The Philosophy of Giambattista Vico

by Benedetto Croce

The counterpart of this political and domestic system is found in the ordinary life of the period, which was innocent of all luxury, refinement and ease. Pastimes were arduous, such as wrestling and hunting, to harden body and mind, or else dangerous, like jousting or hunting big game, to accustom men to think lightly of wounds and death. Wars were carried on under a religious aspect and were always therefore extremely bitter. From such wars resulted the system of heroic slavery, by which the conquered were held to be men without God, so that they lost civil and natural liberty at once. Foreigners were considered enemies: the earliest nations were intensely inhospitable. Brigandage and piracy were recognised; and Plutarch says that the heroes considered it a great honour and prize of valour to be called "robbers."

It was, in fine, a society immediately proceeding out of that of the gods, which as we know was the climax of the state of nature. In its passage from the prehistoric age as we should say in modern language into the dawn of history it still retained much of the earlier customs, those customs which Vico thinking of the lonely Polyphemus in his cave called "Cyclopean rules." The age of gold out of which it came, innocent, kindly, humane, tolerant and dutiful, as scholars and poets believed, was in reality one perpetual "superstitious fanaticism," tormented by a continual terror of the gods, to placate whom men used to offer human sacrifice, traces of which remain among the historic Phoenicians, Scyths and Germans, the tribes of America and even the Romans themselves, who afterwards substituted for it the ceremony of throwing straw puppets into the Tiber. Even the sacrifice of children was not unknown; memories of it are preserved in Agamemnon's sacrifice of Iphigenia and elsewhere. But in this age of the gods, in spite of or by means of this cruel superstition, were founded the great institutions of humanity; religious cults together with augurial divination, marriage and burial. Weddings, judgment-seats and altars, and the removal of the bodies of the dead from the reach of the malignant air and the wild beasts "taught the human brutes to be pious" as Foscolo says in his Sepolcri, merely versifying Vico's prose. These "Cyclopes" who conjoined and confused in themselves the functions of king, wise man (that is divination) and priest, at first placed their dwellings on the heights of mountains, in places airy and therefore healthy, naturally fortified, and near the perennial springs, where were the nests of eagles and vultures, the birds with which augury dealt. Hence the importance of water and fire, which became symbols of the family; the earliest marriages were solemnised "aqua et igni" between parties who shared a common spring and hearth, and therefore belonged to the same household; so that they must have been between brothers and sisters. The period of the cyclopes was a strongly moral period. It was not true of it that "pleasure and law were one" in the sense fancied by later effeminate poets; for these men, whose minds like those which we may still find among the peasants of to-day were insensible to the refinements of vice, found that alone pleasant which was lawful and that alone lawful which was useful. They were just with the justice of a savage towards his god; continent, for they had made an end of promiscuous intercourse; brave, hard-working and high-spirited, as they were bound to be, surrounded as they were by hardships and perils. It was only later that these primeval groups of humanity descended into the plains and began to till them, and then, from living inland as they did at first, travelled gradually to the sea, learnt the art of navigation and founded colonies.

In this way families or gentes existed before states. States were in fact formed of families grouped into an order of gentes maiores or "ancient noble houses" as they were afterwards called to distinguish them from others added later to the order (for instance at the time of Junius Brutus, to fill the vacancies in the Roman senate after the expulsion of the kings) and called "gentes minores." But these gentes had within themselves an element of differentiation and strife. Families were not composed, as is generally believed owing to the common mistake of giving modern meanings to ancient words, of wives and children alone; but also of slaves, famuli, those who, being less strong and remaining longer in the nomadic state of nature, finally "as sometimes wild animals, driven either by extreme cold or by hunters, to save their life betake themselves to inhabited places" had sought refuge with the stronger, in the fortresses of the fathers. In return for the protection thus granted they tilled the father's land, and were bound and as it were tied to them, and hence called nexi; they followed them and served them, and therefore gained the name of clientes. The relation of slaves to fathers was the second form of human relation, the first being the natural one of matrimony; it constituted the feudal status, which has wrongly been believed peculiar to a certain definite period of barbarism, the Middle Ages, whereas it existed in all heroic societies, and was the eternal feudal principle whence sprang all the republics of the world. As Tacitus says, speaking of the Germans, the chief oath of these slaves and clients was to guard and defend each his own master and to assign to his master's glory his own deeds of valour (suum principem defendere et tueri, sua quoque fortia facta gloriae eius adsignare, praecipuum iuramentum erat); which is one of the severest conditions of the feudal system. Moreover the father's children are rather confused with the slaves than distinguished from them. They are distinguished by their title of liberi, but are identified by their similar position of obedience and lack of separate personality.

The need felt by the fathers of securing themselves against the frequent mutinies of the slaves led to the mutual alliance of fathers, the patrician order and the heroic state. Of this state the slaves constituted the first plebs. They had no citizen's rights, since they were not citizens; no solemnities of marriage, since the auspices were a monopoly of the fathers; nor the right of making wills, since that right had and always kept the political character of a command. They were therefore excluded from the comitia curiata held by the patricians under arms, which survived later for dealing with sacred questions; profane matters being everywhere in the earliest times, at Rome as in Greece and Egypt, considered as sacred. The king of the patricians, whom we have called the magistrate of the order, was thus especially their leader and general in their resistance to the slaves or plebeians.

But the heroes did not provide for the stability of their order by means of forcible resistance alone. Just as, when they abdicated their position of sovereignty in their respective families for one of subordination to the higher sovereignty of the order, they formed a kind of noble or armed feudal system, so to keep their slaves more or less reconciled to obedience they granted them, without admitting them to citizenship, a kind of rustic feudalism. The origin of property is thus explained in a way entirely different on the one hand from the charmingly poetical theory according to which men adorned with all the virtues of the golden age when justice dwelt on earth, foreseeing the disorder that might result from communism, themselves with kindly arbitration marked out the limits of fields, endeavouring not to assign to one nothing but fertile, to another nothing but barren ground; to one a waterless portion, to another one abounding in perennial streams: and different on the other hand from the "philosophical" origin by a voluntary submission to the wise, or that invented by "politician kings" who derived property from violence. The granting of this rustic feudalism, which might be called the first agrarian law, distinguished three kinds of land-tenure: bonitary for the people, quiritary or noble, supported by arms, for the fathers, and eminent, belonging to the whole order. And since the strength of the order rested upon its wealth, it did all in its power to prevent the enrichment of the plebs; and in war—here we see the social motive of the "Roman clemency"—deprived the conquered of their arms only, leaving them in bonitary possession of their lands and imposing upon them a suitable tribute. For the same reason the patricians were very reluctant to go to war, for then the plebeian multitude gained experience of warfare and became dangerous.

The detachment of law from force was slow, and traces of the latter remained in every part of the former. In the heroic republic there were at first no laws providing for the punishment of offences and the restitution of private injuries; hence, failing judiciary laws, arose the need of duels and reprisals, which perpetuated the customs of the age of innocence or of the gods. Poetry and history describe some of these duels, which were armed judgments: for instance, that of Menelaus and Paris under the walls of Troy, and that of the Horatii and Curiatii, between Rome and Alba. It was a plan of divine providence, in order that between barbaric nations of scanty understanding and incapable of listening to reason war should not always beget war: that right and wrong might be to some degree determined by a belief in the favour or disfavour of the gods as the cause of victory or defeat.

These ordeals by battle were accompanied and superseded by ordeals by verbal formulae, used in their religious habit of mind with the most minute and scrupulous exactitude and with care not to alter a single letter (religio verborum). Horatius, who by killing his sister fell under the law "horrendi carminis," could never have been acquitted by the decemvirs, however free from blame they thought him; and the people acquitted him, says Livy, "more through admiration of his valour than the justice of his cause" (magis admiratione virtutis quant iure causae). In later days Roman law still retained this character of verbal precision to such a degree that it forms the crux of several of Plautus's comedies, in which panders are at the mercy of enamoured young men who have led them to violate some legal formula.

The private law of this society corresponded closely with its economic constitution. It was an entirely natural society, confined to the necessaries of life, and did not use money; hence the law knew nothing of contracts formed, according to the law of a later period, by mere consent. All obligations were ratified by giving the hand; the first buying and selling was barter; the rent of a house consisted in a mortgage on the soil for building it, the rent of land in planting it; companies and credit were unknown.

The material character of the first contracts and the forcible character of early legal processes were gradually modified as time went on, and became symbolic. As the fiction of force in marriage-rites recalled the actual force with which the giants dragged the first women into caves, so no less the ceremonies of mancipatio, usucapio and vengeance had formerly been acts really performed. Mancipatio was performed as we said with the actual hand, that is with real force; for instance, in occupation, the original source of all rights of possession; usucapio by the permanent planting of the body upon the thing possessed; vengeance was originally a duel or a "conditio," private retaliation. Then they became ceremonies or fictions: mancipatio became a civil transference with solemn acts and phrases (si quis nexum faciet mancipiumque uti lingua nuncupassit ita ius esto—"If any one makes a thing bond to him and his possession, let the law be so that he publish it with his tongue"); usucapio a tenure which is supposed to last as long as life; retaliation a series of personal actions accompanied by a solemn declaration of them to the debtor. There were worn in the forum as many masks as there were legal personalities, and under the "person" or mask of a paterfamilias were hidden all the children and all the slaves of the house. Instead of abstract forms, which were not yet thought of, living bodily forms were used. Heredity for instance was invented as mistress of hereditary property, and imagined to exist completely in every particular piece of inherited goods; the idea of indivisible right again, was materialised in the glebe or clod of earth presented to the judge with the formula "hunc fundum" This ancient jurisprudence was throughout poetical; its fictions turned facts into falsehoods and falsehoods into facts, made the unborn live, the living dead, and the dead to survive in their posterity. It created numbers of empty legal personalities without subjects (iura imaginaria), rights invented by the imagination; and the formulae in which the laws were expressed were called because of their strict rhythm of such and so many words "verses"—carmina. The fragments of the Twelve Tables, if carefully considered, end their sentences for the most part in an Adonian verse, which is ultimately a fragment of the hexameter metre; and Cicero, realising this, begins his "Laws" with the sentence Deos caste adeunto pietatem adhibento. Cicero also tells us that the Roman boys used to sing the laws of the twelve tables "like a regular song" (tanquam necessarium carmen), and Aelian says the same of the Cretan children and the laws of Minos. The Egyptian laws according to one tradition were "poems of the goddess Isis," and those given by Lycurgus to the Spartans and by Draco to the Athenians were formulated in verse. The whole of the ancient Roman law was a "serious poem," or as Vico says elsewhere a "kind of Roman drama," poema quoddam dramaticum Romanum, performed by the Romans in the forum; and ancient jurisprudence was a "severe poetry."