But it is upon the concept of "certitude" that law as distinct from morality properly, according to Vico, rests. The word certitude is used by him in many senses, neither clearly distinguished nor harmonised nor deduced one from another: though they all as we have seen unite, rather confusedly, in the general idea of the spontaneous as distinguished, from the reflective form of the mind. Certitude in its practical signification implies among other things an opposition to the "truth" of volition, and is, in a word, force as against equity and justice, authority as against reason, mere will as against the moral will. These are distinctions occurring to our own thoughts, rather than stated by Vico, who both distinguishes and fails to distinguish. For instance, he affirms that "certitude proceeds from authority, truth from reason" (certuni ab auctoritate est, verum a ratione) and immediately afterwards adds that "it is quite impossible for authority to conflict with reason, for in that case there would be not laws but abortive laws" (auctoritas cum ratione omnino pugnare non potest, nam ita non leges essent, sed monstra legum). At any rate, the New Science seems to him, by reason of this treatment of certitude, to contain a philosophy of authority, which, he adds, "is the source of what theological moralists call external justice." That is to say, he connected the concept of certitude with the distinction and terminology of external and internal, already employed by the scholastic morality, which, used about this time by Christianus Thomasius, were destined without any great philosophical merit on his part to give an impetus to the investigation of the philosophical relations between law and morality.
Another and kindred meaning of practical certitude in Vico is the so-called letter of the law, formula legum; which may stand in opposition to reason and the moral consciousness, but none the less has its own peculiar value: "dura lex, sed certa: durum sed scriptum est—the law is harsh, but it is certain; it is harsh, but so it is written." It is in a word the value of law simply as law, which though devoid of any real ethical content yet has always the value that comes from a command over the will. "The certitude of law" (writes Vico) "is a darkening of the reason supported merely by authority, and makes the law harsh in practical experience by laying down their certitude, which in good Latin (certuni) means particularised, or in the scholastic terminology individualised." To a certain extent Vico grasped the individual character which lies at the root of every law. That one must "judge according to law, not according to example" (legibus non exemplis iudicandum) is a comparatively late principle: the first laws were strictly "exempta," exemplary punishments. From real examples were derived the ideal examples employed by logic and rhetoric: and when the intelligible universal was understood, it was recognised that law had a certain universal character.
The primitive society sketched by Vico is, in its juristic aspect, the myth so to speak of pure law or practical force. Once upon a time men lived possessed of immense bodily strength, and proportionately feeble in understanding, who thought all strength greater than their own divine, and this belief constituted their law. They thought of the gods simply as beings stronger than themselves, whom they were compelled to obey, though with a bad grace: like Polyphemus, who if he had been strong enough would have fought Zeus himself, or Achilles, who told Apollo that if only they were equally matched he would not hesitate to try his strength against him. The wisdom of providence decreed that these fierce men, not tamed as yet by the rule of reason, should at least fear the divine nature of force and measure reason by its standard. This is the foundation of the principle of the "external justice of war." But the myth of the period of force cannot have the strictness of a philosophical concept, and consequently these strong men are considered by Vico from another point of view as ethically the best: "strongest" and "best," fortissimi and optimi, are regarded as synonymous terms: and their law, though not truth or rational law, is not pure certitude, but truth "mixed with certitude," ex certo mixtum. But the very mixture of certitude with, and its preponderance over, truth, which is here asserted, postulates the concept of pure certitude as presupposed by Vico.
When Vico accused Grotius and the school of natural rights of commencing their history half-way, with the civilised ages, and overlooking the earlier periods, the accusation, in its bearing upon the philosophy of practice, may be translated into a charge of ignoring the ideal moment of force and confining the attention to justice, equity and morality. The moment of force, constituting the other and earlier "half," was the field chosen by Hobbes, before him by Machiavelli, and still earlier by Epicurus, all of whom treated of this moment alone, "with impiety towards God, infamy to rulers and injustice towards nations." Hence the conclusion is easy, that in refuting the utilitarians and the theorists of force, Vico was at the same time recognising and absorbing the need which they represented, their only mistake having been that they developed this need in an abstract and one-sided way. His "state of nature" is in some respects like that of Hobbes, with the difference that mankind transcends the latter owing to the recognition of utility, the former owing to the religious and moral consciousness. But Vico does not on this account express any gratitude to Hobbes or Spinoza, Machiavelli or Epicurus, since he believed himself to have found in a classical author all the materials and the stimulus he required, all the counter-poise necessary to the Platonic philosophy. This was one of his "four authors," the one of whom we said earlier that we had still to see the use which Vico made, namely Tacitus. This writer for his part contemplates with his unequalled metaphysical powers man as he is, while Plato contemplates him as he ought to be. Just as Plato in his universal science explores every corner of nobility, so Tacitus "descends into every scheme of utility," in order that among the infinite chaotic chances of malice and fortune the man of practical wisdom may act well. To the union in his mind of Greek philosopher and Roman historian, which he interprets, as is easily seen, in the manner usual among the "Tacitean" politicians of the seventeenth century, Vico attributes his own success in sketching a real idea of eternal history, "which the wise man would construct both of esoteric wisdom such as Plato's, and of common wisdom such as that of Tacitus." To Tacitus, finally, he owed the impulse towards the supreme task of making concrete his ideal, and realising the republic of Plato in the "dregs of Romulus."
[CHAPTER IX]
THE HISTORICAL ASPECT OF LAW
As the cognitive mind passes from feeling without noticing to noticing with disturbed and confused faculties, and thence to the reflection of the clear mind, so analogously the volitional mind passes from the state of nature to practical certitude and thence to practical truth. In the correlative empirical science, the transition is more or less that from the savage to the heroic or barbaric condition and from the latter to the civilised. In these three types of society, all the manifestations of life correspond: thus there are three kinds of character, three kinds of manners and customs, three kinds of law and therefore of states, three kinds of language and writing, three kinds of authority, reason and justice, and three divisions of history. Confused and sometimes self-contradictory though Vico may be in fixing the particulars of these various correspondences, his general idea is plain. Where reflection is at a low ebb and imagination flourishes, the passions also flourish, habits are violent, governments aristocratic or feudal, families subjected to strict paternal rule, laws severe, legal procedure symbolical, language couched in metaphor and writing in hieroglyphics. Where on the other hand reflection predominates, poetry becomes either separate from or charged with philosophy, manners and customs lose their violence, the passions are brought into subjection, the people take the government into their own hands, all members of the family are alike citizens of the state, law is mitigated by equity and its procedure simplified, language loses its metaphorical clothing and writing becomes alphabetical. Mixed forms, which some politicians aim at producing artificially, would be abortions: and though we do find natural hybrid forms which retain a tinge of the earlier, each one, by reason of its own unity, always tries so far as possible to divest its subject of every property belonging to other forms.