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.