§ 1. The laws and institutions of all nations are not just. Cicero truly says in book 1 On the Laws: “Now it is indeed most foolish to suppose that all things are just which have been enacted in the institutions or laws of peoples. Even if they should be laws of tyrants? If those Thirty had wished to impose laws upon Athens? Or if all the Athenians delighted in tyrannical laws, would those laws therefore be held just? No more so, I think, than that law which our interrex carried, that a dictator might with impunity kill whichever of the citizens he wished without hearing his cause. For there is one right by which the society of human beings is bound together and which one law establishes. That law is right reason in commanding and prohibiting; whoever is ignorant of it is unjust, whether it has been written anywhere or nowhere.”
And thereafter: “But if rights were established by the commands of peoples, by the decrees of princes, or by the judgments of judges, it would be right to commit robbery, right to commit adultery, and right to substitute false wills, if these things were approved by the votes or enactments of the multitude. But if there is so great a power in the opinions of fools that the nature of things is transformed by their votes, why do they not ordain that things which are evil and pernicious be held good and salutary? Or why, since a law can make right out of wrong, can the same law not make good out of evil? Yet we can distinguish a good law from a bad by no other standard than the natural one. And not only is right judged by nature, but altogether all honorable and shameful things.”
And Augustine says: “For then”—that is, between the Second
and Third Punic Wars—“that Voconian law was also carried, that no one should make a woman his heir, even an only daughter. What could be said or thought more inequitable than that law I do not know.”
It is certainly astonishing that not merely inequitable but also most foolish laws have publicly pleased nations. The Ethiopians chose as king from among their priests the one who most displayed himself, by a fanatical running about, as full of divine inspiration. Among the same people, if the king sent an attendant to someone to announce his death, he at once killed himself with his own hand. A certain Egyptian law granted confessed thieves a fourth part of the theft. The Carthaginians offered brides to the lust of their kings, so that they were not led as virgins into their husbands’ homes. The Nasamones also offered them to the sport of the wedding guests. Among the Massagetae intercourse took place openly; among the Troglodytes wives were held in common. Certain Arabs, with no account taken of blood relationship, coupled in the manner of cattle, while intercourse with an outsider was regarded as adultery. The luxury of the Medes advanced so far that they provided by law that no one should have fewer than seven wives. Among the kings of the Indians, the guards were purchased women; if any one of them killed the king, she had as the reward of her parricide marriage to his successor.
Under the laws of other Indians the flesh of parents and companions became food for banquets; lest it be made worse by disease, they killed the sick, adding as their reason, “You are spoiling my meat.” The Issedones were milder, for they ate their parents only after they were dead. The Romans cast away monstrous offspring. The Lacedaemonians cast rejected infants into the place which they called the Apothetae. There would be no end if I wished to enumerate inequitable laws. I should rightly deny that these are laws and rights. And with me does a just and holy man, Augustine, book 19 of The City of God, chapter 21: “But what he calls the agreement of right he explains in the course of his discussion, showing by this that a state cannot be conducted without justice. Therefore, where true justice does not exist, neither can right exist. For what is done by right is assuredly done justly; but what is done unjustly cannot be done by right. For the inequitable enactments of human beings are neither to be called nor thought rights, since they themselves say that this is right which has flowed from the fountain of justice; and that what is commonly said by some who think incorrectly is false: that right is whatever is useful to him who has greater power.” If it is not right, therefore, neither is it a law, which establishes what is lawful and in which right resides.
§ 2. From this matter I also define what jurists and theologians are accustomed to propose: whether it belongs to the essence of a law that it be just. For the answer must be that a law which commands what is unjust is in no way a law. For it obliges no one to obey, and the law of the supreme divinity has been imposed upon all, by which they are commanded not to obey a law commanding unjust things. Divine law is always necessarily just, because the reason of divine law is his will, through its essence infinitely just. Therefore it can command nothing except what is just, although it sometimes commands what appears unjust but which his supreme power nevertheless makes just, as when he commands Abraham to sacrifice his only-begotten son. But things which can never be done honorably he cannot command—for example, to hate God, to be proud, or to envy.
§ 3. Next, not only must the things which a law commands be just, but it is necessary that the one commanding do so justly; that is, he must possess legitimate authority and jurisdiction. Otherwise it is not a law and has no force of obliging. Furthermore, unjust laws are made in many ways, but chiefly in one: when they are carried for the advantage of one party, to the detriment of others. The power of the nobles, the king, or the people is sought through the circuitous devices of such laws, whose malice appears in their execution and oppression. For in popular government it arms the plebs to seize the goods of the wealthy; in aristocracy it destines free citizens to be the slaves of nobles; in kingship it increases the fisc beyond measure. Sometimes it even rises to such madness that it establishes its enactments against divine laws. Thus Nebuchadnezzar ordained that the statue be worshiped; by not doing this, the Hebrews pleased God. The golden maxim of eternal truth remains: “Whoever refuses to obey the laws of emperors which are carried against the truth of God acquires a great reward.” A law, therefore, will be just if it adheres to no party but regards the whole—that is, the common utility—if it guards and champions commutative and distributive justice. And in this matter indeed, when the advantages of some or burdens are transferred to others, there is great danger, as I have said.
§ 4. For a law, therefore, it is necessary, as I have often admonished, that it produce equality. This is the foundation of peace and charity in the state. Aristotle, book 5 of the Ethics, chapter 10: “It exists among human beings who are joined to one another by a community and fellowship of life, who are free and equal either proportionally or numerically, so that they abound of themselves in supplies of things necessary for living and require nothing from abroad. Therefore, among those for whom this is not so, there is no civil right among themselves, but a certain right so called from its likeness to that. For those among whom there is also a common law use a common right. But their law is common whose injustice also is common. For a judgment is an adjudication concerning right and wrong. But among those among whom injustice has a place there is also a place for the doing of wrong, though injustice is not immediately found in all of them. To do wrong is to assign to oneself more of those things which are absolutely good and less of those which are absolutely evil. Therefore, we do not permit a human being to rule, but the law or reason, because he is accustomed to do this for himself and becomes a tyrant. But the person who presides is the guardian of right; and if of right, therefore also of equality.”
And with the same thought Cicero says in book 2 On Duties: “For when in the beginning the multitude was oppressed by those who possessed greater resources, they took refuge with some one person outstanding in virtue, who, when he protected the weaker from wrong, maintained the highest together with the lowest under equal right by establishing equity. The cause for establishing laws was the same as that for establishing kings. For an equal right was always sought; otherwise it would not be right. If they obtained it from one just and good man, they were content with him. When this occurred less often, laws were invented which would speak to all always with one and the same voice.”
Pheidon of Corinth was indeed led by an argument not bad in appearance, but one least useful for carrying laws: for he wished households and their number to be equal, although at the beginning shares of goods unequal in size had fallen to them by lot. But no prudent legislator seeks this equality.
§ 5. The prince must take the greatest care that laws be moderate. This moderation is discerned both in the very kind of matters and in the punishment established for violators. In the laws themselves it must be observed that the things commanded can be done. For what is beyond our power cannot be commanded, much less oblige anyone or render him liable to punishment. Certainly, no one is capable of law unless freedom is in him; that is the faculty of doing what pleases each person, except what is prohibited by force or right, §1 On the Law of Persons, law 4. Faculty is δύναμις, by which we are able to act; it does not introduce a necessity that a thing be done, but makes it possible that it be done. No one except
a madman will carry a law concerning things which altogether cannot be done—just as did that Egyptian tyrant, the archetype of all tyrants: “I do not give you straw; go and gather it wherever you can find it, and nothing shall be diminished from your work.” Those who proclaim an impossible law fashion for us a God who is a tyrant of this kind. Dionysius of Syracuse imitated him, but more mildly. For after he had exhausted the people by exactions and saw them growing furious at new contributions, he vigorously pressed the business, not unaware that their anger was born from grief over money about to be lost. But when at last he saw them carefree and laughing, he believed that nothing remained, and therefore that a further law was impossible.
Yet many carry difficult and burdensome laws which, when human frailty and custom are considered, appear impossible. For laws must be adjusted not only to the common race of human beings but also to custom and the usages of the fatherland—to custom, I say, unless it is depraved. Therefore that Muhammadan law by which wine was prohibited was tyrannical, for so great a change of drink compelled many to meet death before their day. Lycurgus must be accused no less of the severity of the laws which Sparta rejected after a short time. The Romans refused to receive them, as Augustine says, book 2, chapter 16. For although he fabricated the claim that he had received them from Apollo, the Romans nevertheless prudently refused to believe it. Such was the law given by the Ammonite to the men of Jabesh-gilead concerning the gouging out of their right eyes.
Next, laws are judged inequitable when they lack just moderation of punishment. The laws of Draco sanctioned every smallest matter with capital punishment; therefore they were truly called cruel and Draconian, for they punished leisure and idleness with death. I shall speak of punishments in their own place. Here the legislator must be admonished always to wish to keep the punishment within the desert of the fault, mindful of human frailty, except in atrocious crimes, as was set forth in the chapter on clemency.
§ 6. First, therefore, savage laws must be cut away. Thus Solon corrected the laws of Draco; thus the Romans amended many. Tertullian’s discussion of this matter in chapter 3 of the Apology is beautiful:
“But since our truth meets you at every point, and finally the authority of the laws is erected against it, so that either it is said that nothing is to be reconsidered after the laws, or the necessity of obedience is preferred to truth even by the unwilling, I shall first enter the contest with you concerning the laws, as with the guardians of the laws. Now first, when you harshly determine by saying, ‘It is not lawful for you to exist,’ and prescribe this without any more humane reconsideration, you profess force and exercise an inequitable domination, if you deny that it is lawful because you wish it, not because it ought not to be lawful.
“But if you do not wish it to be lawful because it ought not to be, without doubt that ought not to be lawful which is done badly; and by this very prejudgment it is decided that what is done well is lawful. If I shall find that to be good which your law has prohibited, does it not follow from that prejudgment that it cannot prohibit me from what, if it were evil, it would rightly prohibit?
“If your law has erred, I suppose it was conceived by a human being, for it did not fall from heaven. Do you marvel either that a human being could have erred in establishing a law, or that he came to his senses in rejecting it? Were not even the laws of Lycurgus amended by the Lacedaemonians, inflicting such pain upon their author that in retirement he passed judgment upon himself by starvation?
“And do not you yourselves daily, as experiences illuminate the darkness of antiquity, lop and hew down that whole old and squalid forest of laws with the new axes of imperial rescripts and edicts? Did not Severus, most steadfast of princes, only yesterday exclude the most empty Papian laws, which compel children to be begotten before the Julian laws compel marriage to be contracted, after the old age of such great authority? There were also laws that condemned debtors be cut into parts by their creditors; nevertheless, by public consent their cruelty was afterwards erased. The capital punishment was converted into a mark of shame: with confiscation of goods applied, it preferred to suffuse a person’s blood rather than to pour it out.”
In chapter 8 of the Laws of the Twelve Tables, concerning debtors in bondage: “On the third market day let him suffer capital punishment, or let him go abroad beyond the Tiber. But if there are several”—that is, if there are several creditors to whom the debtor has been adjudged—“on the third market day let them cut the parts. If they have cut more or less, let it be without fraud.” They abrogated this cruel law, also attributed to Romulus, in the 630th year of the city. The most avaricious cruelty of the ancient laws against the most wretched of human beings, Roman slaves, was also removed. After they had endured the most toilsome slavery, they were sold to the beasts like useless cattle. A cruelty extending widely and raging against many hundreds of thousands was restrained at home only late. It was answered that one is held under the Cornelian Law concerning Assassins if he gave a slave to the beasts without a judge, or sold or bought one for that purpose: Modestinus, in law Circumcidere, §1, On the Cornelian Law concerning Assassins. But when cruelty increased, by senatorial decrees and the Petronian Law the power of masters to hand slaves over to the beasts at their own discretion, without the sentence of a judge, was taken away. Martianus prohibited the same; and at last that entire power of life and death was taken from masters. Indeed, provision was even made that they should not rage beyond measure, although short of death: Martianus, law Domini, 42, On Contracting a Sale.