Enlightening Revolutions

Essays in Honor ofRalph Lerner

Edited by Svetozar Minkov

With the Assistance of Stephane Douard

~w~Lllll!:SllLCllllrg Kt;;VOIUIlons

Essays in Honor ofRalph Lerner

LEXINGTON BOOKS

A division of Rowman & Littlefield Publishers, Inc.A wholly owned subsidiary of The Rowman & Littlefield Publishing Group, Inc.4501 Forbes Boulevard, Suite 200Lanham, MD 20706

PO Box 317OxfordOX29RU,UK

Copyright 2006 by Lexington Books

All rights reserved. No part of this publication may be reproduced,stored in a retrieval system, or transmitted in any form or by anymeans, electronic, mechanical, photocopying, recording, or otherwise,without the prior permission of the publisher.

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Enlightening revolutions: essays in honor of Ralph Lerner / edited by Svetozar Minkovwith the assistance of Stephane Douard.

p.cm."The writings of Ralph Lerner": P.Includes bibliographical references and index.ISBN-13: 978-0-7391-0944-1 (cloth: alk. paper)ISBN-tO: 0-7391-0944-8 (cloth: alk. paper)

Lanham, MD 20706

PO Box 317OxfordOX29RU,UK

Copyright 2006 by Lexington Books

All rights reserved. No part of this publication may be reproduced,stored in a retrieval system, or transmitted in any form or by anymeans, electronic, mechanical, photocopying, recording, or otherwise,without the prior permission of the publisher.

British Library Cataloguing in Publication Information Available

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Contents

Preface

Acknowledgments

I. The Medieval Renaissance

IX

xi

1. The Moral Status of Teaching and Writing 3Miriam Gals/on

2. Averroes on Law and Political Well-Being 23Charles E. Butterworth

3. Prudence, Imagination, and Determination of Law in 31Alfarabi and Maimonides

Joshua Parens

4. Averroes, Dante and the Dawn of Euronean Frrlj o hteriment ,7

Contents

Preface

Acknowledgments

IX

Xl

5Law and Innovatio.ll in Machiavelli'sPrince

Nathan Tarcov

Machiavelli's Prince is notorious for its conspicuous denigrations of law and itsadvocacy of force, violence, and absolute rule. Consider the two most well-known statements about law in the book. Near the beginning of chapter XIIMachiavelli declares:

The principal foundations that all states have, new as well as old or mixed, aregood Jaws and good arms. And because there cannot be good Jaws where thereare not good arms, and where there are good arms there must be good laws, Jshall leave out the reasoning on laws and shall speak of arms .'

.Similarly, near the beginning of chapter XVIII he explains:

Thus, you Inust know that there are two kinds of combat: one with laws, theother with force. The first is proper to man, the second to beasts; but becausethe first is often not enough, one must have recourse to the second.

first of these statements gives a reader the impression that since good armsare the necessary and sufficient condition of good laws, to understand states one

',need only consider arms and can safely disregard laws. Since the second.statement is followed by Machiavelli's famous recommendation that a prince{': should use the nature of the fox as well as that of the lion without further'..mention of the nature of man, the implication seems to be again that law can bef."disregarded in a world of princely bestiality. And Machiavelli's advice to.princes on how to "ascend from a civil order to an absolute one" in chapter IX-seems to replace the rule of law with absolute power.

Machiavelli's manifest demotion of law and lawful rule in The Prince, aaddressed to a ruler who l~('lc~ ~ 1~ult111 titlp tA hi", nnC'~t~ru, 1-.. .....+.... ~n+n\..

Nathan Tarcov

Machiavelli's Prince is notorious for its conspicuous denigrations of law and itsadvocacy of force, violence, and absolute rule, Consider the two most well-~ knOWl1 statements about law in the book. Near the beginning of chapter XII

. ~Machiavelli declares:

The principal foundations that all states have, new as well as old or mixed, are

dressee and of the dependence of law, order, and stability on force, the extraor-dinary, and innovation.

Let us begin by reconsidering the two statements quoted above. Althoughthe first statement gives the impression that good arms are the necessary andsufficient condition of good laws, the correlations between good laws and goodarms that it stipulates could just as well result were good laws the necessary andsufficient condition of good arms. Indeed, despite his assertion that he will leave

\ out reasoning on laws, Machiavelli explains shortly thereafter that a republicshould send its own citizens to command its armies, and that when one of themturns out not to be a worthy man, it must replace him, but when one of them is aworthy man, it must "check him with laws so that he does not step out ofbounds" and threaten the republic's liberty (49-50). Good laws thus tum outafter all to be the foundation or at least the safeguard of good arms in a republic.

Nor is the infamous statement about laws and force as the modes of combatof men and beasts simply a denigration of laws. From Machiavelli's peculiarperspective, with its emphasis on the ineluctability of conflict, to say that lawsare a means of combat is rather an elevation or appreciation of laws.iSounderstood, laws would be not the means by which individuals or classesresolve their conflicts and achieve a common good or public interest, butanother means by which they wage their conflicts, compete for scarce goods,pursue their private or class interests, and seek to avenge themselves and toharm others. Further, by saying that laws "often" are not enough, Machiavellisuggests that sometimes laws are enough and sometimes both laws and force areneeded. The shift that follows, from the distinction between the laws of men andthe force of beasts to that between the fraud of foxes and the force of lions, doesnot necessarily leave the laws of men behind, but on the contrary may interpretthem as a kind of fraud, one of the human means of combat equivalent to thoseemployed by the fox.

In making the distinction in chapter IX between a civil and an absolute or-der, between one in which a prince commands by means of magistrates and onein which a prince commands by himself, Machiavelli does not endorse or rec-ommend the seizure of absolute authority, though neither does he mention as heworthy man, it must "check him with laws so that he does not step out ofbounds" and threaten the republic's liberty (49-50). Good laws thus tum outafter all to be the foundation or at least the safeguard of good arms in a republic.

Nor is the infamous statement about laws and force as the modes of combatof men and beasts simply a denigration of laws. From Machiavelli's peculiarperspective, with its emphasis on the ineluctability of conflict, to say that lawsare a means of combat is rather an elevation or appreciation of laws.iSounderstood, laws would be not the means by which individuals or classesresolve their conflicts and achieve a common good or public interest, butanother means by which they wage their conflicts, compete for scarce goods,pursue their private or class interests, and seek to avenge themselves and toharm others. Further, by saying that laws "often" are not enough, Machiavellisuggests that sometimes laws are enough and sometimes both laws and force areneeded. The shift that follows, from the distinction between the laws of men andthe force of beasts to that between the fraud of foxes and the force of lions, doesnot necessarily leave the laws of men behind, but on the contrary may interpret

78 Nathan Tarcov

79Law and Innovation in Machiavelli's Prince

for his successors to hold even after his death, as the kingdom of Darius was forAlexander and his successors. Alternatively, a prince might wish to order hisstate like France so that it would be difficult to hold for anyone who attemptedto take it away from him or from his successors and might then revert to him orhis successors.

In presenting these distinctions in chapters IV and IX Machiavelli does notmention law (in contrast to Discourses I 58.3-.4, where he distinguishes betweenprinces shackled or unshackled from the . laws and argues that both princes andrepublics need to be regulated by laws), let alone say that princes who governwith independent barons or magistrates govern more by means of law or aremore subject to law than princes who govern by ministers subject to their will.The effectual nuth of what other writers might call rule of law is the existence ofindependent intermediaries between a prince and his subjects who can turnagainst or disobey him, Machiavelli explains that France is one of the "well-ordered and governed" kingdoms of his times, and that the first of the "infinitegood institutions on which the liberty and security of the king depend" is theparlernent and its authority. It was constituted as "a third judge" to secure thepeople against the great without blame for the king (XIX 74-75). (Again incontrast to the Discourses, it is not said that the parlement sometimes condemnsthe kings in its verdicts or that the king cannot act otherwise than as the lawsorder except as to arms and money; cf. I 16.5, 58.2, III 1.5.) Machiavelliconcludes that "This order could not be better, or more prudent, or a greatercause of the security of the king and the kingdom." He thereby shows howprinces can rule more securely by providing the people with security through anindependent judiciary, the effectual truth of the rule of law.

The importance of a stable lawlike order is first suggested in The Prince bythe statement that it is enough for a hereditary prince not to depart from "theorders of his ancestors" to maintain his state unless an extraordinary andexcessive force deprives him of it (11). 3 The first explicit acknowledgment of theimportance of laws is the recommendation that princes who acquire new statesofthe same province and language as their old state should not alter the laws ortaxes of the new states (III 9). Peoples are attached to the laws to which they areaccustomed; laws provide a stability which is undermined by their alteration.The title of chapter V is the only one that mentions laws: it announces that thechapter is about how to administer cities or principalities that before they weremention raw \10 contrast to Discourses 1 SH.3-.4, where he distinguishes betweenprinces shackled or unshackled from the . laws and argues that both princes and- . repubhcs need to be regulated by laws), let alone say that princes who govern

with independent barons or magistrates govern more by means of law or aremore subject to law than princes who govern by ministers subject to their will.The effectual truth of what other writers might call rule of law is the existence ofindependent intermediaries between a prince and his subjects who can turnagainst or disobey him, Machiavelli explains that France is one of the "well-ordered and governed" kingdoms of his times, and that the first of the "infinitegood institutions on which the liberty and security of the king depend" is theparlement and its authority. It was constituted as "a third judge" to secure thepeople against the great without blame for the king (XIX 74-75). (Again inr-nntract to thp ni(!r'fl11JC'0(1 1t 1(1 nnt C'~;rl +"h,.,....h~ _ ..._1--........_ ..... _+ ~~-~~.:_--- - - -- ..J __

80 Nathan Tarcov

their old laws was recommended in the case of new acquisitions generally inchapter III ("especially if they are not used to living free," 9), it is notrecormnended as the best mode for holding republics in chapter V, "for in truththere is no secure mode to possess them other than to ruin them," so attached arethey to their ancient liberty and their ancient orders. It seems that princes cansafely leave their own laws only to those who are not used to being free and whodo not know how to live in freedom.

New princes who acquire new states by their own arms and virtue, thegreatest examples of princes, neither simply rule arbitrarily and lawlessly norleave their peoples their old laws, but are forced instead to introduce new ordersand modes so as to found their state and their security (VI 23).4 Althoughprinces who go out with their armies to acquire the lands of others, like Cyrus,Caesar, and Alexander, are glorified (XIV 60, XVI 64), new princes in newprincipalities who introduce new laws and orders, like Moses, Cyrus, Theseus,and Romulus, are the most glorious princes (VI 22-25, XXVI 103-104).5 Theycan win the double glory of beginning a new principality and of having .adornedand consolidated it with good laws, as well as with good arms, good friends orallies, and good examples (XXIV 96). The book closes with an appeal for a newprince to find new orders for Italy since "nothing brings so much honor to a manrising newly as the new laws and the new orders found by him" (XXVI 103-104). Thus the greatest princely virtue wins the greatest princely glory andhonor through introducing new laws, above all those fundamental lawsMachiavelli calls orders. Cesare Borgia, Machiavelli's modem example of anew prince who acquires a new principality by the arms of others and fortune,brought law and order to the Romagna, a province previously convulsed by"robberies, quarrels, and every kind of insolence," and established a civil courtthere, but he is not said to have introduced new orders and modes, only to haverenewed old orders through new modes (VII 29-30, 32).6 Liverotto da Fermo,Machiavelli's modem example of a new prince who attains his principalitythrough crimes, in contrast, more closely resembles new princes who risethrough their own arms and virtue in that he "strengthened himself with newr:lvil ~nc1 tl1illt~rv orders." though after a vear of rule he was stranzled bv Cesare

and modes so as to found their state and their security (VI 23).4 Althoughprinces who go out with their armies to acquire the lands of others, like Cyrus,Caesar, and Alexander, are glorified (XIV 60, XVI 64), new princes in newprincipalities who introduce new laws and orders, like Moses, Cyrus, Theseus,and Romulus, are the most glorious princes (VI 22-25, XXVI 103-104).5 Theycan win the double glory of beginning a new principality and of having .adornedand consolidated it with good laws, as well as with good arms, good friends orallies, and good examples (XXIV 96). The book closes with an appeal for a newprince to find new orders for Italy since "nothing brings so much honor to a manrising newly as the new laws and the new orders found by him" (XXVI 103-104). Thus the greatest princely virtue wins the greatest princely glory andhonor through introducing new laws, above all those fundamental lawsMachiavelli calls orders. Cesare Borgia, Machiavelli's modem example of anew prince who acquires a new principality by the arms of others and fortune,brought law and order to the Romagna, a province previously convulsed by"rnhhprlPC: nl1~rrp.l~ ~nl1 everv kind of insolence." and established a civil court

Law and Innovation in Machiavelli's Prince 8)

judicial trial (the Roman emperor Alexander was praised because in the fourteenyears of his rule no one was ever put to death by him without a trial, XIX 77). Aprince should act so that a citizen does not fear to adorn or improve hispossessions from fear that they will be taken away from him or to start up atrade from fear of taxes (XXI 91). A prince thus provides security for propertyby removing his subjects' fear of robbery or confiscation, not so much to securethe stable possession of present property but to animate and encourage hiscitizens' dynamic improvement or expansion of their old possessions andacquisition of new ones. This result thus approximates the advantage of arepublic praised in the Discourses, where each citizen willingly procreates thechildren he believes he can support, multiplies his patrimony without fear it willbe taken away, and seeks to acquire those goods he believes he can enjoy onceacquired (II 2.3; a prince cannot, however, without converting his principalityinto a republic, obtain the rest of this advantage, that a citizen knows hischildren will be born free and can through their virtue become princes.)

Law and order thus play important roles in the advice Machiavelli gives to'princes, but not simply as an alternative to reliance on arms and force. On thecontrary, the laws and orders introduced by princes depend on arms and force tobe effective. New princes or prophets must, if their "constitutions" are to beobserved for long, "order" things in such a mode that the people can be made tobelieve by force (VI 24). Thus orders or constitutions depend on force which intum must be ordered; orders must provide for the force needed for orders to beobserved. Anticipation of terrifying punishment makes men fear those who havethe laws on their side (VI 23, XIX 73). Princes can secure themselves bypunishing offenders (III 9), prevent killings and robberies through executions,and make themselves feared through dread of punishment (XVII 65-67) andesteemed through remarkable modes ofpunislunent (XXI 89).8

Not only are laws dependent on force but arms and force must be orderedby laws, As we saw in our reconsideration of the statement about arU15 and lawsfrom chapter XII, laws in well-ordered republics check the commanders of theirarms and keep them within bounds. The dependence of force on laws or ordersis also shown by the frequent emphasis in The Prince on the need for military"orders.n Liverotto da Fermo, as we also saw, strengthened himself through newmilitary as well as civil orders (VIII 37). The free German cities can defendthemselves in part because they have many orders that maintain militaryme statue possession ot present property but to animate and encourage hiscitizens' dynamic improvement or expansion of their old possessions andacquisition of new ones. This result thus approximates the advantage of arepublic praised in the Discourses, where each citizen willingly procreates thechildren he believes he can support, multiplies his patrimony without fear it willbe taken away, and seeks to acquire those goods he believes he can enjoy onceacquired (II 2.3; a prince cannot, however, without converting his principalityinto a republic, obtain the rest of this advantage, that a citizen knows hischildren will be born free and can through their virtue become princes.)

Law and order thus play important roles in the advice Machiavelli gives to'princes, but not simply as an alternative to reliance on arms and force. On thecontrary, the laws and orders introduced by princes depend on arms and force tohp. pffprtivp 'l\TPUl nrinf'Pc nr l"u-onhpt" rnllC't ~f" thA~r ""r.....,.C'+~+..+~" ......... n ", .. .0. +,.." 1...,...

Nathan Tarcov82

57). War itself has "orders," which constitute the thought and art of a prince(XIV 58). A prince must keep his troops "well ordered," know how to "orderbattles," and get his army to "observe order" (XIV 59-60); the Italian new princeaddressed in the final chapter needs to order a new "order of infantry" (XXVI104-105). The proper relation between law or order and force or arms is thus acomplex and dynamic one of mutual dependence.

Machiavelli's view of human law or order rests ultimately on his skepticism\ about the existence of any kind of law or order of a transcendent natural or

divine origin. He does not even mention natural or divine law, but his skepticismis not expressed merely through silence.

Machiavelli does not recognize or encourage his readers to recognize thatthe moral qualities praised and held to be good have the binding force of law. Aprince should instead learn how not to be good and use this knowledgeaccording to necessity, at most to appear to have the qualities praised as virtuesand appear not to have those blamed as vices, but not to mind having and evenappearing to have those vices without which it is difficult to save his state (XV).A chain of obligation unaccompanied by a dread of punishment is broken' atevery moment for the sake of utility (XVII 66-67), and there is no naturalpunishment that enforces virtue or vice and thereby makes them truly obligatory.On the contrary, "a man who wants to make a profession of good in all _,nmust come to ruin among so many who are not good" (XV 61). There is "nocourt to appeal to" for judgment of the actions of princes (XVIII 71); theysubject to no higher law.

Machiavelli says in the Dedicatory Letter that in The Prince he discussesand "gives rules" for the governments of princes, but the rules he gives hardlyhave the status of natural laws. The first "rules" Machiavelli explicitly gives,that a prince who has acquired a state in another province in addition to his oldone should go to live there, send colonies, defend the weaker powers, weakenthe greater powers, and prevent the entry of another powerful foreigner, areswiftly followed by his excusing Louis XII for strengthening the alreadypowerful Venetians by dividing Lombardy with them so as to enter Italy andthen hl~minQ 1.ouis for subsecuentlv weakeninz the Venetians and thereby

Machiavelli does not recognize or encourage his readers to recognize thatthe moral qualities praised and held to be good have the binding force of law. Aprince should instead learn how not to be good and use this knowledgeaccording to necessity, at most to appear to have the qualities praised as virtuesand appear not to have those blamed as vices, but not to mind having and evenappearing to have those vices without which it is difficult to save his state (XV).A chain of obligation unaccompanied by a dread of punishment is broken' atevery moment for the sake of utility (XVII 66-67), and there is no naturalpunishment that enforces virtue or vice and thereby makes them truly obligatory.On the contrary, "a man who wants to make a profession of good in allmust come to ruin among so many who are not good" (XV 61). There is "nocourt to appeal to" for judgment of the actions of princes (XVIII 71); theysubject to no higher law.

Machiavelli says in the Dedicatory Letter that in The Prince he discussesand "gives rules" for the governments of princes, but the rules he gives hardlyh-:"A th~ ~t~hu.~ nf n~hlr~l l~u,~ Thp fir~t "nl1~~" Machiavellj exnlicitlv zives.

83Law and Innovation ill Machiavelli's Prince

this case he could well be, but it would not last long because that governorwould in a Sh011 time take away his state" (XXIII 95). The only general rule thatnever fails is thus that there is no substitute for prudence, that there are nofoolproof general rules that can be given to govern the unwise. The adviceMachiavelli gives consists not in unfailing natural laws but only in prudentialvariable rules of thumb depending on particulars (XX 83). His advice must beobserved prudently (XXIV 96). Far from being the application of natural laws ormoral virtues, this amoral prudence consists in recognizing evils in advance andattacking before one is attacked (III 12-13), imitating great men (VI 22),alternately giving others hope and fear (X 44), avoiding the infamy of dangerous

. vices but accepting that of useful ones (XV 62, XVI 63), avoiding excessive.: confidence in others (XVII 66), breaking faith when it turns against one (XVIII' 69), picking the less bad as good (XXI 91), and taking advantage of opportunity~ ' (XXVI 102).

Machiavelli is at least equally far from recognizing the reality of a divinelaw or divine government of the world. Machiavelli does not limit his assertionthat there is "no court to appeal to" for judgment of the actions of princes by

-adding "in this world" (XVIII 71); heimplicitly denies the existence of a divinetribunal or even of the imler court of conscience. to He says at first that Moses.was an "executor of things ordered for him by God," but quickly adds thatMoses' actions and orders were no different from those of others who foundedkingdoms and who received only opportunity from fortune rather than ordersfromGod (VI 22). Accordingly, Machiavelli subsequently refers to the orders or; : ClDnsltltUtlOllS Moses used force to make men believe in as being Moses' own (VI22, XXVI 102). II An unnamed figure in the last chapter could have been judgedto have been ordered by God for the redemption of Italy, but here too theappearance of being ordered by God is illusory since he was repulsed by fortune(XXVI 102). Machiavelli says there that the Medici family is "supported byGod," but indicates that this was so only in the same sense that He was friendlyto Moses, Cyrus, or Theseus, referring to them collectively without making anydistinction between the biblical and the pagan founders (XXVI 102-103).~~aclllla'velll avows that he will not speak of ecclesiastical principalities, such asthe Church then headed by the Medici pope Leo X, since they "subsist bysuperior causes, to which the human mind does not reach" and are "exalted andmaintained by God," but he nonetheless proceeds to discuss the increase in theooserveo prudentty (xxrV 90). Far tram being the application of natural laws ormoral virtues, this amoral prudence consists in recognizing evils in advance andattacking before one is attacked (III 12-13), imitating great men (VI 22),alternately giving others hope and fear (X 44), avoiding the infamy of dangerousvices but accepting that of useful ones (XV 62, XVI 63), avoiding excessiveconfidence in others (XVII 66), breaking faith when it turns against one (XVIII69), picking the less bad as good (XXI 91), and taking advantage of opportunity

102).Machiavelli is at least equally far from recognizing the reality of a divine

law or divine government of the world. Machiavelli does not limit his assertionthat there is "no court to appeal to" for judgment of the actions of princes byadding "in this world" (XVIII 71); heimplicitly denies the existence of a divine

tr;hnn~' nr ~'T~n n-ttl,u~ ;ru,.~r I"r.. ....... .....~"" ............ :"............... to LT ..... -~_.- _6. C':.__ L LL_L ll."' __

Nathan Tarcov84

should not marvel at his invocation of Moses and the other great founders as

models for new princes (IV 16, 19, VI 21).12 The "miraculous losses" sufferedby Italian forces were not brought about by divine correction of the sins

denounced by Savonarola but were the ordinary consequences of Italian reliance

on mercenary arms, originating in the lack of knowledge of arms among the

Italian priests and people (XII 49, 52).13 In the final chapter, the "Exhortation toSeize Italy and Free Her from the Barbarians," Machiavelli himself declares that

Moses, Cyrus, and Theseus were "marvelous," but immediately reminds us that

they were nonetheless human and God was no more friendly to them than to the

Medici. He testifies to "extraordinary things without example, brought about byGod," leading the way to the redemption of Italy by the Medici: "the sea has

opened; a cloud has escorted you along the way; the stone has poured forth

. water; here manna has rained" (XXVI 103). Whatever events in contemporaryItaly these words may allegorically refer to, far more extraordinary than

Machiavelli's description of those events in terms redolent of the divine

miracles of Exodus and Psalm 78, is his assertion that that they are

unprecedented, "without example," thereby denying that God performed suchmiracles for Moses." Similarly, Machiavelli explains that it is "not a marvel"that no previous Italian has done what it is hoped the Medici will do but the

result of the defectiveness of Italy's ancient orders; conversely, success would

be the non-miraculous result of new laws and orders (103).Machiavelli seems about to address the issue of God's government of the

world explicitly at the beginning of chapter XXV: "It is not unknown to me thatmany have held and hold the opinion that worldly things are so governed byfortune and by God, that men carmot correct them with their prudence.l'" Thebelief in the omnipotence of fortune or God leaves no room for the human

prudence that Machiavelli teaches. Machiavelli admits that he has sometimes

been partly inclined to this opinion but does not specify whether to that part or

version of the opinion that invokes government of the world by fortune or that .which invokes divine government. Unfortunately, Machiavelli does not mention

God or His government of the world again in the chapter (returning to it only inMedICI. He tesnhes '10'-1- ex\11fdronrdt~y"\rJlu5b~"'1Il~uJ.\litlv:w.t__~xa,mnle':' in the fioal ~God," leading the way to the redemption of Italy by the Medici: "the sea has

opened; a cloud has escorted you along the way; the stone has poured forth

water; here manna has rained" (XXVI 103). Whatever events in contemporaryItaly these words may allegorically refer to, far more extraordinary than

Machiavelli's description of those events in terms redolent of the divine

miracles of Exodus and Psalm 78, is his assertion that that they are

unprecedented, "without example," thereby denying that God performed such"miracles for Moses." Similarly, Machiavelli explains that it is "not a marvel"that no previous Italian has done what it is hoped the Medici will do but the

result of the defectiveness of Italy's ancient orders; conversely, success would

be the non-miraculous result of new laws and orders (103).Machiavelli seems about to address the issue of God's government of the

world explicitly at the beginning of chapter XXV: "It is not unknown to me thatmany have held and hold the opinion that worldly things are so governed byfortune and by God, that men carmot correct them with their prudence.?" The

- L" .c:.:: ...... - f"'!"A lAouPC! nn rnnm for the human

Law and Innovation in Machiavelli 's Prince 85

Though Machiavelli does not recognize a natural law or a divine law orprovidence in The Prince, he does affirm a natural order of things. He declaresthat "the order of things is such that as soon as a powerful foreigner enters aprovince, all those in it who are less powerful adhere to him, moved by the envythey have against whoever has held power over them" (III 11). This naturalorder is the predictable interaction between human passions and the structure ofpower; it may be precisely what explains the human attachment to thesupernatural. It seems to include the "natural difficulty" that men willinglychange their lords in the belief they will fare better only to see by laterexperience that they have done worse, the "natural and ordinary necessity" for anew prince to offend his subjects, and the "very natural and ordinary" desire toacquire (III 7-8, 14). This is also the order involved when Machiavelli says thatLouis XII's second loss of Lombardy was not a miracle but "very ordinary andreasonable" (III 16). More broadly, he explains that it is "in the order of things"that "one never seeks to avoid one inconvenience without running into another,"so that prudence consists in "picking the less bad as good" (XXI 91). Thusfeaturing foreign invasion and conquest, subjects changing their lords, andprinces offending their subjects, this "order" of things is one not of theconstancy of law but rather of the "variability of things," the "variability ofviews," even the "variability of the good," and, of course, the variability offortune and of the times (XIV 60, XVIII 70, XXIII 94, XXIV 97, XXV 98, 100).

What is ordinary in the sense of being in accord with this order of things isalso reasonable in the sense of being accessible to human reason rather thanmiraculous (III 16). Machiavelli describes his own activity in The Prince andelsewhere as "reasoning" (II 6, VIII 34, XII 48, XIX 81) and his explanations as"reasons" (III 15, IV 18-19, XXI 91), and he even calls "reasons" the misleadingteaching of "our ancients" who were esteemed wise (XX 84).16 He discusseswhat is "reasonable" to do or to expect, carefully distinguishing what merelyappears reasonable from what is truly reasonable (II 7, IV 17, VII 26, X 44, XIV58). Subjects that he says he will omit reasoning about (republics, Moses,ecclesiastical principalities, and laws) he nonetheless reasons about even if they

supposed to be ones to which the human mind does not reach (II 6, VI 22, XIXII 48).17 As he says in the Discourses, "it is good to reason about

everything"(I 18.1). L8Machiavelli's denial of a natural or divine law or providence in favor of an

power; It "may be - precisely what explains the human attaclunent to thesupernatural. It seems to include the "natural difficulty" that men willinglychange their lords in the belief they will fare better only to see by laterexperience that they have done worse, the "natural and ordinary necessity" for anew prince to offend his subjects, and the "very natural and ordinary" desire toacquire (III 7-8, 14). This is also the order involved when Machiavelli says thatLouis XII's second loss of Lombardy was not a miracle but "very ordinary andreasonable" (III 16). More broadly, he explains that it is "in the order of things"that "one never seeks to avoid one inconvenience without running into another,"so that prudence consists in "picking the less bad as good" (XXI 91). Thusfeaturing foreign invasion and conquest, subjects changing their lords, andprinces offending their subjects, this "order" of things is one not of theermstanr-v of l~UI hut r~thpr nf t},p ""~rl~hil1t,, nt thinn,," thp "'u.::nit:llhilil-u ,....f'

And because he knew that past rigors had generated some hatred for him,21 topurge the spirits of that people and to gain them entirely to himself, he wished

And because he knew that past rigors had generated some hatred for him,21 topurge the spirits of that people and to gain them entirely to himself, he wishedto show that if any cruelty had been committed, this had not come from him butfrom the harsh nature of his minister. And having seized this opportunity, hehad him placed one morning in the piazza at Cesena in two pieces, with a pieceof wood and a bloody knife beside him. The ferocity of this spectacle left thepeople at once satisfied and stupefied. (VII 29-30)

Nathan Tarcov86

M~~hl~v~111'~ rrlavfu] jrrmv ~hOllt r~~~TP.'~ c1p.mon~tr~tion th~t arrv ~nlp.ltv h~cihereditary prince may be forced to introduce new orders; though Machiavellidoes not mention it, Theseus and Cyrus (at least according to Xenophon) werehereditary princes.20

Machiavelli is more explicit about the need to destroy old orders in the caseof Cesare Borgia in Chapter VII than in those of the great founder princes ofchapter VI. For Cesare (or his father, Pope Alexander VI), it was necessary toupset the existing orders and to disorder the states of Italy so as to laythefoundations of his power (VII 27). Cesare brought law and order to theRomagna including a civil court, but only by first giving the fullest power andexcessive authority over the province to his minister, Remirro de Orco, "aand ready" man, who apparently did not operate through the strictest legalprocedures. Machiavelli's dramatic account of Cesare's culminating actionhaving established his judicial system is worth quoting in full:

anyone for any "extraordinary" action that he uses to "order" a kingdom orconstitute a republic (1 9.2).19 New princes in new principalities to found theirstates need to imitate the Roman emperor Severns, who was very cruel and veryrapacious, a very fierce lion and a very astute fox, a master of both force andfraud (XIX 77-79, 82). Those qualities needed for founding are necessarilycontrary to those of the philosopher emperor Marcus Aurelius, who was ofmodest life, a lover of justice, an enemy of cruelty, humane, and kind, qualities.that are needed for conserving, yet these opposite qualities need to be combinedby a new prince who wants to conserve what he founds (76-77, 82). Just as afounder must also act so as to conserve what he founds, a later and even ahereditary prince may be forced to introduce new orders; though Machiavellidoes not mention it, Theseus and Cyrus (at least according to Xenophon) werehereditary princes.20

Machiavelli is more explicit about the need to destroy old orders in the caseof Cesare Borgia in Chapter VII than in those of the great founder princes ofchapter VI. For Cesare (or his father, Pope Alexander VI), it was necessary toupset the existing orders and to disorder the states of Italy so as to laythefoundations of his power (VII 27). Cesare brought law and order to theRomagna including a civil court, but only by first giving the fullest power andexcessive authority over the province to his minister, Remirro de Orco, "aand ready" man, who apparently did not operate through the strictest legalprocedures. Machiavelli's dramatic account of Cesare's culminating actionhaving established his judicial system is worth quoting in full:

87Law and Innovation ill Machiavelli 's Prince

territories because they hurt very few and keep all the others quiet by leavingthem, on the one hand, unharmed, and, on the other, afraid (III 10). Thecharacter of security is made clearest by the dictum that it is better for a princeto be feared than loved but he should still avoid being hated, which in practicemeans he should leave men secure as regards their property and family yetfearful for their lives (XVII 67). Machiavelli recommends that a prince shouldemploy men who are forced to be faithful because they know he suspects themrather than those who would serve him "with too much security" (XX 85).

Machiavelli's Prince presents a dynamic interaction between law, order,antiquity, stability, and security, on the one side, and force, the extraordinary,innovation, variability, and fear, 011 the other. The memories and causes ofinnovations (innovazioni) are eliminated in the antiquity and continuity of ahereditary dominion (II 7), but a new prince who prudently observes whatMachiavelli writes will appear ancient and be more secure and steady in his statethan ifhe had grown old in it (XXIV 96). New princes are not the only ones whothink of innovating; barons, for example, may desire to innovate (innovare; IV18); new princes are innovators iinnovatoriy who must keep others from

of innovating (VI 24, XXI 88). Innovation can succeed only byacmevinz or simulating antiquity and security through law and order.

Machiavelli's conception of innovation as the introduction of new'i filnC1;am(~nt;al laws and orders corresponds to the ancient conception of change of

regime (e.g., Plato's Republic VIII-IX and Aristotle's Politics V) but with anemphasis on both novelty and law that resembles more closely modernconceptions of revolution. He uses the term "revolt" (rivoltarsi) once morenarrowly to mean rebel when warning a prince that subjects will tum againsthim when he 1110st needs them (XVII 66), and the term "revolutions"(revo/uzioni) once more broadly to mean political changes when speaking of themany changes in Italy (XXVI 103). The mode of political change to which hedevotes far more attention is instead conspiracy, attempts to kill the prince, thesubject (not announced in the title) of chapter XIX, the longest chapter in ThePrillce.23 One is tempted to say that the comprehensive conception of political> change or revolution for Machiavelli would be conspiracy followed by

innovation.The greatest kind of innovation is conducted not by any of the merely

political princes discussed in The Prince but by the writers who create the, clllp~uy 'men wno are rorced to 'be taitntul because they know he suspects them~~. rather than those who would serve him "with too much security" (XX 85).

Machiavelli's Prince presents a dynamic interaction between law, order,_~;: antiquity, stability, and security, on the one side, and force, the extraordinary,i:, innovation, variability, and fear, on the other. The memories and causes of

innovations iinnovazioni) are eliminated in the antiquity and continuity of ahereditary dominion (II 7), but a new prince who prudently observes whatMachiavelli writes will appear ancient and be more secure and steady in his statethan ifhe had grown old in it (XXIV 96). New princes are not the only ones whothink of innovating; barons, for example, may desire to innovate (innovare; IV

Notes

Nathan Tarcov88

1. All English quotations from The Prince are from the translation by HarveyMansfield, Second Edition (Chicago: University of Chicago Press, 1985, 1998).Parenthetical citations are by chapter and page numbers from this edition. Italianare from the edition of Giorgio Inglese (Turin: Einaudi, 1995). All references to theDiscourses are by book, chapter, and paragraph numbers to the translation by Harvey C.Mansfield and Nathan Tarcov (Chicago; University of Chicago Press, 1996).

2. Leo Strauss, On Tyranny (Chicago: University ofChicago Press, 1961, """"v'"'v',.. ... v,

3. The Mansfield translation has "order" following some Italian texts, but the Italianis plural in the edition of Inglese. In the Discourses Machiavelli distinguishes theof the government or state, such as the authority of and mode of selecting the magistratesand the mode of making the laws, from laws that check the citizens (I 18.2).

4. These new orders and modes are also referred to as their "constitutions"tconstituziont, VI 24). I am not aware of any place where Machiavelli explains what hemeans by modes as distinguished from orders, but modes seem to be something likepolicies, though he frequently uses the term colloquially to mean "ways" or "means."

5. It is notable that Cyrus appears in both lists. In the Discourses Machiavelli saysthat among all men praised the most praised are the heads and orderers of religions, nextthe founders of republics or kingdoms, and after them the leaders of armies who haveexpanded their kingdoms or fatherlands (I 10.1).

6. Leo Strauss, Thoughts on Machiavelli (Chicago: University of Chicago Press,1958, 1978), 58.

7. In the Discourses Machiavelli explains this more fully and in terms of laws: aprince can live secure himself by making orders and laws providing universal security

1. All English quotations from The Prince are from the translation by Harvey C.Mansfield, Second Edition (Chicago: University of Chicago Press, 1985, 1998). 'Parenthetical citations are by chapter and page numbers from this edition. Italian citationsare from the edition of Giorgio Inglese (Turin: Einaudi, 1995). All references to theDiscourses are by book, chapter, and paragraph numbers to the translation by Harvey C.Mansfield and Nathan Tarcov (Chicago; University of Chicago Press, 1996).

2. Leo Strauss, On Tyranny (Chicago: University ofChicago Press, 1961, 2000),.56, ~

ieacnmg those who WOUIO understand the rrum aOOUl rt:pUOlll;S auuprincipalities and changing the qualities for which men and especially princesare praised or blamed are the most fundamental kind of innovation, on the basisof which future founders would introduce new laws and orders.

64.

64.3. The Mansfield translation has "order" following some Italian texts, but the Italian

is plural in the edition of Inglese. In the Discourses Machiavelli distinguishes the ordersof the government or state, such as the authority of and mode of selecting the magistratesand the mode of making the laws, from laws that check the citizens (I 18.2).

4. These new orders and modes are also referred to as their "constitutions"(constuuzioni, VI 24). I am not aware of any place where Machiavelli explains what hemeans by modes as distinguished from orders, but modes seem to be something likepolicies, though he frequently uses the term colloquially to mean "ways" or "means."

5. It is notable that Cyrus appears in both lists. In the Discourses Machiavelli says..... .. t t

89Law and Innovation in Machiavelli's Prince

day of his wrath" and "execute judgment among the nations" (Revised StandardVersion).

11. In the Discourses Machiavelli says Moses was able to form laws for the purposeof the common good and since he wished "his laws and his orders" to go forward wasforced to kill infinite men opposed to "his plans," without any mention of executingthings ordered by God (19.3, III 30.1).

12. Finding things marvelous seems characteristic of the people rather than of thosewho consider things carefully: whereas the people found Caracalla "marvelous," whoever"minutely examines" the actions of his vastly superior father Severus "will not marvel"that he held so much power (XIX 79).

13. Machiavelli says mercenaries have "no fear of God, no faith with men" (XII 48),buthe traces the human consequences not the divine punishment of this fearlessness andinfidelity.

14. See Strauss, Thoughts Oil Machiavelli, 73-74. Hugo Jaeckel argues thatMachiavelli refers to the invasion of Italy by the French king Francis I in August J515and highlights the parallels between his wording and that of Psalm 77 (in the Vulgate, 78inthe Revised Standard Version). See "What is Machiavelli Exhorting in his Exhortatio?The Extraordinaries," in Niccolo Machiavelli Politico Storico Letterato: Atti delConvegno di Losanna 27-30 settembre 1995, ed. Jean-Jacques Marchand (Rome: SalernoEditrice), 59-84. Although Machiavelli opens by saying these extraordinary things were

brought about by God, his wording of the events is passive in contrast to the activeword ing of the Psahn ("he wrought marvels"; "he divided the sea"; "he led them with a}"cloud" ; "he made streams come out of the rock"; "he rained down upon them manna").

- 15. For an argument that Machiavelli addresses the modes of God's government ofthe world implicitly in chapter III, see Tarcov, "Machiavelli and the Foundations ofModernity."

16. He also describes Liverotto da Fermo, Philopoemen, and Pope Julius II as"reasoning" or engaging in "reasonings." Whereas the two moderns engage in reasoningswith their enemies to deceive them, the ancient reasons with his friends so as to have theremedy for every accident (VIII 36-37, XIV 59-60, XXV 100).

17. The exception is the "altogether contemptible" Heliogabalus, Macrinus, andJulianus, whom Machiavelli does "not want to reason about" (XIX 81). Nonetheless, hedid reason earlier about the downfall of Julianus in reasoning about the rise of Severus(XIX 78). In the Discourses Machiavelli discusses Macrinus's assassination of Caracalla(III 6.11) but not Heliogabalus's assassination of Macrinus or the assassination ofHeliogabalus.

18. See also I 58.1, "I do not judge nor shall I ever judge it to be a defect to defendany opinion with reasons, without wishing to use either authority or force for it."

19. In The 1!rincc:. Machiavelli does not go so .far as tQj

Nathan Tarcov90

22. The explanation Machiaveiii gives in the Discourses for why the carr-unon utilitydrawn from a republic's free way of life is not appreciated while it is possessed mayapply also to why the security a prince may provide is not appreciated if his subjects arenot reminded of the alternative: enjoying one's things freely, without any suspicion, notfearing for the honor of wives and children, and not being afraid for oneself are notappreciated because "no one ever confesses he has an obligation to one who does notoffend him" (I 16.3). See also III 1.

23. Conspiracy is also the subject (announced in the title) of the longest chapter\ the Discourses, III 6.

24. Consider also the mentions of the "learning" of David and Savonarola inDiscourses I 11.5 and 19.2.

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