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Pages of laws (books 7 - 12)



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laws (books 7 - 12)   


make some such proclamation as the following:-Mankind must have
laws, and conform to them, or their life would be as bad as that of
the most savage beast. And the reason of this is that no man's
nature is able to know what is best for human society; or knowing,
always able and willing to do what is best. In the first place,
there is a difficulty in apprehending that the true art or politics is
concerned, not with private but with public good (for public good
binds together states, but private only distracts them); and that both
the public and private good as well of individuals as of states is
greater when the state and not the individual is first considered.
In the second place, although a person knows in the abstract that this
is true, yet if he be possessed of absolute and irresponsible power,
he will never remain firm in his principles or persist in regarding
the public good as primary in the state, and the private good as
secondary. Human nature will be always drawing him into avarice and
selfishness, avoiding pain and pursuing Pleasure without any reason,
and will bring these to the front, obscuring the juster and better;
and so working darkness in his soul will at last fill with evils
both him and the whole city. For if a man were born so divinely gifted
that he could naturally apprehend the truth, he would have no need
of laws to rule over him; for there is no law or order which is
above knowledge, nor can mind, without impiety, be deemed the
subject or slave of any man, but rather the lord of all. I speak of
mind, true and free, and in harmony with nature. But then there is
no such mind anywhere, or at least not much; and therefore we must
choose law and order, which are second best. These look at things as
they exist for the most part only, and are unable to survey the
whole of them. And therefore I have spoken as I have.
And now we will determine what penalty he ought to pay or suffer who
has hurt or wounded another. Any one may easily imagine the
questions which have to be asked in all such cases:-What did he wound,
or whom, or how, or when? for there are innumerable particulars of
this sort which greatly vary from one another. And to allow courts
of law to determine all these things, or not to determine any of them,
is alike impossible. There is one particular which they must determine
in all cases-the question of fact. And then, again, that the
legislator should not permit them to determine what punishment is to
be inflicted in any of these cases, but should himself decide about,
of them, small or great, is next to impossible.
Cle. Then what is to be the inference?
Ath. The inference is, that some things should be left to courts
of law; others the legislator must decide for himself.
Cle. And what ought the legislator to decide, and what ought he to
leave to courts of law?
Ath. I may reply, that in a state in which the courts are bad and
mute, because the judges conceal their opinions and decide causes
clandestinely; or what is worse, when they are disorderly and noisy,
as in a theatre, clapping or hooting in turn this or that orator-I say
that then there is a very serious evil, which affects the whole state.
Unfortunate is the necessity of having to legislate for such courts,
but where the necessity exists, the legislator should only allow
them to ordain the penalties for the smallest offences; if the state
for which he is legislating be of this character, he must take most
matters into his own hands and speak distinctly. But when a state
has good courts, and the judges are well trained and scrupulously
tested, the determination of the penalties or punishments which
shall be inflicted on the guilty may fairly and with advantage be left
to them. And we are not to be blamed for not legislating concerning
all that large class of matters which judges far worse educated than
ours would be able to determine, assigning to each offence what is due
both to the perpetrator and to the sufferer. We believe those for whom
we are legislating to be best able to judge, and therefore to them the
greater part may be left. At the same time, as I have often said, we
should exhibit to the judges, as we have done, the outline and form of

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