Montesquieu
 

XXIX.16 Things to observe in the writing of laws

Those who have enough breadth of genius to give laws to their nation or to ano­ther must be very care­ful about the man­ner of sha­ping them.

Their style should be concise. The laws of the Twelve Tables are a model of pre­ci­sion ; chil­dren lear­ned them by heart.1 Justinian’s Novellæ are so dif­fuse that they had to be abrid­ged.2

The style of laws should be sim­ple ; direct expres­sion is always bet­ter unders­tood than refi­ned expres­sion. There is no majesty in the laws of the late Empire : prin­ces are made to sound like rhe­tors.3 When the style of the laws is infla­ted, they are loo­ked upon as a mere exer­cise in pom­po­sity.

It is essen­tial that the words of laws evoke the same ideas in eve­ryone. Cardinal de Richelieu conce­ded that a minis­ter could be accu­sed before the king, but he wan­ted the accu­ser to be puni­shed if the things being pro­ved were not signi­fi­cant,4 which ought to pre­vent eve­ry­body from utte­ring any truth at all against him, since some­thing signi­fi­cant is enti­rely rela­tive, and what is signi­fi­cant for one per­son is not for ano­ther.

The law of Honorius puni­shed by death anyone who pur­cha­sed a freed man as a serf, or would have tried to dis­tress him.5 Such a vague expres­sion ought not to have been used : the dis­tress one is cau­sed depends enti­rely on his degree of sen­si­ti­vity.

When the law must spe­cify a mea­sure, it should as far as pos­si­ble avoid doing so in terms of money. A thou­sand cau­ses change the value of cur­rency ; and with the same deno­mi­na­tion you no lon­ger have the same thing. Everyone knows the story of the imper­ti­nent Roman who would give a slap eve­ryone he ran into and then have pre­sen­ted to them the twenty-five sous of the law of the Twelve Tables.6

When in a law the notions of things have been firmly set, it is a mis­take to revert to vague expres­sions. In Louis XIV’s cri­mi­nal ordi­nance, after the exact enu­me­ra­tion of royal cases, these words are added : “And those which royal jud­ges have in all times jud­ged,”7 which reverts to the arbi­tra­ri­ness which had just been left behind.

Charles VII says he learns that liti­gants appeal three, four, and six months after the ver­dict,8 against the cus­tom of the realm in regions of cus­to­mary law ; he orders that appeals be imme­diate, unless there is fraud or deceit by the pro­se­cu­tor,9 or unless there is great and obvious cause for hea­ring the appel­lant. The end of this law des­troys the begin­ning, and des­troys it so tho­roughly that later, appeals were made for thirty years.10

The law of the Lombards pre­vents a woman who has taken a nun’s habit, though she is not conse­cra­ted, from mar­rying, for, it says, “if a hus­band who has betro­thed a woman to him­self with just a ring can­not without crime marry ano­ther, a for­tiori the spouse of God or of the Holy Virgin…”11 I say that in laws one must rea­son from rea­lity to rea­lity, and not from the rea­lity to the figure, or from the figure to the rea­lity.

A law of Constantine has the tes­ti­mony of a bishop suf­fice, without other wit­nes­ses being heard.12 The prince was taking a ter­ri­bly short path : he was jud­ging dis­pu­tes by the per­sons, and per­sons by digni­ties.

The laws are not sup­po­sed to be subtle : they are made for peo­ple of ave­rage intel­li­gence ; they are not an art of logic, but the sim­ple rea­son of a pater­fa­mi­lias.

When the excep­tions, limi­ta­tions, and modi­fi­ca­tions in a law are not neces­sary, it is much bet­ter not to put any in : such details plunge you into more details.

No change should be made in any law without a suf­fi­cient rea­son. Justinian made it legal to repu­diate a hus­band without the wife’s losing her dowry, if for two years he had been una­ble to consum­mate the mar­riage.13 He chan­ged his law, and allo­wed the poor fel­low three years.14 But in such a case, two years are as good as three, and three years are not bet­ter than two.

When you go so far as to explain a law, the rea­son has to be wor­thy of it. A Roman law sta­tes that a blind man can­not sue, because he does not see the accou­ter­ments of magis­tracy.15 Giving such a poor rea­son, when so many good ones were avai­la­ble, had to be done on pur­pose.

The juris­consult Paul says that a child is born per­fect in the seventh month, and that the pro­por­tion of Pythagoras’s num­bers seems to prove it.16 It is sin­gu­lar to judge these things by the ratio of Pythagoras’s num­bers.

Some French juris­consults have said that when the king acqui­red some coun­try, the chur­ches there became sub­ject to droit de régale, because the king’s crown is round.17 I shall not dis­cuss here the rights of the king, and whe­ther in this case the rea­son of civil or eccle­sias­ti­cal law must yield to the rea­son of poli­ti­cal law ; but I will say that such res­pec­ta­ble rights have to be defen­ded by serious maxims. Who has ever seen the real rights of a dignity based on the figure of a sign of that dignity ?

Davila says that Charles IX was decla­red a major in the Rouen par­le­ment at the begin­ning of his four­teenth year, because the laws spe­cify coun­ting time from moment to moment, when the mat­ter concerns the res­ti­tu­tion and admi­nis­tra­tion of the pupil’s assets, whe­reas it regards the year begun as a com­plete year when it is a mat­ter of acqui­ring honors.18 I have no inten­tion of cen­su­ring a pro­vi­sion that so far seems to have had no draw­back ; I will say only that the rea­son they alle­ged19 was not the real one : it is far from the truth that the govern­ment of peo­ples is just an honor.

When it comes to pre­sump­tion, the law’s is bet­ter than man’s. French law20 regards as frau­du­lent all of a mer­chant’s tran­sac­tions in the ten days pre­ce­ding his ban­kruptcy : that is the pre­sump­tion of the law. Roman law inflic­ted penal­ties on the hus­band who kept his wife after adul­tery, unless he was impel­led to it by fear of the out­come of a trial, or the neglect of his own shame : and that is the pre­sump­tion of man. The judge was requi­red to pre­sume the moti­ves of the hus­band’s conduct, and decide on the basis of a very obs­cure man­ner of thin­king : when the judge pre­su­mes, the ver­dicts become arbi­trary ; when the law pre­su­mes, it pro­vi­des the judge with a fixed rule.

Plato’s law, as I have said, would punish the man who killed him­self not to escape igno­miny, but out of weak­ness.21 This law was fla­wed in that in the sole case where the cri­mi­nal could not be indu­ced to admit the motive that had cau­sed him to act, it would have the judge decide on those moti­ves.

As need­less laws wea­ken neces­sary laws, laws that can be elu­ded wea­ken legis­la­tion. A law must have its effect, and no one should be allo­wed to deviate from it by a pri­vate agree­ment.

The Falcidian law spe­ci­fied among the Romans that the heir should always have the fourth part of the inhe­ri­tance ; ano­ther law allo­wed the tes­ta­tor to pro­hi­bit the heir from kee­ping that fourth part.22 This is to mock the laws. The Falcidian law became use­less, for if the tes­ta­tor wan­ted to favor his heir, the heir had no need of the Falcidian law ; and if he did not wish to favor him, he pro­hi­bi­ted him from invo­king the Falcidian law.

Care should be taken that the laws be concei­ved in a way that they do not clash with the nature of things. In the pros­crip­tion of the prince of Orange, Philip II pro­mi­ses to the per­son who will kill him to give to him or his heirs twenty-five thou­sand crowns and nobi­lity : and this as the king’s word and as the ser­vant of God. Nobility pro­mi­sed for such an act ! Such an act orde­red in his capa­city as ser­vant of God ! All of this equally upends notions of honor, of mora­lity, and of reli­gion.

It is rare that one must pro­hi­bit some­thing that is not wrong, under pre­text of some ima­gi­nary per­fec­tion.

Laws must embody a cer­tain can­dor. Made to punish the wicked­ness of men, they them­sel­ves must pos­sess the grea­test inno­cence. We can see a ridi­cu­lous peti­tion in the law of the Visigoths23 by which they obli­ges the Jews to eat eve­ry­thing pre­pa­red with pork, pro­vi­ded they ate none of the pork itself. That is a great cruelty : they were sub­jec­ted to a law contrary to their own ; they were allo­wed to keep of their own only what could be a sign to reco­gnize them by.

Ut carmen necessarium, Cicero, Laws, book II.

It is the work of Irnerius.

[Rhéteur : master of eloquence among the Ancients.]

Political Testament.

Aut qualibet manumissione donatum inquietare voluerit, appendix to the Theodosian code in vol. I of Oeuvres du Père Sirmond, p. 737.

Aulus Gellius, book XX, ch. i.

We find in the in the record of this ordinance the motives they had for that.

In his ordinance of Montel-lès-Tours, in the year 1453.

They could punish the prosecutor without any need for disturbing the public order.

The ordinance of 1667 made rulings on this.

Book II, tit. 37.

In the appendix of Father Sirmond to the Théodosian code, vol. I.

Law 1, Codex, De repudiis.

See Authentica, sed hodie, in the Codex, De repudiis.

Law 1, following De postulando.

In his Sentences, book IV, tit. 9.

[Droit de régale = “Droit qui appartient au Roy sur les Benefices. Il consiste à avoir l’administration des revenus des Eveschez durant que le siege est vaquant, et de pourvoir aux Benefices qui y viennent à vaquer pendant ce temps-là.” (Furetière).]

Della guerra civile di Francia, p. 96.

Le Chancelier de l’Hôpital, ibidem.

It is from the month of November 1702.

Book IX of Laws.

It is the Authentica, sed cum testator.

Book XII, tit. 2, §16.