Part 2 of 2
Moderation & Humaneness
The sovereign has authority but, as with the father, this must be deserved. Frederick notes dispassionately that Publicola, one of the founders of the Roman Republic, had legalized tyrannicide. The laws must be fair and appropriate to the nation concerned, otherwise they will be soon be abolished and the people will revolt:
The legislators who establish laws in monarchies are typically themselves sovereign: if their laws are gentle and equitable, they will maintain themselves by their own accord, all individuals find their advantage in them; if they are harsh and tyrannical, they will soon be abolished, because they need to be maintained by violence, and the tyrant is alone against an entire people who only the desire to eliminate them.
Frederick argues that excessively harsh laws anyway cannot last. Draco, the first lawmaker of Athens, saw his notoriously tough legislation soon abrogated by Solon’s.
Frederick argues: “Natural equity wishes that there be proportion between crime and punishment.” Punishment should take circumstances into account for “[t]here is an infinity between the destiny of a rich man and of an impoverished one.” Frederick claims that for a poor thief to steal a rich man’s gold watch was no great crime.
Frederick proposes a middle way between laxness and severity. He notes that the Ancient Egyptians did not punish thieves — the victims were legally allowed to rebuy their lost property from the thieves — a measure which was “the means of making thieves out of all Egyptians.”
In contrast, “[t]he French laws are of a terrible rigor,” for these prescribed the execution of domestic thieves so as to prevent the spread of their “seed.” Frederick claimed Prussia, by not executing nonviolent domestic thieves, had found the right balance: “Prussian jurisprudence has found a temperament between the laxity of Egypt’s and the severity of France’s.” At the same time, he affirms harshness for the most evil crimes “so that the punishment is always in step with the crime.”
These considerations on humaneness were also linked to the abolition of torture. Frederick expresses revulsion for the practice of trial by ordeal in England and of “la question” (the seeking of confessions under torture) in France. Frederick banned torture in Prussia on his third day on the throne. He did so on the grounds that tolerance to pain was not necessarily correlated with virtue and that citizens should not be forced to incriminate themselves. This ban “caused a sensation in Europe” and put Prussia “at the vanguard of modernity.”
With perhaps excessive rhetorical flourish, Frederick claimed to be taking “the side of humanity against a custom shameful to all Christians and civilized peoples, and, I dare to add, a custom as cruel as it is useless. [. . .] It would be better to forgive twenty guilty people than to sacrifice an innocent. [. . .] The question in Prussia was abolished eight years ago [. . .] we are certain to not confuse the innocent and the guilty, and justice is delivered no less.”
Other examples of humaneness are Frederick’s abolition of the Hurenstafe (the “Whores’ Punishment” instituted by his father, meaning execution by tying the woman in a bag and drowning her in a river) and a ban on hiding unwanted pregnancies and killing unwanted infants.
Frederick provides quite a long narration on the development of the laws and rights of Englishmen, including the Magna Carta, habeas corpus, and trial by jury: “the nation still conserves this privilege.”
Usury & Inequality
Frederick ascribes considerable importance to economic inequality and to the evil of usury in the history of the laws. He writes: “nothing makes more odious differences of condition than the tyranny which the rich exert with impunity over the miserable.” To this end, Frederick put limits on the ability to appeal, for prior to this those of means could appeal decisions in Prussia’s various courts almost endlessly.
Frederick identifies usury, with the related self-reinforcing accumulation of wealth by an oligarchy, as a major cause of revolution throughout history, accounting for much social unrest in Athens and Rome. He even calls striking the right balance between lenders and debtors “the philosopher’s stone of jurisprudence”:
The laws concerning debtors are indisputably those which require the most circumspection and prudence on the part of those who publish them. If these laws favor creditors, debtors’ conditions become too difficult; an unfortunate accident can forever ruin their fortune. If, on the contrary, this law is to advantageous to them, it alters public confidence, by denying contracts which are founded on good faith.
This happy medium which, while upholding the validity of contracts, does not oppress insolvent debtors, seems to me to be the philosopher’s stone of jurisprudence.
It seems to me that wealth has a tendency to self-accumulate in a self-reinforcing fashion, as Marx famously analyzed. This is especially when these wealthy elites, which are typically cognitive/clannish cliques, capture the state. Then, the correction may only be achieved by a social revolution, whether enlightened or egalitarian.
Though laws are fashioned by universal reason, they must be tailored to local circumstances, namely a nation’s geographical, political, and cultural character. Frederick stresses on several occasions that the laws must respect the “national genius” of the governed, what we might call national character:
We observe again, by examining the conduct of wise legislators, that the laws must be adapted to the kind of government and to the genius of the nation which must receive them; that the best legislators have had as their goal public felicity; and that in general all laws which are most in line with natural equity, with a few exceptions, are the best.
As Lycurgus found an ambitious people, he gave them laws more suited to making warriors than citizens; and if he banished gold from his republic, it was because interest is of all vices that most opposed to glory.
Solon himself said that he did not give the Athenians the most perfect laws, but the best laws they were capable of receiving.
Frederick then does not advocate a naïve universalism sometimes associated with the Enlightenment, but adaptation to national character. Solon’s laws differed from Lycurgus’ also in accordance with their maritime position, propitious for commerce.
Conversely, Frederick asserts: “The laws indeed must accord with the genius of nations, or one must not hope for them to last.” To ignore national character is to build laws upon weak foundations, leading to their dissolution. Frederick cites the early Romans as an example of a democratic people, who hence rejected regimes dominated by the king or the propertied classes.
Frederick also argues that laws should be harsher for less civil nations, which are often less developed ones: “It finally seems to me that, among nations who have barely emerged from barbarism, the legislators must be severe; that, among civilized peoples, whose manners are gentle, one needs human legislators.”
This adaptation of laws to local political and cultural character naturally suits sovereigns such as Frederick, who can thus justify their independent particular choices while respecting those of others, contrasting with the ideology of intolerant world-empires, who claim universal jurisdiction.
Against Bad Laws & Lawyering
Frederick makes a number of general comments on avoiding bad laws. The laws must not be vague, for this leads to insincere, hair-splitting legal debate (“la chicane”) and judges must then “have recourse to the intention of the legislator.” Frederick argues that “The skillful legislator does not overload the public with superfluous laws.” An excess of laws leads to confusion and contradiction: “Few wise laws make the people happy.” Laws should be replaced when these are “contrary to public happiness and natural equity, when they are enounced in vague and obscure terms, and finally when they imply contradiction.”
Frederick repeatedly attacks the use of rhetoric by lawyers, including Cicero, seeking to emotionally manipulate judges rather than stick to fact and logic. Frederick expresses considerable pride that his grand chancellor, Samuel von Cocceji, had legally banned rhetoric (I leave aside whether this measure was effective):
Prussia has followed this Greek custom, and if the dangerous refinements of eloquence are banned from pleas, this is thanks to the grand chancellor, whose integrity, understanding, and indefatigable activity would have done justice to the Greek and Roman republics, in the times when these were the most fecund in great men.
Questioning Convention: The Case of Aborted Bastards
Quite in keeping with a tradition of philosophy founded by Socrates, Frederick urges the questioning of convention in the formulation of the laws. Custom should be examined in the light of reason and reformed according to the public good. He notes that bad civil laws are often kept by a kind of inertia “to not shock the prejudices of the nation” and “purely because of their antiquity.”
Frederick did not however advocate an indiscriminate contempt for convention. On the contrary, he advises caution for men are “in the majority, animals of custom” therefore “it could be dangerous to touch them [customs],” for this may lead to more confusion than good. Frederick then advises a pragmatic and reasonable approach to tradition.
A large number of the historical events cited by Frederick seem to refer to this sort of approach, particularly with regard to warfare and natalism. The martial Spartans allowed men and women to train and wrestle together naked. Solon allowed women to remarry if their husbands were impotent. The Romans, at various times, passed laws subsidizing having of three children, recognizing posthumous children (when the father died before birth), and legalizing divorce.
There is also a hint of Frederick’s contempt for Christian dogma as when he recounts of Romulus, the legendary founder of Rome:
He wanted the kings to have a sovereign authority in matters of justice and religion; he had no belief in fables ascribed to the gods; that we have for them holy and religious sentiments, attributing nothing dishonest to their blessed natures.
This too is quite in line with Plato’s Socrates, so eager to revise or suppress inherited myths and poems when these show the gods in an impious and irrational light. Frederick adds that Romulus considered the very walls of Rome to be “sacred,” the violation of which was the pretext for killing his brother Remus. This may be taken as a metaphor for the security of the city being a supreme religious imperative, overriding even the closest family ties.
Frederick provides a practical example of questioning convention with the case of the illegality of abortion, which was often punished by death. He considers this practice as barbaric as the Spartan and Roman fathers’ right to kill their children. In fact, Frederick does not argue for the legalization of abortion, but rather the elimination of the most common cause of abortion, which is the stigma of bastardy:
Is there not something quite harsh in the way which we punish abortions? God forbid that I would excuse the dreadful action of these Medeas who, cruel to themselves and to the voice of blood, suffocate the future race, if I dare to express myself so, without letting it see the day! But let the reader strip himself of all prejudices of custom, and let him deign to lend some attention to the reflections which I will present him.
Do not the laws attach a degree of infamy to secret childbirths? A girl born with a too gentle temperament, deceived by the promises of a scoundrel, does she not find herself, in consequence of her credulity, in the situation of having to choose between the loss of her honor and that of the unfortunate fruit which she has conceived? Is it not the fault of the laws to put her in such a violent situation? And does not the severity of judges deprive the State of two subjects at once, the runt who has perished, and the mother, who could abundantly repair the loss by a legitimate propagation? One responds to this that there are homes for orphan children. I know they save an infinity of bastards; but would it not be better to cut the evil by its roots, and conserve so many poor creatures who miserably perish, by abolishing the blemishes attached to consequence of an imprudent and flighty love?
Frederick then wished to prevent the abortion of bastards and the execution of their mothers, that manners be gentler and his state more populous.
Towards European Law?: The Case of Duels
Frederick’s second example of questioning convention is the practice of duels. Here, he notes that laws against dueling are often ineffective because of the contrary social stigma of those who reject them. A nobleman rejecting a duel is considered unmanly while a soldier may well lose employment by his loss of reputation. Thus, monarchs as powerful as Louis XIV of France and Frederick-William (Frederick’s father, also known as the Soldier King), had failed to eliminate the practice, as “duels changed their name.”
Frederick advises as the only solution the punishing of duelers following a mutual agreement among European countries to not grant asylum to the guilty:
If all the princes of Europe do not assemble in a congress, and do not agree among themselves to attach dishonor to those who, despite their rulings, attempt to slaughter each other in single combat, if, I say, they do not agree to refuse all asylum to this kind of killer, and to punish severely those who insult their peers, either in speech, or in writing, or by ways of deed, there will be no end to duels.
Let me not be accused of having inherited the visions of the abbot [Charles-Irénée Castel] de Saint-Pierre [a French writer who had imagined a world without war]: I see nothing impossible in individuals submitting their quarrels to the decision of judges, just as they submit the disagreements which decide their fortunes; and by what reason would princes not assemble in a congress for the good of humanity, after having held so many on subjects of lesser importance? I return to this, and I dare to assure that this is the only way to abolish in Europe this inappropriate point of honor, which has cost the lives of so many honest people whose fatherlands could have expected great services from.
Here again, Frederick wishes to save lives which could serve the nation. The assembly of European princes to establish common norms is an interesting prefiguring of the later bourgeois states’ exponential practice of negotiating European norms in various treaties. We cannot say that Frederick is advocating “European law” per se because he does not suggest the establishment of a purported suprastatal enforcer (e.g., a court).
Frederick reflects typical Enlightenment optimism:
To imagine that men are all demons, and to rail against them with cruelty, is the vision of ferocious misanthrope; to suppose that men are all angels, and to give up the reigns to them, is the dream of an imbecilic Capuchin monk; to believe that they are neither all good nor all bad, to reward good actions beyond their worth, to punish bad actions less than what they deserve, to have indulgence for their weaknesses and humanity for all, that is how a reasonable man must act.
As expressed in the Dissertation, Frederick the Great’s thoughts on lawmaking are striking for their modernity. One can certainly identify signs prefiguring our current troubles. His public circumspection and private contempt for organized religion is no doubt a forerunner a certain agnosticism culminating in nihilism. Frederick’s pleas for a humane approach, while understandable in those still-brutal days (try reading about premodern crime and punishment without flinching), can be taken to a demagogic excess.
However, Frederick is careful to always make his argument with reference to the public good: humaneness and innovation are interesting to explore, but if these clash with the general welfare, the latter must always prevail. Our time is one of individualism and egalitarianism, a time when laws are largely judged by whether they grant free caprice and “equal rights” to individuals. Frederick in contrast provides powerful arguments in favor of laws established by paternal authority for the well-being of the community as a whole and for the promotion of good socio-cultural norms.
Frederick furthermore argues forcefully for a pragmatic and rational approach to lawmaking. One should not be impious or contemptuous of custom for its own sake, but one should be willing to rationally examine and reform custom in light of the public good. Outside of utopias, Frederick saw enlightened patriarchy as perhaps the best possible form of government. The great philosopher Schopenhauer would later concur with this assessment, seeing an autocratic and benevolent “national father” as the form of rule most suited to an imperfect mankind.
Frederick was opposed to a crude universalism and cognizant of the need to adapt legislation to national characteristics. At the same time, he saw himself as participating in a genuinely pan-European intellectual culture and on occasion advocated for joint solutions among the princes of Europe. Frederick the Great’s principles of lawmaking then retain all their relevance for European patriots today.
1. Baillot and Wehinger, “Frédéric II, Roi-philosophe et législateur,” 13.
2. Frederick seems to have failed to implement the legal simplification he advocated. His Codex Fridericiani, which was worked upon during this period and sought to simplify Prussia’s plethora of laws stemming from innumerable traditions and jurisdictions, was apparently enormous and unwieldy. Frederick writes that in Germany: “there is no circle, no principality, no matter how small, which does not have a different customary law; and these rights, through the length of time, have acquired force of law.”