University of São Paulo: Book brings a new look at the thinking of Benjamin Constant

Benjamin Constant (1767-1830) is considered by many to be one of the ”founding fathers” of political liberalism. Having lived and worked in a France that was the scene of the 1789 Revolution, the rise and fall of Napoleon Bonaparte and the Bourbon Restoration, he produced his theoretical work shaken by the challenges and contradictions of practical politics, crossed by republics, empires and constitutional monarchies. Until now, the uncompromising defense of individual freedom and the condemnation of the arbitrariness of rulers were the most explored dimensions of his production.

The book When It’s Necessary to Decide: Benjamin Constant and the Problem of Arbitration, by Felipe Freller, does not intend to dismantle the classic interpretations of the Franco-Swiss thinker, but to offer a more prismatic view of his ideas. For this, it adjusts the focus to an aspect that has been little studied in Constant’s work: the author’s treatment of the issue of arbitrariness in politics, the making of decisions that do not follow the letter of the law.

The book is the result of Freller’s doctoral thesis , defended in 2020 at the Department of Political Science of the Faculty of Philosophy, Letters and Human Sciences (FFLCH) at USP and at the École des Hautes Études en Sciences Sociales (EHESS), in France, through double degree agreement, with a scholarship financed by Fapesp, under the guidance of Professor Eunice Ostrensky and co-supervision of Fréderic Brahami. In 2021, the work was awarded the CAPES Grand Prize for Oscar Niemeyer Thesis in the Humanities area, in addition to receiving an honorable mention in the 10th edition of the USP Thesis Highlight Award, in the Human Sciences area.

According to Freller, thanks to texts such as The Liberty of the Ancients Compared to that of the Moderns (1819), Constant entered the canon of political thought as a theorist of modern liberty. This would be the space in which individuals can act without arbitrary interference from authority, modernity being the realm of individual autonomy. Constant’s interpreters emphasized this individual freedom and its political conditions – the rule of law, the rule of law and the limitation of sovereignty.

From the 1980s, however, studies on the author began to understand this individual freedom linked to a democratic ideal of political participation and citizen engagement, says Freller. This ideal would be precisely one of the prerequisites of individual freedom. It is in this tradition that the newly released book is situated, directing its gaze to what Freller called the problem of agency.

An intrinsically pejorative term, arbitrariness refers to the idea of ​​unlimited power, above the laws, tyrannical and despotic. In previous analyses, the will in Constant was understood only as an object of criticism, denied in principle as a process that would lead to tyranny. Before him, explains Freller, it was almost a consensus in political thought that, in exceptional situations, laws could lose their validity and a certain degree of arbitrariness became necessary. Constant is usually seen as an author who denies this and recognizes general, impersonal law as the sole authority.

“It’s not that I deny Constant’s preoccupation with the rule of law and his critique of discretion,” comments Freller. “But I try to say that, in my interpretation, he came to realize, over time and in the light of traumatic events, that there are situations in which some degree of discretion is necessary in the political experience. It is not a simple refusal, but facing a question: how to incorporate the will without it degenerating into tyranny?”

Constant doesn’t offer a definitive solution to the problem, says Freeller. The author himself recognized that the inevitable tendency of the agency is to become tyrannical. However, throughout his production, he developed some ideas and proposals that are still of interest to political theory when considering the incompleteness of the rule of law. This is the case, for example, of neutral power, an attempt to incorporate discretion into the institutional system in a controlled manner. An idea that was widely accepted in the 19th century, even appearing in the Brazilian Constitution of 1824 under the name of Poder Moderador.

Throughout his production, other developments on the issue also emerged, as Freller comments. “Constant was generalizing the problem of arbitration, not content with simply allocating it to a specific constitutional power. He goes on to think about how agency needs to be generalized in the body politic.” Thus, explains Freller, Constant considered that ordinary individuals, whether or not they had roles in law enforcement, should have the ability to decide about the justice of the law itself. “They cannot be simple automatic law enforcers, they need to have decision-making capacity, because the automatic application of the law itself is a danger, whether in the case of unjust laws, or in the case of laws that, even if they are just, would be unjust in their nature. application to a particular case.”

In any case, continues Freller, what the French-Swiss author does is more to present problems than to offer solutions, reaffirming that there is no definitive solution for guaranteeing individual freedoms in a representative government. “What he is saying is that the loss of freedom is possible through the very application of laws and, in this sense, the role of arbitration must be recognized”, he explains. “More than a solution to the problem of how to prevent will from becoming tyranny, what Constant says is that it is necessary to recognize the unavoidable role of will and be aware of the danger of its transformation into tyranny. But it itself cannot be entirely ruled out, because laws are not sufficient to guarantee freedom.”

This repositioning of the gaze on Constant’s work, according to Freller, was structured from the attempt to understand the author’s thinking as strained by the way Constant received and intervened in the political events of his time. Freeller sought to see the author as someone who postulates problems from his own historical experience, rather than seeing him as a thinker who would have a coherent doctrine.

Freeller’s approach is innovative among Constant scholars. This is because it proposes to see the relationship between theory and changes in position in the trajectory of the French-Swiss author without trying to justify contradictions or deny them. Having actively participated in French political life, Constant found himself sometimes defending, sometimes criticizing rulers and their actions, even receiving the nickname of ”the fickle Benjamin” by his contemporary detractors.

Among his political upheavals are the defense and subsequent rejection of the 18 Frutidor coup, which took place in 1797 during the Directory government, in which the republican coup d’état tries to contain a counterrevolutionary threat within the representative government itself. And also the relationship with Napoleon: despite Constant considering him a usurper tyrant at first, the author would come to contribute to the elaboration of the Constitution of his government of 100 days.

Even though Constant himself always tried to counter criticism, explains Freller, justifying that his allegiance was not to a man or a party, but to political principles, his image was marked as that of a fickle politician. To account for this, contemporary literature has developed two explanations. The first tried to show that, deep down, there was no inconsistency in their changes of position. The second recognized this mismatch between theory and practice, but stated that her actions would be more biographical deviations, explainable by psychology or even politics, without major contributions to her theory.

Freller, in his book, does not seek to deny this puzzle between systematic thinking and changes in position. Instead, he tries to take Constant’s stances more seriously. “I try to show that there are indeed tensions, there is no simple coherent application of theory to practice. It is not something simply external to the theory, it is something that has repercussions on the theory.”

In the case of the 18 Frutidor coup, Freller continues, Constant was forced to think how it would be possible to carry out something analogous to those coups d’état necessary for the defense of freedom – since political groups that are enemies of freedom can come to power by the very rules of the representative regime game – without resorting to violent coup. “Theory until then totally denied the will and, in practice, he is obliged to embrace it, even if in a punctual way. This leads the theory to need to give answers. What I try to show is that it was neither a simple application of the theory nor an event external to the theory, but something that led Constant to think about this problem: how to incorporate agency in a non-tyrannical way.”

Constant’s criticism that laws are not enough to guarantee freedoms could be seen as an indication of his adherence to liberalism and a criticism of republicanism. While the republicans would think of freedom as constituted from the laws, Constant would see freedom in the domain of the private. Freeller, however, tries to think about the issue in a different way.

“In my view, it’s not that Constant is against the rule of law,” he explains. “The point is less to think about whether or not Constant is opposed to this empire and to think of him as someone who stresses and shows its inadequacies and limits without, however, rejecting it. Or rather, always defending it.” Thus, for Constant, the critical judgment of citizens is needed so that laws are not applied blindly and tyrannically. “Basically, his big bet is on the strength of a critical citizenry and a thriving public opinion that is forced to make decisions that may not be based on the laws.”

A discussion that remains current and finds ground in Brazil in 2022. According to Freller, Constant is interesting to think about the country in this double dimension of the critique of arbitrariness and the ways in which it can be incorporated into the political system. “He alerts us to the dangers of all attempts to deviate from the law, even with good objectives”, he comments, recalling the discussion brought about by Operation Car Wash about the conflict between punishing criminals and the deviation of legal guarantees.

In addition, the threat to democracy itself is another sensitive topic for the analysis of the Franco-Swiss author, as he himself experienced the events that culminated in the 18 Frutidor coup, an attempt to remove counterrevolutionary groups from power. Constant offers the insight that the representative regime can be subverted from within when groups opposed to this political regime win elections. “Constant is showing that the simple institutional gear of the constitutional and representative regime is insufficient to face this threat. There needs to be some intervention other than simple law enforcement.”

It is the exhortation for citizens not to abdicate critical vigilance over the powers that be and not to blindly trust the automatic functioning of the representative regime. “All these ways in which Constant tells us that law enforcement is insufficient to stop the dangers facing the constitutional and representative order are current”, ponders Freller. “I would say that is exactly what we are experiencing in Brazil, with an extreme right-wing government that has not definitively broken with the legal framework of democracy and the rule of law, which plays within the democratic game itself. Stopping the dangers that this type of government poses involves, of course, law enforcement, but that’s not all. It involves both the institutional sphere and the sphere of mobilizing public opinion and citizens,

University of São Paulo