Quand il faut décider: Benjamin Constant et le problème de l’arbitraire. Par Felipe Freller

Felipe Freller sets out to show in this work that Benjamin Constant’s preoccupation with the arbitrary is not just a liberal condemnation of the unfettered exercise of power, aimed at limiting the decision-making powers of powerful individuals or bodies, but rather a sustained engagement with the problem of how to deal with decisions that cannot be taken on the basis of pre-existing principles or laws, and which therefore necessitate judgement and action. How do we best prevent the abuse of power, when we know that we cannot anticipate the nature and circumstances of every possible future decision, and need to leave some latitude for decision-makers to address new or unanticipated challenges in a timely and effective manner? The problem was illustrated in Constant’s lifetime, as France moved from the exceptional powers exercised during the Terror, to the excessive checks and balances of the Directory, whose ten-year embargo on constitutional change contributed to its repeated resort to the coup d’état, the last of which sent France too far the other way again under the Consulate and Empire, and finally to the debates of the Restoration over the respective responsibilities and prerogatives of the king, ministers, and parliament. Freller’s study examines the evolution of Constant’s thought, setting it within intellectual traditions, its evolving political contexts, contemporary theoretical discussions, and subsequent scholarship. The approach is one of fine-grained analysis rather than synthesis, and provides the persistent reader with a detailed and convincing account of how Constant balances theoretical abstraction with the lived experience of an active participant in and commentator on an extended constitutional experiment. Freller draws out Constant’s distinctive focus on religious feeling — rather than religious forms — as a source of the morality required of the decision-taker. The study shows Constant’s work to be very much of its time. The solutions he envisaged did not gain traction, and many of his concerns are addressed in modern liberal democracies by a mechanism he did not propose: recourse to some form of constitutional court. Constant’s ideas are nevertheless of renewed interest in a period which seems increasingly to be forgetting hard-learned lessons about the need to constrain the arbitrary decision and to ground it in moderation, ethics, and compromise, and lurching instead towards a politics that even Napoleon might have considered deficient in any of those qualities.