Victor Hugo on the Limits of Democracy by Roderick T. Long

In December 1851, French President Louis Bonaparte – the future Emperor Napoléon III – seized power in a coup d’état, in violation of his oath to uphold the Constitution. He arrested the legislature; imprisoned, deported, or executed his political opponents; and deterred future dissent by massacring civilians in the streets.

When he was done he held a referendum on his coup, and announced that the voters had vindicated his actions by a vote of approximately 7,500,000 to 640,000. Bonaparte’s argument, in effect, was that 7.5 million Frenchmen can’t be wrong.

In 1852 the liberal writer and former legislator Victor Hugo responded, from exile, with a book titled Napoléon the Little, the first of his many broadsides against the new régime. After casting doubt on the freedom of the elections and the genuineness of the official figures, Hugo added that even if the plebiscite had been procedurally flawless, an electoral majority had no competence to authorise Bonaparte’s crimes.

Hugo’s magnificent analysis is worth quoting at some length – both for its virtues and for its flaws:

You were captain of artillery at Berne, Monsieur Louis Bonaparte; you have necessarily a tincture of algebra and geometry. Here are some axioms of which you have probably an idea.
Two and two make four.
Between two given points the straight line is the shortest.
The part is less than the whole.
Now, get seven million five hundred thousand votes to declare that two and two make five, that the straight line is the longest road, that the whole is less than its part; get it declared by eight millions, by ten millions, by a hundred millions of votes, you will not have advanced a step. Well, then, now you are going to be surprised. There are axioms in probity, in honesty, in justice, as there are axioms in geometry; and the truths of morality are no more at the mercy of a vote than are the truths of algebra. The notion of good and evil cannot be resolved by universal suffrage. It is not given to a ballot to make the false become the true and the unjust the just. The human conscience cannot be put to the vote. ...
Thus then, whatever be your figures, controverted or not, extorted or not, true or false, it little matters. Those who live with their eyes fixed on justice will say, and keep on saying that crime is crime, that perjury is perjury, that treason is treason, that murder is murder, that blood is blood, that dirt is dirt, that a rascal is a rascal, and that he who thinks he is copying Napoleon in miniature is copying Lacenaire [a famous murderer] at full length. They say this, and they will repeat it in spite of your figures, because seven million five hundred thousand votes weigh nothing against the conscience of the honest man; because ten millions, a hundred millions, the unanimity even of the human race voting en masse would not count before this atom, this particle, of God, – the soul of the just man; because universal suffrage, which has entire sovereignty over political questions, has no jurisdiction over moral questions.
I leave aside for the moment, as I said just now, your methods in connection with the ballot, – the bandages over the eyes, the gag in every mouth, the cannon on the public squares, the sabres drawn, the spies swarming, silence and terror leading the vote to the urn like a malefactor to the station-house, – I leave aside this. I suppose (I tell you again) universal suffrage to be free; true, pure, real, universal suffrage sovereign of itself as it ought to be; the journals in every hand, men and acts questioned and examined, placards covering the walls, free speech everywhere, light everywhere! Well, to such universal suffrage as this submit peace and war, the effective force of the army, public credit, public relief, the budget, the penalty of death, the irremovability of judges, the indissolubility of marriage, divorce, the civil and political status of women, gratuitous instruction, the constitution of the commune, the rights of labour, the salary of the clergy, free trade, railroads, the currency, fiscal questions, colonization, – all the problems whose solution does not bring with them its own abdication, for universal suffrage can do everything except abdicate, – submit these to it, and it will resolve them, doubtless with error, but with the totality of certitude which human sovereignty includes; it will resolve them authoritatively. Now, try to get it to settle the question whether John or Peter has done well or ill in stealing an apple from an orchard. There it halts; there it fails. Why? Is it because this is a lower question? No; it is because it is a higher one. All that constitutes the organization proper to societies, whether they be considered as territory, as commune, as state, as country, – all political, financial, and social matters depend on universal suffrage, and obey it; the smallest atom of the least moral question defies it.

As with all that Hugo writes, this passage is beautiful in toto and true magnam partem. But it is worth focusing on the partem that is not true, because the mistake here is not merely Hugo’s, but is the fatal error on which 19th-century liberalism as a whole foundered and lost its way.

Hugo rightly and eloquently denies the authority of majority vote over moral questions. But he errs in thinking that such matters as “peace and war, the effective force of the army, public credit, public relief, the budget, the penalty of death, the irremovability of judges, the indissolubility of marriage, divorce, the civil and political status of women, gratuitous instruction, the constitution of the commune, the rights of labour, the salary of the clergy, free trade, railroads, the currency, fiscal questions, colonization” are not “moral questions,” but are merely “political questions,” and as such do fall under democratic jurisdiction.

Yet in fact all these questions are mere variations on the question “whether John or Peter has done well or ill in stealing an apple from an orchard,” which Hugo admits lies outside the legitimate scope of democratic decision. All these so-called “political questions” are at bottom questions as to whether one group of people may assault and/or plunder another group of people. Once it is admitted that John or Peter may not steal apples from the orchard owner, it is thereby admitted that a million Johns and Peters may not combine to tax the orchard owner, or conscript him into their pet projects, or otherwise restrict his liberty. Take moral questions out of the voters’ hands, and all these “political, financial, and social matters” are removed as well. One cannot deny the majority jurisdiction over the axioms and yet leave them jurisdiction over the theorems.

Some of Hugo’s liberal contemporaries understood this. In the preceding three years, the case had been made – by Molinari’s Soirées in 1849, by Bastiat’s The Law in 1850, by Spencer’s Social Statics in 1851. The latter, for example, ridicules “the monstrous, though generally-received doctrine, that a legislature may equitably take people’s property to such extent, and for such purposes, as it thinks fit – for maintaining state-churches, feeding paupers, paying schoolmasters, founding colonies,” and “the astounding belief that an act of parliament can abrogate one of Nature’s decrees – can, for instance, render it criminal in a trader to buy goods in France, and bring them here to sell, whilst the moral law says it is criminal to prevent him! As though conduct could be made right or wrong by the votes of some men sitting in a room in Westminster!” And all three saw that the proper liberal alternative to legalised plunder by the few was not legalised plunder by the many but an end to legalised plunder altogether.

But the vast mainstream of liberalism was to follow Hugo in embracing what Spencer would later call “the divine right of parliaments” – the illusion that little if anything lies outside the legitimate sphere of democratic authority. Hugo was right: no mere vote can turn crime into innocence. But he failed to recognise the logical implications of his own view. Today only the libertarians (and not all of them!) still recognise that what is a crime if done by an individual is still a crime if done by the democratic state – that, in Rothbard’s words, “regardless of popular sanction, War is Mass Murder, Conscription is Slavery, and Taxation is Robbery.”