priori to wish it executed: to say that he only meant to try us therewith is a wholly gratuitous invention. Certainly one may by such conduct succeed in wearing a law out when the prince is feeble; but it is not the less unjust, and no State could resist such a cause of dissolution. As to the third exception, it can be admitted that there are laws fallen into disuse, and which are no longer applied by any one because they stand in contradiction to the manners, and are no longer of any use; but, except in such case, it is nowise permitted to say that it is sufficient for the majority to disobey to entitle the minority to do the same. For instance, if it pleased the majority to engage in smuggling, or to make false declarations in the matter of taxes, it would nowise acquit the good citizens from continuing to fulfill their duty.
Now, if it is an absolute duty to obey a law, we must, at the same time, admit as a corrective, the right of criticising the law. This right is the right of the minority, and it is recognized to-day in all civilized countries. A law may, in fact, be unjust or erroneous: it may have been introduced by passion, by party-spirit; even without having been originally unjust, it may have become so in time through change in manners; it may also be the work of ignorance, prejudice, etc.; and thereby hurtful. Hence the necessity of what is called the liberty of the press, the inviolable guaranty of the minorities. But the right of criticising the law is not the right of insulting it. Discussion is not insult. Every law is entitled to respect because it is a law; it is the expression of the public reason, the public will, of sovereignty. One may try to persuade the sovereign by reasoning, and induce him to change the law; one should not inspire contempt which leads unavoidably to disobedience.
87. Respect for magistrates.—Another duty, which is the corollary to obedience to the laws, is the respect for the magistrate. The magistrate—that is, the functionary, whoever he be, in charge of the execution of the laws—should be obeyed, not only because he represents force, but also because he is the expression of the law. For this reason, he should be for all an object of respect. The person is nothing; it is the authority itself that is entitled to respect, and not such or such an individual. Many ignorant persons are always disposed to regard the functionary as a tyrant, and every act of authority, an act of oppression. This is a puerile and lamentable prejudice. The greatest oppression is always that of individual passions, and the most dangerous of despotisms is anarchy: for then it is the right of the strongest which alone predominates. Authority, whatever it be, makes the maintenance of order its special interest, and order is the guaranty of every one. The magistrate is, moreover, entitled to respect, as he represents the country; if the country be a family, the authority of the magistrate should be regarded the same as that of the head of the family, an authority entitled to respect even in its errors.
88. The ballot.—Of all the special obligations which we have enumerated, the most important to point out is that of the ballot, because it is free and left entirely at the will of the citizens.