there is also a fourth consequence of the above principles: that the right to interpret penal laws cannot possibly rest with the criminal judges, for the[126] very reason that they are not legislators. the judges have not received the laws from our ancestors as a family tradition, as a legacy that only left to posterity the duty of obeying them, but they receive them from living society, or from the sovereign that represents it and is the lawful trustee of the actual result of men’s collective wills; they receive them, not as obligations arising from an ancient oath[65] (null, because it bound wills not then in existence, and iniquitous, because it reduced men from a state of society to that of a flock), but as the result of the tacit or expressed oath made to the sovereign by the united wills of living subjects, as chains necessary for curbing and regulating the disorders caused by private interests. this is the natural and real source of the authority of the laws.
who, then, will be the rightful interpreter of the laws? will it be the sovereign, the trustee of the actual wills of all, or the judge, whose sole function[127] it is to examine whether such and such a man has committed an illegal act or not?
in every criminal case a judge ought to form a complete syllogistic deduction, in which the statement of the general law constitutes the major premiss; the conformity or non-conformity of a particular action with the law, the minor premiss; and acquittal or punishment, the conclusion. when a judge is obliged, or of his own accord wishes, to make even no more than two syllogisms, the door is opened to uncertainty.
nothing is more dangerous than that common axiom, ‘we must consult the spirit of the laws.’ it is like breaking down a dam before the torrent of opinions. this truth, which seems a paradox to ordinary minds, more struck as they are by a little present inconvenience than by the pernicious but remote consequences which flow from a false principle enrooted among a people, seems to me to be demonstrated. our knowledge and all our ideas are reciprocally connected together; and the more complicated they are, the more numerous are the approaches to them, and the points of departure. every man has his own point of view—a different one at different times; so that ‘the spirit of the laws’ would mean the result of good or bad logic on the part of a judge, of an easy or difficult digestion; it would depend now on the violence of his passions, now on the[128] feebleness of the sufferer, on the relationship between the judge and the plaintiff, or on all those minute forces which change the appearances of everything in the fluctuating mind of man. hence it is that we see a citizen’s fate change several times in his passage from one court to another; that we see the lives of wretches at the mercy of the false reasonings or of the temporary caprice of a judge, who takes as his rightful canon of interpretation the vague result of all that confused series of notions which affect his mind. hence it is that we see the same crimes punished differently by the same court at different times, owing to its having consulted, not the constant and fixed voice of the laws, but their unstable and erring interpretations.
no inconvenience that may arise from a strict observance of the letter of penal laws is to be compared with the inconveniences of subjecting them to interpretation. the momentary inconvenience in the former case involves, indeed, correcting the words of the law which are the cause of the uncertainty, a task both easy and necessary; but the fatal licence of arguing, the source of so many arbitrary and venal disputes, is thereby prevented. when a fixed code of laws, which must be observed to the letter, leaves to the judge no further trouble than to inquire into the actions of citizens and to decide on their conformity to the written law; when the standard of just and[129] unjust, which should equally direct the actions of the ignorant citizen as of the philosophical one, is not a matter of controversy but of fact; then are people no longer subject to the petty tyrannies of many men, which are all the more cruel by reason of the smaller distance that separates the sufferer from the inflictor of suffering, and which are more pernicious than the tyrannies of a single man, inasmuch as the despotism of many is only curable by that of one, and a despot’s cruelty is proportioned, not to the power he possesses, but to the obstacles he encounters. under a fixed code of laws citizens acquire that consciousness of personal security, which is just, because it is the object of social existence, and which is useful, because it enables them to calculate exactly the evil consequences of a misdeed. it is true they will also acquire a spirit of independence, but not such a spirit as will seek to shake the laws and prove rebellious against the chief magistrates, except against such of them as have dared to apply the sacred name of virtue to a spiritless submission to their own self-interested and capricious opinions. these principles will displease those who have assumed the right to transfer to their subordinates the strokes of tyranny they themselves have suffered from their superiors. i personally should have everything to fear, if the spirit of tyranny and the spirit of reading ever went together.
