18
defectiveness of individual articles, this in turn suggested, “You are not persuaded of
your own infallibility; and yet you act as if you were; you engage in a measure which
nothing but infallibility could justify.”
42
The entrenchment of laws had further consequences for utility. If a law were to be
deemed inexpedient in a relatively flexible constitution, a petition for redress could be
offered and the law changed with minor difficulty. In the case of the French constitution,
however, such a petition could not be formulated, and a challenge would therefore take
the form of a “protestation of invalidity” to the constitution as a whole, leading to
disobedience and, inevitably, to rebellion.
43
Habits of obedience cannot develop when
minor challenges would result in the shaking of the very foundations of the constitution;
the security of expectations that well-formulated norms enable will disappear. Successive
legislatures would find themselves "judges in their own cause" in determinations of the
coherence of their laws with the constitution, or would simply distort the meanings of the
constitutional provisions to suit their needs, resulting in uncertainty and
unpredictability.
44
Bentham drew an analogy between the unchecked introduction of an
incoherent law into a constitutional code and the “authoritative introduction of an absurd
article of faith, of speculative theology”: for this to be permissible, “the whole mass of
the understanding, the reasoning faculty, must have been vitiated and rendered weaker
and less fit for use in every instance in which it can be employ'd.”
45
Through creating a
largely immutable constitution, far from making laws familiar and predictable, the
Assembly had doomed the French people -- particularly the poor, he noted -- to a life
under legal uncertainty. In attempting to improve the defects of unamendable law, the
legislature and lawyers alike would need to augment the law with “pretended
Convention