Quintilian Institutio Oratoria 7.7

[1] The next subject which comes up for discussion is that of contrary laws. ¹ For all writers of text-books are agreed that in such cases there are two bases involving the letter and the intention of the law respectively. This view is justified by the fact that, when one law contradicts another, both parties attack the letter and raise the question of intention, while the point in dispute, as regards each law, is whether we should be guided by it at all.

[2] But it is clear to everybody that one law cannot contradict another in principle (since if there were two different principles, one law would cancel the other), and that the laws in question are brought into collision purely by the accidents of chance. When two laws clash, they may be of a similar nature, as for instance if we have to compare two cases in which a tyrannicide and a brave man are given the choice of their reward, both being granted the privilege of choosing whatever they desire. In such a case we compare the deserts of the claimants, the occasions of the respective acts and the nature of the rewards claimed.

[3] Or the same law may be in conflict with itself, as in the case where we have two brave men, ² two tyrannicides ³ or two ravished women, ⁴ when the question must turn either on time (that is, whose claim has priority) or on quality (that is, whose claim is the more just). Again, we may have a conflict between diverse, similar or dissimilar laws.

[4] Diverse laws are those against which arguments may be brought without reference to any contradictory law. The following theme will provide an example. In this case, even though there be no other law covering the case, we may raise the question whether a hero ought to be granted anything he chooses to claim. Again, many conclusive arguments may be brought against the letter of the law restricting the movements of the magistrate: for example, a fire may have broken out in the citadel, or a sally against the enemy may have been necessary.

[5] Laws are styled similar when nothing can be opposed to one except the other. Here are two conflicting laws: for a woman's statue cannot under any other circumstances be erected in the gymnasium, while there is no other circumstance which can bar the erection of the statue of a tyrannicide in the gymnasium.

[6] Laws are styled dissimilar when many arguments can be urged against one, while the only point which can be urged against the other is the actual subject of dispute. An example is provided by the case in which a brave man demands the pardon of a deserter as his reward. For there are many arguments, as I have shown above, which can be urged against the law permitting a hero to choose whatever reward he will, but the letter of the law dealing with the crime of desertion cannot be overthrown under any circumstances save the choice of rewards to which I have just referred.

[7] Again, the point of law is either admitted by both parties or disputed. If it be admitted, the questions which are raised will as a rule be such as the following. Which of the two laws is the most stringent? Does it concern gods or men, the state or private individuals, reward or punishment, great things or small? Does it permit, forbid or command?

[8] Another common question is which of the two laws is the oldest; but the most important question is which of the two laws will suffer less by its contravention, as for example in the case of the hero and the deserter just mentioned, in which case, if the deserter is not put to death, the whole law is ignored, whereas, if he be put to death, the hero will still have another choice left open to him. It is, however, of the utmost importance to consider which course is best from the point of view of morality and justice, a problem for the solution of which no general rules can be laid down, as it will depend on the special circumstances of the case.

[9] If, on the other hand, the point of law is disputed, either one party or both in turn will argue the point. Take the following case as an example. Here the father claims his right over the son, while the son, in virtue of his new position as patron, denies that his father possessed the rights of a father, because he was in the power of his patron.

[10] Laws containing two provisions may conflict with themselves in exactly the same way as two laws may conflict. The following will serve as an illustration. ⁵ All that I have said about laws will also apply to decrees of the senate. If decrees of the senate conflict with one another or with the laws, the basis will be the same as if laws only were concerned.