Published in: T. Eger. J. Bigus, C. Ott and G. von Wangenheim (eds.), International Law and Its Economic Analysis, Festschrift für Hans-Bernd Schäfer, Wiesbaden: Gabler-Verlag, 57-70.
Abstract: This paper emphasizes the importance of the law and lawgiving in Machiavelli’s writings. It extracts legal principles from Il Principe and the Discorsi and places them in the context of Machiavelli’s political and historical theory.
“Wär ich ein Tyrann,
Dein Wort, das fühl ich lebhaft, hätte mir
Das Herz schon in der erznen Brust geschmelzt,
Dich aber frag’ ich selbst: darf ich den Spruch,
Den das Gericht gefällt, wohl unterdrücken? –
Was würde doch davon die Folge sein?“
(Heinrich von Kleist, Prinz von Homburg) “…poverty and hunger make men industrious, and…the law makes men good” (Machiavelli, Discourses on the First Ten Books of Titus Livius)
A. Introduction The introductory quote, taken from Heinrich von Kleist’s “Prinz von Homburg”, illustrates a key problem that Machiavelli brings to light in favor of a republic: how a prince can bind himself to honor the law. “For a people that governs and is well regulated by laws will be stable, prudent, and grateful, as much so, and even more, according to my opinion, than a prince, although he be esteemed wise; and, on the other hand, a prince, freed from the restraints of the law, will be more ungrateful, inconstant, and imprudent than a people similarly situated. The difference in their conduct is not due to any difference in their nature (for that is the same, and if there be any difference for good, it is on the side of the people); but to the greater or less respect they have for the laws under which they respectively live” (Discourses, p.216).
In general, the respect that a prince has for the law is not due to the existence of opponents, rivals, and competitors. Rather it depends on his insight that in the long-run it might be beneficial (and honorable) to submit one’s action to given rules, especially if these rules represent popular ideas of justice. But it seems even more difficult for a prince to follow the law if the consequences seem to contradict such ideas as in the case of the Prinz von Homburg. In the Battle of Fehrbellin (1675), von Homburg attacked the Swedish troops and won an extraordinary victory. His action, however, violated the explicit command of his commander in chief, the Elector Friedrich Wilhelm von Brandenburg, who ordered that the Prinz should be tried by a military court and sentenced to death. When his niece Natalie von Oranien begged him to pardon the Prinz, the Elector answered with the famous quote above, saying that if he were a tyrant, he would be moved by his niece’s words. But he asks her whether he should suppress the decision of the court – and what would be the consequence of it? He would like to know if the Prinz assumes that it does not matter to the Vaterland whether it is governed by despotism or the law.
When the Elector learns that the Prinz is possessed by the fear of death and begs for pardon he seems to change his attitude. He writes a note to the Prinz saying that he will pardon him if he declares that the decision of the court is unjust. This note convinces the Prinz that he had done wrong, and he says so. Obviously, the note and its acceptance gives a new twist to the legal dimension of the play as the Prinz honors the sentence as justified while the Elector seems prepared to deviate from the narrow path of enforcing the law. He thereby gives the Prinz a chance not only to win a battle but to become a hero. In the end, the hero will be pardoned.
It is widely agreed today that the Prinz von Homburg story is fiction. It was King Frederick II of Prussia, known as Frederick the Great and great grandson of the historical Elector Friedrich Wilhelm, who elaborated on it in his “Memoires pour server à l’histoire de la maison de Brandenbourg,” published in 1751. Earlier, when he was crown prince, Friedrich had written an “Anti-Machiavell” text, strongly supported and perhaps indoctrinated in this project by Voltaire. The core of this treatise is that a prince should build his government on reason and justice, and not merely strive for power as proposed, with some qualifications, by Machiavelli. After he became king, Fredrick wanted to suppress the publication of his text.
This development illustrates perhaps another problem why Machiavelli believes the people, when governed by law, to be more reliable than a prince. As “…regards prudence and stability,” Machiavelli maintains, “people are more prudent and stable, and have better judgment than a prince; and it is not without good reason that it is said, ‘The voice of the people is the voice of God’” (Discourses, p.217).
In this paper, I will not analyze whether Machiavelli is right about this judgment concerning truth, which is in fact a minor issue to him, and I will not discuss the arguments which support his opinion,1 but rather focus on what we can learn from his writing about the creation, implementation, and enforcement of law. In the Discorsi, Machiavelli gives an interesting, perhaps not always reliable interpretation of the law of the Roman republic, tainted with the ideas and principles of his time. Perhaps even more exiting are his arguments from which he derives his interpretations and principles. Some of these arguments show up in his Il Principe and repeat themselves in the History of Florence. The underlying rationale demonstrates that Machiavelli is an extremely modern thinker: He relates actions to objectives and means, and emphasizes the importance of incentives and regulations in order to define and evaluate their results, and to get an understanding of the institutional framework and to propose suitable reforms. This is what scholars of Law and Economics do today.
In the following section, I will discuss some aspects of the creation and enforcement of law as found in Machiavelli’s writings. Section 3 deals with the crises of the state and the reform of its law, exemplified by the rise and fall of Appius Claudius. In Section 4, a series of legal principles will be outlined and briefly discussed which seem to be of importance to Machiavelli’s theorizing. Section 5 elaborates on Machiavelli’s concept of history which is the soil from which his legal theory derives.
It is said that Machiavelli was the first author who clearly stated the dominance of politics over all facets and branches of human life. Politics also dominates the law; for Machiavelli, law does not exist without the state and state means power. His theory of law is therefore interwoven with his theory of politics and the law is only of interest to him inasmuch as it is of relevance for politics. However, this short paper will demonstrate that both the presence and the absence of law shapes politics and the fate of those, actively or passively, involved.
B. The Creation and Enforcement of Law Machiavelli presents, without distinction, historical and mythical cases of the creation of law and relates them to the political and legal chaos which surrounded him. His focus on ancient Rome and contemporary Italy seems straightforward, which makes Romulus, mythic founder of Rome, and Cesare Borgia, son of Pope Alexander VI and conqueror of the Romagna, his key figures to discuss the creation of law.
Romulus killed his brother Remus in order to avoid sharing power in this early phase of Rome. He also “consented to the death of Titus Tatius, who had been elected to share the royal authority with him” (Discourses, p.120). In the interpretation of Machiavelli, these murders guaranteed that one (and only one) person will define the common good.
It is important to note that, for Machiavelli, Cesare Borgia’s cruelties and Romulus’ fratricide were violations of moral norms. The period of cruelties and “destructive purification” was meant to be followed, in the case of both Rome and the unified Italy, by peace and order that presupposed protection from external enemies and the reign of the law. Machiavelli concludes that “Romulus deserves to be excused for the death of his brother and that of his associate, and that what he had done was for the general good, and not for the gratification of his own ambition, is proved by the fact that he immediately instituted a Senate with which to consult, and according to the opinions of which he might form his resolutions. And on carefully considering the authority which Romulus reserved for himself, we see that all he kept was the command of the army in case of war, and the power of convoking the Senate” (Discourses, p.121).
Machiavelli argues “…although one man alone should organize a government, yet it will not endure long if the administration of it remains on the shoulders of a single individual; it is well, then, to confide this to the charge of many, for thus it will be sustained by the many” (Discourses, p.121). This is why Romulus should have shared his power: It is for the sake of glory which derives from the implementation of a stable and secure government.
As there is no guarantee that the will of the founding hero to perform the public good carries over to the successor, the creation of an appropriate law is one way to implement the pursuance of the public good for future generations. The “lawgiver should…be sufficiently wise and virtuous not to leave this authority which he has assumed either to his heirs or to any one else; for mankind, being more prone to evil than to good, his successor might employ for evil purposes the power which he had used only for good ends” (Discourses, p.121).
However, it took still several generations and the courage of a Brutus (Lucius Junius) to expel a king before the Roman republic finally prevailed. But Machiavelli suggests that Romulus had already created the institutions that assured the successful installation of the republic. “This was seen when Rome became free, after the expulsion of the Tarquins, when there was no other innovation made upon the existing order of things than the substitution of two Consuls, appointed annually, in place of an hereditary king; which proves clearly that all the original institutions of that city were more in conformity with the requirements of a free and civil society than with an absolute and tyrannical government” (Discourses, p.121).
It could be conjectured that Machiavelli hoped that a Borgia Italy would finally transform into a republic, had it become reality and matured the way Rome did. But in the case of Cesare Borgia, the project ended with the early death of his papal father. Cesare’s power base became too weak to continue the project of transforming the Papal State into a Borgia State and of extending the Borgia State to incorporate all of Italy so that it had enough power to keep foreign governments and foreign troops at bay.
Of course, the cases of Romulus and Cesare Borgia are not the only models of creating law. Some states “have had at the very beginning, or soon after, a legislator, who, like Lycurgus with the Lacedæmonians, gave them by a single act all the laws they needed. Others have owed theirs to chance and to events, and have received their laws at different times, as Rome did. It is a great good fortune for a republic to have a legislator sufficiently wise to give her laws so regulated that, without the necessity of correcting them, they afford security to those who live under them” (Discourses, p.98f).
Machiavelli reminds us that “Sparta observed her laws for more than eight hundred years without altering them and without experiencing a single dangerous disturbance” (Discourses, p.99), whereas the history of the Roman republic can be told by the legal conflicts and crises and corresponding reforms. Why this difference? Machiavelli suggests that we “must bear in mind…that there is nothing more difficult and dangerous, or more doubtful of success, than an attempt to introduce a new order of things in any state. For the innovator has for enemies all those who derived advantages from the old order of things, whilst those who expect to be benefited by the new institutions will be but lukewarm defenders. This indifference arises in part from fear of their adversaries who were favored by the existing laws, and partly from the incredulity of men who have no faith in anything new that is not the result of well-established experience. Hence it is that, whenever the opponents of the new order of things have the opportunity to attack it, they will do it with the zeal of partisans, whilst the others defend it but feebly, so that it is dangerous to rely upon the latter” (Prince, p.20).
Machiavelli concludes that “Neither Moses, Cyrus, Theseus, nor Romulus would have been able to make their laws and institutions observed for any length of time, if they had not been prepared to enforce them with arms” (Prince, p.20). The underlying assumption is that all men are bad: “All those who have written upon civil institutions demonstrate (and history is full of examples to support them) that whoever desires to found a state and give it laws, must start with assuming that all men are bad and ever ready to display their vicious nature, whenever they may find occasion for it. If their evil disposition remains concealed for a time, it must be attributed to some unknown reason; and we must assume that it lacked occasion to show itself; but time, which has been said to be the father of all truth, does not fail to bring it to light” (Discourses, p.104). But let us note: It is only an assumption that all men are bad.
Machiavelli repeatedly referred to religion which helped to enforce the law and, what amounts to the same, to prevent the people from corruption. The Roman republic made extensive use of religion, and when it did not, it often failed. Given these observations, Machiavelli favored changes that bring a society back “to their original principles” (Discourses, p.319). And, in the Roman republic, the religion of the forebears was part of these principles. However, to be sure, for Machiavelli religion served only as a means to enforce the law, i.e., to increase the power of the state.
Although he suggested honoring the religion and the law of the fathers, Machiavelli also saw the need for reform as the Roman republic expanded, although this could trigger crises and the danger of tyranny as we will see below. Interestingly, the Roman republic had created an incentive scheme which produced legal reforms. Young men could try to distinguish themselves by some remarkable action which consisted “either by proposing some law that was for the general good, or by preferring charges against some powerful citizen as a transgressor of the laws; or by some similar and novel act that would cause them to be talked about” (Discourses, p.407). This does not only assure the reform of law but also its enforcement. Not surprisingly, however, more often than not, the legal system seemed to suffer from an oversupply of propositions, and the numerous charges against powerful citizens, sometimes of high merits and social esteem, paralyzed public life.
The described incentive structure could be rather damaging to a society and, in fact, it caused substantial irritations. However, Machiavelli reports of even more damaging incentives in the production of law. Before Cesare Borgia had crushed the petty tyrants that ruled the Romagna, “these princes, being poor, yet wishing to live in luxury like the rich,” resorted “to every variety of robbery. And amongst other dishonest means which they employed was the making of laws prohibiting one thing or another; and immediately after, they were themselves the first to encourage their non-observance, leaving such transgressions unpunished until a great number of persons had been guilty of it, and then suddenly they turned to prosecute the transgressors; not from any zeal for the law, but solely from cupidity, in the expectation of obtaining money for commuting the punishment” (Discourses, p.395f). These “infamous” manipulations of the law and its enforcement “caused many evils; the worst of them was that the people became impoverished without being corrected, and that then the stronger amongst them endeavored to make good their losses by plundering the weaker” (Discourses, p.396).
C. Crisis of the State and Reform of Its Law “Those republics…that started without having even a perfect constitution, but made a fair beginning, and are capable of improvement, - such republics, I say, may perfect themselves by the aid of events. It is very true, however, that such reforms are never effected without danger, for the majority of men never willingly adopt any new law tending to change the constitution of the state, unless the necessity of the change is clearly demonstrated; and as such a necessity cannot make itself felt without being accompanied with danger, the republic may easily be destroyed before having perfected its constitution” (Discourses, p.99). This statement by Machiavelli, pointing to the conflict of law and constitution, summarized the problem that the Roman republic faced with the installation of the decemviri (from 451 to 449 BC).
In 451 BC, the Decemvirs were established as a result of a severe conflict between the people and the nobility. More and more the people were inclined to think that the ongoing wars with Rome’s neighbours were a plot by the nobility to discipline and suppress them. As consuls were the head of the various armies, the people started to hate this institution. The election of tribunes with the function of consuls seemed to be a way out of the dilemma, but this solution was unacceptable to the nobility. After some time the institution and name of consul was re-established and the conflict became more severe than ever.
A new constitution seemed to be the only way to solve this conflict, but there was no institution that was authorized and considered as sufficiently neutral to accomplish the necessary reform. “After many contentions between the people and the nobles respecting the adoption of new laws in Rome, by which the liberty of the state should be firmly established, it was agreed to send Spurius Posthumus with two other citizens to Athens for copies of the laws which Solon had given to that city, so that they might model the new Roman laws upon those. After their return to Rome a commission had to be appointed for the examination and preparation of the new laws, and for this purpose ten citizens were chosen for one year, amongst whom was Appius Claudius, a sagacious but turbulent man. And in order that these might make such laws irrespective of any other authority, they suppressed all the other magistracies in Rome, and particularly the Tribunes and the Consuls; the appeal to the people was also suppressed, so that this new magistracy of ten became absolute masters of Rome” (Discourses, p.182), and Appius Claudius succeeded to become the master of these masters. When the Sabines and the Volscians declared war on Rome, two armies under the command of several Decemvirs left the city. Appius, however, remained in order to govern the city. “It was then that he (Appius) became enamored of Virginia, and on his attempting to carry her off by force, her father Virginius killed her to save her from her ravisher. This provoked violent disturbances in Rome and in the army, who, having been joined by the people of Rome, marched to the Mons Sacer, where they remained until the Decemvirs abdicated their magistracy, and the Consuls and Tribunes were re-established, and Rome was restored to its ancient liberty and form of government” (Discourses, p.184f).
What happened to Appius Claudius? Virginius cited Appius before the people to defend his cause, which was meant to do justice for the misfortune of his daughter. In what followed, Appius was incarcerated, “and before the day of judgment came he committed suicide” (Discourses, p.190).
The incidence of the Decemvirs demonstrates that the law could be corrupted by the biased interests of various groups or of prominent members of the community. In principle, this problem is, by and large, solved through adequate political institutions (and religion). “…under their republican constitution,” the Romans “had one assembly controlled by the nobility, another by the common people, with the consent of each being required for any proposal to become law. Each group admittedly tended to produce proposals designed merely to further its own interests. But each was prevented by the other from imposing its own interests as laws. The result was that only such proposals as favored no faction could ever hope to succeed. The laws relating to the constitution thus served to ensure that the common good was promoted at all times”.2 However, bargaining can fail and, as we have seen, lead to disagreement that cannot be solved by the given political and legal institutions – with the possible consequence of tyranny.
Given a well-established republic, tyranny does not seem to be the necessary result of an evolutionary process or the possible outcome of chance, but rather the result of severe political errors. Machiavelli discusses the case of Appius Claudius in order to show to future generations the consequences of these errors and to teach them what has to be avoided in order to protect their freedom. “Both the Senate and the people of Rome committed the greatest errors in the creation of the Decemvirate; and although we have maintained…that only self-constituted authorities, and never those created by the people, are dangerous to liberty, yet when the people do create a magistracy, they should do it in such a way that the magistrates should have some hesitation before they abuse their powers” (Discourses, p.186).
D. Principles and Basic Assumptions In this section I will reproduce material selected from Il Principe and the Discorsi which represent basic concepts in the legal framework of Machiavelli’s work. I will leave it to the competent reader to identify these principles and assumptions with what can be found in contemporary law books and books of legal philosophy. The terms which I have chosen here are only provisionally used to classify the “scenes.”
Free will and responsibility: Machiavelli implicitly assumes that people have a free will when it comes to obeying or violating the law or to punish those who violated it and are therefore responsible of what they choose. He explicitly emphasizes that “God will not do everything, for that would deprive us of our free will, and of that share of glory which belongs to us” (Prince, p.86). “I am well aware that many have held and still hold the opinion, that the affairs of this world are so controlled by Fortune and by the Divine Power that human wisdom and foresight cannot modify them; that, in fact, there is no remedy against the decrees of fate, and that therefore it is not worthwhile to make any effort, but to yield unconditionally to the power of Fortune. This opinion has been generally accepted in our times, because of the great changes that have taken place, and are still being witnessed every day, and are beyond all human conjecture. In reflecting upon this at times, I am myself in some measure inclined to that belief; nevertheless, as our free will is not entirely destroyed, I judge that it may be assumed as true that Fortune to the extent of one half is the arbiter of our actions, but that she permits us to direct the other half, or perhaps a little less, ourselves” (Prince, p.81f).
The vicious nature of man: To repeat the corresponding quote: “All those who have written upon civil institutions demonstrate (and history is full of examples to support them) that whoever desires to found a state and give it laws, must start with assuming that all men are bad and ever ready to display their vicious nature, whenever they may find occasion for it” (Discourses, p.104). It is not obvious from this quote whether Machiavelli considers the vicious nature of man an assumption, an empirical observation, or an iron law. Of course, Machiavelli’s writings give substantial empirical evidence that men are bad, but he also reports on cases that cannot be subsumed under this assumption and, when it comes to politics, describe failures. It seems that to Machiavelli the Gonfalonier Pietro Soderini belonged to the latter category. Pietro Soderini “thought, and several times acknowledged it to his friends, that boldly to strike down his adversaries and all opposition would oblige him to assume extraordinary authority, and even legally to destroy civil equality; and that, even if he should not afterwards use this power tyrannically, this course would so alarm the masses that after his death they would never again consent to the election of another Gonfalonier for life, which he deemed essential for the strengthening and maintaining of the government. This respect for the laws was most praiseworthy and wise on the part of Soderini. Still one should never allow an evil to run on out of respect for the law, especially when the law itself might easily be destroyed by the evil; and he should have borne in mind, that as his acts and motives would have to be judged by the result, in case he had been fortunate enough to succeed and live, everybody would have attested that what he had done was for the good of his country, and not for the advancement of any ambitious purposes of his own…So that by failing to imitate Brutus he lost at the same time his country, his state, and his reputation” (Discourses, p.325f).3
The principle of legality is based on Machiavelli’s observation that “nothing … renders a republic more firm and stable, than to organize it in such a way that the excitement of the illhumors that agitate a state may have a way prescribed by law for venting itself.” Machiavelli continues: “This can be demonstrated by many examples, and particularly by that of Coriolanus, which Titus Livius mentions, where he says that the Roman nobility was much irritated against the people, because they believed that the people had obtained too much authority by the creation of the Tribunes who defended them; and as Rome at the time was suffering greatly from want of provisions, and the Senate had sent to Sicily for supplies of grain, Coriolanus, who was a declared enemy of the popular faction, suggested to the Senate that it afforded a favorable opportunity for them to chastise the people, and to deprive them of the authority they had acquired and assumed to the prejudice of the nobility, by not distributing the grain, and thus keeping the people in a famished condition. When this proposition came to the ears of the people, it excited so great an indignation against Coriolanus, that, on coming out of the Senate, he would have been killed in a tumultuary manner, if the Tribunes had not summoned him to appear before them and defend his cause” (Discourses, p.114f).
Machiavelli concludes that “this occurrence shows…how useful and necessary it is for a republic to have laws that afford to the masses the opportunity of giving vent to the hatred they may have conceived against any citizen; for if there exist no legal means for this, they will resort to illegal ones, which beyond doubt produce much worse effects” (Discourses, p.115). People accept legal means, even when the results are not always favorable to them: “For ordinarily when a citizen is oppressed, and even if an injustice is committed against him, it rarely causes any disturbance in the republic” (Discourses, p.115).
Machiavelli emphasizes a special obligation to obey the law by those institutions that are responsible for it. In 1494, Savonarola determined the fate of Florence and its law. There was hope that citizens can be more secure under his rule. In fact, “a law had been made which permitted an appeal to the people from the decisions which the Council of Eight and the Signoria might render in cases affecting the state…” (Discourses, p.191). “It happened that shortly after its confirmation five citizens were condemned to death by the Signoria on account of crimes against the state; and when these men wished to appeal to the people, they were not allowed to do so, in manifest disregard of the law. This occurrence did more than anything else to diminish the influence of Savonarola; for if the appeal was useful, then the law should have been observed, and if it was not useful, then it should never have been made” (Discourses, p.191).
Non-additvity of justice says that “…no well-ordered republic should ever cancel the crimes of its citizens by their merits” (Discourses, p.153). Machiavelli illustrates this principle with the case of Horatius who, “by his bravery” had conquered the Curatii, but committed the crime of killing his sister who was contracted in marriage to one of the Curatii, slain by Horatius and his comrades, and lamented his death. The Romans were so outraged by this murder that he was put upon trial for his life, notwithstanding his recent great services to the state.4 Machiavelli argues that, “in looking at this matter superficially, it may seem like an instance of popular ingratitude; but a more careful examination, and reflection as to what the laws of a republic ought to be, will show that the people were to blame rather for the acquittal of Horatius than for having him tried” (Discourses, p.153). Machiavelli reasons that a state that cancels the crimes of its citizens by their merits “will speedily come to ruin. For if a citizen who has rendered some eminent service to the state should add to the reputation and influence which he has thereby acquired the confident audacity of being able to commit any wrong without fear of punishment, he will in a little while become so insolent and overbearing as to put an end to all power of the law” (Discourses, p.153).
Manlius Capitolinus, “having saved the Capitol from the Gauls who were besieging it, he received from each of those who had been shut up in it with him a small measure of flour, which (according to the current prices of things in those days in Rome) was a reward of considerable value and importance. But when Manlius afterwards, inspired by envy or his evil nature, attempted to stir up a rebellion, and sought to gain the people over to himself, he was, regardless of his former services, precipitated from that very Capitol which it had been his previous glory to have saved” (Discourses, p.154).
Obviously, the principle of non-additvity of justice has often been violated and still is. Often the results were most damaging to those who granted the laurel. Of course, it is somewhat peculiar first to crown a head with wreath of laurel and then to cut it off. However, according to Machiavelli, this is necessary if society wants to avoid corruption.
The principle of carrot and stick: Machiavelli proposes that both punishment and rewards should be used to regulate society by law. To consider rewards is no trivial insight. For instance, early Hindu political theory focuses on punishment. In the Sukraniti we can read that “the primary functions of the king are protection of subjects and constant punishment of offenders…” and “…through fear of the punishment meted out by the king each man gets into the habit of following his own Dharma or duty” (Brown 1968), p.67).5 Machiavelli however argues that “…to preserve a wholesome fear of punishment for evil deeds, it is necessary not to omit rewarding good ones; as has been seen was done by Rome. And although a republic may be poor and able to give but little, yet she should not abstain from giving that little; for even the smallest reward for a good action - no matter how important the service to the state - will always be esteemed by the recipient as most honorable” (Discourses, p.153f).
Even in a republic, the rewarding of good deeds is not self-evident: “We read in the ancient history of the Venetian republic, that, on one occasion when their galleys returned to the city, a quarrel occurred between the sailors and the people, which increased to a tumult and a resort to arms. Neither the public force, nor the respect for the principal citizens, nor the fear of the magistrates, could quell this disturbance; but the sudden appearance of a gentleman who the year before had commanded these mariners, and had won their affection, caused them to desist from the fight and to depart. The prompt submission of the sailors to this gentleman excited the suspicions of the Senate to that degree, that they deemed it well to assure themselves of him by imprisonment and death” (Discourses, p.385). This is how the Serenissima paid Admiral Pietro Loredan for his service. However, it has to be accepted, as Machiavelli commented this act of ingratitude, that “in a republic, the exclusive devotion of the army to its chief does not accord with the other institutions, which oblige him to observe the laws and obey the civil magistrates” (Discourses, p.385).
Both changing the constitution and retrospective laws can do a lot of damage to a republic, as Machiavelli points out. However, both can be necessary to react to the changes in the environment, including the dynamics of norms and institutions. Often this creates conflicts – conflicts that can hardly be avoided. In general, “…to attempt to eradicate an abuse that has grown up in a republic by the enactment of retrospective laws is a most inconsiderate proceeding, and…only serves to accelerate the fatal results which the abuse tends to bring about; but by temporizing, the end will either be delayed, or the evil will exhaust itself before it attains that end” (Discourses, p.177). This conclusion refers to the agrarian law, which finally led to civil war and to the destruction of the Roman republic. “There were two principal points in this law; one provided that no citizen could possess more than a certain number of acres of land, and the other that all the lands taken from their enemies should be divided amongst the Roman people. This affected the nobles disadvantageously in two ways; for those who had more land than the law allowed (which was the case with the greater part of the nobles) had to be deprived of it; and by dividing amongst the people the lands taken from the enemy, it took from the nobles the chance of enriching themselves thereby, as they had previously done” (Discourses, p.175).
Of course, this law raised outcries and resistance by the disadvantaged group of nobles who had become extremely rich due to the success of the Roman army and the ways in which conquered land had been divided. However, as Machiavelli notes, “as in well-regulated republics the state ought to be rich and the citizens poor, it was evident that the agrarian law was in some respects defective; it was either in the beginning so made that it required constant modifications; or the changes in it had been so long deferred that it became most obnoxious because it was retrospective in its action; or perhaps it had been good in the beginning, and had afterwards become corrupted in its application. But whichever it may have been, this law could never be discussed in Rome without causing the most violent excitement in the city (Discourses, p.175).
References to the law of nations come somewhat as a surprise when reading Machiavelli. It is perhaps even more surprising to see it applied, with substantial consequences, to the Roman republic. History tells us that the Fabii were sent by the Romans to the Gauls to make them stop attacking the Etruscans (i.e., Tuscans) who were the allies of Rome. But when it came to war between the Gauls and the Etruscans, the Fabii took the first line to fight the Gauls. The Gauls felt cheated by this behavior of the Roman envoys and turned their wrath from the Etruscans to the Romans and “demanded as a reparation therefore(e) that the three Fabii should be delivered up to them” (Discourses, p.305).
It is interesting to note that not only the Gauls thought the behavior of the three envoys an outrageous offense that needed to be punished, but Machiavelli explicitly classified it as a violation of the law of nations. He also notes that the Romans “…not only did not deprive the three Fabii of their rank for having, ‘contrary to the law of nations,’ fought against the Gauls, but actually raised them to the dignity of Tribunes” (Discourses, p.319). “When the Gauls saw the very men who should have been chastised thus rewarded with honors, they regarded it as an intentional insult and disgrace to themselves; and, exasperated by anger and indignation, they attacked Rome and captured the whole city, excepting only the Capitol” (Discourses, p.305f).
The conquest of Rome by the Gauls, which left only the Capitol to its inhabitants, is well known and so is its rescue by Camillus. Machiavelli argued that it needed “…this blow from without to revive the observance of all the institutions of the state, and to show to the Roman people, not only the necessity of maintaining religion and justice, but also of honoring their good citizens, and making more account of their virtue than of the ease and indulgence of which their energy and valor seemed to deprive them. This admonition succeeded completely; for no sooner was Rome retaken from the Gauls than they renewed all their religious institutions, punished the Fabii for having fought the Gauls contrary to the law of nations” (Discourses, p.320).
Enforcement of the law is not a trivial problem as we have just seen. Is there an obligation by the state not only submit itself to its legal rules but to punish its citizens if they deviate from it? Or, is it at the discretion of the state whether to enforce the law or not? The affair with the Gauls demonstrates “how dangerous it is for a republic not to avenge a public or a private injury” (Discourses, p.305). Here, of course, the Gauls are the injured party.
E. Learning from History Machiavelli emphasizes the dominance of the political sector over all other areas of social life. Law, economy, religion, and art are only accessories, ready to be exploited in the race for power. This perspective, of course, is based on Machiavelli’s observation and his profound studies of history. It does not derive from a moral judgment. However, what justifies learning from history?
In general, this question is difficult to answer. However, in the case of Machiavelli we can derive an answer from his cyclical view of history: There is growth and prosperity followed by destruction, chaos and possible reconstruction; princely government is followed by tyranny, revolution, oligarchy, again revolution, popular state, and finally the republic which in the end collapses into anarchy waiting for the prince or tyrant to reinstall order (see Discourses, p.101). In his History of Florence we can read: “The general course of changes that occur in states is from condition of order to one of disorder, and from the latter they pass again to one of order. For as it is not the fate of mundane affairs to remain stationary, so when they have attained their highest state of perfection, beyond which they cannot go, they of necessity decline. And thus again, when they have descended to the lowest, and by their disorders have reached the very depth of debasement, they must of necessity rise again, inasmuch as they cannot go lower” (History, p.218).
Machiavelli concludes: “Such is the circle which all republics6 are destined to run through. Seldom, however, do they come back to the original form of government, which results from the fact that their duration is not sufficiently long to be able to undergo these repeated changes and preserve their existence. But it may well happen that a republic lacking strength and good counsel in its difficulties becomes subject after a while to some neighboring state, that is better organized than itself; and if such is not the case, then they will be apt to revolve indefinitely in the circle of revolutions” (Discourses, p.101f). This quote indicates that the “circle” is no “law of nature” although the image is borrowed from nature. There are substantial variations in the development of the systems of governance and there are no guarantees that the circle will close again. Obviously, there is room for political action and constitutional design that has a substantial impact on the course of the political affairs. For instance, Machiavelli concludes that “…if Rome had not prolonged the magistracies and the military commands, she might not so soon have attained the zenith of her power; but if she had been slower in her conquests, she would have also preserved her liberties the longer” (Discourses, p.388). Thus, despite his cyclical world view, Machiavelli considered political action and constitutional design as highly relevant for the course of history and also for what happens today and tomorrow. However, the cyclical view allows us to learn from history and to apply what we learned today and in the future.
References Brown, D. Mackenzie (1968), The White Umbrella: Indian Political Thought from
Manu to Ghandi, Berkeley and Los Angeles: University of California Press.
Holler, Manfred J. (2007a), “Niccolò Machiavelli on Power“, in: Leonidas Donskis (ed.), Niccolo Machiavelli: History, Power, and Virtue, Vilnius: Versus Aureus (in English and
Holler, Manfred J. (2007b), “The Machiavelli Program and the Dirty Hands Problem,” in: P.
Baake and R. Borck (eds.), Public Economics and Public Choice: Contributions in Honor of Charles B. Blankart, Berlin et al.: Springer.