It is a sad and false political system that places society and government, authority and liberty, in opposition to each other, by making them come from two different sources, by presenting them as two contrary principles. I often hear the principle of authority spoken of as a principle apart, independent, deriving from itself its force and legitimacy, and consequently made to rule. No error is deeper and more dangerous. Thereby it is thought to confirm the principle of authority; far from that, from it is taken away its solidest foundation. Authority—that is to say, legitimate and moral authority—is nothing else than justice, and justice is nothing else than the respect of liberty; so that there is not therein two different and contrary opinions, but one and the same principle, of equal certainty and equal grandeur, under all its forms and in all its applications.
Authority, it is said, comes from God: doubtless; but whence comes liberty, whence comes humanity? To God must be referred every thing that is excellent on the earth; and nothing is more excellent than liberty. Reason, which in man commands liberty, commands it according to its nature; and the first law that reason imposes on liberty is that of self-respect.
Authority is so much the stronger as its true title is better understood; and obedience is the easiest when, instead of degrading, it honors; when, instead of resembling servitude, it is at once the condition and guaranty of liberty.
The mission, the end of government, is to make justice, the protector of the common liberty, reign. Whence it follows, that as long as the liberty of one citizen does not injure the liberty of another, it escapes all repression. So government cannot be severe against falsehood, intemperance, imprudence, levity, avarice, egoism, except when these vices become prejudicial to others. Moreover, it is not necessary to confine government within too narrow limits. Government, which represents society, is also a moral person; it has a heart like the individual; it has generosity, goodness, charity. There are legitimate, and even universally admired facts, that are not explained, if the function of government is reduced to the protection of rights alone.[242] Government owes to the citizens, in a certain measure, to guard their well-being, to develop their intelligence, to fortify their morality, for the interest of society, and even for the interest of humanity. Hence sometimes for government the formidable right of using force in order to do good to men. But we are here touching upon that delicate point where charity inclines to despotism. Too much intelligence and wisdom, therefore, cannot be demanded in the employment of a power perhaps necessary, but dangerous.
Now, on what condition is government exercised? Is an act of its own will sufficient for it in order to employ to its own liking under all circumstances, as it shall understand them, the power that has been confided to it? Government must have been thus exercised in early society, and in the infancy of the art of governing. But the power, exercised by men, may go astray in different ways, either through weakness or through excess of force. It must, then, have a rule superior to itself, a public and known rule, that may be a lesson for the citizens, and for the government a rein and support: that rule is called law.
Universal and absolute law is natural justice, which cannot be written, but speaks to the reason and heart of all. Written laws are the formulas wherein it is sought to express, with the least possible imperfection, what natural justice requires in such or such determined circumstances.
If laws propose to express in each thing natural justice, which is universal and absolute justice, one of the necessary conditions of a good law is the universality of its character. It is necessary to examine in an abstract and general manner what is required by justice in such or such a case, to the end that this case being presented may be judged according to the rule laid down, without regard to circumstances, place, time, or person.
The collection of those rules or laws that govern the social relations of individuals is called positive right. Positive right rests wholly on natural right, which at once serves as its foundation, measure, and limit. The supreme law of every positive law is that it be not opposed to natural law: no law can impose on us a false duty, nor deprive us of a true right.
The sanction of law is punishment. We have already seen that the right to punish springs from the idea of demerit.[243] In the universal order, to God alone it belongs to apply a punishment to all faults, whatever they may be. In the social order, government is invested with the right to punish only for the purpose of protecting liberty by imposing a just reparation on those who violate it. Every fault that is not contrary to justice, and does not strike at liberty, escapes, then, social retribution. Neither is the right to punish the right of avenging one's self. To render evil for evil, to demand an eye for an eye, a tooth for a tooth, is the barbarous form of a justice without light; for the evil that I do you will not take away the evil that you have done me. It is not the pain felt by the victim that demands a corresponding pain; it is violated justice that imposes on the culpable man the expiation of suffering. Such is the morality of penalty. The principle of penalty is not the reparation of damage caused. If I have caused you damage without intending it, I pay you an indemnity; that is not a penalty, for I am not culpable; whilst if I have committed a crime, in spite of the material indemnity for the evil that I have done, I owe a reparation to justice by a proper suffering, and in that truly consists the penalty.
What is the exact proportion of chastisements and crimes? This question cannot receive an absolute solution. What is here immutable, is that the act opposed to justice merits a punishment, and that the more unjust the act is, the severer ought to be the punishment. But by the side of the right to punish is the duty of correcting. To the culprit must be left the possibility of repairing his crime. The culpable man is still a man; he is not a thing of which we ought to rid ourselves as soon as it becomes injurious, a stone that falls on our heads, that we throw into a gulf that it may wound no more. Man is a rational being, capable of comprehending good and evil, of repenting, and of being one day reconciled with order. These truths have given birth to works that honor the close of the eighteenth century and the beginning of the nineteenth. The conception of houses of correction reminds one of those early times of Christianity when punishment consisted in an expiation that permitted the culprit to return through repentance to the ranks of the just. Here intervenes, as we have just indicated, the principle of charity, which is very different from the principle of justice. To punish is just, to ameliorate is charitable. In what measure ought those two principles to be united? Nothing is more delicate, more difficult to determine. It is certain that justice ought to govern. In undertaking the amendment of the culprit, government usurps, with a very generous usurpation, the rights of religion; but it ought not to go so far as to forget its proper function and its rigorous duty.