Of contradictory laws, § 1-6. Right is either admitted or doubtful, 7-9. Contradictory points in the same law, 10. 1. THE next head to be considered is that of contradictory laws, because it is agreed among all writers on rhetoric that in antinomia, there are two states regarding letter and intent; and not without reason; because, when one law is opposed to another, there arise, on both sides, objections against the letter, and questions regarding the intention; and it becomes a matter of dispute, with respect to each law, whether we ought to be guided by that law. 2. But it is obvious to everybody that one law is not opposed to another in strict equity; for, if there were two kinds of equity, the one must be abrogated by the other; but that the laws clash with each other only casually and accidentally. The laws that interfere with one another may be of a like nature, as, if the option of a tyrannicide, and that of a man who has saved his country, occur at the same time, liberty being granted to each of choosing what he pleases, there would hence arise a comparison of their respective services, of the conjunctures in which they acted, and of the nature of the recompences on which they fix their thoughts. 3. Or the same law may be opposed to itself; as in the case of two deliverers of their country, two tyrannicides, two women who have been violated; in regard to whom there can be no other question but that of time, whose claim had the priority, or of quality, whose claim is the more just. 4. Dissimilar or similar laws, also, are sometimes in conflict. Dissimilar laws are such as may be attacked by arguments of a different kind even though no law be opposed to them; as in this case, Let not the commandant quit the citadel; Let the man who has saved his country choose what he pleases. [Suppose that the commandant and the deliverer of his country are the same person; then, with respect to him in his character of deliverer,] though no law stand in the way, it may be inquired whether he ought to receive whatever he chooses; and, in regard to him in his character of commandant, many arguments may be urged by which the letter of the law is overthrown; for instance, if there be a fire in the citadel, or if it be necessary to sally forth against the enemy. 5. Similar laws are those to which no opposition can be made but that of another similar law. Suppose that one law says, Let the statue of a tyrannicide be placed in the gymnasium; that another law says, Let not the statue of a woman be placed in the gymnasium; and that a woman kills a tyrant; it is plain that neither under any other circumstances can the statue of a woman be placed there, nor the statue of a tyrannicide be prevented from being placed there. 6. Two laws are of unlike nature, when many arguments may be used against the one, and nothing can be said against the other but what is the subject of the controversy; as in the case where the deliverer of his country demands impunity for a deserter; for against the law regarding the deliverer of his country many arguments may be brought, as I have just remarked but the law concerning deserters can be set aside only by the option allowed to the deliverer of his country. 7. In addition, the point of right involved in conflicting laws, is either admitted by both parties, or doubtful. If it is admitted, there commonly follow such questions as these: Which of the two laws is the more binding; whether it relates to gods or men; to the state, or to private individuals; to reward or to punishment; to great or small matters; whether it permits, forbids, or commands. 8. It is a common subject of inquiry, too, which of the two laws is the more ancient; but the most important consideration is, which of the two laws will suffer less; as in the case of the deserter and the deliverer of his country; for if the deserter be not put to death, the whole law regarding deserters is set aside; but if he is put to death, another choice may be allowed to the deliverer of his country. It is, however, of great consequence which course is the better and more equitable; a point on which no direction can be given but when the case is proposed for consideration. 9. If the point of right be doubtful, then arises a question on one side, or on both sides reciprocally, respecting it; as in such a case as this: Let a father have the power of seizing the body of his son, and a patron that of seizing his freedman: Let freedmen belong to the heir: A certain person made the son of his freedman his heir, after his death the right of seizure is claimed both by the son of the freedman and the freedman himself, each over the other; and the son, now become patron, denies that his father was possessed of the rights of a father, because he was subject to a patron. 10. Two provisions in a law may interfere with one another, as well as two laws. Thus, Let an illegitimate son, born before a legitimate one, be to his father as legitimate; if born after an illegitimate, only as a citizen. What I say of laws, is also to be said of decrees of the senate, If they contradict each other, or are at variance with the laws, there is still no other name for the state of the question.
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