Laws as Arms: The Poetry, Rhetoric and Violence of Law in
MachiavellVs The Prince
HAIG PA TAPAN*
Introduction
A number of apparently irreconcilable views dominate the modem understanding
of the rule of law. Law is seen by some as fundamentally different from morality;1
by others as moral, natural and even Divine.*2 Law
1
is for some poetry,3 for others
violence.4 Postmodern jurisprudence with its emphasis on the constructed,5 the
polyphonal, of multiplicity of justices6 that cannot be talked about,7 are not "here”
*
BEcon LLB (UQ) MA PhD (Toronto). Currently a Research Fellow, Faculty of Law
(QUT).
1 The clearest and earliest manifestation of this is Hobbes’ Leviathan (see also his A
Dialogue Between a Philosopher and a Student of the Common Law ofEngland). It is
possible to trace the influence of Hobbes’ Leviathan from Bentham’s Fragments to the
English positivists such as Austin, and Hart (1961). Note, however, that already in Hart
there is a move toward accepting a minimal moral content for laws.
2 See the famous debate between Hart and Fuller in (1958) 71 Harvard Law Review 593
and 630. See also Hart (1961); Fuller (1963). For anthropological or sociological
attempts at exploring the moral dimension to the rule of law, see Devlin (1968) and
Dworkin (1977; 1986). See also Finnis (1980) who speaks of "human flourishing" and
regards religion as one of seven "human goods".
3 See Cover (1992, 203 n 2); White (1985) and generally "Symposium: Law and
Literature" 60 Texas Law Review 373 (1982); "Interpretation Symposium" 58 Southern
California Law Review 1 (1985). For an overview of the "cacophony" of post-modem
intellectual trends and influences, see Hunt (1990).
4 As Cover (1992,205) notes, interpretation in literature is radically different from legal
interpretation to the extent that pain and death, the subjects of law, "destroy the world
that ‘interpretation’ calls up".
5 "Reality" can be "constructed": Berger and Luckmann (1966).
6 "Rather, there is a co-existent (sometimes hostile, sometimes friendly) multiplicity of
justices. There are, in other words, a number of spheres ofjustice. And corresponding
to each sphere is a system of discourse" : Murphy (1991: 117).
7 What is just is to continue the game of the just: see Murphy (1991: 120); Lyotard and
Thebaud (1985).
29
(1998) 23 Australian Journal ofLegal Philosophy
and are yet to come,8 appears to be a melancholic engagement with the violence,
rhetoric and poesis of law.9 In this paper I argue that, while anticipating these
different understandings of the law, Machiavelli, the first "modern", articulates a
comprehensive view that reconciles and holds together these disparate positions.10 11
What is Machiavelli5 s understanding of law and the rule of law? Though clearly
of great importance, this question has not received the attention it deserves due, no
doubt, to the suspicion that "Machiavellian politics" leaves little room for law and
justice. As Machiavelli says in The Prince, the only art that should be of concern
to the prince is "the art of war and its orders and disciplines" (P 14, 58).11
Machiavelli defends his apparent silence regarding justice and the art of legislation
on the basis of the truth about arms and the law: "because there cannot be good
laws where there are not good arms, and where there are good arms there must be
good laws, I shall leave out the reasoning on laws and shall speak of arms"(P 12,
48). He appears to favour the view of laws as arms, a different form of combat (P
18,69). Yet Machiavelli reserves the greatest praise for the new prince as a founder
and lawgiver, stating that there are good laws: there is a "double glory" of founding
the new principality and "of having adorned it and consolidated it with good law,
good arms, good friends, and good examples" (P 24, 96). The praise of good
government and the distinction made here between laws and arms suggests that
Machiavelli does have a teaching regarding the rule of law, that his understanding
of the rule of law is more complex and subtle than the initial impression suggests.
This paper will explore Machiavelli’s thoughts on the rule of law by
concentrating on The Prince, because it is the work that contains his most profound
and extensive reflections on "the knowledge of the actions of great men"
(Dedicatory Letter, 3), and because, as a work devoted to the rule of princes, it
appears to establish the minimum terms for the accommodation of the rule of law.
In the first part, the paper sketches the broad outlines of Machiavelli’s
understanding of law and his view of politics as the struggle between two
"humors", the people and the great. It then examines the foundations of
Machiavellian notion of rule of law and divine constitutionalism. The final part
8
9
For justice a venir see Cornell (1991: 112) and Derrida (1990).
For the melancholy of the law, see Rose (1996); for a psychoanalytical view, see
Goodrich (1995).
10 For the different aspects of Machiavelli as a "modem", see generally Pocock (1975),
Skinner (1981), Butterfield (1960), Mansfield (1989; 1996), Strauss (1958), Masters
(1996), Pitkin (1984).
11 References throughout are to the chapters and page numbers of the Mansfield (1985)
translation of The Prince. References will be denoted as "P".
Laws as Arms
30
explores the possibility of regarding Machiavelli as lawgiver, andThe Prince as a
new code.
Law and the Founding
The Prince is dedicated to and addresses a reigning prince, Lorenzo de’ Medici.
Consequently it would appear that the general intention of the work is to advise
those who already possess a principality how to maintain their rule (P 2; Dedicatory
Letter). Yet Machiavelli reserves the highest praise for the most glorious founder,'
the new prince in a new principality. It would then seem that77*e Prince has as its
principal addressee the new prince, offering advice on how to acquire a new
principality (P 6). Though he seems to imply that such a founding takes place in a
state of disorder and hence is a form of ordering (and therefore favours law and
legality),12 it is subsequently clear that all founding is necessarily a taking away of
someone else’s rule:
And it should be considered that nothing is more difficult to handle, more
doubtful of success, nor more dangerous to manage, than to put oneself
at the head of introducing new orders. For the introducer has all those
who benefit from the old orders as enemies, and he has lukewarm
defenders in all those who might benefit from the new orders. This
lukewarmness arises partly from fear of adversaries who have the laws
on their side and partly from the incredulity of men, who do not truly
believe in new things unless they come to have a firm experience of them
(P 6, 23).
It is in the new founding or the beginning that we see most clearly the true
character of politics and law.13 All foundings are fundamentally criminal,
conspiring against the reigning prince and breaking the law to establish new modes
and orders.14 Thus at the foundation of any legal system Machiavelli finds force,
violence and illegality. The laws are based on, and need the protection of,
lawlessness (Mansfield 1989: 125-8; Pocock 1975: 167). It is for this reason that
12 Thus he seems to suggest that Moses, Romulus, Cyrus and Theseus all had, as their
"opportunity", a time of oppression, enslavement or disorder (P 6, 23). Cf the similar
condition of Italy (P 26, 102).
13 Thus most modem theorists take the "state of nature", or the beginning, as the
foundation for subsequent political ordering.
14 Conspirators face "fear, jealousy, and the terrifying anticipation of punishment; but on
the part of the prince there is the majesty of the principality, the laws, the protection of
friends and of the state which defend him" (PI9, 73). Note that Machiavelli himself
states that he departs from the orders of others, that he too is in some sense a law
breaker (P 15).
31
(1998) 23 Australian Journal of Legal Philosophy
he advises that "a prince should have no other object, nor any other thought, nor
take anything else as his art but the art of war and its orders and disciplines; for that
is the only art which is of concern to one who commands” (P 14, 58).
But perhaps it is possible to have law and legality after the founding- the initial
criminality need not be decisive for politics. Machiavelli appears to favour this
position by observing that all states need good foundations, principally "good laws
and good arms”, and by referring to the "double glory” of founding the new
principality (P 24,96). Yet he continues: "because there cannot be good laws where
there are not good arms, and where there are good arms there must be good laws,
I shall leave out the reasoning on laws and shall speak of arms"(P 11, 48). At this
point there is the suggestion that the primacy of arms precludes any understanding
of rule of law for Machiavelli, or put differently, that the art of war replaces justice
and jurisprudence.
But Machiavelli also states that laws are a form of combat:
Thus, you must know that there are two kinds of combat: one with laws,
the other with force. The first is proper to man, the second to beasts; but
because the first is often not enough, one must have recourse to the
second. Therefore it is necessary for a prince to know well how to use the
beast and the man (P 18, 69).
By speaking of laws as a form of combat, Machiavelli suggests that his
"reasoning on the art of war" has an implicit teaching regarding the law. That is, he
reintroduces the art of legislation in The Prince. In doing so, however, he
underlines its subordinate rank. Initially he states that combat by laws is "often not
enough". Subsequently he states that the prince needs to know the nature of man
and of beast and that the use of "one without the other is not lasting".15 The primacy
of the beast is confirmed when he simply drops the discussion of law: "Thus, since
a prince is compelled by necessity to know well how to use the beast, he should
pick the fox and the lion, because the lion does not defend itself from snares and
the fox does not defend itself from wolves"; Chiron the man-beast is replaced by
the two beasts, the fox and the lion.16 Or arguably it is more accurate to say that for
Machiavelli what is proper to man is no more than a cunning "foxyness" (Pitkin
1984).
15 Thus Machiavelli replaces Christ with Chiron, the half-beast, half-man.
16 The pride of the lion disdains the cunning and duplicity of the fox as a form of
weakness. Such pride is misplaced, according to Machiavelli, because force will always
succumb to guile, and guile is proper because "observing faith" - piety or truthfulness
- is not reciprocated or rewarded. The need for fraud, conspiracy and deception is at the
core rather than the periphery of politics for Machiavelli.
Laws as Arms
32
If the art of justice is subordinate to the art of war, or if laws are weapons or a
form of combat, it is necessary to understand the sense in which politics is war. The
starting point for exploring this question is Machiavelli’s assessment of the source
of political discord, the struggle between the people and the great.
Two Humors, the People and the Great
Machiavelli states that a principality is caused either by the people or the great. The
great give reputation to one of themselves and make him prince to satisfy their
appetite under his shadow: "[s]o too, the people, when they see they cannot resist
the great, give reputation to one of themselves, and they make him a prince so as
to be defended with his authority” (P 9, 39). From this it would seem that a prince
does not actively seek power but rather is elevated to that position as a sort of
representative, either of the people or the great.
This view of politics needs to be reconciled with Machiavelli’s statements
regarding the differences between the people and the great. Contrary to Aristotle
who distinguishes between the two on the basis of their differing conceptions of
justice, Machiavelli sees the difference in an unreasoning or subpolitical "humor":
For in every city these two humors are found, which arises from this: that
the people desire neither to be commanded nor oppressed by the great,
and the great desire to command and oppress the people. From these two
diverse appetites one of three effects occurs in cities: principality or
liberty or licence (P 9, 39).
That the people do not desire to be commanded and oppressed by the great,
reveals an important insight into their nature (Strauss 1958:127;Colish 1971:339).
The people seek to avoid not only oppression but any form of rule: they do not
want to be commanded or ruled, even if it is for their own benefit. This
stubbornness or recalcitrance in the people resembles the haughtiness of the great
to the extent that they too do not want to be commanded. If so, is there a real
difference between the two humors?
One important difference between the great and the people appears to be the
priority the people accord to property over honour. Machiavelli states that the
people hate being deprived of their women and property, suggesting that the many
value honour as much as property. He adds, however, that the prince should, above
all, "abstain from the property of others, because men forget the death of a father
more quickly than the loss of a patrimony" (P 17, 67; 19, 72). Machiavelli in
writing for princes underlines what appears most contemptible about the people:
it seems that though the people and the great both desire to acquire - for "truly it
is a very natural and ordinary thing to desire to acquire, and always, when men do
it who can, they will be praised or not blamed" (P 3, 14) - the people rank the
33
(1998) 23 Australian Journal ofLegal Philosophy
acquisition of property higher than the acquisition of a reputation.17 This does not
mean that the people are not concerned about reputation; the inability of avenging
a father’s death and the questions regarding a cuckold’s virility are important for
the people, according to Machiavelli. But to the extent that he notes these, he brings
out the character of the people’s love of honour: the people conceive of honour in
terms of manliness - as a husband, and as a father.18 Their honour is defined and
hence confined within the family.
The people’s conception of honour also constrains their desire to acquire. The
great have contempt for the people because, for them, inheritance is the principal
source of acquisition; inheritance, and therefore family and children, circumscribe
the peoples’ desires and make them avoid command while resisting compulsion and
oppression. The people’s concern with property and family makes them fear their
loss and therefore love security, law and justice. Consequently they revere the old,
the traditional, the ancestral (P 2, 6).
This may account for Machiavelli’s statement that the ’’end of the people is
more decent than that of the great, since the great want to oppress and the people
want not to be oppressed” (P 9, 39). He does not state that the people are decent;
he states that, in so far as they do not seek to command, they are decent. The
implication is that ’’decency” is not an impartial standard - it favours the
perspective of the people. Why are the people more decent? Because they think that
politics is possible without compulsion. They believe in the possibility of being
good and therefore they praise and blame all men, including princes, on the basis
of virtues and vices.19 In particular, the people are religious, believing in free will
though they also think fortune and God rule the world (P 25, 98).
17 As Machiavelli notes, "whenever one does not take away either property or honor from
the generality of men, they live content and one has only to contend with the ambition
of the few which may be checked in many modes and with ease" (P 19, 72).
18 It would seem then that for Machiavelli the people are primarily "sexist" and in
particular patriarchal. This can be seen in the fact that they despise effeminacy and
pusillanimity and admire ferocity and spiritedness (P 15, 62). Note in this context
Machiavelli’s infamous depiction of Fortuna as a woman. In this presentation,
Machiavelli is appealing to the future princes but his characterization of women
arguably appeals to the prejudices of the many as well. Women are described as a prize
to be won, and a friend of the young who admire impetuosity and ferocity and seek to
be dominated audaciously (P 25, 101; Pitkin 1984).
19 For example, they praise liberality, mercy, spiritedness, modesty, chastity, honesty,
agreeableness, lightness and religiosity, to name a few (P 15, 61-2).
Laws as Arms
34
The great, in contrast, desire to command and oppress the people (Fleisher 1972:
125). Why do the great desire to command? If it is true that it is natural to acquire,
then it would seem that there is no natural limit to the desire to acquire (Orwin
1978). The desire to command is merely the expression of the desire to possess all
- people and property - on a grand scale.20 Yet the great are not satisfied with the
desire to command. They also seek to oppress and, in doing so, jeopardize their
ability to command. The great desire to oppress principally because they want an
open acknowledgment of their superiority over the low and mean.21 In doing so
they seek to acquire not only material property but also the opinions of the people.
Thus the great are prepared to risk all for all - they are prepared to give up their
lives in order to command honour and the city. It is for this reason that Machiavelli
states that "one cannot satisfy the great with decency and without injury to others"
(P 9, 39).
The many show their hostility by turning away or abandoning what they
previously supported. The few, on the other hand, when hostile, continue to be a
threat because they have more foresight and astuteness that allows them to seek
honour (P 9,40). Still, their love of honour or glory means that they not only pose
a threat to the people, they also pose a danger to each other. Their views are shaped
by what they consider admirable or contemptible (P 19, 21). Since they compete
for glory, which is rare and cannot be shared, they will inevitably be forced to
offend each other and to seek vengeance for old injuries (P 7, 33).22
This view of the two humors indicates that far from being a "representative", the
prince plays a much more active and self-interested role in politics.23 The struggle
between the great and the people as expressed in their differing humors is actually
fought out between a prince and a potential prince, that is, by the great (Mansfield,
20 This desire tends to the view that people are no more than property.
21 One reason for this is that for the great, the people are low. Thus the prince is in a high
place, atop mountains; the people - variously called the multitude, the many, plebs, the
vulgar (P 24,27, 43) - are in the plain, a "low and mean state" (Dedicatory Letter, 4).
See also the aspects that make a prince contemptible (P 19, 72).
22 Machiavelli provides a more subtle analysis of the great in the context of how the prince
should deal with them (P 9). There are some great who will be happy to be honoured
and loved by the prince, as well as some that are pusillanimous yet of good counsel.
Others are simply rapacious. It would seem therefore that there is more variety
discernible in the great. Only the artful, ambitious few who have no natural defects will
become potential princes (P 9,40).
23 See in this context Lincoln’s 1838 "Address to the Young Men’s Lyceum of
Springfield, Illinois".
(1998) 23 Australian Journal ofLegal Philosophy
35
1996: 94-98). The great give a reputation to one of their own in the sense that the
new prince defeats them and gains glory for himself. The people think they are
being ruled by one of themselves when in fact the prince has used them to defeat
the great.
Rule of Law
It is in this light that one needs to understand Machiavelli’s advice to the new
prince to build on the people rather than the great. The people are easier to satisfy,
less likely to conspire and because there are more of them, more difficult to remove
than the great (P 9,39).24 How should the people be treated? Machiavelli states that
one of the most important things the prince must guard against is the hatred of the
people, which can be avoided by enacting laws that protect property and by making
sure that the laws are properly enforced (P 19). Therefore in its simplest form the
rule of law as a means for ordering property and persons is essential for the
prince’s rule.
But to build on the people and reduce the state to peace and unity necessitates
ridding the people of the great who are despoiling them (P 7, 29; 17, 65).25 Such
acts to promote peace and unity, however, will make the prince appear cruel and
risk making him hateful (P 17, 66).26 Machiavelli’s solution to this problem relies
on his principle "that princes should have anything blamable administered by
others, favors by themselves" (P 19, 75). An example of this is Cesare’s actions in
Romagna where "impotent lords" were despoiling their subjects rather than
"correcting" them. Cesare appointed Remirro de Oreo, "a cruel and ready man" to
bring peace and unity which he did "with the very greatest reputation for himself':
Then the duke judged that such excessive authority was not necessary,
because he feared that it might become hateful; and he set up a civil court
in the middle of the province, with a most excellent president, where
each city had its advocate (P 7, 30).
Machiavelli states that Cesare’s actions are to be noted and imitated. He
therefore appears to advocate the establishment of a legal system with an
24 Machiavelli’s general advice is to rise to power by using the great and then abandon
them to found oneself on the people. The people, expecting evil from the prince, will
be more obligated to him as a benefactor (P 9,40).
25 "Thus a prince who has a strong city and does not make himself hated cannot be
attacked" (P10,44).
26 This will mean extirpating blood lines and therefore appearing godless or impious.
Machiavelli advises that cruelties should be done at a stroke, good acts drawn out (P 8,
37).
Laws as Arms
36
independent president and special advocates. But the reason he does so becomes
evident when he subsequently praises the institution ofparlement in the ”wellordered and governed” kingdom of France in which are ’’infinite good institutions
on which the liberty and security of the king depend” (P 19, 75). The ambition and
the insolence of the powerful and the hatred of the people against the great means
that the King will always be blamed by either group for favouring the other. In
order to overcome this problem the French king:
constituted a third judge to be the one who would beat down the great
and favor the lesser side without blame for the king. This order could not
be better, or more prudent, or a greater cause of the security of the king
and the kingdom (P 19, 75).
The civil court and hence the rule of law is here instituted not for the
administration of justice but to secure the king and indirectly the kingdom. It
represents laws as a form of warfare, a concealed means of combating the great.27
Machiavelli’s metaphor is revealing: the laws are like a ’’bit in their mouths", hard
and painful constraints that safely and indirectly implement the will and desire of
the rider. The laws here do not approximate the rule of the virtuous as in Aristotle
(Politics, Book 3 chapter 10); instead they replace the necessary cruelty of
Remirro.28
Nor is the necessity of illegality removed once a legal system is in place - the
rule of law does not obviate the need for the prince’s discretion. Extra-legal acts of
execution are necessary, according to Machiavelli, to maintain the prince’s modes
and orders (Mansfield 1989: 127-135).29 After Cesare set up a civil court in
Romagna, he executed Remirro, not as a matter ofjustice, but to purge the spirit of
the people:
And because he knew that past rigors had generated some hatred for
Remirro, to purge the spirits of that people and to gain them entirely to
himself, he wished to show that if any cruelty had been committed, this
27 To this extent, Machiavelli agrees with Thrasymachus in Plato’s Republic that laws are
made to constrain the powerful. However, Machiavelli would deny that laws are made
by the weak. Such laws will bring good reputation: Emperor Alexander Severus was
praised for his goodness because in the fourteen years he held empire "no one was put
to death by him without a trial" (P 19, 77). Note the ambiguity of the statement.
28 See also the example of Scipio whose agreeable nature was remedied by the actions of
the Senate (P 17, 68).
29 Note, however, that such acts should be done "at a stroke" and not persisted in. Cruelties
that are badly used - that grow with time - make it impossible for the prince to maintain
himself (P 8, 38).
37
(1998) 23 Australian Journal of Legal Philosophy
had not come from him but from the harsh nature of his minister. And
having seized this opportunity, he had him placed one morning in the
piazza at Cesena in two pieces, with a piece of wood and a bloody knife
beside him. The ferocity of this spectacle left the people at once satisfied
and stupefied (P 7, 30).
Remirro is the human form of the law as the ’’third judge". But as a human form
of the law, execution in this case literally means his death: he is the scapegoat for
Cesare. Machiavelli’s implicit suggestion is that occasionally it may be necessary
to purge the people’s spirit by such extra-legal acts that will satisfy and stupefy
them. He justifies it on the grounds that "executions that come from the prince harm
one particular person" while disorders, from which come killings and robberies,
customarily harm the whole community (P 17, 66). This greater good argument is
strained, however, by his advice to the prince to "astutely nourish some enmity so
that when he has crushed it, his greatness emerges the more from it"(P 20, 85). It
is in this sense that one must understand his statement that when proceeding against
someone’s life the prince must make sure that there is "suitable justification and
manifest cause for it" (P 17, 67).30
In sum, laws and a legal administrative system are necessary, according to
Machiavelli, for the preservation of the prince’s rule and therefore indirectly for the
peace and welfare of the state as a whole. Such an order will have a number of
important implications for the prince’s rule, thereby revealing the type of state and
laws that Machiavelli would consider good. Machiavelli advises the prince to
favour trade, agriculture and pursuits. Peace and security of property will make
people prosperous and thereby increase the wealth of the state. For this reason
Machiavelli advises the prince to reward the person who wants to "adorn his
possessions" or expand his city or state.31 Security and prosperity will also make
the arts possible. Machiavelli states that a prince should honour those who are
excellent in an art. The development of the arts, and in particular the fine arts, will
be most important for the prince’s glory. It will make his fame last longer, praising
and giving honour to the prince in words and works for future generations.
Accordingly, Machiavelli encourages the prince to have the people occupied with
festivals and spectacles (P 21, 91).
30 "Causes for taking life are rarer and disappear more quickly" (P 17, 67).
31 Machiavelli advocates a low tax state to free the people’s desire to acquire and trade (P
21,91).
Laws as Arms
38
Constitutionalism and Divine Law
As noted, the prince should avoid the hatred of the people. This raises the larger
question of whether he should be loved or feared. Machiavelli states that one would
want to be both "but because it is difficult to put them together, it is much safer to
be feared than loved, if one has to lack one of the two" (P 17, 66). This is because:
love is held by a chain of obligations, which, because men are wicked,
is broken at every opportunity for their won utility, but fear is held by a
dread of punishment that never forsakes you (P 17, 67).
The other major advantage of fear is that "being feared and not being hated can
go together well" (P 17, 66). In fact, when one looks at those examples that
Machiavelli presents of rulers who have used savage cruelty and inhumanity, it
appears that fear may be sufficient to overcome even the hatred of the people.
Severus was very cruel and very rapacious, overburdening the people, yet his
virtues made him rule prosperously. Of Commodus, Antoninus Caracalla and
Maximinus who also relied on fear yet failed to succeed, a closer look reveals that
they failed not because of the hatred of the people but because of errors they
committed. Thus the unprecedented ferocity and cruelty of Antoninus made him
"most hateful to all the world". Yet his downfall came not from the people but from
a centurion who he had threatened every day yet kept in his bodyguard, and whose
brother he had put to death with disgrace (P 19,78-80). Commodus had a cruel and
bestial nature and practised his rapaciousness on the people; yet his downfall came
from the soldiers who no longer feared him, holding him in contempt for
descending into theatres to fight with gladiators (P 19, 80). Maximinus was held
very cruel and ferocious yet his base origin as a shepherd excited the people’s
indignation; he was finally killed not because people hated him but because his own
army "became disgusted with this cruelty, and fearing him less because it saw he
had so many enemies, it killed him" (P 19, 81).32
It would seem that the political problem of the two humors may in fact be solved
by a prince who knows how to use fear. There would appear to be no limits as to
what one can achieve with cruelty and fear. The case in point is Agathocles, the
Sicilian, who was a potter’s son and by criminal means became king of Syracuse.33
Fear will allow one to acquire an empire according to Machiavelli. But it is not
sufficient for glory:
32 The other cases of Heliogablus, Macrinus and Julianus confirm these observations they were killed because "they were altogether contemptible" (P 19, 81).
33 Compare Maximinus. See also the other example of Liveretto. It seems the modem vice
is being a believer - did Cesare also believe ie through a form of piety choose not to kill
his father?
39
(1998) 23 Australian Journal ofLegal Philosophy
Yet one cannot call it virtue to kill one’s citizens, betray one’s friends, to
be without faith, without mercy, without religion; these modes can enable
one to acquire empire, but not glory. For, if one considers the virtue of
Agathocles in entering into and escaping from dangers, and the greatness
of spirit in enduring and overcoming adversities, one does not see why
he has to be judged inferior to any most excellent captain. Nonetheless,
his savage cruelty and inhumanity, together with his infinite crimes, do
not allow him to be celebrated among the most excellent men (P 8,35).34
Agathocles cannot be compared to the most excellent Moses, Cyrus, Romulus
or Theseus, not because of lack of ability, but because of his reputation. What he
needed was a mode that would allow him to acquire empire and glory, to combine
Severus with "Marcus the philosopher":
Therefore, a new prince in a new principality cannot imitate the actions
of Marcus, nor again is it necessary to follow those of Severus; but he
should take from Severus those parts which are necessary to found his
state and from Marcus those parts which are fitting and glorious to
conserve a state already established and firm (P 19, 82).
It is possible to gain an insight into this mode by turning to Machiavelli’s
discussion of the "greatest examples" - Moses, Cyrus, Romulus and Theseus.
These captains were forced to introduce new orders and modes to found their state
and security (P 6, 23). They introduced their own "form" into the "matter"
opportunity gave them. They were, however, more than captains; they were armed
prophets who made their people observe their constitutions. On overcoming the
dangers along their path, "they begin to be held in veneration, having eliminated
those who had envied them for their quality, they remain powerful, secure, honored
and prosperous" (P 6,24-5). Agathocles’ mistake was that he did not introduce his
own modes and orders. Put differently, he was not an armed prophet and therefore
did not acquire that highest form of glory, veneration. But to speak of Agathocles’
mistake is already to accept Machiavelli’s position that the people can be forced to
believe. It is to concede that religion is necessary though its substance may change
to suit the prince’s modes and orders.
To be venerated is to be worshipped as a god or as a prophet, god’s messenger
or executor. The armed prophet is someone sent by God "to redeem"(P 26, 102)
and therefore the modes and orders established by the prince will be seen to be
divine; the rule of law will be the rule of divine law. Machiavelli’s implicit
argument is that the political problem can only be resolved when some form of
divine law is instituted in the state for the preservation and security of the princeprophet and consequently for the stability of the state. To this extent he favours a
34.
See also the discussion of Hiero of Syracuse (P 6, 25).
Laws as Arms
40
form of constitutional rule. But why are arms necessary for the prince to be
venerated? To answer this question it is necessary to return to Machiavelli’s
understanding of love and fear. Love is a form of obligation that is acquired at a
price, bought and not owned. Although Machiavelli initially states the problem to
be a choice of being loved or feared, his subsequent statement indicates that love
is an aspect of fear: "The prince should nonetheless make himself feared in such
a mode that if he does not acquire love, he escapes hatred" (P 17, 67). Fear used in
certain ways will give rise to love. Such a combination is the ideal although it "is
difficult to put together" (P 17, 66). It is this combination that Machiavelli
understands as veneration.
What form of fear will result in reverence or veneration? People are variable
according to Machiavelli, "and it is easy to persuade them of something, but
difficult to keep them in that persuasion" (P 6, 24). Savonarola introduced new
orders that people believed but "he had no mode for holding firm those who had
believed nor form making unbelievers believe"(P 6, 24). The generality of people
need to be kept "inspired" (P 9, 41) and the one way to do this is to use acts of
pious cruelty such as Ferdinand of Aragon’s expulsion and despoiling of the
Marranos. Such "wretched" acts "always kept the minds of his subjects in suspense
and admiration, and occupied with their outcome" (P 21, 88). Acts of inhuman
cruelty against an individual or a minority will make the majority venerate the
prince because he would have stupefied them with the spectacle of the terror, and
satisfied them by not touching their lives or property.35 Such acts remind the people
that all they own is theirs because of the prince; consequently this makes them
faithful to him.36 In such a situation it is accurate to describe the people as the
prince’s "creatures"(P 13, 57).
35 Therefore in a siege the enemy should not lay waste to all the land at once, "as it would
reasonably do", but rather destroy the properties one by one (P 10,44). Those who use
cruelty well "can have some remedy for their state with God and men" (P 8, 38).
36 "And so a wise prince must think of a way by which his citizens, always and in every
quality of time, have need of the state and of himself; and then they will always be
faithful to him"(P 9, 42). Compare this with the obligations owed by the great to the
prince (P 9, 40).
(1998) 23 Australian Journal of Legal Philosophy
41
Here is further proof of the Machiavellian thesis that good arms make good
laws. In order for laws to be seen as divine, acts of inhuman terror and executions
of stupefying ferocity are needed that will make the people revere the prince and
therefore keep his faith.37 In this case, however, the prince himself as an executor
of the divine will is absolved of his master’s cruelties.38
Machiavelli as Lawgiver
In discussing the rules for which men and especially princes are blamed and
praised, Machiavelli states that he will "go directly to the effectual truth of the thing
than to the imagination of it":
And many have imagined republics and principalities that have never
been seen or known to exist in truth; for it is so far from how one lives
to how one should live that he who lets go of what is done for what
should be done leams his ruin rather than his preservation. For a man
who wants to make a profession of good in all regards must come to ruin
among so many who are not good. Hence it is necessary to a prince, if he
wants to maintain himself, to leam to be able not to be good, and to use
this and not use it according to necessity (P 15, 61).
All men are bad unless made good by necessity (P 23, 95). It is not a matter of
choosing between what is good and bad since it is not possible to avoid one
inconvenience without running into another: "[p]rudence consists in knowing how
to recognize the qualities of inconvenience, and in picking the less bad as good" (P
21,91). Machiavelli’s claim is not merely that every so often it is necessary to be
bad. His more radical claim is that the distinction the many make between good and
bad cannot be supported: "human conditions do not permit it" (P 15, 62).39 Virtue
is not a mean between two vices as Aristotle suggests. It is the best vice, depending
on necessity. Nor can it be a state of Grace since necessity denies such a possibility.
As the few are preoccupied with honour, they are subject to the opinions of the
many as to what is praiseworthy. Machiavelli intends to liberate the few from these
false opinions by disclosing the effectual truth which takes its orientation from the
prince’s security and well-being.
37 Thus Machiavelli appropriates the Christian notion of Original Sin, and of the
apparently limitless wrath of a God that will sacrifice His only Son to redeem the world.
38 Thus Moses is said to be both an executor of things ordained by God, as well as having
his own virtue (P 6, 22 cf 26, 102).
39 It is in this light that one should understand his admonition "not to depart from good,
when possible, but know how to enter evil, when forced by necessity"(P 18, 70).
Laws as Arms
42
According to Machiavelli, the teachings about imaginary republics are not true
because they do not understand necessity. Consequently they lead to the ruin of the
prince and therefore undermine the welfare of the people (P 15, 61). Though it is
necessary to appear to be merciful, faithful, humane, honest and religious, always
to behave so will lead to harm. On the other hand, it may be necessary to endure the
infamy of some vices since it is difficult to save one’s state without them. One
needs to be variable in order to meet necessity. The otherworldliness of such
imagined kingdoms rejects the necessity of glory, limiting politics by elevating
humility, piety and a virtuous life (Price 1977). Machiavelli seeks to reintroduce
glory and worldly acquisition to politics, and attempts to do so by liberating the
potential prince from the restraints of piety and virtue - what is called virtue and
vice does not necessarily coincide with one’s security and well being (P 15, 62).
The many believe that there is justice and therefore a common good. For them,
laws overcome force and necessity. Therefore the rule of law is the most obvious
expression ofjustice, and to this extent there is something divine about it. It favours
and supports liberality, honesty, faith, mercy and humanity. The truth about the rule
of law was imagined by all. Machiavelli is the first to speak publicly of the
effectual truth, or of what is true as opposed to imagined. The effectual truth about
the rule of law is that it is merely another form of arms or combat. Because it
cannot exist without force and because it is an expression of force it does not aim
at justice or the common good. Law is like the dykes and dams that are needed to
channel rivers; it forces people to be good (P 25, 98; P 23, 95; Masters 1996). In
doing so it provides the safety, security and glory of the prince. This is not to deny
that it benefits the many, but this it does by the way, incidentally. Law is divine
only because the many are pious - the prince as divine executor of god’s will
practises the most profound fraud.
But how have these false opinions come about? Of the many, Machiavelli
singles out those who have written about imaginary republics - presumably these
are the best regimes of Plato, Aristotle and Xenophon as well as those who have
written about the City of God. The authors of these imaginary truths (the "orders
of others") are wrong, it would seem, because like the many they judge "more by
their eyes than their hands, because seeing is given to everyone, touching to a
few"(P 18, 71).40 It would seem that they are no better than the vulgar: "For the
vulgar are taken in by the appearance and the outcome of the thing, and in the
world there is no one but the vulgar" (P 18, 71).
40.
Thus Machiavelli rejects a philosophy based on what is seen or eidos and replaces it
with the least discerning but most "solid,, sense - touch. This marks the transition from
ancient political science to modem, material science.
(1998) 23 Australian Journal of Legal Philosophy
43
Though Machiavelli is prepared to teach the truth about virtues and vices, he
also teaches that the reputation of such vices and virtues has an important bearing
on the prince’s well-being (P 15, 62). Thus it is important to appear "all mercy, all
faith, all honesty, all humanity, all religion” precisely because men judge more by
their eyes (PI8, 70). It would seem then that the truth about necessity has to
accommodate the false opinions the many entertain about virtues and vices. In other
words, Machiavelli accepts that the rule of law will have two dimensions. For the
many it will represent order, justice and the common good and therefore divinity.
For the few it will be a form of combat, of force and fraud, channelling necessity
for the safety and glory of the prince. These two statements reflect the ”look" and
the "feel" of law. Put in these terms, Machiavelli arguably accepts the two ’’truths"
of the rule of law: he does not want to reduce it to either force or justice. It is not
possible to overcome these different aspects of the law - that is, of what the many
praise and blame and what is truly blameworthy - and therefore Machiavelli does
not favour any notion of general enlightenment. Nevertheless he does in The Prince
make public what was previously taught covertly by ancient writers (P 18, 69).
Does this not indicate that he means to reveal to all what was previously hidden,
that he does favour enlightenment? This question raises the important consideration
of who is Machiavelli’s intended audience. It also brings to light the most profound
aspect of Machiavelli’s understanding of the rule of law.
The Prince as the New Code
There are "three kinds of brains” according to Machiavelli:
one that understands by itself, another that discerns what others
understand, the third that understands neither by itself nor through others;
the first is most excellent, the second excellent, and the third useless (P
22, 92).
Machiavelli is the most excellent brain who understands by itself. He is the first
to have understood the truth about necessity. In distinguishing between what the
many say is true and what is the effectual truth Machiavelli departs from the orders
of others and introduces his own modes and orders (P 15,61). In doing so he gives
rules for the governments of princes (Dedicatory Letter, 4). He legislates for those
who discern what the "excellent brains” understand. He has nothing to say,
however, to those who understand neither by themselves nor through others
because they are "useless” - the vulgar notions regarding virtue will not be altered
by his teaching.
In times of peace the prince should not lift his mind from the exercise of war.
He should read histories and consider in them the actions of excellent men and how
they conducted themselves in wars. Above all, however:
Laws as Arms
44
he should do as some excellent man has done in the past who found
someone to imitate who had been praised and glorified before him,
whose exploits and actions he always kept beside himself, as they say
Alexander the Great imitated Achilles; Caesar, Alexander; Scipio, Cyrus
(P 14, 60).
But in imitating Cyrus, Scipio was in fact imitating Xenophon’s Cyrus: to
imitate means to follow what certain authors say in the context of praising and
glorifying princes. But in imitating Xenophon’s Cyrus, Scipio would have had his
fame and glory sullied had it not been for the Senate. The damaging quality of his
"agreeable nature" was hidden by that institution (P 14,60 cf 17,68). Accordingly,
the prince should not follow Xenophon but instead should model himself on
Achilles, a pagan warrior. More specifically, such an imitation will mean following
the teaching of the author who writes about Achilles. But the ancient writers who
wrote about Achilles taught covertly (P 18,68). In order to be successful, one must
follow their teaching as revealed by Machiavelli. Therefore the advice to imitate
Achilles amounts to keeping beside oneself, and constantly consulting,
Machiavelli’s The Prince.
In The Prince Machiavelli advises prudent men to imitate the "most excellent":
A prudent man should always enter upon the paths beaten by great men,
and imitate those who have been most excellent, so that if his own virtue
does not reach that far, it is at least in the odor of it (P 6, 22).
Yet, as we have seen, the rule of law teaching in The Prince at its highest level
yields Machiavelli as the "most excellent" lawgiver to princes. If so, The Prince,
though dedicated to Lorenzo de’ Medici, is about the greatest prince, the lawgiver
to all princes, Machiavelli himself. Machiavelli, as a great man and as the most
excellent, is both the author and subject of The Prince. At the start of The Prince,
he is at a "low place", enduring an undeserved malignity of fortune. By the end,
relying on only himself and his virtu, he replaces the old order and establishes
himself at the head of a new beginning that fortune cannot overcome.41 The Prince
is therefore more than a mirror for princes or a work of history- it is Machiavelli’s
arms, his laws, and his glorious poetic monument.
41 The rules he gives to all excellent brains or subsequent princes are not divine laws nor
are they natural principles since necessity does not give directions or goals for human
action. They are in the truest sense Machiavelli’s rules. Thus Machiavelli is the most
glorious founder of the new modes and orders because no-one else will be able to take
his place as the discoverer of necessity. Even in this highest sense, Machiavelli repeats
what he has revealed previously regarding the subsidiary and derivative nature of the
rule of law: the rule of law is Machiavelli’s rule, for his own glory.
45
(1998) 23 Australian Journal of Legal Philosophy
REFERENCES
Berger P L and Thomas Luckmann (1966) The Social Construction ofReality New York:
Doubleday.
Butterfield, H (1960) The Statecraft of Machiavelli New York: Collier Books.
Colish, M (1971) “The Idea of Liberty in Machiavelli” Journal of the History ofIdeas 32:
323.
Cornell, D (1991) Beyond Accommodation: Ethical Feminism, Deconstruction, and the Law
New York: Routledge.
Cover, R (1992) Narrative, Violence and the Law: The Essays of Robert Cover (Martha
Minow, Michael Ryan and Austin Serat (eds)) Ann Arbor: University of Michigan
Press.
Derrida, J (1990) “Force of Law: The ‘Mystical Foundation of Authority’” Cardozo Law
Review 11: 943.
Devlin, P (1968) The Enforcement of Morals London: Oxford University Press.
Dworkin, J (1977) Taking Rights Seriously Cambridge, Mass: Harvard University Press.
_____ (1986) Law's Empire Cambridge, Mass: Belknap Press.
Goodrich, P (1995) Oedipus Rex: Psychoanalysis, History, Law Berkeley: University of
California Press.
Hart, H L A (1958) Harvard Law Review 71: 593.
_____ (1961) The Concept ofLaw Oxford: Clarendon Press.
Hunt, A (1990) “The Big Fear: Law Confronts Postmodernism” McGill Law Journal 35:
508.
Finnis, J (1980) Natural Law and Natural Rights Oxford: Clarendon Press.
Fleisher, M (1972) “A Passion for Politics: The Vital Core of the World of Machiavelli” in
Martin Fleisher (ed) Machiavelli and the Nature of Political Thought New York:
Atheneum 114-146.
Fuller, L (1958) Harvard Law Review 71: 630.
_____ (1964) The Morality ofLaw New Haven: Yale University Press.
Lyotard J-F and J-L Thebaud (1985) Just Gaming Manchester: Manchester University
Press.
Machiavelli, N (1985) The Prince (translation by H Mansfield Jr) Chicago: University of
Chicago Press.
Mansfield, H C (1989) Taming The Prince New York: Free Press.
_____ (1996) Machiavelli’s Virtue Chicago: University of Chicago Press.
Laws as Arms
46
Masters, R D (1996) Machiavelli, Leonardo, and the Science of Power Notre Dame,
Indiana: University of Notre Dame Press.
Murphy, P (1991) “Postmodern Perspectives and Justice” Thesis Eleven 30: 117.
Orwin, C (1978) “Machiavelli’s Unchristian Charity” American Political Science Review
72: 1217.
Pitkin, H F (1984) Fortune is a Woman: Gender and Politics in the Thought ofMachiavelli
Berkeley: University of California Press.
Pocock, J G A (1975) The Machiavellian Moment Princeton: Princeton University Press.
Price, R (1977) “The Theme of Gloria in Machiavelli” Renaissance Quarterly 30: 588.
_____ (1982) uAmbizione in Machiavelli’s Thought” History ofPolitical Thought 3: 383,
Rorty, R (1990) “Feminism and Pragmatism” in Grethe B Peterson (ed) The Tanner
Lectures on Human Values Salt Lake City: University of Utah Press 1.
Rose, G (1996) Mourning Becomes the Law: Philosophy and Representation Cambridge:
Cambridge University Press.
Skinner, Q (1981) Machiavelli Oxford: Oxford University Press.
Strauss, L (1958) Thoughts on Machiavelli Glencoe: Free Press.
White, JB(1985) Heracles ’ Bow: Essays on the Rhetoric and Poetics ofthe Law Madison:
University of Wisconsin Press.