The truth of my contention is proved by the fact that nowadays all our laws are emergency laws, a thing that no law should ever be. Montesquieu advised people to be very chary and to think twice before they destroyed old laws or pulled down an old house to run up a tent, but his advice is completely ignored. New laws are made for every change in the weather, for every little daily incident in politics. We are getting used to this hand-to-mouth legislation. Like the barbarian warrior, of whom Demosthenes tells us, who always protected that portion of his person which had just received a blow, holding his shield up to his shoulder, when his shoulder had been struck, down again to his thigh when the blow fell there, the dominant faction only makes laws to protect itself against an adversary who is, or is thought to be, already in the field, or it introduces a hurried, ill-digested reform under the pressure of an alleged scandal.

If an aspirant to the tyranny, as they used to say in Athens, is nominated deputy in too many constituencies, instantly a law is passed prohibiting multiple candidatures. For the same reason, for fear of the same man, scrutin de liste is hurriedly replaced by scrutin d'arrondissement.[B]

If an accused woman is supposed to have been ill-treated at her examination, taken too abruptly before the interrogatory of the president, or if the counts are ineptly set out by the public prosecutor, instantly the whole of the criminal procedure is radically reformed.

It is the same everywhere. The legislative workshops turn out only "the latest novelties" of the season. Or perhaps a newspaper would be a still better simile. First there is the 'interpellation,'[C] once at least every day; that corresponds to the leading article. Then there are questions for ministers on this, that and the other trivial occurrence; that is the serial or short story. Then there is a bill brought in about something that happened the night before, that is the special article. Then some deputy assaults his neighbour, this is the general news column.

You could not have a more faithful representation of the country. Everything that happens in the morning is dealt with in the evening as it might be in the village pot-house. The legislative chamber is an exaggerated reflection of the gossiping public. Now it ought not to be a copy of the country, it ought to be its soul and brain. But when a national representative assembly represents only the passions of the populace it cannot be otherwise than what it is.

In other words modern democracy is not governed by laws but by decrees, for emergency laws are no better than decrees. A law is an ancient heritage, consecrated by long usage, which men obey without stopping to think whether it be law or custom. It forms part of a coherent, harmonious and logical whole. A law improvised for an emergency is merely a decree. This is one of the things that Aristotle saw better than any one. He comments frequently upon the essential and fundamental distinction between the two, and explains how it is as dangerous to misunderstand as to ignore it. I quote the passage in which he brings this out most forcibly: "A fifth form of democracy is that in which not the law but the multitude has the supreme power, and supersedes the law by its decrees. This is a state of affairs brought about by the demagogues. For in democracies which are subject to the law, the best citizens hold the first place and there are no demagogues; but where the laws are not supreme, there demagogues spring up. For the people becomes a monarch and is many in one; and the many have the power in their hands, not as individuals but collectively.... And the people, who is now a monarch, and no longer under the control of law, seeks to exercise monarchical sway, and grows into a despot; the flatterer is held in honour; this sort of democracy being relatively to other democracies what tyranny is to other forms of monarchy.

"The spirit of both is the same, and they alike exercise a despotic rule over the better citizens. The decrees of the Demos correspond to the edicts of the tyrant, and the demagogue is to the one what the flatterer is to the other. Both have great power—the flatterer with the tyrant, the demagogue with democracies of the kind which we are describing. The demagogues make the decrees of the people override the laws, and refer all things to the popular assembly. And therefore they grow great, because the people has all things in its hands and they hold in their hands the votes of the people, who is too ready to listen to them. Such a democracy is fairly open to the objection that it is not a constitution at all; for where the laws have no authority there is no constitution. The law ought to be supreme over all. So that if democracy be a real form of government, the sort of constitution in which all things are regulated by decrees is clearly not a democracy in the true sense of the word, for decrees relate only to particulars."

This distinction between true law, that is to say, venerable law, framed to endure, part of a co-ordinate scheme of legislation, and an emergency law which is merely a decree like the wishes of a tyrant, constitutes the whole difference, if we could realise it, between the sociologists of antiquity and those of to-day. By the term Law, the ancient and the modern sociologists mean two different things and this is the reason for so many misunderstandings. When he speaks of law, the modern sociologist means the expression of the general will at such and such a date, 1910 for instance. The ancient sociologist would consider that the expression of the general will in the second year of the 73rd Olympiad was not law at all, but a decree. A law to him would be a paragraph of the legislation of Solon, Lycurgus or Charondas. Whenever in a Greek or Roman political treatise we meet the expression—"a State governed by laws," the only way to translate it is—"a State governed by a very ancient and immutable legislation." This gives the true meaning to the famous personification of laws in the PhÆdo, which would be quite meaningless if the Greeks had understood what we do by the term. Are laws the expression of the general will of the people? If so why should Socrates have respected them, he who despised the people to the day he was condemned? It would be absurd. These laws which Socrates respected were not the decrees of the people contemporary with Socrates; they were the ancient gods of the city, which had protected it from the earliest days.

These laws may err in that they seemed to sanction the verdict that condemned Socrates to death, but they were honourable, venerable and inviolate, because they had been the guardians of the city for centuries, and guardians of Socrates himself until the day when they were misapplied against him.

A "constitution," therefore, to adopt Aristotle's terminology, is a State which obeys laws, that is to say, laws framed by its ancestors.

It is, then, an aristocracy, for it is even more aristocratic to obey our ancestors themselves by obeying the thoughts which they embedded in legislation, five centuries ago, than to obey the inheritors of their tradition, the aristocrats of to-day. For aristocrats of to-day belong only partly to tradition, in that they live in the present. Whereas a fifteenth century law belongs to the fifteenth century and to no other period. To obey law as understood by the ancient sociologists, did not mean obeying Scipio who has just passed us on the Via Sacra. It meant to obey his grandfather's great grandfather! All this is ultra-aristocratic.

Precisely! Law is an aristocratic thing; only the emergency law, the decree, is democratic. For this reason Montesquieu always speaks of a monarchy as being limited, and, at the same time, maintained by its law. What did this mean in his day, when there was no "expression of the general will" to limit monarchy, and when royalty possessed legislative power, and could at will make and remake laws? It could only mean one thing, namely, that Montesquieu's conception of law was the same as that of the ancient sociologists,—law far older than his time, "fundamental laws" as he calls them, of the ancient monarchy, which still bind and ought so to bind the monarch, whose rule without them would be despotism or anarchy. Law is essentially aristocratic. It ordains that rulers should govern the people, and that the dead should govern the rulers. The very essence of aristocracy is the rule of those who have lived over those who live, for the benefit of those who shall live hereafter. Aristocracy, properly so called, is an aristocracy in the flesh. Law is a spiritual aristocracy. Aristocracy, as represented by the aristocrats of to-day, only represents the dead by tradition, inheritance, education, physiological heredity of temperament and characteristics. Law does not represent the dead, it is the dead themselves, it is their very thought perpetuated in immutable script.

A nation is aristocratic both in form and spirit which preserves its old aristocracy and maintains its vitality by careful infusions of new blood. Still more is that nation aristocratic which maintains its old legislation inviolate, adding to it, reverently and discreetly, new laws which combine something of the modern spirit with the spirit of the old. Homines novi, novÆ res. Homo novus means the man without ancestors who is worthy to be added to the ranks of the nobly born. NovÆ res are things without antecedents, nay revolution itself. NovÆ res should only be introduced partially gradually, insensibly and progressively into ancient things, as "new men" into the community of the old nobility. Law is more aristocratic than aristocracy itself, hence democracy is the natural enemy of laws and can only tolerate decrees.

Our examination of modern democracy has brought us to the following conclusions. The representation of the country is reserved for the incompetent and also for those biassed by passion, who are doubly incompetent. The representatives of the people want to do everything themselves. They do everything badly and infect the government and the administration with their passion and incompetence.