Institutio Oratoria
Quintilian
Quintilian. Institutio Oratoria, Volume 1-4. Butler, Harold Edgeworth, translator. Cambridge, Mass; London: Harvard University Press, William Heinemann Ltd., 1920-1922.
The next subject which comes up for discussion is that of contrary laws. [*](See III. vi. 46.) 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.
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.
Or the same law may be in conflict with itself, as in the case where we have two brave men, [*](Both claiming the reward allotted by the law.) two tyrannicides [*](Both claiming the reward allotted by the law.) or two ravished women, [*]( Two women, both dishonoured by one man, put in different claims, both of which are provided for as alternatives in the same law. A. demands the ravisher's death, B. demands his hand in marriage. ) 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.
Diverse laws are those against which arguments
A magistrate shall not quit the citadel. One who has rendered heroic service to his country may choose what reward he pleases. A magistrate who left his post and saved his country, demands an amnesty for his conduct.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.
Laws are styled similar when nothing can be opposed to one except the other.
Tyrannicides shall have their statues set up in the gymnasium. A statue of a woman shall not be set up in the gymnasium. A woman killed a tyrant.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.
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