§ 1. There is an ancient opinion, both shameful and destructive to the state, that a state cannot be administered without some injustice. For this opinion admits inequitable laws—indeed, demands them—and does not possess as its end the making of good citizens. Rather, the legislator, captivated by a false appearance of it, regards some utility, and will even perform and command detestable crimes if they seem likely to be useful. How much better is Plato, who defines law as a rational method of governing and a true norm which leads us by a suitable way to what is best, fixing a penalty for one who transgresses and a reward for one who obeys. For law is from the highest good, tends toward the highest good, and both leads and draws us to it. Its end is justice; law itself is necessary to the state, is its instructor, and is its director toward what is best.
Cicero explained that end excellently in book 2 of On the Laws: “It is certainly established that laws were created for the safety of citizens, the preservation of cities, and the tranquil and blessed life of all; and that those who first sanctioned decrees of this kind showed the peoples that they would write and enact provisions by whose inscription and acceptance they would live honorably and blessedly. Those provisions which were thus composed and sanctioned they evidently called laws. From this it is right to understand that those who prescribed destructive and unjust commands to peoples, since they acted contrary to what they had promised and professed, enacted anything rather than laws. Thus it can be evident that, in the very interpretation of the name law, there is contained the force and meaning of cultivating justice and right.”
Plutarch also speaks excellently: in a city some things pertain to what is honorable and others to necessity; the highest and first of honorable things is τὴν εὐνομίαν, good order under law; of necessary things, τὴν εὐπορίαν, abundance. When he defines law as belonging to honorable things, he plainly judges that inequitable laws, laws commanding depraved things, and laws opposed to virtue in any manner are in no way worthy of so holy a title. For since law is the bond of the city, the foundation of liberty, and the fountain of equity; since the mind, spirit, counsel, judgment, and morals of the city are situated in its laws, it cannot have another end than the best end by which the whole community itself is governed. Therefore, those laws must be judged best which do not chiefly heap human beings with riches, but render them as thoroughly instructed as possible in civilized morals and prudence in civil affairs. Diodorus Siculus, book 1 of the History.
§ 2. In enacting laws, therefore, great care must be taken that they are occupied not with the instruments of life but with the whole of life itself. For the legislator is the craftsman of living; and although he embraces actions individually, they too are nevertheless directed toward virtue. He establishes an error at the very beginning who thinks that laws promise only earthly works: they breathe more loftily and are a gift of God. Just as medicine is established as a cause of health and is praised only if it applies manifold knowledge and a variety of herbs to strengthening and restoring bodies, who would consider someone a physician who arranged everything rightly but nevertheless had no concern whatever for health? The legislator, therefore, will hand down a method by which citizens may easily perform every part of their duties in every matter. Let laws fortify the city and protect security and tranquility, but let them chiefly comprehend the whole of life. For no one will rightly perform those intermediate or indifferent things unless he has an end to which he may refer them. Therefore, the first foundations of justice must be laid and virtue instilled. Seneca, Letter 95: “We must set before us the end of the highest good, toward which we may strive and to which our every deed and word may look, just as the course of sailors must be directed toward some star. Life without a purpose is wandering. But if a purpose must certainly be set before us, decrees begin to be necessary. You will grant, I think, that nothing is more shameful than one who is doubtful, uncertain, and timid, now drawing back his foot and now advancing it. This will happen to us in all things unless those things which restrain and detain our minds and prevent them from striving with their whole strength are removed.”
§ 3. Even the best laws do not always make good citizens. This is plainly so. Precepts do not always lead to right actions, but do so when a compliant disposition is present; sometimes they are applied in vain if depraved opinions beset the mind. Nevertheless, the legislator must strive, and must strive with the whole mass of the laws. For although he establishes many things excellently, prudently, and holily, if in some part he nevertheless strikes against vice, the whole impetus will roll in the direction in which the slope lies. Although he sees that many things are not done rightly, he must nevertheless hold in his hand the rule to which distorted and projecting things are to be applied, so that even if they are not corrected, they may nevertheless see their own censure and be struck by fear of it, or at least by shame.
“Many violate the laws,” you say; “vices are stronger than the good institutions of the fatherland.” This complaint is ancient. The human race inclines by nature toward vice. How few devote themselves wholly to what is honorable? How few remove the obstacles to good laws? Nevertheless, one must strive in the contrary direction, so that, if sins cannot be removed, at least the fury and course of sinning may be checked. In this way some will be saved, and those who are going to perish will fall more slowly. Medicine holds to its purpose amid so many deaths. It now has more business because bodies have been corrupted by luxury, yet it struggles against diseases. It does not immediately abandon the person whom it sees nearly given up and mourned as dead, but by art holds back his fleeing life and mitigates his torments. Why should a prince not imitate this? Why should he not strive with all his strength at least to alleviate the evils of those whom he cannot persuade to perfect virtue and whom their own obstinacy prevents him from freeing from diseases of the mind? To diminish great assaults of fevers belongs to the art.
§ 4. Once the end has been established, the other things will succeed according to one’s desire. Chief among them is that the means, or rational methods, be accommodated to the end. For just as shoes must be accommodated to feet and a bridle to a horse, so laws must be accommodated to customs—that is, to the disposition of a nation and region. When medicine has prepared excellent drugs, it examines before all things the constitution and temperament of the sick person, lest it cast him down by a remedy that is too strong or fail to move him by one that is too diluted.
Two things especially must be regarded in this matter: first, the disposition of the human beings themselves; next, the progress and increase of virtues and vices.
The legislator will consider the character of the people: whether it is hard, flexible, proud, humble, industrious, idle, frugal, luxurious, fickle, constant, irascible, or calm. Here there is need of great and almost divine prudence, so that there may be ὁ νόμος καθ᾽ ὃν τρόπον, a law accommodated to customs, and precepts suited to actions. I do not mean that the law should be a Lesbian rule and bend itself toward the vices which it ought to overturn, or incite the inclinations of human beings which it is enacted to restrain; for in this way it would go astray at the threshold. I mean that it should lead every nation toward virtue according to its customs, opinions, and affections. Unless it maintains this principle, it will utterly overturn the state. Reason itself teaches this. Asians, Egyptians, and Arabs, a servile race, are governed by the harshest command because they cannot bear liberty, but would turn it toward mutual destruction. The Swiss enjoy a moderated equality and persist in it, except that within the memory of our fathers Zwinglian superstition, when its author sounded the trumpet, enraged some against kindred blood. Italians enjoy an intermediate liberty; and although they appear to be equals, they endeavor to be superiors. Therefore, they flourish under a moderated principate and milder laws. Some peoples approve what others cannot bear. Each must be commanded that one among indifferent things which suits it. It is rightly commanded of a Swiss that he never appear in public unless girded with a sword. For the honorable carrying of a sword is a certain rudiment of war and, lest it be in vain, also animates him toward exercise and the contemplation of war. But to an Italian or Spaniard, because they are ὀξύθυμοι and ἀκρόχολοι, hot-tempered nations, the legislator will not permit even a dagger. For they will quickly rush to slaughter. At Athens he advised badly who wished the most fickle people to be free; among the Lacedaemonians he advised well, for they were more temperate. Liberty established by equitable laws brought great increases of wealth to the German cities. Belgium, made very free by the truce, is agitated by perpetual seditions, because its character is settled only under one prince.
The second consideration is skill in observing the progress of virtues and vices. The more people have advanced in virtue, the more easily they are governed, because the road is more easily maintained when one is near the goal. In the correction of vices there is the greatest difficulty, both because they cling tenaciously and give pleasure and because every correction has change joined to it, and change is always hateful. But the more widely vices reign and threaten dangers, the more kinds of remedies must be sought on every side. When diseases are inexplicable and manifold, the physician too must be armed with many observations and kinds of things. He will not drive out bad humors with one assault, but will draw them off gradually, lest he also draw off the sound part. They advise that as much severity be added to the laws as vices have increased. This is a notable axiom, but it must be restricted—namely, to the case in which the vices of a few have increased. For if the vices of all
have grown strong, they must be treated more gently, lest they overpower the physician. In an earlier age Christian emperors labored to abolish the bloody spectacles for which the Roman world raged. It would not have been safe even for an emperor to intervene in the midst of the fury of those turning their thumbs. What, therefore, must be done? First, provision must be made by law that a private person may not present gladiators unless he gives the citizens an equal value for a public banquet; that no one sell himself to the sword; that a trainer of gladiators may not belong to the number of citizens; that the conveniences of the amphitheater be removed; and that expenditures be transferred to distributions of meat and other gifts. In every way, finally, it must be brought about that that cruel pleasure is surrounded by many difficulties and that minds are drawn toward other things, the atrocity of the crime also being shown. Then, after minds have been prepared to respect what is honorable, those spectacles must be forbidden entirely by an enacted law. I understand these measures to apply when the power of the ruler is not equal to the vices; otherwise, such great savagery should quickly have been removed by a severe edict, as the emperors finally did. But I am speaking of the Roman senate, which, amid so many ambitious rivalries, vetoes of tribunes, and tumults of the people, I do not think was equal to abolishing so inveterate an evil.
In this manner, therefore, if some city or prince attempts to remove the vice of drunkenness from its dominion—and all ought to attempt it unless they wish to be guilty of all the evils arising from it—if they can indeed press the matter through, they will forbid drunkenness and establish a penalty which they will gradually increase. But if they cannot, first they will impose a measure upon banquets by sumptuary laws; next they will prescribe definite laws for innkeepers; and when this vice has been reduced to a few persons, they will mark it with infamy. These observations suffice concerning the end of laws and the general method leading toward the best end.
§ 5. Those persons must not be heard who seem to themselves to have invented a subtle and cunning distinction by which they may introduce license. For they maintain that the end of political laws is to make a good citizen, not a good man. In this the most cunning men stumble childishly. For those who are evil in morals are also evil citizens. How will one who neither takes account of his own life nor prudently administers his household and family be a good citizen and useful to the state, when he is not good for himself? There are evil persons whom desire carries headlong, ἀσύλλακτοι, disordered; and they are the more destructive because they cover their poison under a certain appearance and deliver their blow before they are detected. One who is evil in private will never be good in public. Aeschines, Against Ctesiphon: οὐκ ἔστι κακῶς κεχρημένον ἄνδρα τοῖς ἰδίοις εἶναι πιστὸν ἐν ἀλλοτρίοις—“It does not ordinarily happen that one who administers his own affairs badly is faithful in the affairs of others.” Certainly least of all in public affairs, which are often neglected even by diligent men. Justinian, On the Composition of the Digest, and Leo, Constitution 19, Cassio, book 5, support this judgment.
There are nevertheless others who carp at law. St. Paul in Romans 3 calls the law “the law of death,” and in chapter 4 says that it “works wrath,” and in chapter 5 that “the law entered in so that offense might abound.” But this argument contributes nothing to the present matter. For law does not by its own force or efficacy bring it about that you can follow virtue, but shows virtue, invites you to it by reward, and deters you from vices by setting penalties before you. Hence among the impious offenses are made more serious when they rage at the occasion presented by law.