"Guard Dogs of the Monarch": Legal Despotism and the Natural Order

Physiocracy originated as a doctrine of economic reform intended to overhaul the tax system. As it developed, however, the political dimension of physiocratic theory came increasingly to the fore. The increasing politicization of Quesnay's economics is evident even in the theoretical trajectory of the Encyclopédie articles. The more Quesnay addressed problems of economic and fiscal reform, the more he was compelled to confront the fundamental problem of the relation between state and society. Furthermore, the more he refined his economic model, the more he tended to present it as a theoretical encapsulation of the principles of the natural order. The same pro-

cesses occurred with respect to the political doctrine. Increasingly, Quesnay argued that his theory of state and society rested upon universal principles of natural law. Consequently, hand in hand with the politicization of Physiocracy went its generalization; from its beginnings as an argument for economic reform it moved towards a general theory of society. In the process, Physiocracy became increasingly abstract, speculative, and philosophical in character.

The generalization of Physiocracy into an all-embracing social theory occurred in 1763 when Mirabeau published his Philosophie rurale, a work which was actually a collaborative effort with Quesnay. Philosophie rurale symbolized a new phase of physiocratic theorizing which has been interpreted as a depoliticization of the doctrine.^[86] What this work signified, however, was not the theory's depoliticization but its dehistoricization; as it became universal in character, physiocratic thought became increasingly detached from immediate social and political issues. The larger question of the nature and character of political power emerged from the background to become the central issue of physiocratic investigation and reflection. Indeed, Mercier's Ordre naturel et essentiel des sociétés politiques (1767)—the work which first systematically advanced the theory of legal despotism—presented the economic order as a product of the political order. Quesnay's growing preoccupation with government and political authority was reflected in his two important essays, published in the same year Mercier's treatise appeared, "Analyse du gouvernement des Incas du Pérou" and "Despotisme de la Chine." In these articles, Quesnay probed the relationship between government and the natural order.

The concept of the natural order was the foundation of Quesnay's theory of state and society. His philosophical inspiration appears to have been Cartesianism.^[87] Quesnay frequently described the universe as a gigantic machine which operated according to natural laws of divine origin. The various subsystems of this machine—for example, the economy, the social order, and the state—would operate properly only if they adhered to the laws of the natural order. Similarly, Mirabeau wrote in the Philosophie rurale that

The perpetual movement of this great machine [nature], animated and directed by its own springs, their action well secured and independent, has no need of outside direction. The physical and moral constitution of this system

adheres to a natural and general order, the course of which is regulated by supreme laws.^[88]

The principles of the social order are logically deduced from the laws of the natural order. Moreover, these social laws are primarily economic in character. A stable and harmonious society rests upon the continual self-reproduction of wealth: "The natural laws of the social order are themselves the physical laws of perpetual reproduction of those goods necessary to the subsistence, the conservation, and the convenience of men."^[89] The social order need only provide the legal and institutional framework which allows the economic machine to reproduce itself. This self-regulating economic mechanism will provide wealth to the citizens and stability to the Crown. The most important economic objective of state policy should be to allow the unhindered operation of the natural laws of the economy. For this reason, the state should abolish all restrictive, prohibitive, and monopolistic trade practices. In the words of Le Trosne, agriculture, industry, commerce, transport, prices, property, and so on "must not be objects of administration and should be left to the free interaction of particular interests."^[90]

This emphasis on unrestricted, self-seeking economic activity has led many commentators to see the Physiocrats as prophets of laissez-faire and economic individualism. No doubt laissez-faire and economic individualism do have their place in the physiocratic conception of society. But it is important to recognize that Quesnay and his school do not view the social order itself as constituted by the economic activity of individuals within civil society. Rather, it is only within a preexistent social order that economic individualism can contribute positively to society as a whole. Within an appropriate legal and institutional arrangement, self-interested economic activity can indeed further the general welfare. In this respect, the Physiocrats anticipate Adam Smith's doctrine of the "invisible hand." Unlike Smith, however, they specify the social context which is an indispensable precondition to the operation of the invisible hand. Thus, when Mirabeau writes that "the whole magic of well-ordered society is that each man works for others, while believing that he is working for himself,"^[91] his statement presupposes the functioning of "a well-ordered society." In an ill-ordered society, self-interested economic activity could rupture the social fabric. For this reason, the

fundamental principles of well-ordered society become a central concern of physiocratic theorists.

It is worth recalling here Quesnay's statement in "Hommes," quoted above, that "private interests do not lend themselves to an insight into general welfare. Such advantages can be expected only as a result of the wisdom of the government." This is one critical reason that Quesnay rejects feudalism's system of provincial estates and French absolutism's "privatization" of state functions; they are not rational forms of political organization. Unlike many British political economists, the Physiocrats cannot take for granted a "well-ordered" civil society in which the state abstains from interference in the private realm. On the contrary, the state has to counter the fragmentation of polity and society. In the physiocratic scheme only a unified government is capable of conceiving of society as a whole and of comprehending its general interest. The feudal state cannot properly direct society since, in the words of Le Trosne, it represents "a nation composed of an infinity of particular societies and subdivided to infinity."^[92]

The state must stand above the sphere of particular interests if it is to constitute a truly universal power in society. The infiltration of private interests into the state will upset the delicate balance of the social order. As Mirabeau argued,

The government which wants to secure its authority ... should anticipate the dangers of anarchical authority which is urged upon it by individual interests; I say anarchical, because authority which disrupts the ties binding society together destroys power, and the annihilation of power destroys authority.... Introduce one wrong note into the harmony of society, and the whole political mechanism feels the effect and falls apart, and concord is then as difficult to re-establish as it would be for the world to take shape as a result of the accidental concourse of atoms of Epicurus.^[93]

It is for this reason that Quesnay argues for the indivisibility of political authority. The unity and stability of the social order presuppose a centralized political authority which can establish the framework in which private interests unintentionally further the general welfare. Fragmentation of authority results inevitably in the disintegration of social life. As Quesnay writes, "Authority divided between the different orders of the state will become an abusive and discordant authority, which will have neither leader nor meeting

point for settling differences and harnessing the interaction of particular interests to the general welfare."^[94]

Authority must therefore be singular and indivisible. Yet it is not clear what precise form authority should take. That the Physiocrats supported a monarchical state is indisputable. But what institutional form was the Physiocrats' monarchy to assume? It is evident that they opposed the traditional feudal constitution with its fragmentation of authority. It is equally evident that they derived their notion of unitary, centralized monarchical power in large measure from the experience of French absolutism. Numerous favourable remarks upon absolute monarchy are to be found throughout physiocratic literature. Le Trosne argued, for example, that the absolute monarchy had tamed the nobility and presented royal justice to the people as "a guaranteed refuge and a shelter, which is always open, against violence and oppression." Moreover, achieving autonomy from the nobility, the absolute monarchy established "the most solid constitution, the one most appropriate to administering the laws of the [natural] order."^[95] It is no accident, therefore, that their contemporaries often saw the Physiocrats as supporters of the absolute monarchy in its eighteenth-century French form. Their use of the term "legal despotism" to describe their political stance conjured up images of an arbitrary and unbridled absolute power. In important respects, the Physiocrats were supporters of the absolute monarch, as illustrated in Dupont's comment that the économistes were like the best "guard dogs" of the royalty.^[96] Nonetheless, the concept of legal despotism was substantially more sophisticated than these polemical formulations suggest. It was to provide the basis for a unitary and centralized monarchy which would not exercise arbitrary power or fall prey to seductive private interests.

In advocating a "despotism" the Physiocrats were not proposing an unrestricted monarchical power. On the contrary, the powers of the monarch were to be strictly defined and delimited. Laws were to rule society; the monarch was merely their guardian. The arbitrary rule of a single individual was entirely foreign to the physiocratic outlook. It was their insistence that a powerful, centralized monarchy was essential to the operation of the natural laws of society which made up the physiocratic twist to natural law theory. As early as "Hommes" Quesnay wrote:

Monarchical despotism is a fantasy; it has never existed; and its existence is impossible. A single man could not arbitrarily govern millions of men; sovereign monarchical power can subsist only through the authority of the laws and through the balance of the bodies of the state, each restrained in turn by the other.^[97]

In several subsequent articles, Quesnay spelled out the task of the sovereign, to translate the general principles of the natural order into positive laws. There are three fundamental principles of the social order: the right to property; liberty of work, trade, export, and expenditure; and security of person and property.^[98] So long as the sovereign preserves these rights and applies a scientific tax policy, the natural order will be preserved. But what guarantees that the sovereign will follow such a path? What is to prevent a singular and indivisible authority from acting arbitrarily? What safeguards prevent the sovereign from violating individual rights and the principles of the natural order? Contemporaries of the Physiocrats posed these questions many times. To this day, there is little agreement among commentators as to the physiocratic solution to the limits upon monarchical power.

The doctrine of legal despotism was to establish the basis for a centralized political authority which would follow the principles of the natural order. As we have argued above, the Physiocrats conceived of the monarch as little more than an instrument of the natural order. Strictly speaking, it was the system of laws, not the monarch, which was to rule. But such a position begged the question of despotic authority. In response to criticism on this point, the Physiocrats were forced to produce a more elaborate response to the problem of arbitrary authority. The most comprehensive answer was advanced in Mercier's Ordre naturel et essentiel des sociétés politiques —a work which was written under Quesnay's direction.

In the Ordre naturel Mercier developed the notion of judicial control over royal legislation. He argued that throughout history judges had been the mediators between government and the governed; they were "les dépositaires et gardiens des lois." To ensure that a monarchical government truly rules according to natural laws, judges must have power to veto unjust laws. Indeed, it is the moral and political duty of judges not to enforce unjust laws. No magistrate, Mercier wrote, "could undertake to judge according to laws evidently unjust; he would then cease to be a minister of justice and become a minister

of iniquity."^[99] This judicial power to verify the laws did not imply for Mercier a superiority of judicial over legislative authorities; it merely signified the subordination of both powers to the natural order. Mario Einaudi acknowledges this fact but interprets the physiocratic concept of legal despotism as a doctrine of "judicial control" modeled on the tradition of the Paris parlement and analogous to the American doctrine of judicial control.^[100]

Einaudi's interpretation of the physiocratic concept of legal despotism is a provocative one. The great merit of his argument is to counterbalance those interpretations which attribute to Quesnay and his followers a doctrine of arbitrary monarchical absolutism. For Einaudi, the concept of legal despotism emphasizes the rule of law over all temporal powers. He sheds light, therefore, upon the strictly defined framework within which the Physiocrats believed the sovereign should operate. In tilting the scales towards a more balanced interpretation of the physiocratic theory of the state, however, Einaudi clearly overstates his case. To suggest that the physiocratic concept of a judicial check on monarchical power constituted an appeal to the tradition of France's parlements is simply untenable. As we have pointed out above, Quesnay's writings are full of disparaging remarks about the feudal order with its fragmentation of authority. In "Hommes" he attacks "this feudal tyranny," while in "Despotisme de la Chine" he describes the feudal constitution as "a violent constitution, contrary to nature" and argues that "authority shared between different orders of the state will become an abusive and discordant authority."^[101] Such statements do not mesh with Einaudi's view that the Physiocrats were attempting to construct a system analogous to the system of checks and balances in which "magistrates were supreme and the prince had to bow before them."^[102]

And it is not only Quesnay who does not fit his argument. Le Trosne, for example, relied upon a council of advisors to the Crown, not upon the judiciary, to ensure that the sovereign adhered to the principles of the natural order—and in this he was following Quesnay.^[103] Likewise, Dupont and Turgot were severely critical of the constitution of the United States and the principle of American federalism. Turgot, for example, cautioned his American friends against federalism and the system of checks and balances, arguing that these institutional forms would make of America "a replica of our Europe, a mass of divided powers, disputing territories or profits of trade with

themselves, and continually cementing the slavery of peoples with their own blood."^[104] It can scarcely be maintained, then, that the notion of an independent judiciary with a right of veto over royal legislation was an integral part of the physiocratic theory of the state.

Despite its shortcomings, Einaudi's interpretation raises a central problem in the physiocratic theory of the state which most commentators have neglected: where in the physiocratic schema are we to locate a check against monarchical despotism? To answer this question we must take seriously the physiocratic claims about their science of government expressed in the political economy of the Tableau économique . Physiocracy was, for all its distinctiveness, an intellectual movement within the mainstream of the French Enlightenment. The économistes, like the philosophes generally, believed that reason should guide the ship of state. Quesnay and his followers firmly believed that their science disclosed universal principles of the natural order. Their task, therefore, was literally one of enlightenment—of educating the public generally and the court specifically as to the true principles of economic and political administration.

"If the torch of reason illuminates the government, all positive laws harmful to society and to the sovereign will disappear," wrote Quesnay in Le Droit naturel . For this reason, in the "general maxims" accompanying later editions of the Tableau, he argued that statesmen "should be obliged to make a study of the natural order"; and this required that they be guided by "the general science of government" embodied in the physiocratic system. To this end, Quesnay suggested that provincial estates should function as organs of public research and education; they should carefully investigate the economic conditions in their area and propagate the science of economic administration.^[105] In the final analysis, public knowledge of the principles of natural law, according to Quesnay, "is the sole safeguard of subjects against monarchical oppression."^[106] In addition to public education—stressed by Mirabeau and Le Trosne in particular—it was the king's council of advisors which was to provide a moral and intellectual check to monarchical despotism. Quesnay writes of the reign of Louis XIV that the king was ill advised by Louvois and Colbert and that, as a result, he did not understand "the difference between a great despot and a great King."^[107] It is the role of the council of advisors to direct the sovereign to rule as a king, protecting the laws of the natural order, rather than as a des-

pot. In this argument, Quesnay stood squarely in a long tradition of French absolutist thought—a tradition which emphasized the role of councils and estates as guides to the Crown.

Institutionally, then, the Physiocrats envisioned an absolutist state. There were to be no intermediary powers between the Crown and the people. Political authority was to be centralized, not fragmented. Private interests were to be banished from the sphere of state power. Yet this absolutism was to be tempered by "the spirit of the laws"—the universal laws of natural order which apply equally to the Incas of Peru, the emperor of China, and the king of France. This "tempered" absolutism was expressed in the concept of legal despotism. It was enlightened advisors—not provincial parlements or independent judges—who were to guarantee the adherence of the sovereign to the natural order. The Physiocrats had no doubt that a sovereign guided by "the torch of reason" would act according to these universal principles. And "the science of economic administration" was the flame which would light the burning torch of reason. In the final analysis, then, the physiocratic theory of legal despotism was a variant of the notion of "enlightened despotism." The absolute monarchy would know no institutional limit to its power; its practice, however, would be limited by knowledge of the laws of nature.