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.