관행, 관습법, 법률의 개정 책에서


It has been doubted whether it is or is not expedient to make any changes in the laws of a country, even if another law be better. Now, if an changes are inexpedient, we can hardly assent to the proposal of Hippodamus; for, under pretense of doing a public service, a man may introduce measures which are really destructive to the laws or to the constitution. But, since we have touched upon this subject, perhaps we had better go a little into detail, for, as I was saying, there is a difference of opinion, and it may sometimes seem desirable to make changes. Such changes in the other arts and sciences have certainly been beneficial; medicine, for example, and gymnastic, and every other art and craft have departed from traditional usage. And, if politics be an art, change must be necessary in this as in any other art. That improvement has occurred is shown by the fact that old customs are exceedingly simple and barbarous. For the ancient Hellenes went about armed and bought their brides of each other. The remains of ancient laws which have come down to us are quite absurd; for example, at Cumae there is a law about murder, to the effect that if the accuser produce a certain number of witnesses from among his own kinsmen, the accused shall be held guilty. Again, men in general desire the good, and not merely what their fathers had. But the primeval inhabitants, whether they were born of the earth or were the survivors of some destruction, may be supposed to have been no better than ordinary or even foolish people among ourselves (such is certainly the tradition concerning the earth-born men); and it would be ridiculous to rest contented with their notions. Even when laws have been written down, they ought not always to remain unaltered. As in other sciences, so in politics, it is impossible that all things should be precisely set down in writing; for enactments must be universal, but actions are concerned with particulars. Hence we infer that sometimes and in certain cases laws may be changed; but when we look at the matter from another point of view, great caution would seem to be required. For the habit of lightly changing the laws is an evil, and, when the advantage is small, some errors both of lawgivers and rulers had better be left; the citizen will not gain so much by making the change as he will lose by the habit of disobedience. The analogy of the arts is false; a change in a law is a very different thing from a change in an art. For the law has no power to command obedience except that of habit, which can only be given by time, so that a readiness to change from old to new laws enfeebles the power of the law. Even if we admit that the laws are to be changed, are they all to be changed, and in every state? And are they to be changed by anybody who likes, or only by certain persons? These are very important questions; and therefore we had better reserve the discussion of them to a more suitable occasion.

(아리스토텔레스, <정치학>, 1268b23~1269a28)

덧글

댓글 입력 영역