Liberty in Mexico. Группа авторов
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then, to the case of the question at hand and we see what the obligation of a legislator is when there is public opinion or at least much probability that an opinion is generalized.
Those who argue for the obligation to yield to it and always to follow it appeal to the sovereignty of the nation because, they say, the people is sovereign, and the will of the sovereign must always be obeyed. We ask ourselves, where does sovereignty reside? Is it not true that it resides not in some, not in many, nor even in most, but rather in the absolute totality of the nation? Therefore, so that the alleged will might obligate as sovereign, it was necessary to show in each case that all and each one of the citizens wanted that thing. How will it be possible ever to provide such a proof and, much less, to deliberating bodies in whose very breast there are many representatives who oppose one another? Or is it only the will of the deputies that should be counted for nothing when the suppositions, perhaps imaginary and always indemonstrable from outside, count for so much?
Seeing the impossibility that there might be, and setting aside the impossibility of showing that universal will, one will perhaps appeal to the will of the majority, saying that the lesser number is obligated to
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yield to the greater. If there is no more than this, we say that the mind of the majority alone, without other aggregates, cannot produce obligation to yield. In effect, no matter how much the defenders of those doctrines rack their brains, reason will never see in the majority alone anything but force and power, inasmuch as it is normal that the greater number can do more than the lesser. But is force alone, or does force give legitimate right? We believe that free republicans will not even have to grant it as a hypothesis; then if right and obligation are correlative, and in the majority as such there is no right to command, in the minority there is no obligation to submit.
Some considerations and circumstances can be attached to the preceding case that alter the question and its resolution; for example, when in a rigorously democratic government there has been an explicit social pact to submit everyone to the opinion and will of the majority. In this case there will be an obligation proceeding from the pact, but it will not be the case in question nor will it be ours. Perhaps it will happen that the will of the majority can be resisted only violently and by the road of revolution, and then the obligation to preserve social order and that of avoiding truly major woes can compel the minority to tolerate, endure, and acquiesce to the will of the majority. For this case political moralists give very good rules that are not to our present purpose, and those who would like will be able to see them in Locke, Paley, and others. We repeat, then, that the will of the majority, for its mere sake, cannot be obligatory.
This being so, someone will say, a representative of the general congress, a government, and a public agent are not bound, even when opinion and generalized will exist, which seems incompatible with the character of mandataries of the people, and no other rule of their conduct can be conceived if it is not that from which they always operate as they choose, which truly is a very clear despotism.
Before responding and determining the rules, we must dismiss a most unfortunate error that the demagogues and anarchists have spread and repeated without cease: they, ignoring the true essence of the representative system, believe, or feign to believe, that a representative is nothing more than a mandatary of the people that elects him; that he has to receive instructions, rules, and orders from them that he cannot violate; that the people can revoke his powers when they consider it wise; in a word, that he is a simple passive organ of the desires or caprices of his constituents.
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The famous Martinez Marina has given a motive for some of this. Martinez Marina who, completely conversant and steeped in all the old courts of Spain (where the agents of the cities who had a vote in them went not to deliberate but rather to present petitions of the city councils and to promote purely municipal interests, and at times as ridiculous as adding a figure to a coat of arms, etc., etc.), called deputies mandataries and wished to apply to them some of the attributes that civil jurisprudence gives to the common mandate.
It is neither the only nor the principal reason for the establishment of deliberative congresses and for the enthusiasm of the politicians in examining the representative system, justly regarding it as the most sublime endeavor of philosophy, that in which all the citizens of a society, many in number and spread over immense terrains, could not assemble and deliberate to decide, and it was necessary to adopt the expedient by which they would elect some from among themselves so that in the name of all and on their behalf, they would take part in the creation of laws and in systematizing all public welfare. The true origin of the modern representative system is the immense division of labors and occupations to which citizens now exclusively dedicate themselves for the civilization and progress of enlightenment of the people; each industry, each position, has been divided and subdivided into different branches, and each one of them is the sole occupation of a certain number of individuals who, dedicating all their attention to them, have raised the arts and sciences to the degree of perfection in which we see them. Since then, philosophy, economics, and jurisprudence also formed separate branches, whose intense study the multitude of citizens left to a very small number, and since then, there are few who acquire and have the capability to think through and work out the most difficult points of a civil government and to face up to public administration. Few, very few, are those who can have on their shoulders the charge of working out the laws, and of those, very few are the ones the people elect for the purpose of doing so, choosing not just mouths so that they go to express what their constituents suggest to them, but rather their consciences and minds, so that they might reflect on and understand what the constituents are not capable of understanding or even of giving it their attention, all of them employed in very different enterprises. Their conscience and wisdom, we repeat, are what peoples elect, so that without ever prostituting the first, and guided always by the second, they discover and decide what is
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best and most suitable for the common good, and everyone submits to the resolution and will of these experts. Here is the theory of the divine representative system, which we have fortunately adopted, for which the nations that have it are happy, and for which all those who lack it yearn.
The democracy of modern peoples has nothing to do with that of the ancients; they are of a very different nature. The latter was barbarous, filled with all the vices and defects, always degenerating into anarchy and involved in the disorders resulting from the tumultuous gathering of dull peoples in the plazas of Athens and Rome, where they all cast individual votes on matters of great seriousness. The democracy of the modern republics is now purged of all the defects that discredited it, even to the extent of showing it as horrible among the Greeks and Romans—Everyone a legislator! Everyone giving an opinion on matters over which they had never reflected and that require study by an ordinary man for his entire life! Let us distance ourselves for that reason from Greece, Rome, small cantons, always in uprising, always in disorder! A puzzling thing, very puzzling. If to a man of letters, merchant, etc. one proposes he make a statue or some other artifact, not only will he say without the least shame, and what do I understand of that, when did I learn that job? But he would even take it as an insult; and when it is a matter of making laws, the most sublime work of wisdom, everyone considers himself fit, and they would even show themselves offended if one said to them that they are not suitable to be legislators! Will perhaps a bust be more difficult than a good law, or will it require having had greater apprenticeship? Distinguished youth! May the famous social contract of the very profound Genevan not instill its errors in you, but rather its brilliant truths. Read, reread once and many times Book 2, chapter 7. Learn there what a legislator is and what is required to be one; and far from seeking, each one will tremble if the honorable misfortune of being elected deputy falls to him. But let us return to the subject.
The idea of mandatary and of mandate being false and dangerous applied to the representatives of a national congress (on which we could expound, drawing obvious terrible consequences, which