Lois (Des)-Laws¹

Law According to Voltaire

(from Voltaire's Questions on the Encyclopaedia (s.v. "Laws")

The Legalistic Essenian Jew

In the time of Vespasian and Titus, while the Romans were disemboweling the Jews, a very rich Israelite, who did not wish to be disemboweled, fled with all the gold he had made from his trade as a usurer, and took with him his whole family, consisting of his elderly wife, a son and a daughter, to Eziongaber. In his caravan he had two eunuchs, one of whom served as the cook, the other was a ploughman and vine-grower. A good Essenian, who knew the Pentateuch off by hearts, served as his chaplain. All these people embarked at the port of Eziongaber, crossed the sea called the Red Sea, which is not red at all, and entered the Persian Gulf in search of the land of Ophir, not knowing where it was. Believe it or not, a terrible storm blew up which drove this family of Jews towards the coast of India. The ship was wrecked on one of the Maldive islands, called Padrabranca today, which at that time was uninhabited.

The old moneybags and the old woman drowned; the son, the daughter, the two eunuchs and the chaplain escaped. They dragged a few provisions from the ship as best they could; little huts were built on the island, and they lived there quite comfortably. You know that the island of Padrabranca is five degrees from the equator, and that you can find there the biggest coconuts and the best pineapples in the world. Living there at a time when elsewhere the reset of the chosen people were being slaughtered was very nice, but the Essenian wept at the thought that perhaps they were the only Jews left in the world, and that the seed of Abraham was about to come to an end.

‘It’s up to you alone to save it’, said the young Jew, ‘marry my sister.’

‘I’d like to very much’, said the chaplain, ‘but it is against the law. I’m an Essenian; I’ve taken a vow never to marry; it’s the law that vows must be obeyed; let the Jewish race come to an end if it must, but I’ll certainly not marry your sister, pretty as she is.’

‘My two eunuchs can’t give her any children’, answered the Jew, ‘so I’ll give her some, if that’s alright with you, and you’ll bless this marriage.’

‘I’d prefer to be disemboweled by Roman soldiers a hundred times over’, said the chaplain, ‘than to be the means of letting you commit incest; if she was your half-sister by your father, that would be alright, but she is your sister by your mother and that is an abomination.’

‘I quite understand’, replied the young man, ‘that it would be a crime in Jerusalem, where I would find other girls, but on the island of Padrabranca, where I can see only coconuts, pineapples and oysters, I think it is permissible.’

So the Jew married his sister, and had a daughter by her, in spite of the protests of the Essenian. It was the only fruit of a marriage that one thought perfectly legitimate and the other an abomination. After forty years the mother died. The father said to the chaplain, marry my daughter’? ‘May God forbid’, said the Essenian. ‘Very well. So I’ll marry her myself’, said the father, ‘Whatever happens as a result of this will just have to happen, but I don’t want the seed of Abraham to come to nothing.’ The Essenian, shocked by this horrible statement, no longer wished to live with a man who acted against the law, and fled. The bridegroom shouted after him in vain: ‘Stay, my friend; I’m observing natural law, I’m serving my country, don’t abandon your friends!’ The other man left him shouting, and with his mind still fixed on the law, swam off to the neighboring island.

It was the big island of Atoll, well-populated and very civilized: as soon as he got there he was enslaved. He learned to mumble in the Atoll language; he complained very bitterly of the inhospitable way in which he had been welcomed. He was told it was the law, and that ever since the island had been almost taken by surprise by the inhabitants of the island of Abdu, it had been the wise rule that all foreigners arriving on Atoll should be enslaved. ‘That can’t be the law’, said the Essenian, ‘for it’s not the Pentateuch.’ He was told in reply that it was in the country’s Book of Laws, and he stayed a slave. Fortunately, he had a very good, very rich master who treated him well, and to whom he became very attached.

One day some assassins came to murder the master and steal his treasures; they asked the slaves if he was at home, and if he had a lot of money. ‘We swear to you’, said the slaves, ‘that he has not money and is not at home.’ But the Essenian said: ‘The law does not allow me to lie; I swear to you that he’s at home, and that he’s got a lot of money.’ So the master was robbed and killed. The slaves accused the Essenian before the judges of having betrayed his master. The Essenian said that he had no wish to lie, and that nothing in the world would make him lie, and he was hanged.

I was told this story, and many other similar ones, on the last trip that I made from India back to France.

Any Reason for the Salic Law?

When I arrived [at France from my trip to India], I went to Versailles on business. I saw a beautiful woman pass by, followed by other beautiful women.

‘Who’s that beautiful woman?’ I asked my lawyer, who had come with me, for I had a case [going on] in the Paris parlement over the clothing made for me in India, and I never went anywhere without my lawyer at my side.

‘That’s the King’s daughter’, he said, ‘she’s charming and kind; it’s a real shame that in no circumstances can she ever be Queen of France.’

‘What!’, I said to him, ‘so if she was unfortunate enough to lose her parents and the princes of the blood (which God forbid), she couldn’t inherit her father’s kingdom?’

‘No’, said the lawyer, ‘Salic law is explicitly opposed to it.’

‘And who made this Salic law?’ I asked the lawyer.

‘I’ve no idea’, he said, ‘but it’s claimed that an ancient people called the Salians who could neither read nor write, had a written law that said that on Salic territory a daughter could not inherit a freehold, and this law was adopted in non-Salic lands.’

‘And I for one’, I told him, ‘would break it; you’ve assured me that this princess is charming and kind: thus she would have an unquestionable right to the crown if the unhappy situation arose that she was the only one left of the royal blood. My mother inherited from her father; I want this princess to inherit from hers.’

One Law for Paris, Another for Normandy

The next day my case was heard in one of the courts of the parlement, and I lost everything by one vote. My lawyer told me I would have won everything by one vote in another court.

‘That’s very funny’, I said to him, ‘What it amounts to is: one law for one court, a different law for another.’

‘Yes’, he said, ‘there are twenty-five commentaries on legal procedures in Paris, that’s to say, it’s been proved twenty-five times that this Paris procedure is equivocal, and if there were twenty-five judge’s chambers, there would be twenty-five different jurisprudences. Fifteen miles from Paris’, he continued, ‘we’ve a province called Normandy where you would have had a completely different judgment to the one you had here.’

That made me want to see Normandy.

Primogeniture in Normandy

I went there with one of my brothers. At the first inn we met a young man in despair. I asked him what his trouble was. He answered that it was the fact that he had an elder brother.

‘What’s so bad about having a brother?’ I asked him, ‘My brother is older than I am, and we get on very well together.’

‘Alas’, he said, ‘here the law gives everything to the eldest and nothing to the younger ones.’

‘You’re right to be upset’, I said to him. ‘Where I come from, things are divided up equally, and sometimes brothers don’t like each other any more for all that.’

Are Laws all Conventional?

These little adventures made me think deeply about the law, and I can see that as with our clothes so it is with our laws. In Constantinople I had to wear a dolman, and in Paris a jacket.

If all human laws are laws of convention, I said, all that is left [to do] is to make the best of them. The citizens of Delhi and Agra say that they had a very bad deal with Tamburlaine; the citizens of London congratulate themselves on having reached a very good agreement with King William of Orange. A London citizen once said to me: ‘Necessity makes the laws, and force ensures that they are kept.’ I asked him whether force also made the laws sometimes, and whether William the Bastard or the Conqueror had not given the English their orders without having reached an agreement with them. ‘Yes’, he said, ‘then we were cattle. William put a yoke on us and goaded us along. Since then we have changed into men, but we still have horns, and we strike anyone down who wants us to work the fields for their own benefit and not for ours.’

Is there a Natural Law? Voltaire Can't Find It

Full of these reflections, I took pleasure in the thought that there is a natural law independent of all human conventions: the fruit of my labour must belong to me; I must honour my father and my mother; I have no rights over my neighbor’s life, and my neighbour has none over mine, etc. But when I thought that, from Chodorlahomor down to the Hussar Colonel Menzel, everyone loyally kills and robs his neighbour, with a licence to do so in his pocket, I was very upset.

Law Among Thieves and Laws of War

I have been told that there are laws among thieves, and that there are also laws of war. I asked what these laws of war were. ‘These’, I was told, ‘are about hanging brave officers who hold out in a bad position, without any cannon, against a royal army; about hanging a prisoner if they have hanged one of your [men]; about putting villages to the sword and to the torch who do not surrender all their possessions on the appointed day in accordance with the order of the local gracious sovereign.’ ‘Great’, I said, ‘there’s the Spirit of the laws for you.’

Irrational Laws: The Shepherd and the Oak and Laws of Conscription

After having been well instructed on the matter, I discovered that there are wise laws by which a shepherd is condemned to nine years galley service for having given a little foreign salt to his sheep. My neighbour was ruined in a court case involving two oak trees which belonged to him, and which he had cut down in his own wood, because he had not observed a formality which he could not have known about: his wife died in misery, and his son ekes out a life worse than death.

I admit that these laws are just, although their implementation is a little harsh; but I take strong exception to laws that authorize a hundred thousand men to loyally go and cut the throats of a hundred thousand of their neighbours. It seems to me that most men have received from nature enough common sense to pass laws, but that not everybody has enough sense of what is just to make good laws.

Bring together simple, peaceful farmers from all over the world; they will all agree readily that selling ones’ surplus corn to one’s neighbour must be permitted; that a law to the contrary is inhuman and absurd; that the currency representing the value of produce must be no more rotten than the fruits of the earth; that a father must be master in his own house; that religion must bring men together to unite them, not to make fanatics and persecutors out of them; that those who work must not deprive themselves of the fruits of their labour in order to finance superstition and idleness. In an hour they would make thirty laws like this, all of them useful to the human race.

But let Tamburlaine arrive on the scene and enslave India, then you will see nothing but arbitrary laws. One will oppress a province in order to enrich one of Tamburlaine’s tax-gatherers; another will make it a crime of lese-majesté to have spoken ill of the mistress of the first man-servant of a Rajah; a third will rob a farmer of half of his crop, and challenge his right to the rest of it. There will in the end be laws by which some Tartar official will come along and take your children from their cradles, make the stronger one into a soldier, and the weaker into a eunuch, leaving their mother and father without support or consolation.

Now, which is better—to be one of Tamburlaine’s dogs or one of his subjects? Clearly his dog is much better off.

The Idylls of the Republic of Sheep

Sheep live together very peacefully; by nature they are supposed to be very meek because we cannot see the enormous quantity of living creatures that they devour. It is even assumed that they eat them innocently and unconsciously, just like we do [when we eat] a Sassenage cheese. The republic of sheep is a true image of the Golden Age.

The Hen-House: A Model State

A hen-house is clearly the most perfect monarchical state. There is no king comparable to a cock. If he walks proudly among his people, it is not because of vanity. If the enemy approaches, he does not order his subjects to go and get themselves killed for him by virtue of his certain knowledge and absolute power. He goes himself, lines up his hens behind him, and fights to the death. If he is the victor, he is the one who sings the Te Deum. In civil society there is nothing so gallant, so honourable, so free from self-interest. He has all the virtues. If he has a grain of corn in his royal beak, or a little worm, then he gives it to the first of his subjects to present herself. In a word, Solomon in his harem has nothing on a farmyard cock.

The Beehive: An Even Better Model of the Perfect State

If it is true that bees are ruled by a queen to whom all of her subjects make love, then that is an even more perfect form of government.

The Ant-Hill: Model of Democracy

Ants are regarded as having an excellent democracy. It is superior to all other states because there everyone is equal, and everyone works for the happiness of everyone else.

A Family of Beavers: Excellent Democrats

The beaver republic as having an excellent democracy. It is superior to all other states because there everyone is equal, and everyone works for the happiness of everyone else.

The beaver republic is even better than that of the ants, at least judging by their work as builders.

Monkeys: Natural Anarchists

Monkeys are more like knockabout comedians than a civilized people, and they do not seem to be united under a system of fixed, fundamental laws, like the species mentioned above.

In Law and Matters of State, Humans are like Monkeys

With respect to our gift for imitation, the superficiality of our ideas, and our fickleness, which have never allowed us to have uniform, lasting laws, we are more like monkeys than any other animal.

A Brief (Voltairean) History of Law

When Nature created our species, she gave us a few instincts: self-love for our survival, benevolence for the survival of others, love which is common to all species, and the inexplicable gift of combining more ideas than the rest of the other animals [put] together. Having thus assigned to us our lot, she said to us: Get on with it as best you can.

There is no good code of laws in any country. The reason for this obvious: the laws have been made as we went along in accordance with time, place, and needs, etc.

When needs changed, the laws which remained became ridiculous. Thus the law which forbade the eating of pork and the drinking of wine was quite reasonable in Arabia where pork and wine are harmful. It is ridiculous in Constantinople.

The law which gives the whole fiefdom to the eldest son is very good in times of anarchy and looting. Then the eldest son is captain of the castle which will be attacked sooner or later by brigands. The younger sons will be the chief officers, the ploughmen the soldiers. All that there is to be feared is that the younger son might murder or poison his elder brother, the Salic lord, to become in his turn the master of the hovel. But these cases are rare because nature has combined our instincts and passions in such a way that we feel more horror at the thought of murdering our elder brother than desire to take his place. Now this law, which suited the dungeon-owners in the time of Chilperic, is hateful when it comes to the division of income in a town.

To men’s shame, we know that the laws of gambling are everywhere the only ones that are fair, clear, unbreakable, and observed. Why is the Indian who gave us the rules of chess obeyed cheerfully throughout the whole world, while the decretals of popes, for example, are today objects of horror and scorn? It is because the inventor of chess put everything together with precision for the satisfaction of the players, while popes with their decretals had eyes only for their own advantage. The Indian wished to exercise men’s minds on an equal basis, and give them pleasure; popes wished to brutalise men’s minds. Thus the basis of the game of chess has survived in the same form for five thousand years; all the world has it in common; and the decretals are recognized only in Spoleto, Orvieto and Loretto where the skinniest little jurist secretly detests and despise them.²

It is difficult to find a single nation living under good laws. It is not just because they are the creation of men, for men have done some very good things; and the people who invented and perfected the arts could think up a reasonable system of laws. But in nearly all states the laws were established by the self-interest of the legislator, short-term need, ignorance and superstition. People made them up as they went along, haphazardly, irregularly, just like they built towns. Look at the Halles district in Paris, at Saint-Pierre-aux-Boeufs, at Brise-Miche Street, at Pet-au-Diable street, in contract so the Louvre and the Tuileries: there is the image of our laws.

London only became worth living in since it was reduced to ashes. Since that time, its streets have been widened and straightened. Being burnt down made a city out of London. If you want to have good laws, burn what you have, and create new ones.

The Romans were three hundred years without any fixed laws. They were obliged to go and ask the Athenians for some. They gave them such bad ones that nearly all of them were soon revoked. How could Athens itself have had good legislation? They were obliged to abolish Draco’s legislative code, and Solon’s was short-lived.

Your procedure in Paris has been interpreted differently in twenty-four commentaries; it has thus been proved twenty-four times that it is ill-conceived. It contradicts a hundred and forty other ways of doing things, all having the force of law behind them in the same country, and all mutually contradictory. In a single European province, between the Alps and the Pyrenees, there are therefore more than a hundred and forty small nations whose people call each other compatriots, but who are really foreign to each other, just as people in Tonkin are to those in Cochin-China.

It is the same with all of Spain’s provinces. It is much worse in Germany: there nobody knows what either the leader’s rights are, or those of the ordinary citizen. The only thing that the man who lives on the banks of the Elbe has in common with the Swabian farmer is the fact that they speak more or less the same, albeit crude, language.

The English nation has more uniformity about it; but having only emerged from barbarity and servitude through intermittent upheavals, and having in their freedom retained several of the laws once promulgated by great tyrants disputing the throne, or by little tyrants invading prelacies, it has developed out of all that quite a robust body on which you can still see a lot of bandaged wounds.

The spirit of Europe has made greater progress over the last hundred years than the whole world has made since the time of Brama, Fohi, Zoroastra, and the Theaetetus of Egypt. How is that the spirit of the laws has made so little?

We were all savages from the fifth century on. This is how the world goes round: brigands who loot, farmers who are looted, that is what the human race consisted of, from the far reaches of the Baltic Sea to the Straits of Gibraltar, and when the Arabs appeared in the south the desolation caused by these upheavals was world-wide.

In our corner of Europe, the minority being made up of bold, ignorant conquerors, armed to the teeth, and the majority of unarmed, ignorant slaves, who were almost totally illiterate, even Charlemagne, it came about quite naturally that the Roman Church, with its pens and its ceremonies, should rule those who spent their lives on horseback, with their lances up and their visors down.

The descendants of the Sicambri, of the Burgundians, of the Ostrogoths, the Visigoths, the Lombards, the Heruli, etc., felt that they needed something like laws. They looked in places where they had them. The bishops of Rome knew how to make them in Latin. The barbarians adopted them all the more respectfully for not understanding them. The decretals of popes, some genuine, others blatantly fabricated, became the code for the new kings, lords and barons who had divided up the land. They were wolves who allowed themselves to be chained by foxes. They retained their ferocity, but it was subdued by credulity, and by the fear produced by credulity. Gradually, Europe, except for Greece and what still belonged to the Empire of the East, found itself under the sway of Rome; so that one could say for the second time:

Romanos rerum domios gentemque togatram.³

As nearly all agreements were accompanied by the sign of the cross and by an oath often made on relics, everything was under the jurisdiction of the Church. Rome, as the capital see, was the supreme judge in the trials of the Cimbrian Chersonese and in the trials in Gascony. After a thousand feudal lords had made their practices fit in with canon law, the result was this monstrous systems of laws of which so many traces still remain.⁴

What would have been best: to have no laws at all or to have had one like these?

It has been to the advantage of one empire vaster than the Roman Empire to be in chaos for a long time; for as everything was yet to be created, it was easier to erect a building than to repair one whose ruins would still be respected.

North Thesmophoria brought together in 1767 deputies from every province with an area of about twelve hundred thousand square miles. There were pagans, Muslims from Ali, Muslims from Omar, Christians from about twelve different sects. Each law was put to this new synod, and if it seemed to suit the interests of each province, it was sanctioned by the sovereign and by the nation.

The first law to be passed was that of tolerance, so that the Greek priest would never forget that the Roman priest is a man; so that the Muslim would tolerate his pagan brother, and so that the Catholic priest would not be tempted to sacrifice his Presbyterian brother.

The sovereign wrote in her own hand in this great legislative council: ‘Among so many different faiths, the most harmful offence would be intolerance.’

They agreed unanimously that there was only one power,⁵ that it was always necessary to say civil power but ecclesiastical discipline, and that the allegory of the two swords was the dogma of discord.

She started by freeing the serfs on her personal estate.

She freed all those on Church estates: in this way she created men.

Prelates and monks were paid from the [state] Treasury.

Punishments were made to fit crimes, and the punishments were useful; the guilty, for the most part, were sentenced to [community] work projects in view of the fact that dead men are useless.

Torture was abolished, because it was punishment before the truth was established, and because it is absurd to punish in order to establish the truth; because the Romans only tortured slaves; because torture is the way to spare the guilty, and ruin the innocent.

Things were at that state when Mustapha III, the son of Mahmoud, forced the Empress to interrupt her law-making in order to fight.⁶

I have tried to discover some ray of light in the mythological age of China before Fohi, and I tried in vain.

But confining myself to Fohi, who lived about three thousand years before our own vulgar modern era in the northern part of the western world, already I can see mild, wise laws being established by a benevolent king. The ancient Books of the Five Kings, sanctified by so many centuries of respect, tell us about his institutes of agriculture, about rural economy, domestic economy, about simple astronomy marking off the seasons, about music calling men to their various duties [with the use of] different notes. It is beyond dispute that his Fohi lived five thousand years ago. Judge how ancient this huge nation must have been, educated by its emperor in everything that could make them happy. I can see nothing in those laws that is not mild, useful and pleasing.

I am then shown the code of laws of a little nation from a frightful desert on the banks of the Jordan which, two thousand years later, arrives in a country hemmed in by, and bristling with, mountains. Its laws have come down to us; they are presented to us every day as a model of wisdom. Here are a few of them:

‘Never eat ocreatae, or charadridae, or griffin, or ixion, or eel, or hare because hare eats grass, and does not have cloven feet.’

‘Exterminate without mercy all the poor inhabitants of the land of Canaan, who did not know these laws; cut their throats, massacre the whole lot, men, women, old people, children, animals, for the greater glory of God.’

‘Sacrifice to the Lord everyone whom you have cursed in the name of the Lord, and kill them without giving any thought to their redemption.’

‘Burn those widows who cannot be remarried to their brother-in-law, and might have found consolation with some other Jew in the middle of the street or somewhere, etc., etc.’⁷

A Jesuit, who was once a missionary with the cannibals in the days when Canada still belonged to the King of France, once told me that as he was explaining these laws to his neophytes, a rash little Frenchman, who was present during the catechism, took it into his head to shout out: ‘But those are cannibal laws!’ One of the citizens replied: ‘Look, you little idiot, you should know that we are honour-able people: we have never had laws like that. And if we were not respectable people, we would give you the Canaan treatment to teach you to mind your tongue.’

From a comparison of the first Chinese code of laws with the Jewish code, it appears that laws follow the customs of the people who have made them. If vultures and pigeons had laws, they would no doubt be different.⁸

Endnotes

¹ David Williams, ed. Voltaire: Political Writings (Cambridge: Cambridge University Press, 1994), 13-24. ⇑

² The above section was added to DP in 1767. ⇑

³ Virgil, Aeneid, I. 28I. ⇑

⁴ See the article “Abuse” ‘(Voltaire’s note). ⇑

⁵ ‘See the article “Power”’ (Voltaire’s note). ⇑

⁶ The above section was published in part 7 (1771) of QE. ⇑

⁷ ‘this is what happened to Tamar who, having been raped, slept on the open road with Juda her stepfather, who did not recognize her. She became pregnant. Juda condemned her to be burnt. The sentence was all the more cruel because, had it been implemented, our Saviour, who descends directly from this Juda and Tamar, would not have been born, unless the order of all world events had been re-arranged’ (Voltaire’s note). ⇑

⁸ The above section was added to QE in 1774. ⇑