Haller on Despotism
The Limits of Sovereign Power
Liberal ideology has accustomed us to seeing the phenomenon of "despotism" or tyranny as synonymous with the pre-modern system of government in which one man alone rules, by his own self-sufficient personal authority, and first and foremost for his own personal benefit, over a territory that is his own landed property. Under this proprietary theory of the State, what Haller calls "patrimonial power", we are to believe, one man wields "absolute" power over the rest, who are chattels or livestock he owns right along with the territory in which they live, who have nothing they can call their own, and exclusively exist for his personal gain and greater glory.
But this image does not altogether agree with the historical facts. Michel Foucault has pointed out that what he calls "biopolitics", as the theory and practice of government which sees the entire population and all wealth in the realm as a sort of natural resource that belongs to the State and exists in order to further ends of State, is a distinctly modern phenomenon. Its appearance, moreover, is historically co-extensive with the gradual birth of the modern Liberal administrative State that ultimately made personal and private rule recede before a "public" or impersonal administrative power, and the proprietary theory of rule give way to the Liberal pseudo-philosophical theory of public law. We know that the traditional State scarcely even had any legislative power, if any at all, or any administrative apparatus approximating modern bureaucracy; it had neither the power, desire, or organizational wherewithal to be totalitarian. Its power was "absolute" only in that it was indivisible, and not that it was omnipotent in scope. Far from it; the "absolute" power of princes was strictly hedged in by various natural and acquired rights of subjects, by customs and usages sanctified by immemorial tradition, and above all, by Divine law.
In the following reading, Haller attempts to elevate the practice and implicit premises of patrimonial rule to the level of an explicit rigorous formal juridico-political theory in the modern sense, with special attention to the abovementioned limits. Patrimonial government is the polar opposite of the modern Liberal administrative State, which styles itself an impersonal "public" power, fictively or actually created by the so-called "people" in order to see to its protection and administer collective "public" or "national" interests and affairs. Since the so-called "private" individuals have presumptively surrendered all of their personal power to the State, the sole and unique repository of sovereign power, in the "social contract" supposed to have created it, the public administrative power takes absolute precedence over the private individual, who is left with as much, or as little, liberty and property as State administrators think need not be expropriated in order to realize the public interest or ends of State. The legislative and regulatory/police powers of this State acknowledge absolutely no limiting case or principle external to the State itself; and its administrative purview extends to every thought, action, and occurrence within the national borders.
Patrimonial rule, by contrast, is private government. Here sovereign power is an emanation of personal property, of proprietary rights; as such, it is in no way delegated or bestowed in trust by others, but the personal possession of the one who wields it. Its overarching premise, one that is intuitively fair, so incontrovertibly so that even Liberalism itself usually at least pretends to recognize it, is that every man is free to do as he likes with what is rightfully his, as long as he respects the right of others to do the same with what is theirs. Hence proprietary power bears its own limiting principle within itself. It encounters hard and determinate external limits in the property and rights of others; no man, after all, can possibly own everything. Furthermore, this power is exercised first and foremost for personal gain, for private and particular interests as such rather parochial and narrowly limited in scope, as opposed to sweeping "national" interests, or more ambitiously still, the grandiose universalizing tasks of Making The World Safe For Democracy, Ending World Hunger, Fighting Climate Change, etc. ad nauseum the administrative State is always assigning itself, or being assigned by various activists and moral entrepreneurs.
Most unlike the administrative State, then, under patrimonial or territorial rule, as Haller has it, "authority is exercised less over men than material things" (III, 447). But since property and wealth furnish means of satisfying human needs, it naturally comes about that those who have enough of it will attract followers and dependants who enter into service or rental agreements with them in order to satisfy needs of theirs with such resources as the proprietors are willing to part with in exchange for services rendered, payments, and other benefits. The patrimonial State, then, isn't a public power, but rather a dense network of private contracts, person-to-person arrangements that create patrons and clients, superiors and dependants, and whose paramount node is a proprietor whose wealth and holdings are vast enough for him not to have any superiors or depend on anyone else himself. The latter is the prince or sovereign, the rest, subjects who have a diversity of particular obligations towards him, according to their individualized agreements
It should be carefully noted that this arrangement neither in theory or practice requires anyone to alienate their own personal power and sovereignty. Where the administrative State identifies and then aggressively asserts a "public" monopoly on the powers held to define sovereignty, above all the right to use force and the administration of justice, on grounds that it would be immoral and altogether incompatible with civilized life for them to be left in "private" hands, the patrimonial prince, who governs by private authority, is in a real sense just one private individual among others, with no special rights, only that much better equipped, by means of his superlative power, to make use of the rights enjoyed by all.
This means that, under patrimonialism, every legally free individual has the full complement of sovereign rights- including not only the right to keep and bear arms, but also the right to personally punish crimes and wage war- differing only in that the inequality of property means that the exercise of the inherent sovereignty (i.e. natural rights) of some are restricted to a narrower sphere than that of others, owing to limits imposed by the extent of the material wherewithal they have for projecting power (i.e. acquired rights). For example, while all individuals, according to Haller, have a self-evident right to arm themselves, not all of them can afford tanks and artillery, or make use of them; most will therefore have to content themselves with ordinary small arms, but not because of any banal Liberal dogma that "the State has a monopoly on the legitimate use of force" or whatnot.
The patrimonial prince, then, is merely the most powerful social actor in the realm, not the only power; his dependants have property, power, and dependants of their own, who in turn have theirs, etc. The prince may certainly make use of his domains as he sees fit, and for his exclusive benefit; he exercises supreme jurisdiction over his territory; he legitimately makes all sorts of rules for his servants and subjects, and sets terms and conditions for using or benefiting from his property or receiving grants of assistance he is uniquely positioned to provide. But once again, he can claim all these rights only to the extent that he is willing to recognize them in others; and by the exact same token that his rights are emanations of his personal power and in no way delegated by others, he is not the author or creator of the rights of his subjects, and his power over them ends where their own property and wealth begins. The obligations subjects have towards him tend to be highly specific, usually an obligation to some narrowly-defined service or payment, no different in principle from ordinary private employment or rental agreements today. Other than that, they owe him only the same duties of justice and humanity they owe any man according to Divine law. They are, in a real sense, princes in their own right, differing from the titular prince only in that they lack full political independence.
Princes however, by virtue of their superlative ability to project their power can abuse it too, and sometimes do. "Despotism" is what happens when princes overstep the bounds of their own rights and assail the rights of others. The historical reality behind the image of an "absolute" despot reducing whole peoples to servitude, despoiling them of their rights, lives and goods, and treating them as though minor children, or livestock, however, was ironically an effect of the transition, in early-modern Europe, from traditional monarchy to the modern Liberal administrative State, from private to "public" authority. During this time-frame, under the growing influence of the pseudo-philosophical theory of public law in the academy, and above all that of the early political Left, which had managed to insinuate itself into several European court circles by the 18th century, territorial principalities were surreptitiously transformed into what were essentially modern Liberal polities, with the difference that what was increasingly known as the executive power remained hereditary, and the idea that the realm was the landed estate or household of the prince continued to inform the theory and practice of Statecraft, even as the State was otherwise quietly reconceptualized as a public corporation of the people tasked with securing the good of the greatest number. The product of this unholy alloy of private and public power was the infamous phenomenon of police-State governance, the so-called "enlightened despotism" of Frederick II of Prussia, Joseph II of Austria, Catherine the Great of Russia, etc. Every aspect of personal life was regimented by ultra-paternalistic "police" regulations, power aggressively centralized, corporate charters revoked, feudal rights and privileges abolished, most private contracts voided or prohibited, the Church persecuted and its assets confiscated, testamentary powers severely limited, the infinitely variegated and specific particular obligations of different subjects replaced with a uniform and generalized set of civic obligations (including direct taxation and forced conscription) for all, etc.
But the princes who allowed themselves to be talked into enacting such despotic measures, in the final analysis- and by design of those who talked them into it- only succeeded in undermining their own rights along with those of their subjects, and digging the grave in which they were to be buried. For proprietary sovereign power must necessarily eat away at its own foundations to the exact extent that it attacks the rights of its others, which rest on those very same foundations, and by the same token that those among the subjects who let themselves be talked into supporting the revolutionary enterprise of turning monarchies into republics (by the very same sophists!) found that their own private rights fell right along with the Throne. The legitimate rights of Sovereigns and subjects are a value-added unity; they are inextricable, and if one is destroyed, the other goes down with it.
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(Adapted from: Restoration of Political Science, or Theory of the Natural Social State against the Fiction of an Artificial Civil State; Second Volume. First Part: Of Principalities or Monarchies. First Book. Of Independent Territorial Lords, or Patrimonial Princes. Paris: Potey, 1824; Restoration of Political Science, or Theory of the Natural Social State against the Fiction of an Artificial Civil State; Third Volume. Continuation and Conclusion of what concerns Territorial Lords or Patrimonial Princes. Conservatory Policy. Paris: Potey, 1830. Translation and editing mine.)
Any prince may consider himself and his household the chief end of his acts; this is indeed a duty for him, as long as he doesn't violate the rights of his subjects and neighbours; and nobody would keep his throne and his independence for long, nobody would, for that matter, secure the true good of his subjects, if he didn't keep this essential goal in sight above all else.
Nothing could be easier than defining despotism or the abuse of force, once one starts from true principles on the nature of sovereignty, that is to say, the power and personal rights of princes. Could it thus be that the publicists never sought out the limits of sovereign power right where they jump at the eyes; right where, in keeping with natural law, general usage, and common sense, it was so easy to find them; I mean to say, in the rule that limits all human power and liberty, to wit, respect for the rights of others? Since all of the powers of sovereigns emanate from their liberty and their property, from their personal and acquired rights, these very rights are also their own limits. We have already proven that, strictly speaking, a king or a prince is master only of his own affairs, and that in essence he governs none other. While his powers can be greatly extensive or appear to be, since he has greater means of exercising a legitimate liberty, and since his larger holdings put him in wider and more highly-variegated relations; while his power, in short, encompasses things that are more numerous and considerable: he is not, however, the proprietor of the bodies and goods of his subjects. Nobody has ever maintained that he may dispose of them at his whim, that it shall be permitted to him to exploit the lives, liberty, and honour of those who are in his service or dependence, despoil them of their wealth or treat it as his own, arrogate authority over their wives and children to himself, etc.
Notwithstanding the relation that binds a servant or subject to his sovereign- a relation that, by virtue of his commitments, imposes additional duties over and above the natural duties of man, and finally prescribes him certain rules of prudence and decorum- there nonetheless remains a sphere of liberty for each man, a domain where he is his own master, where he must not be bothered by anybody, and in which an immense range of legitimate action is left wholly to his discretion.
We have already proven that there isn't a single right of sovereignty that isn't exercised by the least among private individuals. Within the limits of natural law and physical possibility, the right of the lowliest private individual extends as far as his will and power. The difference consists only in the inequality of means and forces needed in order to make use of the same legitimate liberty, and in that this liberty is exercised over a greater or lesser multiple of things. Natural rights, that is to say possessions or goods bestowed by the Author of nature, and whose ownership is self-evident, are equal for all men except for the varying degrees of their perfection; whereas acquired rights, grounded in particular acts and deeds, and for which titles and witnesses must be produced in case of need, vary for each man, since the one has one talent, the other another one, and this man over here has used his liberty one way, and that one over there another way.
Between father and child, master and servant, prince and subject, there exists no essential difference in rights, but only a progressive and uninterrupted gradation of unequal fortunes and unequal gifts of nature; they differ between them, in no way by inequality of rights, but by the inequality of the means they have for exercising the same rights, for using the same liberty in a greater or smaller sphere.
Everybody has something of his own; the life, the honour, the time and energy of the poor man (provided he has not pledged them to another by way of an agreement) belong to him just as much by grace of God as the king's power, fortune, and crown belong to him. Divine laws, that is to say laws of necessity and moral laws, are thus the limits of sovereign power; the former cannot be, the latter must not be, violated by the prince. The law of justice enjoins princes to keep to their own rights, and never violate those of others- in short, to harm none, to give and leave to each his own. And since this purely negative law doesn't suffice for the needs of human society, as a supplement nature adds the law of love and benevolence, one that enjoins princes to do everything in their power to procure comfort, help, and good for their fellow man, to support and protect the exercise of the rights of others. These two phrases cover all the duties of sovereigns and Man alike.
Despotism begins as soon as the sovereign exceeds the bounds of his natural or acquired rights, as soon as he encroaches upon the rights of others, or finally, to make use of a vulgar but most evocative language, meddles by force in things that don't concern him, that is to say, that aren't his own, and concern neither his rights nor his interests. In short, despotism is nothing but an assault by a stronger party that cannot be resisted, at least not without major drawbacks that would aggravate the harm instead of diminishing it. Cases where this abuse of sovereign power manifests itself, where the prince goes beyond his personal rights, are so easy to recognize that the most commonplace sentiments of justice suffice for it, and that the most ordinary of men judge it more soundly than the philosophers of our times. We will elucidate this truth with a few examples; and while we have, in the course of explicating the various rights of a sovereign, distinguished use from abuse, and the just from the unjust throughout; a brief recapitulation is nonetheless not without its uses in order to better bring out the true character of despotism in the various forms it can assume.
A prince incontrovertibly has the ability to wage war in order to secure respect for his rights or those of others; but he has neither that of waging unjust war and invading, without prior offense, the territory of his neighbour in order to compel him to submit to an arbitrary will, nor that of expropriating the property of his subjects in order to provide for the costs of a war; nor, finally, the right to force free men into military service in standing armies, although he may entice them into it through the allure of various benefits, or call upon their service by way of appeal to patriotism or their private interests. He may conclude peace treaties, alliances, and all sorts of agreements with other princes, and keep the public peace in his own country; but to make alliances in order to visit injustice and default on legitimate commitments; stipulate in his treaties to the detriment of a third party; forbid his subjects all personal defense, all use of force, even in case of necessity; finally, to deprive them without cause of all types of arms and other resources needed in order to defend their property, prohibit innocuous parties and associations, etc.; all these measures prejudicial to the rights of others are rightly taken as unjust and despotic.
The sovereign is free to make all sorts of laws and regulations for himself, his servants, and his subjects; but already those he imposes upon himself must neither be contrary to the universal justice that is the supreme law, nor to agreements or the rights of others. And if he presumed to prescribe impossible or criminal things to his functionaries through regulations and instructions, or merely assign them unbearable tasks they had in no way previously committed themselves to, and refuse them all rest and recreation: this would rightly be taken as a revolting despotism. The same judgment would be brought with a unanimous voice if the sovereign affected to create the rights, relations, and possessions of private individuals at will through so-called civil laws; if it pleased him to turn virtues into crimes and crimes into virtues, to punish the former and reward the latter, through his penal laws; if he abused his police powers to proscribe licit and innocent acts in order to impose punitive and useless privations and burdens in their place; or finally, if he sought to make these sorts of laws binding before they were made known, and hence retroactive.
He has supreme jurisdiction, since he can secure for all his subjects the enjoyment of their rights; but to force them to receive this assistance without having asked for it and meddle in each petty domestic squabble; knowingly and intentionally pronounce or ordain unjust sentences; tolerate or approve of abuses on the part of subaltern judges; punish innocents and excuse the guilty, hence making himself the accomplice of iniquity: this would be something abominable unto God. It would offend against the very laws of humanity to subject judicial assistance to excessively great difficulties and excessively onerous terms and conditions.
He may form, within his territory, all sorts of profitable enterprises, and even decree them to be exclusively his, for example, establishing post offices, minting money, exploiting mines; but it would be a despotic act to despoil, for this purpose, the former owners of these sorts of establishments without prior and agreed-upon compensation; force the subjects through harsh and coercive laws to use the roads and bridges he builds in order to increase receipts from tolls; extend his rights over hunting to the point of maliciousness and the violation of the property of others; prohibit private individuals from transporting their merchandise and letters themselves; alter the composition and weight of coinage and then give it as payment on its face value, etc.
In all ages it has been regarded as unjust for the sovereign to arbitrarily impose direct taxes on his subjects, since their wealth isn't his; but if he refuses to allow them to benefit from establishments that are his property, or grant them assistance or favours, except under condition of certain pecuniary fees, he only disposes of what is his; he sets the price for what he can give or withhold, and harms nobody. Finally, administrating subsidies faithfully and with economy, and employing them only for the purpose for which they were requested or obtained, is a sacred duty of diligence and even strict justice for the sovereign when this purpose has been formally stipulated and promised. Any contrary measure would rightly be taken as despotic.
One can see from all these examples, to which a bunch of others could be added, that everywhere and always despotism consists only in assault on the rights of others; in short, injustice by a stronger party that cannot be resisted, and hence the limit of sovereign power differs in no way from that which fixes the power and liberty of all men. And the same principle also explains the righteous indignation of subjects against those great oppressive measures that assail the citizenry in general; measures that peoples today owe solely to pseudo-philosophical public law, whose partisans tout them emphatically under pretext of policy, welfare, industry, or progress of enlightenment, and that they even dare prescribe to sovereigns as strict duties, and as indispensable means for attaining the goals of civil society. Hence, for example, prohibiting under severe penalties all emigration; tying free men who have no specific commitments to anyone to the glebe; robbing the unfortunate and persecuted of the last resort remaining to them for securing their liberty and well-being; reducing all men to the status of serfs while at the very same time declaiming against the old partial servitude, which however was always based on particular grounds and reciprocal benefit; indiscriminately subjecting employees and subjects on the interior to indefinite and involuntary personal servitude, hence to actual slavery; subjecting all private property to seizure, whether by legislation or simple decree; taking possession of it by brute force without compensation, from whence it follows that nobody possesses anything of their own any longer; all these acts were hitherto unknown, or at least weren't enshrined as principles of law in academia and in scholarly works.
By the same token, each man is master of his own house and may dispose of his property, as long as he doesn't violate the rights of others. Thus if the sovereign were to arrogate authority over the internal affairs of families to himself, meddling in the private household management of individuals without prior offense; prescribe the type and method of agriculture according to this or that academic system; place almost all grown men under a sort of tutelage as though minor children; weaken all paternal authority; regulate education and domestic tutoring at his whim, and remove it from the authority of parents and the influence of the Church; compel attendance at useless or bad schools, while prohibiting others that are much more useful and needed; ordain or prohibit this or that marriage, hence subject love itself to his caprice; and so to speak dispose of the bodies and all temporal well-being of his subjects, etc.: these would amount to so many acts of intolerable and ruinous despotism, although our modern philosophists have sought to whitewash them in order to put their system of leveling into practice, or rather turn the whole world upside-down, and by their means perfect the human race.
To what else, if not these same doctrines, should we give the credit for having heard, in our day, sovereigns great and small promote a principle as subversive of all justice as the good of the greatest number is the sole good, and as a result believe themselves authorized, here under one pretext, there under another, to destroy municipalities, entire classes of citizens, corporations, monasteries, hospitals and other religious foundations; seize their properties and their revenues, as though they belonged to the prince; lay hands on the goods even of pupils, widows, and orphans, or at least expose them to the greatest danger; overturn, under pretext of civil legislation, all true private laws, titles, compacts, and customs; void private contracts by their own authority without the consent of the parties involved, and even against their wishes, as, for example, by ordaining the abolition or forced sale of corvées or feudal rights; annulling or even prohibiting wills and testaments; suppressing and forbidding substitutions, trusts, and fee tails, which in fact serve as the foundation of the very throne of sovereigns, but displease reformers, since they preserve the property of illustrious families, and produce, through inequality of wealth, relations of authority and dependence; robbing even the bereaved of the consolation of being able to dispose of what is theirs, hence loosening or even dissolving the last family ties, the last incentives that lead children or seconds to fulfill duties of justice and humanity towards old people or infirm fathers; by extension ordaining equal inheritance, even when nobody asked for it; denying subjects even the refuge of religion, the sweetness of a just respite; having temples shut down by soldiers and policemen, and abolishing religious ceremonies and holidays, compelling men to work, by no means through education, by example and a correct understanding of their interests, but by force, in the manner of the Pharaohs, and this under the pretext that work makes the State prosper; tormenting them, not only in their religion, but also their language, dress, and leisure, in order to furthermore establish, under this relation, a uniformity contrary to nature, etc.: all these measures are so much tyranny born of the revolutionary system, and the false principle of power delegated by the people.
Even where these measures would be as salutary as they are destructive to the liberty, safety, and well-being of peoples, they would still have to be regarded as an abuse of force, and hence as true despotism. If they are so strongly revolting to every righteous mind, it is precisely because they tend to regulate what concerns the sovereign in no way, and, without concerning his rights or interests, violate the most sacred of private rights, and figure among the number of those gratuitous abuses, devoid of pretext or justification, that procure no benefit whatsoever, even for the one who commits them. As such they have only ever been suggested to sovereigns by a sect of sophists; for the former, by themselves, could never be inclined towards despotic measures of this sort. Neither solicitude for their own defense, will to power, avarice, or any other passion leads them there. These acts of violence, far from being useful to them, produce only hindrance, discord, and a heap of odious and onerous states of affairs, and moreover endanger the rights of sovereignty, which rest on the same foundation as those of subjects. For as soon as that impious principle, which is that it is by no means justice, but the interest of the greatest number that must take precedence over that of each individual, and even the interest of the sovereign; as soon as one is willing to respect neither compacts and testaments, nor testamentary provisions; once one believes oneself authorized to suppress the right of primogeniture where it has been legitimately introduced, destroy establishments under pretext that they are useless, and seize the wealth of others, because it isn't being spent as optimally as it could be; then sovereigns soon descend to the level of poor and weak private individuals, and see themselves in turn despoiled by virtue of the same maxims.
Then there will be declamations against the luxury of their courts and their houses, and it will be proposed that they reduce expenditures, since this money, although it is their property, could be better spent. Their palaces will be called national buildings, their real estate, property of the government, their very treasuries, public funds; it will be asserted that their fortune must be equally divided between their sons and daughters, since the interest of the greatest number demands it; that their domains must be sold and divided for the supposed benefit of agriculture and the population; finally, that their royalties and their profitable monopolies be suppressed in order to multiply the resources and industry of subjects. The most just and necessary of taxes and wars will be made to appear harmful to the greatest number- which, according to circumstance, might find changing sovereigns to be a matter of indifference and even beneficial. In the name of the masses, the renunciation of certain provinces, the most dishonourable concessions, and even the abdication of royalty will be insolently demanded, as soon as a gang of sophists, calling themselves the people, hopes that such a revolution might procure benefits or forestall costs.
And it most certainly cannot be said that these fears are chimerical or exaggerated; our times have seen them justified by a tragic experience, and more than one prince, more than one republic has fallen into the abyss, because, having adopted false principles, they strayed away from justice, and came to see the interest or the will of the greatest number as the supreme law. In any case, even when things don't come to these deplorable extremes, and even in the ordinary course of government, sovereigns don't always escape the traps set out for them by such sophisms; for every time their rights and their interests take precedence over those of others, whenever they seek, for example, to better exploit their mines, extend or increase their royalties, or even ordain spending cuts that rub more or less few private individuals the wrong way: they will be incessantly opposed with the real or presumptive advantage of the greatest number, to the end of thusly obstructing and paralyzing the most wise and just of their projects.
Additionally, those great acts of violence against all rights of private individuals and corporations, against the most sacred possessions, the compacts and customs of men, would certainly have never taken place, had he not found himself people who sought to justify them through false doctrines, and even present them to princes as reasons of State and political necessities. The true rights of princes are so numerous, so extensive, and so well-suited to satisfying every wish, all the wants of Man, that even the most ambitious, as long as his existence remains immune from attack, need never infringe upon the rights of others, nor bother them in the little domain that Heaven has left to their free discretion.