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.