Dialogue 14

Wed Jan 28, 2026

21st November

I think I’d better cover the two missing Dialogues before advancing any further.

From reading it, I realise how much I need to understand theory of law.

Dialogue 14

● Exceptional powers are essential for despotism. ● The prosecutor’s office can be a mighty tool. ● All laws can be bent through interpretation. ● Control the court of cassation to make rulings pro-government. ● Once great legal battles are won, mere opinions issued by the ruler are enough to dampen the urge to contest the despot’s laws in court.

The Justice departments and The Court of Cassation is on today’s agenda. That latter is an appellate court that can overturn rulings based on reinterpretation of law only.

Machiavelli’s idea here is that the ruler does not have to have control over the legislature. He can work on the interpretation of given law instead.

Dialogue in Hell between Machiavelli and Montesquieu, Ch. 14 Subtext
Machiavelli: I have already said many times, and I will repeat it again, that I do not need to create everything, to organize everything; I find a large part of the instruments of my power in the already existing institutions.
Do you know what the constitutional guarantee is? [An emergency power granted by law]

Montesquieu laments the situation… this guarantee he talks about is not about guaranteed civil rights and freedoms, but about emergency laws that ought to have an expiry date but lingers on forever.

This becomes apparent two or three paragraphs down.

In times of trouble, we can sometimes grant too much power to executive agencies and those abilities tend to operate in the dark long after the obviousness of their use have faded.


Dialogue in Hell between Machiavelli and Montesquieu, Ch. 14 Subtext
Montesquieu: I think that, at least in the France of which you seem to want to speak, it is true that this is a law of circumstance that must be modified, if not completely removed, under a regime of constitutional liberty.

By then it is too late, even in most modern societies. When has the danger of terror subsided? When is is time to stop surveilling citizens?

Some more insight into what they are talking about (in 1860’s France):


Dialogue in Hell between Machiavelli and Montesquieu, Ch. 14 Subtext
Machiavelli: I find you very moderate on this point. According to your ideas, it is simply one of the most tyrannical restrictions in the world. Why? They say that Montesquieu warns against exceptional powers in Spirit of the Laws.
When private citizens are injured by government agents during the exercise of their official functions, and when they haul these agents into court, the judges must respond to the plaintiffs: “We cannot render you justice, the door to the court is closed: go demand authorization from the administration to prosecute its functionaries.” But this would be a real denial of justice. How many times would a government have to authorize such prosecutions? Logic: If the ruler guarantees justice, people obstruct justice by prosecuting his functionaries.
[…]
Machiavelli: I have only said this to show you that, in the States in which the action of Justice encounters such obstacles, a government would not have anything to fear from the courts. It is always as transitional arrangements that one inserts such exceptions into the law, but once the period of transition passes, the exceptions remain, and rightly so, because when order reigns, they do not inconvenience, but when it is troubled, they are necessary. States = USA

There is consensus that in general the world is sliding backwards with regards to democratic freedoms. Exceptional powers linger on for decades, and administration after administration can keep its people on its toes using the encroaching enemy as the eternal excuse.

“Machiavelli” says that when order reigns, they do not inconvenience, but when it is troubled, they are necessary, a lovely variation on the theme that only criminal people have something to fear.

We can’t exactly say we are impervious to that line of reasoning. It all depends on where our sympathies lie for the time being. Group A’s actions are perfectly defensible, group B’s actions are despicable. Next year it is the other way around.

I blame simple human laziness when it comes to lack of sympathy.

Sympathy is a potent drug and a human necessity.

Potent when used in politics to garner support.

Sympathy is what binds a culture together, but certainly also the primary tool used by the incumbent regime to stay in power and rally people. Cultural sympathies that only extend so far until they hit another way of life.

There is no liberté, égalité, fraternité for emotions. The sympathies that I harbour can be exiled at a moment’s notice and replaced with migrating emotions from a different social class.

Challenging the prevailing storyboard is of course a deeply subversive act, and would under any secret police be a dangerous game to play, present institutions included.

Dialogue in Hell between Machiavelli and Montesquieu, Ch. 14 Subtext
This is another modern institution that serves the efficacy of the action of centralized power: The creation of a great magistracy surrounding the courts, which you call the Public Ministry and that, with much more reason, one previously called the Ministry of the King, because this function is essentially removable and revocable at the liking of the prince. I do not need to tell you the influence of this magistracy on the courts around which they sit: it is considerable.

I must confess to being overwhelmed the subject. I tried reading up on the subject of the French public ministry and the prosecutor’s office and their connection to the court system in France and elsewhere.

I can easily be convinced about the need to interpret laws in a equal way under equal circumstances and this need is supposedly being fulfilled by the procureurs in the Public Ministry, which appears to be an independent organ.

Britannica says this about the Public Ministry of France:

BRITANNICA ON MINISTÈRE PUBLIC

In theory the various procureurs are supposed to represent the interests of society as a whole rather than that of the state. Yet in criminal prosecutions they are clearly acting for the state.

You would want this organ in society’s body to be autonomous and independent. If you give it influence (powers) that correspond to that position, and it really acts on behalf of the state, it becomes problematic.

The procureurs make up the prosecutor’s office. Frankly I cannot even figure out if the public ministry and the prosecutor’s office is the same entity.

The prosecutor’s office seems to be a part of the court of cassation.

Dialogue in Hell between Machiavelli and Montesquieu, Ch. 14 Subtext
Remember all this. Now I must speak to you of the court of cassation, about which I have restrained myself from speaking and which would play a considerable role in the administration of justice.
The court of cassation is more than a judicial body: In a certain way it is a fourth power in the State, because to it belongs the last word in fixing the meaning of the law. So I will repeat here what I believe I told you with respect to the Senate and the Legislative Assembly:
An equal court of justice that would be completely independent of the government could – by virtue of its sovereign and nearly discretionary power of interpretation – overthrow the government when it wanted to do so. For this, it would suffice for it to systematically curtail or extend (where liberty is concerned) the dispositions of the laws that rule the exercise of political rights. They can obstruct the administration at every step.

Judges must be unencumbered by the government, we all know that.

Dialogue in Hell between Machiavelli and Montesquieu, Ch. 14 Subtext
Machiavelli: […] The closer the judge is to power, the more he belongs to it. The conservative spirit of the reign would develop here to a much greater degree than anywhere else, and the higher laws of the political police would receive – at the heart of this great assembly – an interpretation so favorable to my power that I could do without a crowd of restrictive measures that would be necessary without it.

Whether or not this is free fantasy about daily life in a court room is a good question. I know way to little about human psychology in the legal world to be able to vouch for anybody’s ability to stay uncorrupted and unswayed.

Machiavelli ventures two examples.

Example 1: Protecting government agents from the people

Dialogue in Hell between Machiavelli and Montesquieu, Ch. 14 Subtext
So, I will suppose that this law exists in the State that I would govern; I will suppose that it has been modified; thus I can imagine that, previous to my ascension, a law had been promulgated that allowed the prosecution of government agents concerning electoral matters without the authorization of the Council of State. (Council of State = Conseil d’État)
The question might come up under my rule, which, as you know, would introduce great changes in public rights. One might want to prosecute a functionary before the courts on the occasion of an electoral misdeed. E.g. an initiative by citizens brings a case before a court contesting the result of a count of a vote.
The magistrate of the public ministry could rise and say: “The privilege that one wants to avail oneself of today no longer exists; it is not compatible with the current institutions. The old law that permitted the authorization of the Council of State in such cases has implicitly been abrogated." The courts may respond favorably or unfavorably. A prosecutor in the public ministry asks his bodies in the court of cassation: “could we abrogate their right to contest the result in court?”
In the end, the debate would be carried on before the court of cassation and this superior jurisdiction would thus set forth the public rights on this point: the old law is implicitly abrogated; the authorization of the Council of State is necessary to prosecute public functionaries, even in electoral matters. The court of cassation rules to protect the government’s officials.

Example 2: Dissuading authors to write about politics

Dialogue in Hell between Machiavelli and Montesquieu, Ch. 14 Subtext
Here is another example: it is more particular; it is borrowed from the policing of the press. One tells me that, in France, there is a law that – under penal sanction – obliges all the people who work in the distribution and peddling of writings to be provided with an authorization from the public functionary who is in charge of general administration in that particular province. The law is intended to regulate peddling and to subject it to close surveillance; You must have authorisation to hand out propaganda.
such is the essential goal of this law, but the text of it, I suppose, reads: "All distributors or peddlers must be provided with an authorization, etc." Is the author not a peddler …
So, if the question comes before the court of cassation, it could say: "It is not only the professional trades that the law has in view. It is all distribution and peddling that is covered."
Consequently, the very author of a text or a work who delivers one or several copies, even as complimentary gifts, without prior authorization, would commit the act of distribution and peddling, and would consequently fall under the penal provision of this law. … when he hands over his text to a friend?

It is legally fine until it becomes legal grey zone.

Feasible? McCarthyism was feasible in the States, and those were legal battles mostly. So yes, politics and court rulings are closely intertwined.

Fighting continues in the courtrooms

Dialogue in Hell between Machiavelli and Montesquieu, Ch. 14 Subtext
Machiavelli: […] Today, how does one overthrow governments? By legal distinctions, by the subtleties of constitutional rights, by using against power all the means, weapons and arrangements that are not directly prohibited by the law. And these legal artifices, which the various parties employ against power with so much fury: would you not want power to employ them against these parties? If not, the struggle would not be equal; resistance would not even be possible; it would be necessary [for the sovereign] to abdicate. What do the people want? A stable government? If so, they must be allowed to fight back in the court rooms.

Montesquieu is sceptical. Why not just keep asking other judges to form other opinions?

Dialogue in Hell between Machiavelli and Montesquieu, Ch. 14 Subtext
Montesquieu: […] The courts would not be bound by their judgments. With a jurisprudence such as the one you would employ under your reign, I see you fighting lawsuits on all sides. Those subject to your jurisprudence would not tire of knocking on the door of the courthouses to seek other interpretations.
Machiavelli: At first, this would be possible; but when a certain number of decrees have definitively established this jurisprudence, no one will take the liberty of doing what it prohibits, and the source of the lawsuits will be drained.
Public opinion will even be so appeased that the people will yield to the administration's unofficial opinions concerning the meaning of the laws. A mere hint is enough. Fighting the state is an aimless activity.

At this point, Machiavelli describes a world where the outcome is so strongly decided, that everybody can predict the result of months of wasted effort fighting against the government in various courts.

A judge’s verdicts are one source of consensus in society, but a very big one.

Dialogue in Hell between Machiavelli and Montesquieu, Ch. 14 Subtext
Machiavelli: In this or that given conjuncture, when one would have reason to fear that some difficulty would arise concerning this or that point of law, the administration would declare in the form of an opinion that this or that act falls under the jurisdiction of the law, that the law covers this or that case.
Montesquieu: But these would only be declarations that would not bind the courts in any way.
Machiavelli: No doubt, but these declarations would still have a very great authority, a very great influence over judicial decisions, coming from an administration as powerful as the one that I would organize. Such declarations would especially have a very great control over individual resolutions and – in a vast majority of cases, if not always – they would prevent annoying lawsuits. One would abstain from [bringing] them.

If we doubt these words, we just have to remember the many years of watching Julian Assange’s fatigued face as the Anglo-Saxon governments hunted him around the globe with legal armies.

The court room is a battle ground as much as anything else.

PARADISE LOST