1767 — THE DEBATE ON ‘LEGAL DESPOTISM’
André Morellet, “On relying on the power of evidence
to avoid establishing a balance of power”
translated by Benoît Malbranque
[Bibliothèque municipale de Lyon, Fonds Morellet, Ms. 2556, f°1-17.]
In the question I am dealing with here, I find myself led to criticize the system of some philosophers, who have been called Economists, and who supposed they could establish the uselessness of the balance of powers by putting forward what they called the power of the evidence; the natural and essential order of political societies; legal despotism. This is, without a doubt, a very peculiar opinion, the examination of which one could deem unnecessary. But the real services that these philosophers have rendered to the enhancement of social knowledgecompel us not to ignore the paradoxes which they sometimes put forward while believing to be spreading useful truths.
According to this class of philosophers, who have been called economists, in a nation enlightened on the principles of the natural and essential order of political societies, evidence is the only and true principle of their conservation, an insurmountable barrier which defends the peoples against tyranny. Such a nation does not need representatives, intermediary bodies, depositaries and conservators of the rights of the people, counter-forces which contain the sovereign within certain limits. Evidence will provide for all of his, by establishing the rule of order, legal despotism. The sovereign in possession of this knowledge will avoid all errors, all excesses and all abuses of his authority; armed with its strength, there will not beobstacles that he cannot overcome in order for him to lead his peoples to happiness and his nation to the highest degree of prosperity.
Certainly, one can only praise the intention of these philosophers and congratulate them on seeing men in favorable colors, but if false opinions in these matters can be forgiven, they must not be opposed any less. And I cannot help but viewing as such a doctrine which will divert men, gathered in society, from the reasonable precautions that they must take to ensure their happiness and their rights.
I will prove the following propositions.
The power of evidence cannot stop the abuse of authority on the part of the despot, called by these writers a legal despot.
The power of evidence does not prevent the authority of the legal despot from deserving to be called and indeed being arbitrary.
If evidence provided a check on the excesses of despotism, arbitrary despotism would never exist anywhere; or must we at least recognize that in a great number of cases arbitrary despotism is exercised despite the power of evidence, its counterforce?
For the evidence of political truths to produce the powerful effects attributed to it, it would be necessary for the personal conviction of the despot, constantly showing him these truths and making him recognize them as such, to be constantly and necessarily preventing him from violating the rights of its subjects, or that if the despot lost sight of this evidence, it would necessarily lead the oppressed subjects to resist oppression, put them immediately into action, and provide them with the means of resistance.
The first of these guarantees is quite precarious. The personal conviction of the despot, which has led him to recognize right and justice to be produced by such an order of things and by such a system of laws, may weaken in his mind, then become problematic, and finally give way to a completely contrary conviction, which will make him regard opposing laws as just.
Even without considering the action of many physical causes, which alter in men even the best established ideas, should one not take into account the mobility of the human mind, its restlessness, the quest for novelty, the passions, personal interest, even misinterpreted, the contradiction which is best exerted against some obstacle, and so many other causes which it would take too long to mention: can all of this not change the most considered and just ideas in the mind of the despot, and lead him to opposite errors, in spite of the so-called power of evidence?
It will be said, perhaps, that in this case the conviction which remains in the rest of the nation will enlighten the monarch and make him discard his error, but this resource would still often be missing, because the same causes which would have made the despot blind and which would have closed his eyes to the evidence and to his own interests, would make him deaf to the representations of those of his subjects who would be able and willing to make him understand that he has become blind; therefore one would often witness the fable of the blind man who mistook a snake for a whip. 
There remains, therefore, the national resistance to the oppression of the despot who ignored the evidence and violated the rights of his subjects.
In order for this means to be employed, the despot must have left it in the hands of his subjects; however that is what he will be careful not to do.
All the evidence of political truths and all the rights of men under his rule will not prevent him from retaining for himself only the use of force. Otherwise, he would not be a despot or even a king, or truly the head of government, and as long as he has strength in his hands, what the evidence will show him most clearly will be to employ it in order to ensure respect for his authority and his wishes, even when they will be opposed to what he would previously have regarded as his obvious interest and the obvious rights of the men who live under his rule.
It is here that we recognize the embarrassment of the author of Ordre naturel. Having wiped out in the nation all kinds of power except that of the despot, once his despot disregards the evidence, he can no longer oppose him but a purely negative resistance, that is to say, a refusal of obedience. This kind of resistance, he seeks an example of it in China (because it is always in China that we are asked to observe despotism in its glory and without any inconvenience); in China, I say, where a body of troops refused to obey the orders of the emperor asking a city to be sacked, and who laid down their arms so as not to yield to his violence.
I will answer these examples by pointing out that the despot will not let himself be stopped by this purely passive resistance, that he will make use of other instruments of force, more available and more docile, in order to overcome it or to carry out his wishes.
With this assumption of a resistance, even a purely negative one, one seems to forget the nature of despotic governments, under the hypothesis of which we are reasoning here.
The whole system of despotic government implies a chain or series of despots, from the sovereign to the last of those assuming some authority. The sovereign in whom lies the sole source and the fullness of power communicates a portion of it to his general, the latter to the general officer, the latter to the officer who commands under him, etc., so on and so forth, until the last low-class officer.
In this order of things, the despot’s orders will necessarily be carried out, because the obedience of the subordinate to his immediate superior will always be assured: the subordinate cannot and must never be judge of the justice of the operation he has to perform. And it must be noted, furthermore, that this organization of despotic government is also incompatible with a simply negative resistance or a refusal to obey, for what could be the justification for such a resistance, for men who cannot and should not be judge of the justice or injustice of the orders given to them?
The power of the evidence does not prevent the authority of the despot from being arbitrary and from having to bear this name.
If the evident knowledge of his own interests could deprive despotic rule of the character of arbitrary domination, arbitrary domination would and could never exist, for there is no power the exercise of which is not either useful or disadvantageous to the one who exert it. Assuming, as my opponents do for the despot in general, that the master of a slave can obviously know what is the exercise of his power over that slave which is more advantageous to him, and assuming that he will acquire this knowledge and that nothing will weaken its clarity in his mind: if this evidence is an all-powerful check on the abuse of power and if the power of the sovereign ceases thereby to be arbitrary, similarly the power of a slave master in America and Asia cannot be called arbitrary.
One can only dismiss this comparison by finding a reason why this particular and arbitrary power is not applicable to the despotism of the sovereign. I challenge anyone to find one. The reason why the power of a lord of Morocco or Canton over his slaves is called arbitrary is that this individual may be unaware of the particular exercise of this power which is more advantageous to himself; that, provided that he is enlightened by the evidence on his true interests, his passion can sometimes make him forget them; and that, even without having lost sight of them, he can neglect them in order to satisfy his hatred, his avarice, his pleasure, etc. Yet all this can be said with just as much accuracy of a despot, ruler of a society.
An authority or a power is called arbitrary because its exercise is ad arbitrium, that is to say at the discretion, at the will of the one to whom this power or this authority belong.
I have arbitrary power over my property, because I can give it away or withhold it, dissipate it or keep it. The Romans and Greeks had an arbitrary, or almost arbitrary power over their slaves, because in exercising that power over the person of their slaves, their will and whims were their only law.
A power exerted by someone is called arbitrary when it is subjected to no other will than his own. The power is subjected only to his will, because it is not subjected to the arbitriumof anyone else, and vice versa.
When one says that my power is not arbitrary, one does not only imply that someone can criticize my actions, or the use that I make of my power, and that he can ardently wish to oppose this particular use. One also implies that this person can prevent me, really and physically, from accomplishing this action.
This other person who must be able to physically and really prevent my action, in order for my power not to be called arbitrary, must be a real being, much like the power conferred to him. Any moral being, the work of our abstractions, any metaphysical being like justice, conscience, humanity, cannot have that physical and real character which must prevent the exertion of my arbitrary power.
A master to whom the law of a country gives the right of life and death over his slave is certainly in possession of an arbitrary power over that slave. However, it is obviously against the interests of a master to kill a slave who is useful to him. This evidence is, if you will, an assured safeguard for this slave, a shield which will always defend him from the fury of a man agitated by passions without being held back by fear. But it does not prevent the power of this master from being called arbitrary. And I say called, because I am not yet considering whether this power will actually be arbitrary. But in all languages the word arbitrary and those which correspond to it will be used to express the nature of this kind of power which has no other checks than evidence, reason, and the interest of the one who exert the power, if these can be called checks at all.
Why the comparison between the power of evidence in government, and the power of evidence in mathematical truths, is inaccurate
The comparison that these writers make between the power of evidence, employed with the purpose of curbing the authority of the monarch and of preventing it from becoming arbitrary, and the power that evidence has over minds to persuade them of the validity of mathematical truths, is one of the justifications which they use most frequently and with the most complacency. We must take the time to prove that this comparison is absolutely inaccurate and that it does nothing to guard against the negative impacts of their legal despotism.
No interest can ever oppose the establishment of mathematical truths in the minds. There is nothing to be gained by prohibiting anyone to prove that the volume of a ball contained in a cylinder is two-thirds the volume of that cylinder, nor by questioning this truth once it has been demonstrated. The establishment of political truths, on the contrary, is hampered by great obstacles, and even once those truths are established, there is often powerful incentives for forgetting or ignoring them.
Morellet share most of the views of the physiocrats on free trade, personal interest, or private property. See, in this regard, his Fragment d’une lettre sur la police des grains(1764) and his refutations of Galiani (Réfutation de l’ouvrage qui a pour titre Dialogues sur le commerce des blés, 1770) and Necker (Analyse de l’ouvrage intitulé De la législation et du commerce des grains, 1775).
“Euclid is a true despot, Mercier de la Rivière writes, and the geometric truths that he has handed down to us can properly be called despotic. Their legal despotism and the personal despotism of this legislator amount to one and the same, that of the irresistible force of evidence; and by this means Euclid has been peacefully ruling for centuries over the enlightenned peoples of the world.” (L’Ordre naturel et essentiel des sociétés politiques, 1767, p. 185.)