Liber III, Pars II — Quod quantum est, sunt omnia legibus determinanda, et quam pauciora possunt, sunt arbitrio iudicum committenda. Cap. XX.

Liber III, Pars II — Quod quantum est, sunt omnia legibus determinanda, et quam pauciora possunt, sunt arbitrio iudicum committenda. Cap. XX.

Since we have determined in the preceding chapters about the prince, showing what kind of person the prince should be, and we have also determined about the council, declaring what kind of advisors they should be: and what and how many matters there are regarding which there should be counsel. It remains, according to the previously stated order, that we examine the praetorium or the judgment, investigating how judgment should be made, and how many kinds of laws there are, and other matters that arise regarding this topic. But when judgment is made according to laws, or by discretion, or by both, before we show how judgment should be made, we want to declare that as much as possible, everything should be determined by laws, and that as few matters as possible should be entrusted to the discretion of judges. This can be investigated in four ways. Of these, three are addressed in the first. Rhet. The fourth is indeed addressed in the first. Polit. The first way is clear. For there are fewer creators of laws than judges who judge according to the laws already established. In any city, there should be some regular court to which cases are brought and disputes arise; however, many cities can operate under the same established laws. Indeed, in the same city where laws are made, it often happens that there are more judges than creators of laws. If the laws are just, they should be considered almost immortal and unchangeable, because there should be no or only minor changes made to them. Judges, however, who judge according to those laws, die and become corrupt. It also happens that judges can be removed from their office without corruption or death. And another can take their place. Therefore, at least through their succession, there must be many judges in the same city, because they are almost continuously renewed; however, the number of law-makers should not be increased, since laws should not be continuously changed. If the law-makers are few in relation to the judges, it is because it is easier to find a few wise people than many, so that everything can be arranged wisely; therefore, as much as possible, it is advisable that everything be determined by law, and that as few matters as possible be left to the discretion of judges. The second way is thus demonstrated, for it seems easier and better to determine what is right and what is just if it is discussed over a long time with careful consideration than if a judgment must be made immediately. Thus, since law-makers can deliberate for a long time and with great care about what kind of laws should be made, judges, on the other hand, because of the urgency of the parties involved and because they should not prolong disputes but resolve them, do not have the time to see what is just in a given case; therefore, in order not to err in judgment, as much as possible, everything should be determined by laws, and few matters should be left to the discretion of judges. The third way is thus declared, for law-makers propose laws in general and about future matters, stating that whoever acts in this way should be punished, unaware whether a friend or an enemy will act in this manner and whether they should face that punishment. For if they knew that a friend might be biased in judgment and would soften the punishment, but if an enemy might be inclined to the opposite side and would increase the punishment. Now, however, because they only propose laws in this way and do not know what will happen in specific cases, they are not biased in their judgments, whether inclined by love or hatred. Judges, however, do not act in this way. For the judgments of judges are not about future events, but about past ones; they are not universal, but particular. Determined individuals are often accused, whether they are loved or hated, and such cases frequently involve their own personal gain. Therefore, a judge can easily be biased: for those who love or hate, and who consider some temporary benefit, do not judge equally; thus, to prevent the judgment of judges from being skewed, it is best (as much as possible) to determine everything by law and to commit as few cases as possible to the discretion of judges. The philosopher touches on these three reasons. He states in the Rhetoric that it is indeed most fitting to determine rightly established laws, whatever is possible, and to commit as few as possible to those judging. First, indeed, because it is easier to have one or a few wise individuals than many. Next, because lawmakers are formed from those who have considered matters over a long time, while judgments arise suddenly and unexpectedly. The third, indeed, which is the greatest of all: because lawmakers deal with future and universal matters, but a prefect or judge judges present and specific cases, concerning whom they must love or hate, and to whom personal gain is often attached. The fourth way to demonstrate this can be stated as follows. For (as will be evident below) it is necessary to commit some matters to the judgment of judges, because particular actions do not fully fall under narration, nor can all things be completely determined by law; however, as much as possible, everything should be determined by laws, and as few matters as possible should be entrusted to the judgment of judges. In the realm of politics, the less animosity there is in the judgments that follow, the more effectively they will reach their conclusion. Therefore, since a judge, when judging defendants according to the laws, does not incur as much animosity as if he were judging them based on his own discretion, so that he does not hesitate to assign judgments due to fear of animosity, as much as possible, everything should be determined by laws, and few matters should be entrusted to the judgment of judges; for a judge is sufficiently excused when he judges something according to established laws, because it does not seem that he acts according to himself, but is compelled by law to issue such a judgment.