LAWS
I
LAWS AS PRODUCTS OF THE INDIVIDUAL
Definition of law.
Law is a volitional act, which has for content a series or class of actions.
Philosophical and empirical concepts of society.
This definition excludes above all from the concept of law a determination that is generally considered essential to it, the determination of society; this amounts to saying that it also extends the concept of law to the case of the isolated individual. But in order that there may be no misunderstanding in relation to a point like this of the highest importance, it will be well to show that the word "society" has a double meaning, philosophical and empirical, and if we exclude its empirical sense from the concept of law, it would neither be possible nor our wish, to exclude its philosophical sense. Reality is unity and multiplicity together, and an individual is conceivable, in so far as he is compared with other individuals, and the process of reality is effective, in so far as individuals enter into relations with one another. Without multiplicity there would not be knowledge, action, art or thought, utility or morality; therefore the isolated individual, torn from the reality that constitutes him and that he constitutes, is something abstract and absurd. But he is no longer absurd, when understood in another way, with polemical intention against a false concept; as an individual not absolutely, but relatively isolated, in respect to certain contingent conditions which had wrongly been held essential: in which case the concept of society is conversely itself abstract and unreal. "Society," indeed, is also used to mean a multiplicity of beings of the same species, and it is evident that here an arbitrary element enters into the problem, for the naturalistic concept of sameness of species is arbitrary and approximative; hence the pretended sameness might fail and the society yet exist all the same. A man may not be able to find those who resemble him among a multitude of men and conduct himself as if they did not exist; but this does not prevent his living in the society of beings that are called natural, with his dog, his horse, with plants, with the earth, with the dead and with God. When he is placed in solitude or isolated from the other beings, said to belong to the same species as himself, that other society, or the communion with what remains to him of reality, will always continue, thus enabling him to continue his life of contemplation, of thought, of action and of morality. In order to understand the Spirit in its universality, we must separate it from contingencies, and society in the empirical sense is contingency, which the concept of the isolated individual (isolated from it and not from reality, from the societas hominum, not from the societas entium), enables us to surpass. The great services which this concept has rendered to Logic, to Æsthetic and especially to Economy, are known, for the latter only began to develop the philosophical spirit in itself, when it conceived economic facts as they take place in the individual, prior to what is called society, thus positing the concept of an isolated economy. Conversely, Economic, Æsthetic, Ethic and all philosophical problems and sciences lost their true nature and became bastardized, when gross sociologism replaced among social contingencies those universals, which philosophers had with great labour removed from them and thought in their purity. Defining laws, then, as facts that occur, not only in society, but also in the isolated individual, our intention is simply to concentrate attention upon the concept of true society, which is all reality, and not allow it to be diverted and confused with accidental determinations, of the kind that may and may not be.
Laws as individual product: programmes of individual life.
No great art is required to find instances of individuals who make laws for themselves, carry them out and change them, grant rewards to themselves and inflict upon themselves punishments; nor is there any need to incommode the worthy Robinson of the economists to this end. Without being obliged to make the effort of imagining ourselves cast upon a desert island and provided only with a sack of corn and the Bible, it suffices to have eyes and to observe our daily life, for numbers of examples of internal legislation to present themselves. Those laws, made for our use and consumption, are called programmes of life. Who can live without programmes? Who does not decide that he will desire certain actions and avoid certain others? From youth onward we begin to legislate in this way and this production of internal laws is interrupted only by death. We say, for instance:—"I shall devote my life to agriculture: I shall live in the country every year from June to November; from December to February I shall come to town, that I may not lose touch with political or social life; from March to May I shall travel, for pleasure and instruction." This programme is subdivided and completed with other programmes, according to the various conditions and possibilities taken into consideration; and laws are established as to the way one should conduct oneself in respect to religion, family, friends, the State, the Church and also in respect to this or that individual; for (as is observed by Logic) the individual conceived as a fixed being, also becomes a concept, abstraction, group, series, or class. He who wished it, would be able to establish a parallel between programmes or individual laws and laws that are called social: in the individual would be found fundamental statutes, laws, rules, ordinances, temporary arrangements, contracts, single laws and all the other legal forms found in societies. Now in what conceivable way do the programmes of the individual differ from those of society? Are not those laws programmes, and are not those programmes laws?
Exclusion of the character of compulsion and critique of this concept.
To this interrogation of ours, which does not express a doubt within us, but states what seems to be an undeniable fact, defying any sort of contradiction, may be objected (and it is a common objection) that there is a great difference between individual laws and those of society or of the State: these are compulsory, those are not; and for this reason these are true laws, while the others are mere programmes. But we cannot attach any importance to this objection, at least as thus formulated; because, having now traversed the whole of the Philosophy of the practical, general, and special, we have never met with what is called compulsion in the circle of willing and doing, save in the negative sense of deficiency of will and action. No action can ever be compulsory; every action is free, because the Spirit is freedom; there may not be action in a certain case, but a compulsory action is inconceivable, since it is a question of terms that exclude one another. Does the fact give the lie to our assertion? Let us examine the fact for a little, face to face and without preconceptions. Let us for this purpose take an extreme case: for instance, that of the law of a most powerful despot, who, being in command of police, should order a group of men to bring their first-born to sacrifice to the god in whom he believes, but they do not. Are the men who hear this manifestation of will constrained by it? What menace can make him who wishes to say no, say yes? That group of men will rebel, will take up arms, will rout the troops of the despot, will put him to death, or render him incapable of harming; and in this hypothesis the law will not reveal any character, of compulsion. But in the other hypothesis also, where they do not rebel and in the meantime bow to the will of the despot, either that they may not risk their own lives, or because they defer their rebellion to a more propitious moment and consign their sons to death; they will not have suffered any compulsion, but will have freely willed: they will have willed to preserve their own lives at the expense of their sons'; or to sacrifice some of them in order to have the time to put themselves into such a position that they may be able to rebel with the hope of victory. Thus we find in social laws, now observance, now inobservance of the law; but both occur in freedom. Inobservance may be followed by what is called punishment (that is to say, the legislator who has imposed a given class of actions, will adopt certain definite measures against those who do not obey them; to wit: he will will another class of actions, destined to render possible the first, because the punishment is a new condition of things set before the individual, according to which he must alter his previous mode of action); but the punishment always finds itself face to face with the freedom of the individual. He will be able freely to observe the law in order to avoid the punishment or its recurrence; but he will also be able freely to rebel against it, as in the instance adduced.
Identical characteristics of individual and social laws.
If compulsion be wanting to individual laws, this is because it is also always wanting to social laws: while, on the contrary, what is really present in social laws is equally present in the observances and rebellions, rewards and punishments of individual laws.
To return to the former example: the individual who has decided to devote himself to agriculture as programme of life, may be seized all of a sudden with a great desire to devote himself to painting or to music; and what had previously pleased may henceforward displease him: that intimacy with mother earth, with harvests and vintages, which seemed to be the very life for him, his true ideal, may come to seem to him tiresome and repugnant. But if he be a serious person, if he do not will and not will at every moment, if he do not present in his own individuality a complete resemblance to those peoples who change in mid-November the laws made in October and proceed from revolution to revolution, he will examine his situation and will recognize, for instance, that the desire arisen in his soul is a velleity that does not answer to his true vocation and that the first programme must remain intact; hence will take place in him a struggle between that programme and the new rebellious volition. It may happen that in this case the individual will sometimes neglect the programme traced, in order to abandon himself to the temptations of his pictorial or musical dilettanteism; but since this will happen against his individual law, and since force must remain on the side of law, this breach of observance will be followed by special measures, such as the throwing away of brushes and violin, or by his forbidding to himself those moments of recreation in such amusements, which he used to allow himself and which have now become dangerous. In other words, the individual inflicts punishments on himself in case of the non-observance of his law, and these punishments must be held to be such in the strictest sense of the term. And if we accept the other hypothesis, analogous to that made in the case of social laws, should the individual find himself possessed with so vehement a desire of becoming a painter or a musician, as to be compelled to believe that the original programme, the original law of his individuality, did not correspond, or no longer corresponded with his true temperament, he will rebel against the law and destroy it in himself, in the same manner as in the other example the people destroyed the law of the despot, by fighting with him, imprisoning, or slaying him.
Individual laws as in ultimate analysis alone real.
Individual programmes or laws then are laws, and this concept includes the isolated individual as well as society; and therefore the character of sociality is not essential to the concept of law. Thus, to be more precise, the only laws that really exist are individual laws and it is not possible to conceive of social and individual laws as two forms of the general concept of laws; unless individual and society be both understood in the empirical sense, thus abandoning philosophical consideration. If the individual be understood in the philosophical sense, in which he is the Spirit concrete and individualized, it is clear that what are called social laws can also be reduced to individual laws; because, in order to observe a law, we must make it our own, that is to say, individualize it, and in order to rebel against it, we must expel it from our own personality, in which it wished unduly to remain or to introduce itself.
Critique of the division of laws into judicial and social and into their sub-classes. Empiricity of every division of laws.
The exclusion of the character of sociality from the concept of law frees philosophy from a series of problems, grafted upon that pretended character. The principal of these was that of the distinction of social laws into political and judicial, on the one hand and merely social on the other; and the further distinction of judicial law into public and private, civil and penal, national and international, into laws properly so called and regulations, and so on. If the concept itself of social law be empirical, then all the distinctions and sub-distinctions of it proposed must also be empirical, and altogether without philosophical value. So true is this that it is impossible to decide for one distinction or definition against another, or to correct those hitherto given by proposing new ones. Whoever undertakes to examine any one of these distinctions, at once realizes the aphilosophical character affirmed of them a priori. Thus judicial or political laws have been distinguished from the merely social, with the affirmation that those are compulsory, these conventional; whereas compulsion is impossible in both cases, for the reasons given, and if by compulsion be meant the threat of a penalty, this is to be found in merely social laws, not less than in judicial. The law against the falsification of public money is usually described as judicial: he who falsifies it runs the risk of undergoing some years' imprisonment. It is a law called social that we must answer a salutation with a salutation: he who does not do this runs the risk of being held ill-bred and excluded from the society of the well-bred. What essential difference is there between the two laws? An attempt has been made to differentiate them by saying that the former has emanated from and is sustained by a supreme power, vigilant as to its observance, the second from particular circles of individuals. But where is the seat of this supreme power? Certainly not in a superindividual, who dominates individuals, but in individuals themselves. And in this case its power and value correspond with the power of the individuals who compose it; that is to say, it is the law of a circle, empirically considered to be larger and stronger, but whose volitions are realized in so far as the individuals composing it spontaneously conform to them, because they recognize the convenience of doing so. Monarchs who believed themselves to be most powerful, have realized at certain moments that the power did not at all reside in their persons or title, but in a universal consensus of opinion, failing which their power vanished, or was reduced to a gesture of solitary command, not far removed from the ridiculous. Laws that seem to be excellent remain unapplied, because they meet with tacit general resistance, or as is said, do not accord with custom: this should suffice to enlighten the mind as to the inseverable unity of what is called the State and what is called society. The State is not a being, but a mobile complex of varied relations between individuals. It may be convenient to limit this complex as well as possible, to make a being of it to oppose other complexes: of this there can be no doubt; and let us leave to jurists the excogitation of these and other similar distinctions, fictitious but opportune; nor let us consider that their work should be declared in the least absurd. We only say that it must not be forgotten that the fictitious is fictitious, as is the claim made to reason about it as rational and philosophical, and to fill volumes and volumes with tiresome disquisitions, which are necessarily vain, though the distinctions that form their object are not vain in their circle. We who are not jurists but philosophers, and to whom it is therefore not permitted to produce and adopt practical distinctions, must conceive as laws and include equally in the same category, alike the English Magna Charta and the statute of the Sicilian Mafia, or of the Neapolitan Camorra; the Regula monachorum of Saint Benedict and that of the brigata spendereccia that was sung in sonnets by Folgore di San Geminiano and Cene della Chitarra and is recorded by Dante in the Inferno; the canon law and the military code, and that droit parisien, which a certain personage of Balzac had studied for three years in the blue boudoir of one lady and in the rosy drawing-room of another, and which, although no one ever speaks of it, yet constitutes (says the great novelist) une haute jurisprudence sociale, qui, bien apprise et bien pratiquée, mène à tout.[1] What more can be said? Even those literary and artistic laws are laws which express the will to produce works, possessing this or that other kind of argument and arrangement, as would be the law that drama should be divided into five or three acts or days, and that romances must not exceed four or five hundred pages, 16mo, and that a monumental statue must be nude or heroically clad. It is evident that if anybody violate these laws, he may be excluded (and he was indeed excluded) from the academies of good taste, which did not prevent his being received for that very reason into the anti-academies of the independents: in just the same way as to have incurred punishments announced by the penal code is a title of admission to certain criminal societies.
Extension of the concept of law.
These examples that we have selected among the most extraordinary and the most apt to scandalize, help to make it quite clear that the concept of law must be taken in its full logical extension, when we wish to philosophize about it. Among the many obstacles that philosophy meets with is a curious sort of false shame, which looks upon contact with certain arguments as injurious to the dignity of philosophy: a contact which is avoided by arbitrarily narrowing and therefore falsifying philosophical concepts. That of law especially has a tradition of solemnity, and brings with it associations that must be broken in pieces. Otherwise it is impossible even to understand what are those firm and unwritten laws of the gods, which Antigone opposed to the decrees of men and how they exercise their efficiency; or the sayings of Lacedaemon, in obedience to which fell the three hundred at Thermopylae; or the laws of the fatherland, which, with their irresistible authority, caused Socrates to remain at the moment when others counselled and facilitated his flight. Life is composed of big and little actions, of least and greatest, or better, of a very dense web of very diverse actions; and it is not a too brilliant idea to cut that web in pieces and to throw away some of the pieces as less beautiful, in order afterwards to contemplate in those pieces only that have been thus selected, cut out and disconnected, the web that no longer exists.
[1] Balzac, Le Père Goriot (ed. Paris, Calman Lévy, 1891), p. 85.
II
THE CONSTITUTIVE ELEMENTS OF LAWS. CRITIQUE OF PERMISSIVE LAWS AND OF NATURAL LAW
The volitional character and the character of class.
The undue restrictions and empirical divisions of the concept of laws having been destroyed, if our attention be now directed to the character that has been determined as properly belonging to them, we have the means of distinguishing them from the other spiritual forms with which they are often confused, partly as the result of the metaphors and homonyms usual in ordinary speech. Laws, as has been said, are volitional acts concerning classes of actions. Therefore, where the volitional element or the element of class is wanting, there cannot be law, save in name and by metaphor.
Distinction of laws from the so-called laws of nature.
So-called laws of nature or naturalistic laws are not laws, owing to the absence of the volitional element: they consist of simple enunciations of relations between empirical concepts, that is, of rules. This is an instance of what is called a natural law: platinum melts at a temperature of 1780 degrees; or this other of a grammatical law: that in the Greek language masculine nouns of the second declension have the genitive in ου(with exceptions, in this as in the other case). But they are laws in about the same way as the King of Cups is king; and indeed it is known historically that this denomination was transported by the Stoics from the domain of politics, where it had first appeared, to that of nature. Empirical concepts and rules may, as we know, assume an imperative literary form; hence it will be said: "If you wish to melt platinum, heat it to 1780 degrees"; "If you wish to speak Greek, decline masculine nouns of the second declension with an ου in the genitive." But the literary form does not change anything of their true nature: those imperatives are hypothetical imperatives, that is, false imperatives, improper laws. Grammatical and chemical laws will remain mere formulæ, instruments of knowledge, and not at all of action, until some one obliges me or I oblige myself to talk Greek, or to open a chemical laboratory where platinum is melted. The jurist who elaborates cases and rules is not the legislator: the latter alone (with a sword in one hand) can endow the excogitations cf the other with the character of law.
Implication of the second in the first.
Certainly an act of will is necessary in order to construct empirical concepts, formulæ, and rules (as indeed we know), an act of will which is not that of the will implied in every act of thought, but is a special and explicit act which, by manipulating representations and concepts, makes a quid medium, which is neither representation nor concept, and although altogether irrational from the theoretical point of view, is of use in the economy of the spirit. But the law in its true meaning is a volitional act, which assumes that primary volitional act whence are formed the pseudo-concepts or concepts of class as already completed; precisely because it is the will which has for its object a class of objects. It is not possible to impose speaking according to the rule of the Greek language, or to melt platinum according to its chemical formula, before these rules have been laid down. And here appears very clearly the difference between those two kinds of spiritual products, which the imperative literary form, given to classes and rules, darkens and confuses. This difference can be recognized in concrete cases by means of a most simple expedient: if the rule (as we have already had occasion to prove) can be converted into a statement of class, then the law is inconvertible. "If you wish to melt platinum, heat it to 1780 degrees" is a proposition that is exactly equal to "platinum melts at 1780 degrees." But the law, "Let there be opened in every city a chemical laboratory where platinum is to be melted," is not to be converted from the imperative to the indicative, whatever efforts we make.
Distinction of laws from practical principles.
If the volitional element be wanting to naturalistic laws, it is certainly present in other spiritual formations also denominated and considered as laws: but not that of class, therefore neither are these laws. Such is the case with economic and moral law, and through them, with logical and æsthetic laws. The moral law says, "Will the universal"; that is to say, "Will the good, the useful, the true, the beautiful." Therefore (considered in reality and not in scientific theory, where it appears as the concept of itself) it is a volitional act. But this volitional act has the spirit itself for object, which is and exists, in so far as it wills and affirms itself; it has for object a form or a universal, whereas laws have for object something material and at the same time not instantaneous, something more or less fixed, something general: a class, not an idea. Universal laws (that would better be called principles) are the Spirit or producer; true and proper laws are the special product of the spirit; therefore the first can certainly be called laws, but for an altogether different reason to the second.
Laws and single acts.
Owing to the absence of the element of generality or of class, no one would describe a single individuated act as law. The resolution and action by which I do not rise from my seat at this moment and go eagerly to meet the friend whose coming at the wrong moment interrupts me at my work, is a volitional act, not a law; such as on the other hand would be the volitional act that I might form within myself, consisting in the intention or the programme of receiving my friends seated and in a lukewarm way, whenever they should come to visit me in the hours before noon, in order to make them understand by this act of mine that they disturb me at my work, and that they should abstain from their inopportune visits, unless they wish to submit to the penalty of meeting with anything but a cordial reception from their friend.
Identity of imperative, prohibitive, and permissive laws.
From the general but not universal character that we must recognize to the content of laws, we have the solution of certain controversies of the greatest importance which have been and are much discussed, hitherto without a satisfactory or duly demonstrated conclusion. In the first place, we must mention the dispute as to whether or no there exist permissive laws, and whether the formula that the law aut jubet aut vetat aut permittit is to be accepted. It has generally been admitted that the law aut jubet aut vetat, and that the permission is nothing but the removal of a previous inhibition, that is, the partial or total abrogation of a law. But in reality, the law, since it is a volitional act, jubet only; to command is to will: to command that a chemical laboratory be opened in every city means to will that one should be opened. And since every willing is at the same time a not-willing, as every affirmation is at the same time a negation, every command is at the same time an inhibition, and every jubeo is a veto (whether the will be expressed in the literary form of positive or negative, of command or of inhibition, is here without importance).
Permissive character of every law, and impermissive character of every principle.
As to permissive laws, these are inconceivable side by side with the imperative or prohibitive, not indeed because no law ever permits, but because by the very fact that those are imperative or prohibitive, they are at the same time permissive: every jubeo or veto is at the same time a permitto. Principles, as universal volitions, never permit, because nothing escapes their command; but a single volitional act, affirming itself, does not exclude for that reason the possibility that other volitional acts, indeed infinite acts, should be affirmed; for the singular never exhausts its universal. And laws are volitions of class, they impose groups of single acts—groups that are more or less rich, but always contingent: hence a law always leaves all the other actions and classes of action that can be the object of will unwilled (that is, neither commanded nor prohibited), and, therefore, permitted. And even if we take all the laws formulated up to a given moment, all together they do not exhaust the universal; and if new laws be accumulated, one upon the other, be divided and split up "with panting breath," to obtain complete exhaustion, a progressus in infinitum will certainly be attained, but never exhaustion, which is unattainable. This amounts to saying that outside law or laws, there is always the permitted, the lawful, the indifferent, the privilege, the right, or whatever be termed the concept correlative to that of command, veto, or duty, a duality of terms that expresses the finitude of law; hence, when a determined privilege, a determined legal right, a determined right, has been annulled by a new law, when something previously indifferent has been differentiated, privilege, the permitted, the indifferent, right, always arise from the bosom of the new law.
Mutability of laws.
Another contingent character of the content of laws is their mutability. Laws are changeable, whereas principles, or laws of the universal content, are unchangeable, and ready to give form to all the most various historical material. Since actual conditions are constantly changing, it is necessary to add new laws to the old, to retouch and correct these, or to abolish them altogether. This is to be seen equally in the programmes of individual lives, as in the programmes of social and political laws.
Empirical concepts as to the modes of change.
The question as to the number of modes of changing that laws possess does not concern us, because, philosophically speaking, there is never but one mode: the free will that produces the new law in new conditions of fact. Involuntary changing can only be a formula for indicating certain changes, always voluntary, that occur in a less solemn way than others; but from these, can never be absent the solemnity of the human will that celebrates itself. Thus, in like manner, the question as to whether we should recognize conservation or revolution as the fundamental concept of practical life, does not concern us; for every conservative is at the same time a revolutionary, since he is always obliged to adapt the law that he wishes to preserve to the new facts; and every revolutionary is also a conservative, since he is obliged to start from certain laws that he preserves, at any rate provisionally, that he may change others and substitute for them new laws, which he in his turn intends to preserve. Revolution for revolution's sake, the cult of the Goddess Revolution, is an insane effort, which is so none the less because it has sometimes appeared in History and like all insane efforts it ends with suicide. Revolution revolutionizes itself and turns into reaction. Thus when revolutionaries and conservatives are distinguished and opposed to one another, an empirical distinction is made there also, the meaning of which is to be found in the historical circumstances among which it has arisen. Count Cavour was a conservative in respect to certain problems and revolutionary in respect to certain others, to such a degree that he seemed to the Mazzinians to be a conservative and to the clericals and legitimists a revolutionary. Robespierre, if he were a revolutionary for the Girondins and at last even for the neo-moderate Danton, yet to the eyes of Hébert and of Chaumette seemed to be a conservative, enemy of the free development of the rights of man.
Critique of the eternal Code or natural Right.
We should on the other hand be very careful as to the demand so often made and also so far as possible put into execution, for an eternal code, a limit-legislation or model, a universal, rational, or natural justice, as it has been variously termed. Natural justice, universal legislation, eternal code, claim to fix the transitory and are therefore a contradictory concept: contradictory precisely to the principle of the mutability of laws, which is the necessary consequence of their contingent and historical character. Were natural Right permitted to do what it announces, were God to permit that the affairs of Reality should be carried on according to the ill-assorted ideas of writers and professors, we should witness with the formation and application of the eternal Code, the cessation ipso facto of Development, the end of History, the death of Life and the dissolution of Reality.
Natural justice as the new justice.
This world-ending does not take place, because, though it be possible to dwell in contradiction, it is impossible to make it concrete and actual: God, that is to say Reality, does not permit this. Thus it happens that under the name of natural justice, two sorts of products have existed in turn, or sometimes a mixture of those two different products, which have nothing to do with the programme announced. On the one hand, projects of new laws that seemed better than the old or good by comparison with these judged more or less bad, have been proposed as natural or rational justice, and precisely for this reason the old laws were called unnatural and irrational and the new rational and natural. Just as passionate and erotic temperaments, uninstructed by the experience of their past, swear with the utmost seriousness that their new love will be constant, eternal and their last, so man, when he creates new laws, is often seized with the illusion that his laws will not change as did the old ones, forgetting that the old ones were once young and that they "satisfied divers" in their heyday, to express oneself in the words of the old carnavalesque song. Those natural laws are historical, those eternal laws are transitory, like all the others. All know how in certain times and places, religious tolerance, freedom of trade, private property, constitutional monarchy, have been proclaimed eternal; and in others, the extirpation of unbelievers, commercial protection, communism, the republic, and anarchy.
Natural justice as philosophy of the practical.
Universal concepts, which were nothing but the Principles of the philosophy of the practical themselves, have on the other hand had a tendency to be classed as natural justice and to surpass the transitory and contingent. They are certainly eternal and unchangeable, but no longer laws, for they are formal and not material. Thus treatises of natural justice have sometimes become simply treatises (sometimes very valuable) of the Philosophy of the practical and especially of Ethic.—When (as to tell the truth has generally been the case) a practical description has accompanied a general treatment of Ethic, leading to a series of proposals for social, judicial or political reform, there has then occurred a mingling of two different productions, which we have mentioned, philosophy and casuistic. But a natural justice has always remained unachieved, because unachievable and contradictory.
Critique of natural justice.
In our times, owing to the increase of the historical sense, the constructions of natural justice and of the eternal Code have almost altogether lost the attraction they once exercized. But absurd problems having their origin in those contradictory concepts still persist and absurd methods of treating problems of similar origin legitimate when taken in their true terms. An example of the first of these two kinds of diseased residues is the treating of the natural rights of man and the attempt to establish what rights belong to man by nature and what by historical contingencies. Among the first are enumerated the right to life, to liberty, to work, to the family and so on; and among the second, those that have their origin in the Italian State or in special contracts that have been concluded. But no right of any sort belongs to man outside society (which in this case means outside history), that is to say, considered as spirit in universal, save that of existing as spirit, which indeed is not a right, but necessary reality. Catalogues of natural rights are either tautologies, which repeat that man as spirit has the right (and therefore at the same time the duty) of developing himself as spirit (and he does develop in this manner, if he be man and be alive); or they are arbitrary rationalizations of historical contingencies, such as the right to work, which is nothing but the formula of the workpeople of the ateliers nationaux in forty-eight, or of the insurgents of Lyons; or the right to private property, which was the formula of the burghers against the bonds of feudalism and is again their formula against the modern proletariat movement.
Jusnaturalism persisting in judgments and juridical problems.
We must recognize examples of the second kind of error in the discussions constantly held as to social or political institutions, when instead of combating them as irrational, or of defending them as rational in historical circumstances, they are defended and combated because they differ from or conform to the true idea of right or to the true idea of those particular institutions, recourse being thus had to abstract reasons, as has very well been said. A reformer will maintain the recognition of the right of women to the administrative or political vote, because women also form part of the State and have general and particular interests, which they wish to guarantee directly, without the inter-position of men, whose interests are sometimes at variance with theirs: an argument that a conservative will deny altogether, making appeal to the function of woman, enclosed by eternal law in the circle of the family. A reformer will propose divorce as the natural complement to matrimony, because, where spiritual agreement ends, there too should end every other tie, whereas a conservative will oppose the argument as contradictory to the very essence of matrimony, comparing such a proposal with concubinage, or with what is called free love. And so on.—When such arguments are heard, it is remarked that natural rights are not dead. But the question as to the political vote for women may be serious or ridiculous, according to place and time; as divorce is loftily moral or profoundly immoral, according to time and place, and it is only mental narrowness or ignorance that can place outside humanity, or believe to be living or persisting in immorality, peoples that practise divorce or indissoluble matrimony, or those of to-day, who refuse the vote to women or those of the future who will recognize their right to it, if they do recognize it. But even polygamy or free love is not immoral, irrational and unnatural, once it has been an institution considered legitimate in certain times and places; nor even, we insist upon saying it (however repugnant to our hearts and to our stomachs of civilized Europeans), anthropophagy, for even among the anthropophagi were men (we hope it will be admitted), who felt themselves to be most virtuous in their clearest consciousness of self, and who nevertheless ate their like with the same tranquillity that we eat a roast chicken, without hatred of the chicken, but being quite well aware, for the moment at any rate, that we are not able to do otherwise. The unconscious reasoners on the basis of natural law must have forgotten that page of Cornelius Νepos, which, however, they must certainly have translated in their first years at the gymnasium: Expertes literarum Graecarum nihil rectum nisi quod ipsorum moribus conveniat putabunt. Hi, si didicerint non eadem omnibus esse honesta atque turpia, sed omnia majorum institutis judicari, non admirabuntur nos in Graiorum virtutibus exponendis mores eorum secutos. Neque enim Cimoni fuit turpe Atheniensium summo viro, sororem germanam habere in matrimonium: quippe quum ejus cives eodem uterentur instituto; at id quidem nostris moribus nefas habetur. Laudi in Graecia ducitur adolescentulis quam plurimos habere amatores. Nulla Lacedaemoni tam est nobilis vidua quae non ad scenam eat mercede conducta.... And he continues to give further examples.[1] So ancient are the unreasonable tendency to be scandalized and the reasonable defence of the variety of customs made by good sense.
[1] Vitae excell. imper., pref.
III
UNREALITY OF THE LAW AND REALITY OF ITS EXECUTION. FUNCTION OF LAW IN THE PRACTICAL SPIRIT
Law as abstract and unreal volition.
Since law is the volition of a class of actions, it is the volition of an abstract. But as we already know, to will an abstract is tantamount to willing abstractly. And to will abstractly is not truly to will, for we will only in concrete, that is, in a determined situation and with a volitional synthesis corresponding to that situation, such that it is immediately translated into action, or better, is at the same time effective action. Consequently it seems that we should declare the volition that is law to be a pretended volition: contradictory, because lacking a single, unique and determined situation; ineffectual, because springing from the insecure ground of an abstract concept; a volition, in fact, that is not willed; a volitional act, not real, but unreal.
Ineffectuality of laws and effectuality of practical principles.
Such indeed it is. What is really wanted is not the law, but the single act, done under the law, as it is called, that is to say, the execution of the law. The single volition is the only one that is carried out: the execution of the law is the only thing really and truly willed and done. When the law has been formulated, life continues ceaselessly to propound its problems, and these either do not enter into the provisions of the law and are solved simply and solely with universal practical principles (economic and ethic), or they do enter into them and then it is necessary to apply the law, unless it be held to be more convenient to change it, or (this would be a pathological case) action be not taken against it, although there be consciousness that this is ill done.
But even when we are in the situations foreseen by the law and act in accordance with it, or, as is said, apply or carry out the law, we must not allow ourselves to be misled by all these metaphors; for we must consider that the single situations in which we will and act can never be foreseen by the law, nor is it possible to act in accordance with it, to follow it out and to apply it. Situations are not foreseen, because nothing is foreseen, and the real fact is always a surprise, something that happens once only and we can only know it as it is after it has happened. For the new fact a new measure is necessary; for the new body a new suit of clothes. The measure of the law, on the other hand, since it is abstract, hesitates between the universal and the individual and is without the strength of either. To carry out the law? But it is only the pedant of life who proposes to do such a thing, as it is only the pedant of art who attempts to apply the rules of art. The true artist follows the impulse of his æsthetic conscience, the practical man the initiative of his practical genius. What is called the single act, observance and execution of the law, obeys, not the law, but the ethical or practical principle, and obeys it individually. The man who has his head full of laws that he has made for himself or has accepted from others, makes a deep reverence to the Ladies' Law when the time comes for action, and proceeds on his own initiative.
Exemplificatory clarification.
It is the law that at the age of twenty we must present ourselves in our district and do military service for a certain time. Let us for the moment set aside the case in which those called upon to serve rebel and, having seized the power of the government, abolish the law of conscription, and re-establish that of voluntary enlistment. And let us likewise set aside the other case, in which the conscripts violate the law by deserting and going abroad, or hide in a cave, like a hero of Padre Bresciani, or (like a good Tolstoian who applies the principle of non-resistance to evil) allow themselves to be put in prison rather than touch arms. Let us select the case of the peaceful burgess who becomes a warrior that he may not go to prison; or of the good citizen who recognizes his duty of serving his country and for that reason obeys the law. In presenting himself in his district and in the regiment, he has obeyed, not the voice of the law (which is a voice), but his moral conscience, or simply his economic conscience. This has already been demonstrated and we need not insist upon it. But how can he ever obey the law, which directs him to do military service of precisely this or that nature? Each individual has his own temperament, his own talent, his own particular physical strength, and each one will lend his services entirely in his own way, different from that of another. And (be it noted) he will not do so only more or less well or observing the law more or less, but really in a different way, even when all observe the law with equal diligence and scrupulosity. It may seem as if all carry out a military exercise at the same moment, but the fact is that each man moves in a different way to the others; or that in a parade march all walk in the same way, but, as a matter of fact, all (even in the Prussian army) walk in a different way. If we look at it as a whole and from a distance, there seems to be uniformity; if we look at it from near at hand we discover the difference. If we could make the experiment of comparing a regiment of fifty years before with one of fifty years after, leaving military regulations, arms, accoutrements, and everything else unaltered in the interval, the lack of uniformity of the apparent uniformity would leap to the eyes, a lack of uniformity that would have been rendered possible by the changes that had taken place in the surrounding life, in the culture, the moral education, the political conscience, the mode of nourishment, the dwellings, and so on. But the experiment is possible, if not in time, then in space, that is to say, by observing the application of the same military regulations upon two different populations. Thus one seems to have in hand one book written in two different languages; which is literally no longer the same book, but two different books. Giusti translated into Milanese and Porta translated into Florentine are no longer Porta or Giusti, but two new poets.
Doctrines against the utility of laws. Their unmaintainability.
This indubitable truth, as to the impossibility of applying the law and of incorporating it in facts, and as to the necessity of acting in each case, according to historical exigencies, is the true reason for the turning of so many people's heads at different times and in different places, causing them to proclaim nothing less than the inutility of laws and to ask for their abolition. If it be necessary to come eventually to the individual action, and if deliberation and execution must be remitted to the action of the individual, what is the object of binding ourselves with bonds, which it is afterwards necessary to tear off and to break, that we may act? What is the object of laboriously constructing instruments, which we are obliged to throw away when we come to practical action, that we may use our naked hands? Owing to such ingenuous reasonings as these, people have come to long for a society without laws, in which each will do his own share of work, on account of its attractiveness alone, as we find among the Harmonicists of Fourier and in many other anarchical Utopias. Or they have sighed for the absolute paternal government of the good old days, for the geniality of a good-hearted tyrant, untrammelled with laws, who will be able to follow the best dictates of his heart. Or, to descend to less strange and more actual examples, it has been proposed that the judge should on each occasion create the law, according to the case before him; that is to say, that he should cease to be a judge (not having a law to apply, and properly speaking not being able to give judgment) and be a free decider of litigation and corrector of customs; or at least that he should free himself from legal fictions and judge according to the individual reality of each individual case.
Unsustainability of such confutations.
These theories are without doubt unsustainable, not excluding the last, which has the appearance of being moderate; because the so-called judicial fiction is intrinsic to the law and exists even when we think that it is not present, for it is always a fiction to place a concrete case in an abstract category. But defenders of the utility of law have met these erroneous doctrines with the bad argument that law does not admit of individual solutions, and demands strict obedience, because the moment of individuality, of inobservance, and of violation that may be called legitimate, does actually exist in the law and is intrinsic to its very nature. Both adversaries and defenders of law are therefore philosophically wrong, those who assert its inutility and those who claim for it an impossible utility.
Empirical meanings of those controversies.
And we say "philosophically," for it is well known that in this case, as in so many other disputes of philosophic appearance, are often concealed disputes of a practical and political nature, in which right and wrong are divided and connected in an altogether different manner. The adversaries of laws are often nothing but adversaries of too many laws, or legitimately demand a less pedantic and mechanical office for the judge than that which he often has at present; whereas the maintainers of laws are opposed to revolutionaries, who would wish to abrogate the definite laws, on which civil progress rests, or to discredit all laws, and cause society to enter upon a terrible crisis that would not promise good results. But all this is extraneous to the philosophic problem.
Necessity of laws.
If the defenders of the utility of laws had wished to make use of an argument of good sense against their adversaries, of the sort that imposes, even when it does not rigorously demonstrate their contention, they might have simply noted the demand for laws, for ordinances, for justice, for the State, which appears at all points of human history.—Better a bad government than no government at all; better laws that are mediocre, but stable, than the frantic pursuit for better and better laws, with the instability that is the inevitable consequence! And on the other hand, may God save us from genial despots, from inspired judges, from tribunals that dive into treasures of equity!—These are the utterances that we hear in history. Battles have been fought for legality, and rivers of blood have been shed for it; for legality are faced the troubles of litigation, and energetic action is displayed, which only superficial intellects can consider a waste of time and trouble; for no trouble is superfluous when we are protecting our own rights, and none is more sacred, since it also guards the offended majesty of the law, the rights of all. Those who declaim against laws can well do so with a light heart, for the law surrounds, protects, and preserves their life for them. No sooner had all laws disappeared than they would lose the wish to declaim:
In such wise as when sometimes in the wood
The shepherd spies the wolf, and straight has lost
Spirit and sense, and words die on his tongue;
and he would be obliged to have speedy recourse to the remedy and make laws of some sort again, whatever they be, that he may again resume his calm, his work and his gossip.
Laws as preparation for action.
Passing from consideration ad oculos to the philosophical, it is to be said, on the other hand, that the utility of law does not at all reside in its effectuality, which is something impossible, since the single act of the individual is alone effectual; but in this, that in order to will and to carry out the single act, it is usually necessary to address oneself to the general, of which that individual is a single case; that is, to address oneself to the group, of which the individual is a component part, just as in aiming we generally begin by aiming at the region where is the point upon which the aim will be fixed. Law is not a real and effectual volition; it is without doubt an imperfect and contradictory volition, but for that very reason a preparation for the synthetic and perfect volition. Law, in short, since it is the volition of an abstract, is not a real volition, but an aid to real volition; as (to employ the usual comparison) wooden bridges and scaffoldings are aids to the construction of a house and have not been useless, because they must be pulled down when the house has been built.
Analogy between the practical and the theoretical spirit: practical laws and empirical concepts.
Here the analogy between the constitution of the practical and of the theoretical spirit is again shown to be most exact. We meet with theoretical forms in the latter also, which are not really so and are contradictory in themselves, positing representations that function as universals and universals that are representative: arbitrary forms, in which the will undertakes to command what it is not possible to command, that is to say, representations and concepts, things which precede and do not follow the volitional and practical form. But we know that those fictitious concepts, those formulæ, those laws that are not laws, those admitted falsities, which, therefore, are not falsities, serve as a help to memory, and assist thought in finding its way amid the multiform spectacle of the world, which it must penetrate for itself. We do not think them, but they help us to think; we do not imagine them, but they help us to imagine. Thus the philosopher generally fixes his mind upon the pseudo-concepts, that he may afterwards rise to the universals; and the artist also turns his attention to them that he may find beneath them the individual, the lively and ingenuous intuition that he seeks. The same pseudo-concepts, made the object of volition and changed from formulæ to laws, fulfil an analogous office in the practical spirit, making it possible for the will to will in a certain direction, where it afterwards meets the useful action, which is always individuated.
The promotion of order in reality and representation.
Another aspect of the analogy is not less important. The pseudo-concepts would not be possible, if reality did not offer the like side by side with the unlike; which is not the universal and necessary, but the general, a contingent (so to speak) less contingent than others, a relatively constant variable. Pseudo-concepts are arbitrary, not because they posit the like where is the unlike, but because they make that variable rigid, which is only relatively constant, making of it something absolutely constant and changing the like into the identical. Now the practical spirit, which creates reality, has need to create not only the unlike, but also the like; not only that which lasts an instant, but also that which endures almost unchanged for a year, a century, a millennium, or a millennium of millenniums; not only the individual, but also the species, not only the great man, but also the people, not only the actions that do not occur again, but also those that return periodically, similar, though not identical. Laws fulfil this function, for they constitute what is called the social, or cosmic order. This order, however, is always relative and includes instability in itself; it is a rectilinear figure, which, on being closely examined, reveals itself as also curvilinear. For this reason it is necessary to make laws, and it is necessary to violate, though obeying them in their execution.
Origin of the concept of plan or design.
This function of law as an unreal volition, aiding nevertheless and preparing the real, throws light upon a concept that we have had to reject when exposing the nature and method of functioning of the volitional act; that is to say, on the concept of plan or design or model, as proper to the practical activity, which is said to act by carrying out a pre-established design. We have already demonstrated that design and the execution of the design are in reality all one, and that man acts by changing his design at every instant, because reality, which is the basis of his action, changes. And as in the Philosophy of the practical in general, so in particular in Ethic, the concept of pre-established design has no place; because, if it be true than in ethicity the universal is distinguished from the merely individual action, it is also true that the universal does not exist in concrete, save incorporated and individualized as this or that good action. The universal of ethicity is not a design and cannot be willed for itself outside all individuation, in the same way as to fall in love is to fall in love with an individual and not with love. But that concept of design, proposed for action and carried out by its means, though erroneously adopted in Economy and in Ethic, must nevertheless have its legitimate meaning in some special order of facts; otherwise it would not be possible to make even erroneous use of it. This meaning is to be found, as has been seen, in the fact of laws.
IV
CONFUSION BETWEEN LAWS AND PRACTICAL PRINCIPLES. CRITIQUE OF PRACTICAL LEGALISM AND OF JESUITIC MORALITY
Transformation of principles into practical laws: legalism.
Nothing perhaps better makes clear the true nature of laws than the examination of the very grave errors introduced by their means into the Philosophy of the practical: for, owing to the failure to perceive the character of mere aid proper to their function, laws have been confused with practical principles, these being looked upon as laws and those as principles.
Genesis of the concept of the practically licit and indifferent.
We always live surrounded by innumerable laws, although these are always finite in number. The Decalogue also admonishes: "Take not the name of God in vain"; "Honour thy father and thy, mother"; "Thou shalt not steal"; "Thou shalt commit no murder"; "Thou shalt not covet thy neighbour's house, nor his wife, nor his man-servant, nor his maid-servant, nor his ox, nor his ass, nor anything that is his"; etc. The decalogue or hectalogue of prudence admonishes us: "Raise not up against thee too many enemies "; "Mind your own business"; "Conciliate him who is more powerful than thou"; "Hurt him who hurts thee"; etc. Those laws that are so many and so minute easily lead to the false belief that they suffice together to regulate our economic action and our moral life, and that practical principles can be substituted for and be fully represented by a Decalogue or code, which should be the true and proper regulator of human life.
But the Decalogue, the code, the Corpus juris, ample and minute though they be, are not, as we know, capable of exhausting the infinity of actions conditioned by the infinite variety of facts. Every law brings with it, as its necessary correlative, as the shadow of its light, actions that are indifferent and indifferentiable, the legally indifferent, the licit, the permissible, the right, the faculty of doing or of not doing. As an inevitable consequence of this, practical principles having been conceived as a series or complex of laws, the concept of the practically indifferent must also be posited and the licit changed from legal to practical.
Consequence of this: the arbitrary.
And this is what happens. At every moment of life we find ourselves face to face with actual situations, to which the laws that we possess either do not apply at all, or apply only in the approximative way that we have seen; at every moment of life, we find ourselves without the guidance of the law, face to face with the indifferent and the indifferentiated. The practical man knows well that the laws were a mere help, merely a preparatory stage to action, and that he must in each case face the actual situation as it arises, intuite and perceive it in its originality, and perform his own action with originality. But he who has accepted the legalitarian conception of the practical activity and has abandoned practical principles as useless or looked upon them as non-existent, now that he finds himself abandoned also by the laws, in which he had put too much trust, has no other guide on which to fall back save his own will.
And will is not a guide but the lack of a guide; it is not action but inaction, that is to say, contradictory action; not activity, but passivity, not prudence and good, but imprudence and evil.
Thus the legalitarian conception of practical principles produces neither more nor less than the death of the practical, installing passivity in the place of activity, evil in the place of good.
The legalitarian theory, which proposes to fix and to determine with precision the true concept of freedom, arrives at just the opposite result: the will.
Ethical legalism as simply a particular case of practical legalism.
It is opportune to remark here that moral legalism, which has hitherto alone occupied the attention of critics, is nothing but a particular case of general practical legalism, and if the particular and not the general case has been observed, this has depended upon the failure to recognize the economic form in its autonomy, so common with philosophers. But from the examples that we have given, it has clearly resulted that legalism is an error which embraces alike Economy and Ethic, introducing into both the philosophic absurdity of the practically indifferent. Even a man without moral conscience, or one deprived of it for a moment, if he conceive the guidance of his utilitarian action in the form of laws, loses the compass of his utilitarianism and falls into the arbitrary, which is the ruin of his own individuality. If (to resume the usual example) I impose upon myself the not drinking of wine as a hygienic law, and it happen to me to find myself at a certain moment in such physiological conditions that a glass of wine can accelerate the beating of the heart and restore to me the strength of which I am in need; and if, through faith in the established law, I forget that the law is conditional and not absolute and that the only absolute law is to do at a given moment what is useful at that moment; it is evident that by so reasoning and acting, I am substituting superstition and therefore the arbitrary for prudence and that I am causing injury to myself.
Critique of the practically indifferent.
It is necessary to maintain against the morally and practically indifferent, that it is a concept altogether external to Ethic and Economic and devastates it terribly whenever it penetrates into it, or (what is worse) subtly corrupts it. In Economic as in Ethic, in the true and proper practical field, there is no faculty that is not also obligation; there is no right that is not at the same time a duty; there is nothing licit that is not forbidden; nor permitted that is not turned into a command. πάντα ἔξεστιν, ἀλλ' οὐ πάντα συμφέρει, said St. Paul,[1] in obscure but suggestive language that has been much discussed—all is allowed to us but we do not allow anything—we should say in explanation; everything can and should be spiritually elaborated by the will and receive the form of freedom. But in order to destroy that paradoxical concept at the roots, it is necessary to reach the point underground where the concept of practical legalism is to be found, and to show, as we have done, its origin, in the confusion between principles and laws.
Contests between rigorists and latitudinarians and their common error.
In vain have the rigorists, becoming aware of the ruin that menaced the theory of Ethic, struggled against the theoreticians of the morally indifferent, or latitudinarians. So long as neither party left the legalitarian field, one side was right against the other and both were equally wrong, Pharisees and Sadducees, Jansenists and Molinists. The rigorists clung desperately to the law, refusing to admit that it could be doubtful and give rise to the morally indifferent; the law was certain. But the law is never really either doubtful or certain: revolving upon empirical concepts, it never limits anything with precision and therefore is not certain; having for its object, not concrete action, but only preparation for it, does not propose to limit the illimitable and so is neither uncertain nor doubtful: it stands on this side or the other of such categories. Thus the rigorists also found themselves face to face with the morally indifferent, and had no way of vanquishing it. They could advise the choice of the most painful and repugnant action, self-denial, self-tormenting; but this too was a kind of wilfulness and evil. The latitudinarians, on the other hand, could enlarge the field of the morally indifferent at their pleasure, placing in evidence the dubiety of law and its consequent impotence as a practical principle; but since they did not recognize any practical principle outside the form of law, they were finally obliged to have recourse to it, that they might have some point of orientation in the guidance of their lives. And since they could not find it in the law itself, recognized as doubtful, they were obliged to place it in the authority of its interpreters; and when these authorities were at variance, in the adding up of authorities (just as is done for the Roman jurists in the law of citation made by Theodosius II.); and since, finally, two or three or four or a hundred authorities, when they are uncertain, are not of greater value than one who is equally uncertain, any sort of authority finally had to suffice them as justification for an action. Probabilitism, far from being merely an illegitimate degeneration of legalism, is its logical consequence. Reduced as they were to authority, why should one be of more account than another, when all are estimable people worthy of credence? Why should the precedence be given to Papinian over Paul or over Ulpian? If Villalobos be of opinion that a priest who has committed a moral sin cannot say mass the same day, Sanchez, on the other hand, Jopines that he can: why, then, should a priest who finds himself in that case follow Villalobos rather than Sanchez? It is true that if he make a blind choice between Villalobos and Sanchez, he becomes the prey of self-will; but self-will and legalism are indissoluble, and the more carefully he tries to free himself from the bond, the more tightly it winds itself around him.
Jesuitic morality as doctrine of fraud against the moral law.
Practical legalism can also give rise to a monstrously absurd theory, which we shall call Jesuitic morality, not because it is peculiar to the Jesuits or to Catholicism, but as dutiful homage to the most conspicuous and likewise the most celebrated in literature of its historical incarnations. The theory of Jesuitic morality admits that we can rationally defraud ethical law.
Concept of legal fraud.
That the law is defrauded or eluded every day, taken in itself, is neither moral nor immoral, since it is an expedient of social strife like another, and in certain cases may be a legitimate act of war and a fraud only in name. A law held to be iniquitous should be combated openly; but if the imposer of the iniquitous law, or he who wishes to profit by it, have committed a mistake in drafting it, so that it can be interpreted in such a way as to become good, or at least better, it is very natural that the adversary should profit by the mistake, if for no other reason than that he may discredit the law as equivocal and lacking in precision and compel society to discuss it again. Who does not applaud the fraud of Portia, when it is a question of saving the life of the noble Antonio from a Shylock? And if even the ferox animus of Shylock has found defenders, as symbol of the tenacity with which we must make our own rights respected, yet Portia also will always find her supporters, as symbol of ingenious rebellion against an unjust law.
Absurdity of the fraud against ones self and against the moral law.
But what is altogether irrational and yet seems to be admitted by Jesuitic morality, is the fraud against oneself, and so against one's own moral conscience. To defraud one's own conscience, to rebel against it with violence or with artifice, is contradiction, wilfulness, evil. It sometimes happens that we exert ourselves to still what is called the internal voice of admonition, the Socratic demon, or the guardian angel. This happens in the utilitarian, not less than in the moral field; when, for instance, we yield to a pleasure which we know to be harmful and had intended to avoid for that reason, and when by dint of subtleties we try to persuade ourselves that it differs from that which we had recognized as harmful. We attempt, but we never really succeed; we may be able to obscure our conscience for an instant, but we can never permanently and altogether darken it; the effort itself calls for the light that we would avoid.
Jesuitic morality not explainable as mere legalism.
But that pretension of Jesuitic morality cannot on the other hand derive from mere ethical legalism, because legalism produces the contradictions that we have already placed in relief; it generates the morally indifferent and at the same time suppresses it; and when it has suppressed again generates, in order again to suppress it; and so on to infinity, an anxious and sterile doing and undoing. But it never authorizes fraud. Simple legalism will never justify our pretending to ourselves when a definite action is willed or when we have a definite intention, that we will another action and have a different intention; or, as they say, direction of the intention: the intention is that which it is and it does not allow itself to be directed at will. To obey the letter of the law with the clear intention of breaking it in spirit will never be justified.
Jesuitic morality as alliance between legalism and theological utilitarianism.
The pretension of Jesuitic morality becomes illuminated and transparent to the intellect, only when we make the hypothesis of an alliance between practical legalism and theological utilitarianism; that is to say, when not only do we conceive morality as a series or complex of legislative decisions, but when we likewise consider these to be nothing less than the product of the will of God. They are not in themselves moral as such, and to observe them does not arise of intrinsic necessity; but they are obeyed as the lesser evil, through fear of worse or in hope of future advantage. In this case there is a silent struggle between God the legislator and man, a struggle between the weak and the overbearing, in which the strength of the weak lies in ingenuity, their tactic in fraud. Hence the dominant concept of Jesuit morality: to get the better of the divine laws as far as possible, to do the least possible of what they command; and when called upon to give an account of one's own actions before the tribunal of confession, or before the universal judgment, so to subtilize upon the law, that from the interpretation thus put upon it, what has been done seems to belong to the licit and permissive. God forbids man to kill man; but does he intend to forbid this, when the motive for this killing is the glory of God himself? When the slayer acts as though he were the hand of God himself and is all one with him? Without doubt, no: so that it will be lawful for the Jesuit to kill or cause to be killed his Jansenist adversary, who injures divine interests by disclosing the defects of the holy Company, which is the image of God upon earth: that killing, then, is not only lawful, but ordained. But if he want to kill his adversary, not through zeal for the divine glory, but because of the injury that he causes to the personal and immoral interests of the Jesuit? This too is permitted, provided that when killing him, though animated with personal hate, he withdraw his regard from the real motive, and directing his intention to the divine glory, thus justify the means by the end.
Distinction between the doctrine and the practice of the Jesuits.
Such is the monstrous logical product, born of the union between legalism and the theory of theological utilitarianism; such is the essence of Jesuitic morality, which has justly aroused horror and disgust. And we call it logical (or illogical) product, because we wish to make it clear that here as elsewhere we are occupied with theories only and are criticizing them alone. In practical action Jesuitic morality was often better than the theory would imply; even the Padre Caramuel, who put the question as to the right possessed by the Jesuits of slaying the Jansenists, must have been at bottom a good man; because, having almost arrived at an affirmative conclusion to his inquiry by dint of perverting the moral law, he was seized by pity and defrauded his own fraud, concluding negatively that the Jansenists occidi non possunt quia nocere non potuerunt, because (said he) they are poor devils, unable to obscure the glorious brilliance of the Company, as the owl does not conceal the light of the sun.[2] And Saint Alphonso dei Liguori, who is usually looked upon as an example of that lurid morality in our day, when he set to work to stir up afresh the ugliness of casuistic in connection with the sixth and ninth commandments, experienced all the repugnance of the gallant gentleman that he was, at such a task, imposed upon him by the traditional mode of treating Ethic, as is to be seen by his declarations, exclamations, and exhortations: Nunc aegre materiam illam tractandam aggredimur, cujus vel solum nomen hominum mentes infidi. Det mihi veniam, quaeso, castus lector!... Ora studiosos ... ut ... eo tempore saepius mentem ad Deum elevent et Virgini immaculatae se commendent, ne dum aliorum animos Deo student acquirere, ipsi suarum detrimentum patiantur.[3] If Jesuitism were also moral corruption, this was not due to its abstract theories, but to the education that it practised, which was depressing, servile, and directed to mortify the strength of the will and of the intelligence, to reduce a man to be like senis baculus, a docile and passive instrument in the hands of others; and to the confusion in consciences as to the real motives of actions, which it not only preserved but increased, lulling souls to sleep with sophisms and allurements of devotion aisées à pratiquer, by means of which the gates of Paradise could be unlocked, and with chemins de velours on which one could mount to the sky with every indulgence. The rigorists and latitudinarians are philosophically equivalent; but it is a fact that in practice the rigorists were generally energetic and austere souls; which should not cause us to forget that the latitudinarians also, amid their distorted theories, sometimes had a lucid vision of the complications of reality and felt the necessity of a morality less abstract and less disharmonic in relation to life, however incorrectly they may nevertheless have developed its theory.
[1] 1 Cor. x. 23.
[2] Pascal, Prov. 1. 7.
[3] Theol. moralis7, Bassano, 1773, i. 168.
V
JUDICIAL ACTIVITY AS AN ACTIVITY GENERICALLY PRACTICAL (ECONOMIC)
Legislative activity, as generically practical.
The will that wills classes of actions, or the activity that makes laws and that we can henceforward term legislative activity without fear of misunderstanding, is either moral or merely economic; and therefore, when dialecticized, is either moral or immoral, economic or anti-economic. It is true that this will is abstract and indeterminate; but that does not prevent it from being, and from being obliged to be, either moral or merely economic; and, therefore, abstractly moral and abstractly economic, and so also abstractly immoral and anti-economic. A programme of action will be conceived, as they say, wisely or foolishly, to a good or to a bad end, for mere reasons of utility, or with a lively desire for good. The legislator is a volitional man, and as such to be judged both utilitarianly and morally. The laws that are his volitional product are useful or injurious, good or bad. This judgment is also without doubt abstract, for it is necessary first to see the legislator engaged in the practical act of the application of his law, in order to recognize what he can do and who he is. We know many (others or ourselves?) who make plans for the most beautiful lives, legislating admirably for themselves and for others; yet these show themselves mean and bad in action: and we not infrequently find the opposite case of men who calumniate themselves and who, after they have declared the most dishonest, or at least the most amoralistic, of intentions, when they find themselves face to face with the bad action, ugly with the ugliness of sin, say, as the old man in the fable said to Death: "I have not called thee!"
Vanity of disputes as to the character of institutions, economic or ethic: punishment, matrimony, the State, etc.
From these considerations, which seem to be most obvious, a not obvious consequence is to be drawn; namely, that it is perfectly vain to descant upon the utilitarian or moral character of laws, or of these or those laws; to ask oneself, for instance, whether the object of punishment be deterritio or emendatio; if matrimony be an exchange of services or a sacrament, a union of interests or a society with moral ends; if the State be the result of a contract or of a moral idea, and so on. These questions have an immense literature devoted to them, which has been accumulated for centuries, and although they be vain for us, yet they cannot be so for one who has not yet become clear as to the special forms of the practical activity and as to the nature of law. For him they are not vain, since they represent as it were in a concentrated form, the complete philosophical problem concerning the practical; although they must of necessity turn out to be insoluble. Punishment can be conceived and willed as a mere utilitarian menace, to prevent others from performing certain classes of actions, even if they be ethically of the highest value; or as moral solicitude for the amelioration of society and the individual himself who has erred, by obliging him to re-enter himself and change his mind. Even the pain of death can be directed to this end and death that has given or restored to the guilty a day, an hour, an instant of that human life, of that contact with the infinite, which he had lost, may be held not to have been in vain. Matrimony may be instituted for the more regular satisfaction of the sexual instinct and for other similar interests of utilitarian life; and also to secure, that interpénétration of souls, which is the great mover of the moral life. The State may arise from a mere contract which draws together isolated individuals and groups and unites them for defence and offence; and also form the profound moral aspiration of the individuals, who recognize the universal in themselves and are attentive to realize it in modes ever more rich and more lofty. All institutions, all laws may receive this double form; and although there be laws that are merely utilitarian, those that are moral are also, as is clear, utilitarian or economic, and therefore not useless but useful. An amoral man will make for himself amoral laws; and between an amoral man and an amoral woman no other marriage but that of interest is possible; and between a hundred amoral individuals, no other State is possible but that established by contract; and no other punishment will be applicable in such a State save that of mere deterritio. It will be objected that amoral individuals and multitudes do not exist, and it may be true that they do not exist in a continuous manner: but they do exist at certain moments; and this as we know, suffices to justify, indeed to prove necessary, our theory.
Legislative activity as economic.
Thus no other answer is possible to the question asked as to whether the legislative activity be moral or merely economic, save that it may be the one or the other, and therefore, that it is not of necessity moral; thus, defining it in its full extension, it must be called generically practical, or taken in itself, merely economic.
Juridical activity: its economic character.
Passing now from the legislative activity to that of him who realizes and executes the law (an activity that we may call juridical, in order not to confound it with the other), and asking whether juridical activity be moral or distinct from morality and if distinct, what is its distinctive characteristic, the answer cannot but be most simple for us who have attained to our present position. So simple indeed, that to give it would seem to be almost superfluous. Not only must the activity of carrying out the law not be intrinsically diverse from the activity of legislating, but as has been seen, it obeys exclusively practical principles, economic and ethic. Hence the 'juridical activity can be merely economic and it can be moral; and seeing that economicity is the general form that of itself involves the other, the juridical activity is generically practical, or economic. As such and in so far as it is such, it is at once distinct from and united with the moral form.
Its consequent identity with the economic activity.
But juridical activity does not merely enter the economic activity; it is exactly identical with it: juridical activity and economic activity are synonyms. Legislative activity enters economy and nevertheless distinguishes itself from it, as volition of the abstract, indeterminate volition. The juridical activity is on the other hand concrete and determined, like the other, nor is it distinguished from it by any secondary character. It might be attempted to subdistinguish the economic and juridical activity, while admitting the generic identification, and to look upon the latter as such that although obeying the economic principle, it is yet developed under the laws; whereas the former would exist even where laws were wanting. But the distinction would be empirical, of undulating boundaries. Strictly speaking, man is surrounded with laws in all his actions, and he always acts under all the laws, and at the same time he effectually acts under none of them, save that of his own practical conscience.
If the identity and synonymity of law, understood as juridical activity with economy, has not been discovered, that too is connected with the lack of recognition of the practical utilitarian category on the part of philosophers and with their considering it, as they erroneously did, either as egotism and immorality, or as an altogether empirical division, to which was added a concept, also empirical, of the juridical activity itself, which should be limited to what are called laws emanating from the State, sometimes graciously including in them social laws, and always altogether ignoring the fundamental form, individual laws.
The failure to recognize the economic form and the meaning of the problem concerning the distinction between morality and law.
But this failure of recognition has not prevented the appearance and persistence of the problem of the combined unity and distinction of law and morality, which has been the most frequent though the most complicated mode of affirming the claim of a special Philosophy of economy. A serious beginning of meditation upon law had hardly begun, when something was observed in it that it was impossible to resolve into the concepts of Ethic. Hence the generally admitted recognition of the distinction between law and morality and the many attempts at determining of what the peculiar character of the former exactly consisted.
Theories of compulsion and exteriority, as distinctive characters: critique.
This character was placed most frequently and with greater insistence in the two determinations of compulsion and of exteriority. And it was said that law is distinguished from morality because it is possible to exercize compulsion in the juridical, but not in the moral field; or that law deals with the field of external relations, morality with the internal; or that one is the psychical, the other the physical side of action. But as to the first determination, we have already shown that it has no meaning at all when applied to the forms of the spiritual activity, where nothing is compulsory and everything is at once free and necessary: the juridical activity, if it be activity, must likewise always be determined by free agreement. The second, which is the determination of exteriority, is not less inconceivable; for it is not given to separate the external from the internal, since they are both one, nor the word from its meaning, nor the body from its spirit. Compulsion and exteriority, taken strictly as concepts, are therefore, in this case, void and contradictory formulæ. To fill them somehow with a thought, it would be necessary to understand as compulsion certain modes of action, as opposed to certain other modes; for instance, compulsion would be the action by which an accused person was conducted to prison by two policemen and non-compulsion that of him who should be induced to go and constitute himself a prisoner through the persuasion of others; and as exteriority, certain classes of actions opposed to certain others; so that, for example, the deportment of an individual as communal or provincial councillor would belong to external life, his relations with his confessor or with his Æsculapius to internal life. But compulsion and exteriority, reduced to these meanings, become gross and empirical concepts, of which no use can be made in philosophy and which therefore cannot be of the least value as qualifying and distinguishing law from morality.
In the same way, no value is to be attached to such a distinction, when determined from what is licit to what is commanded, from rights to duties, from what is permitted to what is obligatory; because licit and commanded, rights and duties, from what is permitted to what is obligatory, are correlative concepts constituting an indissoluble nexus and it is not possible to separate and to oppose them to one another.
Moralistic theories of rights: critique.
The difficulty of conveniently fixing the distinction with the characters indicated, leads one to think of a different sort of tentative, according to which rights would certainly be distinguished from ethicity, not placed above or beside it, but rather in the very sphere of morality itself, as the species in respect to the genus or the part in respect of the whole. Juridical action would be moral, but it would belong to the inferior levels of morality; it would be occupied with the execution of simple justice, with the establishment of order, proportion, equality; whereas morality would represent more than justice, and would upset the equilibrium of rights with benevolence, generosity, sacrifice, heroism. Rights (it is also said) are limited to the ethical minimum, while morality strives for the maximum; rights are concerned with strict rights or perfect duties, morality with meritorious and supererogatory actions, imperfect duties. But these determinations also pretend to separate the inseparable, by drawing an arbitrary line of division between small and great actions, between least and greatest, and they employ concepts that are altogether empirical, as, for instance, that of justice as distinct from benevolence, of the strictly obligatory from the meritorious and supererogatory; and worse still than this, metaphors and symbols, such as equality, order, regularity; or they operate directly with the arithmetical and geometrical proportion of actions. And consciously or unconsciously a return is made to Ethic pure and simple, with the theories that make juridical activity to consist of the recognition of others as persons, or with the search for general utility (superindividual). When we act in view of the person in other individuals (or in oneself), or of the useful, which is not the useful for the individual, but although it comprehends, yet transcends it:—the merely juridical conscience has already been surpassed, it has been filled with a moral content, that is to say, an ethical form has been given to the practical activity. The double sense of the terms "rights" and "morality" is in this way preserved in words but denied in fact.
Duality of positive and ideal, historical and natural rights, etc.; and absurd attempts at unification and co-ordination.
The dual sense of the terms is also affirmed by the very ancient distinction between positive and ideal, historical and natural rights, right and justice, or, as it has also been formulated, between the two different justices, realistic and idealistic, fruitful in conjunction. Natural rights, with their homonyms just stated, besides the generically practical significations that we have already examined, have also had the narrower one of ethical ideal or morality; and therefore it cannot cause astonishment that it should appear now conjoined with, now detached from positive rights. But how joined and disjoined? For us it is a question of degrees, whence the positivity of both forms is recognized: the second of these is included in the first: the ideal right or morality (if it be right, and not simply abstract excogitation willed by no one, or vague desire) is both positive and historical. But those who posited the distinction without being able to make it definite and so to dominate it were led to conceive one or the other term as negative; and therefore both as negative between themselves and existing only in a third: which meant to reannul the distinction by reducing it to abstract contradiction. If one of the two were conceived as negative, either the ideal justice (that is, the seriousness of moral strength) was denied and turned to ridicule, or positive justice, that is, the seriousness of volitional strength, was presented as something turbid and impure and at best as a human imperfection, to which it was advisable to resign oneself since it would disappear in a society of perfect men or in a future life of perfection. Juridical activity became something contingent and mortal. Matters were even worse, if it were found impossible to eliminate it with similar religious, apocalyptic, or millenary fancies. The negative was then conceived as positive or co-ordinated with the positive: hence incredible logical divisions of rights into forms or species of moral and immoral rights, of just and unjust rights, in which the species has the function of negation of the genus, almost as though the race of horses were to be divided into two kinds: dead and living horses! Unjust or immoral rights are not rights, but a contradiction of them, and if we sometimes describe in this way a real and effective juridical act (an economic act), it is necessary to observe that the denomination is given from the point of view of a superior form of activity. Rights in themselves as rights, understood positively, are never immoral, but only amoral.
Value of all these theories as confused perception of the amoral character of justice.
All these errors, all these sterile tentatives have their origin, as has been said, in the lively consciousness of a distinction existing between right and morality and at the same time of the impossibility of determining this correctly, owing to lack of clarity as to the purely economic form of the practical activity. When the juridical activity has been identified with the economic and when juridical (economic) activity has in consequence been conceived as at once united with and distinct from morality, we are able to recognize that these attempts have nevertheless fulfilled a very useful function; that is to say, they have more or less energetically asserted and defended the position that there existed a characteristic distinction between right and morality and that it was necessary to seek for it. They are therefore far superior, notwithstanding their errors, to that confused ethical conception, which receives rights and morality indistinctly into its bosom, or to the utilitaristic conception, which arrives by a different route at the same indistinction. This merit belongs to the theories of the moral minimum, of justice, of the two justices and of the contest between positive and ideal rights; but in a much greater degree to that of compulsion, of exteriority, of the licit. With these last was almost unconsciously set in relief the fact that right obeys a law different from that of Ethic, and may be called compelled and not free by comparison with it, because not founded upon the necessity of the universal; that in respect to the supreme interiority of Ethic it can be considered as something exterior; that in respect to the ethical imperative, it appears as something indifferentiated or licit. These are without doubt symbols, tautologies, vague and imprecise phrases, but efficacious in keeping the attention alert and in promoting doubt and research.
Confirmations of this character in the ingenuous consciousness.
But the impossibility of absorbing rights into Ethic altogether and without leaving residues is proclaimed or confessed, not only in the theories of philosophers, but by simple thought, and especially by the consciousness we have of the real world being governed, not by abstract morality, but, as is said, by force, or by the will in action. "Disarmed prophets" will be efficacious in poetry, but ridiculous in practical reality: la force prime le droit, precedes it and is always of greater value than an unreal and contradictory ethical right and aspiration, afterwards dissolved in the empty and arbitrary. We will not recall proverbs, maxims, historical examples, though this would be easy; that little story of Franco Sacchetti which preserves "a fair speech" of Messer Ridolfo da Camerino, will suffice for all. One of his nephews had been at Bologna studying law for a good twelve years, and when, having become an excellent lawyer, he returned to Camerino, he went to pay a visit to Messer Ridolfo. When he paid the visit, Messer Ridolfo said, "And what didst thou do at Bologna?" He replied, "My Lord, I have learned reason." Said Messer Ridolfo, "Thou hast spent thy time ill." The young man replied that the saying seemed to him to be very strange. "Why was it ill spent, my Lord?" And Messer Ridolfo said, "Because thou shouldst have learned force, which is worth two of the other." The youth began to smile, and thinking it over again and again, both he and the others that heard, perceived that what Messer Ridolfo had said, was true.[1]
Comparison between right and language. Grammars and codes.
And here too we are at last able to establish a parallel between the practical and theoretic activity, between the problems of the Philosophy of right and those of Logic and Æsthetic. The comparison of right and language has been several times attempted, with very great correction of thought, although necessarily defective execution, since it was customary to conceive both language and right in an abstract and empirical manner. Whoever should wish to take up the inquiry again would do great service, were he to insist upon the fact that since it has been impossible to understand what language really is, so long as grammars and vocabularies were taken as its reality, so it is impossible to understand anything of rights, so long as the eye is fixed upon laws and codes, or what is even worse, upon the commentaries of jurists, or upon the abstract volitional fact, or altogether upon what is not a true and proper volitional fact, but the elaboration of formulæ and of general concepts.
Logic and language; morality and rights.
Only when rights appear as individual and continually new work of individuals, only when the attention is directed to the spectacle of real life and not to the abstractions of legislators and dispenses with the dissertations of jurists, is it possible to state the problem: how does this juridical work coincide with, and how does it differ from moral work? And here too the comparison with language is fitting, although language be not logicity, yet logical thought cannot become concrete, save in speaking; so moral activity cannot live, save by translating itself into laws and institutes, and in the realization of laws and institutes, that is, in the juridical and economic activity.
Finally, just as the history of a language is always arbitrary and abstract, so long as it is considered alone, outside the works in which the language is incarnate and the true history of a language is its poetry and literature, so the true history of the rights of a people (of the rights that have really been executed and not merely formulated in laws and codes, be often proved to be a dead letter) cannot but be altogether one with the social and political history of that people: an altogether juridical or economic history; a history of wants and of labour.
[1] Novelle, xl.
VI
HISTORICAL ANNOTATIONS
Distinction between morality and rights, and its importance for the history of the economic principle.
I. The history of the distinction between morality and rights is very important, precisely because, as has been said, it is the manifestation of the very strongly—felt desire to posit in some way a philosophy of the aethical or amoral practical form: a manifestation which is the most conspicuous of all those that we have had occasion to note on the subject (theory of politics, theory of the inferior appetitive faculty, theory of the passions, etc.).[1] And owing to the impossibility of satisfying that exigency with the intellectual data possessed, the problem of the relation between rights and morality has become anything but an amusing puzzle, a theme for true vain eloquence.
Emmanuel Kant in the Critique of Pure Reason, wishing to give a characteristic example of the difficulty of definitions, found nothing better to record than that jurists were always seeking a definition of rights, but had never succeeded in finding one.[2] And a jurist philosopher of our times (Jhering) has called the definition of rights, in their difference from morality, the "Cape Horn," or the Cape of tempests (or shipwrecks?) of juridical science.
Indistinction up to the time of Thomas.
The problem of that distinction is on the other hand relatively recent and therefore the history of the Philosophy of rights has rightly been placed not further back than the end of the seventeenth century, or not much beyond Christian Thomas.[3] Up to that time, it is not possible to speak strictly of a Philosophy of rights. Treatises of jurisprudence, of rights and of the State, in regard to what of philosophical they contained, were nothing but treatises of Ethic; not indeed because the two sciences were (as they were) materially united in the same books, but precisely because the two concepts were indistinct. The speculations of antiquity for this part also of the Philosophy of the practical have the character of ingenuousness already noted. It would be incorrect to reconstruct a moralistic philosophy from the rights of Plato, founding it, for example, upon the theory developed in the Gorgias as to the eagerness to purge his punishment that should exist in the criminal, similar, in this respect, to the sick man, who knows that the medicine will free him from his disease.[4] The researches of Aristotle also as to justice (perhaps the best the classical world has left us on the subject), look upon justice in a narrow sense, as a virtue among virtues,[5] which should not intrinsically possess any greater reason for distinguishing itself from the other virtues than they for distinguishing among themselves. The pompous definitions of the Roman jurists, still the joy of schools of jurisprudence and of judges' rhetoric, have no philosophical weight and would in any case confirm the identity of rights with Ethicity, if not absolutely with the entire knowable and practical universe. There is hardly a ray of the distinction to be traced in the discussions as to whether rights exist by nature or by convention and in the concept of a ἁπλῶς δίκαιον, opposed to that of πολιτικὸν δίκαιον found in Plato, and more explicitly in Aristotle,[6] and rendered popular by Cicero when speaking of the recta ratio, naturae congruens, diffusa in omnes, constans, sempiterna; of rights not drawn from the Twelve Tables or from the pretorian Edict, but ex intima philosophia; and of rights that on the other hand are varie et ad tempus descriptae populis, whence they have the name of laws favore magis quam re.[7]
This rough distinction between natural and positive, absolute and relative rights; this concept of an ideal right placed face to face with real rights, or of which the real should be an imperfect and partial translation, also reappears in St. Thomas Aquinas and in other scholastics. And there is nothing more than this in those thinkers who founded what was called natural rights in the seventeenth century, such as Grotius and his followers. It is true that the boast of having distinguished rights from morality and religion has usually been attributed to that historical period. But it is hardly necessary to repeat that what was meant by these formulæ were the great social and political questions which took the form of wars of religion in the Europe of the sixteenth and seventeenth centuries; that so-called distinction, therefore, the result of long strife, though it have great practical value as a sign of social transformation, has no doctrinal value. The idea of autonomy, proper to the juridical activity, is absent even in the profound treatise of Vico on universal rights, for this contains only an altogether empirical distinction between virtus and justitia; of these the first cum cupiditate pugnai, and the second utilitates dirigit et exaequat; and both derive their origin from the vis veri or ratio humana; and as all the virtues are connected and none of them can exist alone (nulla virtus solitaria), so virtus and justitia are at bottom one.[8] The work of Vico, which gives a new conception of the relation between ideal and history and most original applications of Roman history, turns out to be nothing but Ethic, when considered beneath the aspect of Philosophy of Rights. Nor on the other hand could the problem of the nature of rights truly form the object of enquiry on the part of utilitarians (Hobbes and others); with whom, if the absorption of rights in morality was not found, this did not arise because the one was distinguished from the other, but because morality itself was denied in what was proper to itself: the problem of the distinction disappeared, because its terms disappeared.
Thomas and his followers.
II. Thomas provided the apple of discord, or as might also be said, cast the leaven of progress into the treatment of rights, when he distinguished three forms of the rectum: the justum, the honestum, the decorum, placing the first in opposition to the other two, the forum externum to the internum, and attributing to rights and justice the character of coercibility.[9] The formula had a rapid and unsuspected fortune, and became current in the schools. Gundling, for instance, defined right as the "ordering of external relations."[10]
Kant and Fichte.
It was completely developed and reasoned out, with all the strictness that its erroneity permitted, in the doctrines of Kant and Fichte, who were the greatest of Thomas's scholars for this part of the study. Kant opposed legality to morality; the juridical imperative is expressed with the formula, "act externally" (handle äusserlich); right is conjoined with the faculty of compulsion (zwingen.) Hence his doctrines are often amoralistic or economic as regards individual juridical institutions, and this is especially the case when he deals with the State, with matrimony, and with punishment; these were followed by Fichte, who made some reservations for matrimony alone, considering it an institution not only juridical, but also natural and moral.[11] On the other hand rights were for Kant something that surpassed the individual will and utility; it was the sum of the conditions by means of which the will of the one can be united with the will of another, according to a universal law of liberty.[12] Fichte in like manner conceived of rights as altogether free of every admixture of morality; as an objective order, arising from the fact of the individual who coherently affirms himself and his own liberty, thus also affirming other individuals and their liberty.[13] Both philosophers thus preserve the moralistic concept of the legal and the justum; rights, although armed with compelling power, are never force alone, but the external ordering of freedom, namely, justice. For this reason, Kant explicitly excludes force, in so far as it is constitutive of rights and speaks of a "force without law"; and both he and Fichte make coercibility to flow, not from the nature of the volitional force itself, but from the violation of order. It is just, says Kant, to repel force with force, when it would interfere with liberty. The right of coercion (repeats Fichte) is founded solely upon the violation of the original right. But it remains obscure what this poor legality, justice, coexistence, and harmony of wills may be; what force may be and why and how it is connected with the preceding definition is not investigated. The distinction of the juridical from the moral sphere is announced and proclaimed more loudly than perhaps was ever done before or since; but to announce and to proclaim is not to carry out. If rights be changed into an ordinance more or less rational, to be identified with the concept of justice, one does not see how they can exist independently of morality. Kant and Fichte were prevented from conceiving the juridical function free from every element of morality or immorality, by the function which they assigned to compulsion (symbol of law), submitting it to ethical exigencies. In this uncertainty, there cannot be wanting and there is not wanting the thought that rights are not indeed an eternal category, but a historical and transitory fact; and as Spinoza had already said, si cum humana natura ita comparatum esset ut homines id quod maxime utile est maxime cuperent, nulla esset opus arte ad concordiam et fidem; Fichte thus looked upon the juridical State simply as a State of necessity opposed to the State of reason: and when perfection has been attained and there is complete accord of all in the common end, "the State" (he said) "disappears as a legislative and compulsive force."[14]
In the ulterior phase of his thought, Fichte Hegel afterwards took further steps toward a closer union between morality and rights. But the complete resolution of the first in the second is effected in the system of Hegel, though it is customary to blame this philosopher for the opposite fault, namely, that he resolves morality in right. Above all, Hegel would hear nothing of the concept of force in right: facts of force and of violence, as, for instance, the relation between a slave and his master, appertain, according to him, to a circle, which lies on this side of right, to the subjective spirit, to a world in which wrong can still be right. The fact that violence and tyranny are met with in positive rights is an accidental thing and does not affect its real nature. For Hegel, as for his predecessors, co-operation arises only as reaction from the violation of what is just, and is violence preservative of liberty, suppression of the previous violence. "To define abstract and rigorous rights as law which we can be compelled to obey, means" (writes Hegel) "to see them as a consequence of what takes place only by the cross road of wrong." But there is more: abstract rights, which form the first moment of the Philosophy of the practical in Hegel, are unreal; he opposes to them the second moment, morality, which also is abstract and unreal, consisting of the good intention, which has not yet been incorporated in action and life: thus concrete reality is realized only in the third moment, in the ethos, which synthetizes the abstract rights and the abstract morality of the intention in social life.[15] From this it is clear that the purely juridical moment does not possess effective spiritual autonomy for Hegel; so much so, that it is placed by him upon the same plane as abstract and unreal morality. In consequence of his identification of rights with ethicity, Hegel is opposed to Kant and Fichte in his definitions of single rights; he rejects the compulsory and contractual theory of the State and (the Kantian) theory of matrimony as a strict contract made between individuals as to the reciprocal use of their bodies.[16] The compulsory theory of punishment seemed to him to reduce the latter to a mere economic fact, by means of which "the State as judging power, opens a business with goods called crimes exchangeable for other goods, and the code is the list of prices."[17]
Herbart and Schopenhauer.
Herbart too denies the originality of the character of compulsion in the idea of rights, and this is one of his five practical ideas, or, "the agreement of many wills, thought as a rule that eliminates strife." But even in this superficial moralistic reduction, force reappears all of a sudden, one knows not how: society has need of an external bond, in order to subsist; force and power (Macht) are added to society and the State arises.[18] The same contradictions are to be found in Schopenhauer: after he has posited the two virtues of justice and benevolence, he makes a chapter of morality out of the pure doctrine of law. The science of rights in the specific sense borrows this chapter in order to study its opposite: all the limits that morality looks upon as not to be passed without intention of wrong-doing, on the contrary are considered by the science of rights as limits, of which violation by others is not to be tolerated and from which one has the right to expel others. Thus the distinction between internal and external is in this way reproduced in all its unmaintainability under the denomination of rights and their opposite. But the bridge of asses is always the junction of rights with force, that is to say, with the element extraneous to Ethic; and in this connection Schopenhauer has nothing better to offer than a comparison. "As there are certain chemical substances never to be found pure and isolated, but always in some sort of combination with another element, which gives to them the necessary consistency; so rights, when they must set foot in the real world and dominate it, have need of a small adjunct of will and force, in order to be able (notwithstanding its nature, which is really ideal and therefore ethereal) to operate and persist in this real and material world, without evaporating and flying to heaven, as was the case with Hesiod."[19]
Rosmini and others.
Rosmini presents the two elements not well harmonized, as the eudæmonological and the ethical. Rights for him are not mere eudæmonism, but a eudæmonistic fact, produced by moral right and receiving form from it; hence the science of rights "stands between Eudæmonology and Ethic, so that one of its ends extends to the one and the other to the other." It would not be easy to explain and to justify what he calls a mediate science, composed of Eudæmonology and Ethic; and it would be far less easy to explain how this science comes to be "completely distinct" as regards its components. If rights have a moral form, they are moral and not eudæmonological. Owing to this difficulty Rosmini was led to introduce the concept of the licit as criterion of differentiation, defining right as "a personal faculty and power of enjoying, acting and being able to act, a lawful good that must not be impeded by others."[20] Juridically understood this constitutes a tautology, ethically something worse. Other Catholic authors (Taparelli, for example) deplore the separation of ethos from jus, introduced (they say) by Protestant doctrines and the limitation of right to what a man can externally exact from others according to law; "whence it happens that in the enumeration of laws, actions are sometimes posited that are real moral faults in the agent"; maintaining on the contrary the necessity of treating morality and rights together, "for rights are part of morality in the same way that trigonometry and conic sections are a part of geometric theories."[21]
Stahl, Ahrens, Trendelenburg.
III. If Catholic doctrines deserve mention for their conservativism, it is necessary to record the names of Stahl, Ahrens, and Trendelenburg, for no other reason than the great popularity that they enjoyed in the schools. Stahl divides the ethical action of man into two domains, differing in content and character. This dualism is founded upon the double relation of human existence, individual and social, which gives rise to two forms of imperatives: to the imperative of the individual will, of religion, and of morality, and to that which aims at moulding social life and is the imperative of rights. This theory, which has a varied terminology, can be reduced to the theory of exteriority (sociality, rights), and interiority (individuality, morality). In a very similar way Ahrens includes law in the science of the good or Ethic—the fundamental science. He remarks that good intention, virtue, are not sufficient to secure to man that complex of material and spiritual goods of which he has need, and therefore there must be a second mode of effecting in the good, which what is of importance would be, not the motives of the will, but the pursuit of the good and its real existence in life. Trendelenburg (who regrets the classical concept of the identity of Ethic and Law and looks upon the time when they began to be distinguished as a beginning of degeneration) discovers three sides to rights: the logical, the ethical, and the physical (compulsion),[22] of which none, as we see, is truly judicial.
Utilitarians.
For the reasons already indicated, it is not necessary to pause over the juridical ideas of the utilitarians of the eighteenth and nineteenth centuries, whose last celebrated representatives were, in England, Bentham, Austin and Spencer. The German Kirchmann is to be identified with the utilitarian tendency. He reduces morality to the respect inspired, not by the law, but by the person of the legislator, a respect afterwards converted into respect for the law "owing to a peculiarity of human nature, as the result of long custom and exercise." According to this view, rights are defined as "a union of pleasure and morality, whether the first calls the second to its aid or the second the first, in cases when the isolated efficacy of either should prove insufficient." Thus rights are declared to be, not an original principle, but the simple union of two different elements. Jhering failed to surpass utilitarianism, notwithstanding his profound juridical knowledge and his lively intellect. He attempted to impart an original character to his utilitarian theory, by declaring that it was objective in respect to the usual utilitarian theories, but he always remained under the obligation that he had undertaken, of showing how the purest ideality of Ethic could be fortified with such, a conception. The distinctions drawn by Jhering between recompense, compulsion, duty, and love, since they lack a foundation, vacillate and prove but little convincing.[23]
Recent writers of treatises.
IV. Running rapidly through other recent philosophers of Rights, we do not meet with original thoughts that compare with those of Kant, of Fichte, and of Hegel. Lasson conceives of the philosophy of Rights as a part of Ethic and co-ordinates with it three other parts—the philosophy of custom, of morality or doctrine of the virtues and the doctrine of the ethos or of the ethical personality. Rights are the first of these three ethical moments and is concerned with the willing of man as a willing still essentially natural; reason joins it as a force essentially determining and limiting, at first only external; the object of rights is to guarantee the conditions of the common life, in so far as it is the condition for all human ends.—Steinthal recognizes that rights undoubtedly "possess an exteriority altogether opposed to the interiority of Ethic; hence, if they be not apprehended in their profound nature, they may easily be repugnant to moral feeling": they are "the system of modes of compulsion, by means of which are secured social ethical ends." But (we repeat) since the external cannot be separated from the internal, we do not see in what way ethical ends can be distinguished from their modes of realization. Steinthal also says that "Ethic is like a river and Rights like the bed of the river": a comparison that can be variously interpreted, like all comparisons and which for our part we should be disposed to find excellent, were it admitted that as the bed of the river, when it runs dry, yet remains always the bed of a possible river, so Rights can remain without Ethic and yet be always Rights. But the signification in which Steinthal employs that comparison is simply the same as the diad of external and internal; that is to say, he in his turn wishes to distinguish the indistinguishable, so that it would on the contrary be necessary to reply that the bed of the river and the river are not two things but one, because a river without a bed cannot exist and a bed without a river is not the bed of a river.—Schuppe denies that Rights and the State can claim what is immoral, but affirms that all the same they are inferior to the exigencies of morality, because Rights and the State concern individuals in their spatial-temporal concretion, but do not attain to the profundity afforded by conscience in universal. The ethical concept of rights preponderates in Wundt, for he does not conceive of any other object of rights, subjective and objective, save morality. Cohen, in like manner, does not admit other independence to the science of rights save that, of writing in concepts, and of organizing as a system of concepts the rights that is eternally unwritten, the moral law.[24]
As we see, if the names of the writers and sometimes their phraseology change, the thoughts that alternate or combine are always the same. Rümelin, who undertook to criticize a series of definitions of rights, from that of Kant onwards, reproved Kant for having drawn too great a distinction between rights and morality, and others (Ahrens, Stahl, Trendelenburg) for having drawn too little. Finally, he gives his definition in a provisional and tentative manner: "juridical ordinance has the task of assuring to a people that part of the good adapted for realization by a social force, according to universal norms." Jellinek distinguishes the norms of rights from those of religion, of ethicity and of custom, by a triple character: (a) because they are norms for the external conduct of men among themselves; (b) because they derive from a recognized external authority; (c) because their obligatoriness is guaranteed by external powers.—Stammler attaches secondary importance to the element of compulsion, and although he does not explicitly identify justice and morality, assigns to them the same territory, where they should act with different methods, since the perfectionment of the soul, the character and the thought are distinct from right behaviour. And adopting the turn of phrase of a famous proposition of the Critique of Pure Reason, he ends by formulating the following statement: "Justice without love is empty; compassion without a right rule is blind." The Frenchman Duguit transports with greater frankness the centre of rights into morality: he conceives of rights as altogether different from force; not as political, but as limit of force; as consciousness of human solidarity, beneath whose rule we are all placed, State and individual, strong and weak, governors and governed. French philosophers of rights generally oppose the German school, in which the character of force is prominent, so that French juridical philosophy sometimes assumes (for example, in Fouillée) an attitude analogous to that assumed, as we know, by the "generous" French economic school toward the English economists. And merely that some Italian name should not be absent from this review of recent writers, we will record Miraglia, who repeats the old Kantian division, making it yet more empirical: "Morality and rights are part of Ethic, because the good can be chiefly developed in the intimate relations of the conscience, or on the contrary can be developed by preference in the external relations between man and man and between man and thing";—and Vanni, who mixes a little positivistic evolutionism with this empirical reduction, affirming that rights are not originally distinct from morality, but that afterwards they were gradually differentiated, and rights now have the special function of guardianship and guarantee: "that is to say, the ethical minimum alone has been guaranteed, that much of the ethical field as is most directly necessary for the maintenance of life in common, leaving to other forces the task of regulating what is most individual in life." And so on, though it seems that this is enough.[25]
Strident contradictions. Stammler.
Such are the contradictions in which the Philosophy of rights has struggled for about two centuries. Rights do not seem to be identical with Ethic, but they also do not seem to be simply different; they seem to be at once identical and different, but yet it has been found impossible to fix the element of difference with the concepts of external, of compulsion and others such. The thought of a difference between the two forms of activity has not been further eliminated; but neither has it been transformed and absorbed. This is a morbid condition, of which the gravest symptom is the logical absurdity of the aforesaid two rights and two justices. Rümelin talks of the pure ideal justice, which selects from the evidence and judges on the basis of immediate impressions of feeling; and of a realistic, rational, empirical, disciplined and developed justice: two justices that must however act together.[26] Others, seeking relations between those two concepts from a single fact and failing to conquer the difficulty, force logic by distinguishing between concept and ideal of rights, or (as Vanni said) between logical concept and concept of the rational exigencies of rights: as though a concept could be truly logical, if it do not derive from rational exigencies, and as if these can be valid, if they be not the concept itself. Worse still, Stammler affirms the identity of rights with moral rights, and of rights alone with immoral rights, arriving at the already criticized division of effective rights (Gesetzes) into two classes. It "is either right rights (richtiges Recht) or not; and right rights are effective, whose content of will possesses the property of being right. Hence, right rights stand to effective rights as species to genus."[27] To meditate upon this plan of division is more than sufficient to produce the conviction of the failure of the Philosophy of rights, as it has been developed and as it could be developed with the practical presuppositions hitherto admitted. As the result of the direction of studies, from Thomas to the most recent, there remains nothing but the problem itself, as originated by the definitions of Thomas, and become certainly more acute and difficult, owing to later disputes and inquiries, but never solved.
The value of law.
V. Less attention has been bestowed upon the concept of law, upon which it was impossible to obtain full light, on the one hand before the theory of abstract concepts had been developed (representative of class) in their difference from the universal, and on the other before preconceptions as to the necessary social and political character of laws had been discarded.
In antiquity.
But the difficulties contained in that concept had several times been observed in antiquity. In a dialogue between Alcibiades and Pericles, preserved in the Memorabilia, it is asked if all laws be laws, or only those that are just; and it is shown that it does not suffice that a law should be a law, in order to ensure its observance.[28] No true solution, however, was reached in this, as in many questions discussed at this period by Greek philosophy. The Crito is rather a stupendous work of art than a philosophical thesis, for it shows to the life the state of soul of Socrates, and the importance that he attributed to the laws and to the social order: the reason alleged for obedience to them, being placed in the fact that we have tacitly or explicitly agreed to remain within the boundaries of a given state, has in it something of the sophistical. Even in antiquity was seen the necessity of tempering the rigidity of laws by means of the equable, το ἐπιεικέç, which Aristotle defined as the correction of the law where it sins through its character of generality (ἐπανόρθωμα νόμου ᾗ ἐλλείπει διὰ τὸ καθόλου).[29] But it was not possible to escape from empiricism by means of the concept of equity. The law sins, not once, but always, through abstractness, or better, it never sins at all, because its function resides precisely in that abstractness.—In modern times Diderot felt and expressed all the gravity of the conflicts that arise, alike from the observance and from the inobservance of the law, and he expresses this in his Entretien d'un père avec ses enfants sur le danger de se mettre au-dessus des lois. "Mon père (remarks one of the sons at the end of the dialogue), c'est qu'à la rigueur il n'y a pas de lois pour le sage.... Parlez plus bas.... Toutes étant sujettes à des exceptions, c'est à lui qu'il appartient de juger des cas où il faut s'y soumettre ou s'en affranchir.—Je ne serais pas trop fâché (concludes the father), qu'il y eût dans la ville un ou deux citoyens, comme toi; mais je n'y habiterais pas, s'ils pensaient tous de même."[30]
Romanticism.
The attitude of rebellion to the laws showed itself in German thought and literature in the preromanticism of the Sturm und Drang (for instance in the Räuber of Schiller), and in Romanticism properly so called, when among others appeared the theories that limited the State, such as those of Wilhelm von Humboldt, and theories of sexual relations, such as those of Friedrich Schlegel. In the Lucinde is displayed great horror for bourgeois customs and for every sort of constraint, sexual relations being advocated with woman, family, love and fidelity, but without matrimony.
Jacobi.
Jacobi represents this attitude in several of his writings, with great elevation of soul, and especially in the Woldemar (1779, 1794-96), the most lively protest that has ever been made against law in the name of the individual. Here the question treated is precisely whether we should follow the inspirations of our own conscience or the laws of our own people. Sides are taken against "the compulsion and violence exercised by usages, customs, habits, and against those who do not think, save by means of those laws, holding them sacred, with resolute soul and mind inert"; and "that audacious heroic spirit is celebrated, which raises itself above the laws and common morality that it may produce a new order of things." "His heart alone tells man immediately what is good; his heart alone, his instincts only, can tell him immediately: to love it is his life. Reflection teaches him to know and to practise what leads to good. Habit assures and makes his the wisdom that he has acquired." "But this individual initiative," he observes, "may be the cause of abuse and misunderstandings." "Without doubt," replied Jacobi, "but what cannot be misunderstood has little meaning, and what cannot be abused has but little force in use." Men may be divided into two classes; the one exaggerates fear, the other hope and courage. The former are circumspect, always in doubt, they fear the truth because it may be misunderstood, they fear great qualities, lofty virtue, because of the aberrations to which it may give rise; and they have evil always before their eyes. The latter are the bold (who could be called the irreflective in the Platonic sense) and they behave with less exactitude; they are not so perplexed, they trust rather to the voice of their heart than to any word from without; they build rather upon courage than upon virtue, which generally keeps them waiting too long. They sometimes ask themselves with Young: Is virtue then alone baptized and are the passions pagan? "If," says Jacobi, "I must keep to one of these classes, I choose the second." "Yes," he exclaims elsewhere, opposing the abstractness of Kant,—"yes, I am atheist and impious, yes, I will to lie, in opposition to the will that wills nothing, as Desdemona lied when dying, I will to lie and to deceive like Pylades, when he slew himself for the sake of Orestes; I will to slay like Timoleon; to break laws and oaths like Epaminondas and John de Witt; to commit suicide like Otho; to despoil the temple like David; to pluck ears of corn on the Sabbath day, if only because I am hungry and the law is made for man, not man for the law. By the sacrosanct conscience that I have within me, I know that the privilegium aggratiandi for such crimes against the pure letter of the law, rational, absolute and universal, is the sovran right of man himself, the seal of his dignity, of his divine nature."[31] But it must be remarked upon reading these effusions (most sincere, as all that came from the pen of Jacobi), that they are rather manifestations of states of the soul than theories, and therefore, strictly speaking, not to be theoretically censured, as is the case with all affirmations that place in relief one side of reality, without denying the others by doing so.
Hegel.
Hegel discovered this, observing in relation to our last extract: "Neither of the two sides can be wanting to moral beauty, neither its liveliness as individuality, by which it does not obey the dead concept, nor the form of concept and of law, universality and objectivity, which is the side exclusively considered by Kant, by means of the absolute abstraction to which he submitted liveliness, thereby suffocating it. The passage cited as to the liveliness and freedom of the moral life does not exclude objectivity, but does not express it either." Hence the danger of the romantic attitude, which had no need of exhortations such as those of Jacobi, for it already too much preferred magnanimous to honest, noble to moral action; and was much inclined to free itself of the law itself under the pretext of freeing itself from the letter of the law. Meeting empirical with empirical observations, Hegel also remarked that the examples of the violation of laws due to the divine majesty of man, adduced by Jacobi, were conditioned by the natural temperament, by actual situations, and especially by circumstances of supreme misfortune, of supreme and rare necessity, in which few individuals find themselves. "It would be very sad for liberty if it could only prove its majesty and become actual in extraordinary cases of cruel laceration of the moral and natural life and in extraordinary individuals. The ancients, on the other hand, found the highest morality in the life of a well-ordered State." Hegel admitted that the affirmation of Jacobi, "The law is made for man, not man for the law," contained a great truth, when it was intended to allude in this way to the positive or statutory law. But the opposite was also true, when the allusion was to the moral law, taken as universal, outside of which, when the individual was separated from it, there was nothing but appetites and sensible impulses, which can only be means for the law.[32]
But we must not fail to recognize that Hegel does not avail himself of this most exact distinction in his philosophy, for there the dominating motive is respect for the laws and the tendency to attack individual initiative. Hegel repeats many times with complacency the saying of the Pythagorean, that the best way of educating a young man is to make him citizen of a State ruled by good laws; and he remarks that Herculeses belong to primitive and barbarous times, and that individual valour has but a small field in times of culture. He was most averse to criticism of and rebellion against the authority of the State; for these did not seem to him to correspond to the reality of the spirit. That surface is not the reality; at bottom all desire order; and it is necessary to distinguish apparent political sentiment from that which men really will, for within them they will the thing, but hesitate as to particulars, and enjoy the vanity of censuring.[33] Men believe that the State exists and that in it alone are particular interests realized; but habit makes invisible to them that upon which our entire existence depends. There is in short in Hegel, besides the philosopher, a politician and moralist regretful of the excesses of revolutionaries and of unbridled romanticism; and there is also in him the desire for an exact inquiry into the function and limits of positive law.[34]
Recent doctrines.
In recent times there have been many and very various manifestations connected with the concept of this function and of its limits, and it would occupy much space to enumerate and to illustrate them all. We shall mention three, very distant and different. The first, which belongs to the political and social field, is the doctrine of anarchy and is opposed to laws of all sorts; it is a not purely philosophical doctrine, though it involves philosophical questions.[35] The other two, which more properly belong to the juridical field, are, the assertion of the importance of laws and of the duty of defending their existence, even where their violation by others does not interfere with our individual interests, or when their defence costs individual sacrifices (this was the argument of a vigorous little book by Jhering);[36]—and by way of contrast the demand for a free creation of the law by the judge (die freie Rechtsfindung,) which has given rise to discussions that are yet burning, more directly provoked by a little book of Kantorowicz (Gnaeus Flavius).[37]
Natural rights and their dissolution. The historical school of rights.
VI. If then there has not been a great gain in clearness of fundamental concepts, as regards this part of the subject, there has on the contrary been an indubitable advance in consciousness acquired as to the mutability of laws and as to the consequent contradictoriness of the idea of natural Rights. This, with its complement, the catalogue of innate natural and inalienable rights of man, had great success in the seventeenth century for political and social reasons, attaining its highest development in the century following. But it may be said that the doctrine of innate rights was liquidated by Kant in the Metaphysic of Custom, when he wrote the proposition that liberty is the only original and innate rights, which belong to man through his very humanity,[38] at the very moment when it was most energetically affirmed in a practical form in the Declaration of the Rights of Man. In the system of Hegel the constructions of natural rights began to lose their rigidity; becoming indeed historical categories of Ethicity or Sittlichkeit, determinations of the spirits of various peoples (Volksgeister,) which are in their turn determinations of the Absolute or of the Idea. Owing to this view (without taking into account his error of wishing to philosophize and to make dialectical what is historical and empirical), Hegel connected himself closely with the historical school of rights (Hugo, Savigny, etc.). This, notwithstanding the exaggeration by which he seemed to deny the value of the ideal demands made of rights, had the merit of shaking the old conception of natural rights. This has retained its place in treatises from that time onward in a more or less worm-eaten and unstable condition by the force of inertia; or it has been preserved by Catholic writers (by Rosmini not less than by the Padre Taparelli), whose conception is of necessity but little historical; or it has reappeared in those curious Catholics and anti-historians, the positivists (Spencer, Ardigò). But that natural rights are nothing but new historical rights in the struggle of their becoming, is a conviction that has penetrated the general consciousness.
The comparison between rights and language.
We also owe to the historical school the comparison between the life of rights and the life of language; this was prepared by the discoveries of comparative linguistic, which although substantially correct, yet had, as we have observed, the defect of limiting itself to the grammatical form of both facts, not to their genuine and direct reality. Jacobi, in the already quoted effusions of Woldemar, had recourse to the same comparison, for other reasons and with a more exact understanding of its terms; speaking there of the moral infraction of laws, he wrote: "For such exceptions, for such licences of lofty poetry, the grammar of virtue has no definite rules and therefore does not mention them No grammar, least of all the general and philosophical, could contain in itself all that appertains to a living language, and teach how, in every epoch, every dialect must be formed. But it would be unwise to affirm that every one may speak as they feel inclined." And again, "Virtue is free art; and as artistic genius gives laws to art by its creations, so moral genius gives laws to human conduct: just, good, noble, excellent, is what the just, good, noble, and excellent man practises, achieves and produces in conformity with his character; he invents virtue, procures and generates adequate expression for human dignity."[39]
The concept of law, and the studies of comparative Rights and of the general Doctrine of Rights.
VII. The study of the concept of law is also progressing, and henceforth is not confined to so-called juridical laws and to legislations and codes. Researches into primitive rights and into those of savage and barbarous peoples, known as juridical Ethnography or comparative rights, have greatly contributed to destroy many prejudices; as also the attention that has been directed to facts called social, that is to say, not strictly political. A school that has had independent yet partly similar manifestations in England (Austin, Sumner Maine, etc.) and in Germany, where it has taken the name of school of the general Doctrine of Rights (allgemeine Rechtslehre, according to the denomination given to it by Adolph Merkel), studies in particular the concept of law in its various classes and subclasses; and from it there cannot but issue a more correct understanding of the concept of law, as from the refinement of political Economy into pure Economy has come, first Psychology and then the Philosophy of economy. Meanwhile (and as far as we know) the literature of the school, dominated as it is by the needs of jurisprudence, maintains an empirical or intellectualistic character; and jurists, rather than philosophers themselves, are those that most cultivate it. The distinctions and sub-distinctions of the laws are conducted with subtlety, but are without solid foundation, because the concept posited as basis of law is uncertain and arbitrary. Limiting ourselves to a single example, let us mention Bierling, perhaps the most philosophical of those various writers. Bierling first of all excludes from the concept of law the modes of man's conduct toward God, toward himself, and toward animals; but he gives no serious reason for this. He then arrives, by a mere arbitrary act, at the limiting of the concept of law to the manner of men's conduct among themselves, and defines rights in the juridical sense (as he calls it: "in general, all that men living together in any sort of community reciprocally recognize as a norm and rule of this living together"). He then introduces into the concept thus defined, not by deduction, but as the result of a second arbitrary act, the concept of exteriority, adding that, "the object of law is a definite external procedure of man toward man."[40] In all this is evident the bad influence of jurisprudence and of its empirical preoccupations.
legalism and moral casuistic.
VIII. Ethical legalism became a bitter question for Christianity, precisely because of the contest between lofty Christian morality and its legalitarian form, chiefly inherited from Judaism. In the ancient world there is almost no trace of the question, just because the struggle was never acute.[41] Hence the difficulties debated among the patristics and the scholastics as to derogability from divine laws and the consequent distinctions between a perfect and an imperfect moral life, between precepts and counsels; and as recourse is had to precedents in judicial questions, so here with these ethical problems concerning exceptions made by God to the moral law, to the precepts of the Bible (where some were not beautiful).[42] The practical needs of confession give origin to books on casuistic, of which collections exist dating from the fourteenth and fifteenth centuries. The Reformation manifested aversion to these treatises: Luther said that moral theologians had first extinguished in men the fear of God and had then placed soft cushions beneath their hands and feet; and Melanchthon lamented that the Christian Republic was honoured theologastrorum sententiis de conscientiae casiobus, inestricabilibus, ubi nunquam non ex quaestione quaestio nascitur, and called them conscientiarum cauteria.[43]
Probabilitism and Jesuitic morality.
The inconclusiveness of legalism was converted into a most powerful poison by the Jesuits, with their probabilitism, of which precursors were not wanting in the Middle Ages, but it received definite form from the Dominican Bartolomeo Medina in 1577. From that time onward probabilitism began to be surrounded with a copious literature, which continually increased in the course of the seventeenth century, to decline in the century following. The opposition originated by the Jansenists, whose capital literary document, the Provinciales of Pascal also dates from the seventeenth century (1656), was the period of the greatest vigour of the doctrine. But if the most perfect and most Christian moral conscience dwelt in the Jansenists and in Pascal and if the absurd consequences to which probabilitism led became clearly evident in that polemic, yet it cannot be said that philosophically the error was finally superseded. Ere this could have happened, it would have been necessary, on the one hand to destroy all possibility of theological utilitarianism (which was impossible to carry out in a religious and transcendental Ethic, owing to its mystical and irrationalistic character) and on the other to destroy legalism. Pascal himself (and St. Augustine, to whom he appeals) was always confined in the legislative conception of morality; hence he speaks of the laws of "not slaying," which it was necessary to obey strictly, save in the cases established by God or when he gives particular orders to put certain persons to death. The Catholic Church, always astutely political, condemned without hesitation the extreme rigorists, who wish that the law should always be followed and the extreme latitudinarians, who think that any sort of reasons, however slight and improbable, suffice for not observing the law; allowing intermediate sects to discuss among themselves until they were out of breath, that is to say, the moderate rigorists, the probabiliorists or tutiorists, the equiprobabilitists and the probabilitists. Sant Alfonso dei Liguori adhered to these last, who were of opinion that it is always permissible to do what we wish, provided always that there be probable reasons, though less probable than those that militate in favour of the law. In his Dissertatio de usu moderato opinionis probabilis,[44] he thus exposed the principal argument of his thesis: Peto ab adversariis ut indicent (si possunt) tibinam legem hanc esse scriptam invenerint, quod teneamur inter opiniones probabiles probabiliores sequi? Haec lex quidem, prout universalis, deberet omnibus esse nota et certa: at quomodo ista lex certa dici potest, cum communis sententia doctorum, saltem longe major illorum pars, post tantum discrimen absolute asserant, hanc legem non adesse? Usque dum igitur de tali lege dubitatum, opinio quod adsit haec lex sequendi probabiliora, quamvis alicui videatur probabilior, nunquam tamen lex dici potest, sed appellanda erit mera opinio, utpote ex fallibili motivo deducta, quae vim nequaquam habet, ut lex, obligandi. This doctrine still retains in our day very firm supporters among the Jesuits (Cathrein,[45] Lehmkuhl,[46] etc.).
Critique of the concept of the licit.
But if the destruction of theological utilitarianism has been brought about by the criticism of the transcendental and by idealistic Ethic, that of legalism, with its expression as the licit, the permissible, or morally indifferent, appears in Fichte and in Schleiermacher. Kant did not treat the question explicitly and, as observed, we can deduce from certain of his utterances that he did not altogether abandon the concept of the licit.[47]
Fichte.
But Fichte, in a note to his Natural Rights, wrote: "A right is evidently something of which a man can avail himself or not; and is therefore the result of a law that is merely permissive. ... The permission is not expressly given by the law and is deduced by interpretation from its limitation. And the limitation of a law is shown by the fact of its being something conditioned. It is not absolutely apparent, therefore, that a permissive law which commands in an unconditioned manner and therefore extends to all, can be deduced from the moral law."[48]
Schleiermacher.
What was a mere mention in Fichte became an ample demonstration in the celebrated memoir of Schleiermacher, On the Concept of the Licit (1826), which resolutely drove the licit out of the field of Ethic, by demonstrating its altogether juridical nature: "The original seat of this concept cannot be the domain of Ethic, in which it is not admissible: it appertains to the domain of law and of positive law; and there is something originally licit in civil life, precisely in this sense that there is something half-way between what is commanded and what is forbidden, the proper object of law."[49]
Rosmini.
Rosmini, owing to having ignored this origin of the lawful, proceeded to divide human actions into four classes: the prohibited, the licit, the commanded, and the superogatory; the last three were all innocent, but the licit was simply innocent, while the commanded and the superogatory were also furnished with moral value. Hence arose grave errors in his Ethic and in his Philosophy of law and definitions that it is impossible to grasp, such as the following relating to superogatory actions: "The obligatory consists in preserving the moral order, but the superogatory consists in preserving the said order in a more excellent and perfect manner, with fuller, more frequent, and more ardent acts of the will. These second not only preserve the moral order, but augment it, almost creating a part of it themselves with their activity; they make themselves not only followers of the good, but authors of the good itself." Rosmini also considered that the posing of the question of probabilitism represented progress in Ethic; that is, upon "what man should do, if he found himself in doubt as to performing or omitting to perform an action." But the solution of the question that he gave on his account amounted (be it said to his honour) to the annihilation of legalism, since for him a doubtful law does not oblige when it is positive Rights, but it does oblige when it is moral law, that is, when there is a fear of offending against the supreme and necessary law, which wills absolutely to be always fulfilled.[50] In other terms, the true practical law is never (even when it appears to be so) positive law; and the concept of law, which always has a positive meaning, is extraneous to Ethic and to the Philosophy of the practical: a result to which Rosmini does not attain, or at least is not conscious of attaining.
[1] See above, pp. [286], [287].
[2] Krit. d. rein. Vern. (ed. Kirchmann), p. 572.
[3] Lasson, System der Rechtsphilosophie (Berlin, 1882), p. 2.
[4] Gorgias, 476-478.
[5] Eth. Nicom. 3, v. c. 1-2.
[6] Ibid. v. c. 7, 9; Magna Moralia, i. c. 34.
[7] De repudi, iii. c. 22; De legibus, ii. c. 5.
[8] De imo univ. jur. princ. §§41, 43, 86.
[9] Fundamenta juris nat. et gentium (1705).
[10] Windelband, Geschichte d. Phil. p. 424.
[11] Gründl. d. Naturr. (1796), append., sect. I.
[12] Metaphys. d. Sitten, 1797 (ed. Kirchmann), pp. 31-35.
[13] Gründl, d. Naturr. pt. i. sect. 1.
[14] Spinoza, Tract, pol. c. 6, § 3; Fichte, System d. Sittenlehre, § 18 in fine.
[15] Phil. d. Rechts, passim, concerning force and violence, §§ 3, 57, 94.
[16] Op. cit.§ 158, sqq. 161, 258.
[17] Werke, I., p. 371.
[18] Allg. prakt. Phil. pp. 48, 126-128.
[19] Werke, i. 441-445; cf. v. 259-260.
[20] Fil. d. diritto (Napoli, 1844), i. 20-21, 88-89, 94-97.
[21] Saggio teor. d. dir. nat. (Palermo, 1857), in princ.
[22] Stahl, Rechts-u. Staatslehre2 (Heidelberg, 1845), b. ii. ch. I; Ahrens, Naturr. (It. tr., Napoli, 1860), i. 219 sq.; Trendelenburg, Naturrecht auf d. Grunde d. Ethik (Leipzig, 1860).
[23] Kirchmann, Begr. d. Rechtes u. d. Moral2 (Berlin, 1873), pp. 107114; see Jhering, Der Zweck i. Reckt (i.2, 1883; ii.3, 1886).
[24] Lasson, op. cit.; Steinthal, Allg. Ethik (Berlin, 1885), pp. 135-8; Schuppe, Ethik u. Rechtsphil. (Breslau, 1881), pp. 283-4; Wundt, Ethik2 (Stuttgart, 1892),.p. 565 sq.; Cohen, Ethik d. reinen Willens (Berlin, 1904), p. 567.
[25] Rümelin, Reden u. Aufsätze, new series (Freiburg i. B., 1881), p. 342; Jellinek, Allgemeine Staatslehre (Berlin, 1900), p. 302 sq.; Stammler, Lehre v. richtig. Rechte (Berlin, 1902); Duguit, L'État, le droit objectif et la loi positive (Paris, 1901); Fouillée, L'Idée moderne du droit en Allem., en Angl. et en France (Paris, 1876); Miraglia, Fil. d. dir. (Napoli, 1903), p. 80; Vanni, Lez. d. fil. d. dir. (Bologna, 1904), pp. 113-114.
[26] Rümelin, op. cit. pp. 176-202. Cp. Lasson, p. 215 sq.
[27] Op. cit. p. 22. Cf. Bergbohm, Jurisprudenz u. Rechtsphilosophie (Leipzig, 1892), i. 141-147 n.
[28] Mem. i. 2. 40 sq.
[29] Eth. Nicom. Bk. v, c. II.
[30] Œuvres, edit. Assézat et Tourneux, v. (Paris, Gamier, 1875), pp. 307-8.
[31] Woldemar, passim.
[32] Werke, i. 52 sq.; xvi. 21 sq.
[33] Phil. d. Rechts, sect. II. passim; cf. pp. 150, 153.
[34] Op. cit. § 268, Zus.
[35] An ample exposition of such doctrines is to be found in E. Zoccoli, De Anarchia, Turin, 1907.
[36] La Lotta pel diritto, It. tr., Milan, 1875.
[37] La Lotta per la scienza del diritto (It. tr., Palermo, 1908); cf. Critica, vi. pp. 199-201.
[38] Metaphys. d. Sitt. p. 40.
[39] Woldemar, pp. in, 416, and passim.
[40] Bierling, Juristische Prinzipienlehre (Freiburg i. B., 1894-98, 2 vols.).
[41] Sidgwick, History of Ethics, London, 1892, p. III sq.
[42] A. Bonucci, La derogabilità del diritto naturale nella Scolastica, Perugia, 1906.
[43] Hist. remarks in dissert., De casuisticae theologiae originibus, locis atque praestantia (together with De Ligorio, Theol. mor., ed. cit., pp. xxiv-lxxvi).
[44] In Theol. mor. i. 10-24.
[45] Cathrein, Moralphilosophie,4 i. 428-437.
[46] Probabilismus vindicatus (Freiburg, Bk. i., 1906).
[47] See above, p. [405]; cf. also Krit. d. rein. Vern. pp. 10-11 n.
[48] Gründl. d. Naturr. introd. § iii. n.
[49] Werke, sect, iii., vol. ii., pp. 418-445; cf. G. Mayer, Die Lehre vom Erlaubten in der Gesch. d. Ethik seit Schleiermacher, Leipzig, 1899.
[50] Compendio di Etica, pp. 48, 96, 284-285.
[CONCLUSION]
The Philosophy of the Spirit as the whole of Philosophy.
With the Philosophy of the practical terminates the exposition that we had proposed to give of the Philosophy of the Spirit; and the exposition of the whole of Philosophy also terminates, because the Spirit is the whole of Reality.
Here at the end, this proposition has no need of such proof or verification as is customary in calculation. Because the proof of Philosophy is intrinsic to it and consists of the reciprocal confronting of the development of thought and its demands, between the System and Logic. And Logic, as we know, if it be in a certain sense the whole of Philosophy (philosophy in brief or in idea or in potentiality), is also a part among the parts of the philosophical system; so that the confrontation of the System and of Logic, of thought in act and thought in idea, between thought and the thought of thought, has been continuously present and active in the course of the exposition, and the coincidence of the two processes and their confluence into one has been clearly demonstrated.
Correspondence between Logic and System.
Logic affirms the thinkability of the real and the inconceivability of any limit that could be put to thought, of every excogitation of the unknowable. And Philosophy, examining every part of the real, has not found any place in which to lodge the unknowable in thought. Logic posits as the ideal of the concept, that it should be universal and not general, concrete and not abstract; that it should be pure of intuitions such as those of mathematics and differ from them in being necessary and not conventional; fruitful in intuitions like those of the empirical sciences, but differing from them by its infinite fecundity which dominates every possible manifestation of the real. And the system has effectively shown that this desideratum of Logic is not a chimæra and that the Spirit is indeed that concept which corresponds to the ideal of the concept: there is nothing that is not a manifestation of the Spirit (an effectual manifestation, not conventional or metaphorical). Logic, rejecting all dualism or pluralism, wills that the philosophical concept shall be a unique concept or of the One, and does not suffer heterogeneous concepts at its side. And the system has confirmed that the concept of the Spirit alone fulfils the logical condition of the concept; and that the concept of Nature, far from being a concept of something real, is the hypostasis of a manner of elaborating reality, not philosophical but practical; thus the concept itself of Nature, in so far as it is effectual, is nothing but the product of a function of the Spirit.
On the other hand, the Logic of the idea of the concept deduces that it must be a synthesis of itself and of its opposite. For its opposite, far from being heterogeneous and different, is flesh of the flesh and blood of the blood of the concept itself, as negation is of affirmation. And the system has led us before the Spirit or Reality as development, which is the true reality of the real and synthesis of opposites. Logic deduces that the concept is synthesis of itself and of the distinct from itself, of the universal and of the individual, and that therefore Philosophy must flow into History, and mediate its comprehension. And the system shows the capacity of its principles for interpreting the complex reality of History, and above all the history of philosophy itself, by solving its problems. Logic does not admit other distinctions of the concept than those that are the outcome of its own nature, such as the relations of subject-object and of individual-universal; and the system has confirmed these distinctions, duplicating itself as Philosophy of knowledge and Philosophy of action, of theory and of practice; subdividing itself as to the first, into Æsthetic and Logic; as to the second, into Economic and Ethic. And since the demand of the concept has been entirely satisfied, when these divisions have been exhausted, we have not found the possibility of new subdivisions, for example into various æsthetic or into various ethical categories among the particular sub-forms of the Spirit.
Dissatisfaction at the end of every system, and its irrational motive.
Some are seized as with a sense of dissatisfaction and delusion when they arrive at the end of the philosophical system and at the result that there is no reality save the Spirit and no other Philosophy save the Philosophy of the Spirit; and they do not wish to resign themselves to accepting that and nothing else as Reality, although obliged to do so by logical necessity. A world beyond which there is no other seems to them poor indeed; an immanent Spirit, trammelled and far inferior by comparison with a transcendental Spirit, an omnipotent God outside the world; a Reality penetrable by thought, less poetical than one surrounded with mystery; the vague and indeterminate, more beautiful than the precise and determined. But we know that they are involved in a psychological illusion, similar to his who should dream of an art so sublime that every work of art really existing would by comparison appear contemptible; and the dreamer of this turbid dream, should not succeed in achieving a single verse. Impotent are those poets most refined; impotent those insatiable philosophers.
Rational motive: the inexhaustibility of Life and of Philosophy.
But precisely because we know the genesis of their psychological illusion, we know that there is in it (and there could not fail to be) an element of truth. The infinite, inexhaustible by the thought of the individual, is Reality itself, which ever creates new forms; Life is the true mystery, not because impenetrable by thought, but because thought penetrates it to the infinite with power equal to its own. And since every moment, however beautiful, would become ugly, were we to dwell in it, so would life become ugly, were it ever to linger in one of its contingent forms. And because Philosophy, not less than Art, is conditioned by Life, so no particular philosophical system can ever contain in itself all the philosophable; no philosophical system is definite, because Life itself is never definite. A philosophical system solves a group of problems historically given and prepares the conditions for the posing of other problems, that is, of new systems. Thus it has always been and thus it will always be.
In such a sense, Truth is always surrounded with mystery, an ascending to ever higher heights, which are without a summit, as Life is without a summit. At the end of one of his researches every philosopher just perceives the uncertain outlines of another, which he himself, or he who comes after him, will achieve. And with this modesty, which is of the nature of things themselves, not my personal sentiment; with this modesty, which is also confidence that I have not thought in vain, I bring my work to a conclusion, offering it to the well disposed as an instrument of labour.