From these considerations, which seem to be most obvious, a not obvious consequence is to be drawn; namely, that it is perfectly vain to descant upon the utilitarian or moral character of laws, or of these or those laws; to ask oneself, for instance, whether the object of punishment be deterritio or emendatio; if matrimony be an exchange of services or a sacrament, a union of interests or a society with moral ends; if the State be the result of a contract or of a moral idea, and so on. These questions have an immense literature devoted to them, which has been accumulated for centuries, and although they be vain for us, yet they cannot be so for one who has not yet become clear as to the special forms of the practical activity and as to the nature of law. For him they are not vain, since they represent as it were in a concentrated form, the complete philosophical problem concerning the practical; although they must of necessity turn out to be insoluble. Punishment can be conceived and willed as a mere utilitarian menace, to prevent others from performing certain classes of actions, even if they be ethically of the highest value; or as moral solicitude for the amelioration of society and the individual himself who has erred, by obliging him to re-enter himself and change his mind. Even the pain of death can be directed to this end and death that has given or restored to the guilty a day, an hour, an instant of that human life, of that contact with the infinite, which he had lost, may be held not to have been in vain. Matrimony may be instituted for the more regular satisfaction of the sexual instinct and for other similar interests of utilitarian life; and also to secure, that interpénétration of souls, which is the great mover of the moral life. The State may arise from a mere contract which draws together isolated individuals and groups and unites them for defence and offence; and also form the profound moral aspiration of the individuals, who recognize the universal in themselves and are attentive to realize it in modes ever more rich and more lofty. All institutions, all laws may receive this double form; and although there be laws that are merely utilitarian, those that are moral are also, as is clear, utilitarian or economic, and therefore not useless but useful. An amoral man will make for himself amoral laws; and between an amoral man and an amoral woman no other marriage but that of interest is possible; and between a hundred amoral individuals, no other State is possible but that established by contract; and no other punishment will be applicable in such a State save that of mere deterritio. It will be objected that amoral individuals and multitudes do not exist, and it may be true that they do not exist in a continuous manner: but they do exist at certain moments; and this as we know, suffices to justify, indeed to prove necessary, our theory.
Legislative activity as economic.
Thus no other answer is possible to the question asked as to whether the legislative activity be moral or merely economic, save that it may be the one or the other, and therefore, that it is not of necessity moral; thus, defining it in its full extension, it must be called generically practical, or taken in itself, merely economic.
Juridical activity: its economic character.
Passing now from the legislative activity to that of him who realizes and executes the law (an activity that we may call juridical, in order not to confound it with the other), and asking whether juridical activity be moral or distinct from morality and if distinct, what is its distinctive characteristic, the answer cannot but be most simple for us who have attained to our present position. So simple indeed, that to give it would seem to be almost superfluous. Not only must the activity of carrying out the law not be intrinsically diverse from the activity of legislating, but as has been seen, it obeys exclusively practical principles, economic and ethic. Hence the 'juridical activity can be merely economic and it can be moral; and seeing that economicity is the general form that of itself involves the other, the juridical activity is generically practical, or economic. As such and in so far as it is such, it is at once distinct from and united with the moral form.
Its consequent identity with the economic activity.
But juridical activity does not merely enter the economic activity; it is exactly identical with it: juridical activity and economic activity are synonyms. Legislative activity enters economy and nevertheless distinguishes itself from it, as volition of the abstract, indeterminate volition. The juridical activity is on the other hand concrete and determined, like the other, nor is it distinguished from it by any secondary character. It might be attempted to subdistinguish the economic and juridical activity, while admitting the generic identification, and to look upon the latter as such that although obeying the economic principle, it is yet developed under the laws; whereas the former would exist even where laws were wanting. But the distinction would be empirical, of undulating boundaries. Strictly speaking, man is surrounded with laws in all his actions, and he always acts under all the laws, and at the same time he effectually acts under none of them, save that of his own practical conscience.
If the identity and synonymity of law, understood as juridical activity with economy, has not been discovered, that too is connected with the lack of recognition of the practical utilitarian category on the part of philosophers and with their considering it, as they erroneously did, either as egotism and immorality, or as an altogether empirical division, to which was added a concept, also empirical, of the juridical activity itself, which should be limited to what are called laws emanating from the State, sometimes graciously including in them social laws, and always altogether ignoring the fundamental form, individual laws.
The failure to recognize the economic form and the meaning of the problem concerning the distinction between morality and law.