VI
HISTORICAL ANNOTATIONS
Distinction between morality and rights, and its importance for the history of the economic principle.
I. The history of the distinction between morality and rights is very important, precisely because, as has been said, it is the manifestation of the very strongly—felt desire to posit in some way a philosophy of the aethical or amoral practical form: a manifestation which is the most conspicuous of all those that we have had occasion to note on the subject (theory of politics, theory of the inferior appetitive faculty, theory of the passions, etc.).[1] And owing to the impossibility of satisfying that exigency with the intellectual data possessed, the problem of the relation between rights and morality has become anything but an amusing puzzle, a theme for true vain eloquence.
Emmanuel Kant in the Critique of Pure Reason, wishing to give a characteristic example of the difficulty of definitions, found nothing better to record than that jurists were always seeking a definition of rights, but had never succeeded in finding one.[2] And a jurist philosopher of our times (Jhering) has called the definition of rights, in their difference from morality, the "Cape Horn," or the Cape of tempests (or shipwrecks?) of juridical science.
Indistinction up to the time of Thomas.
The problem of that distinction is on the other hand relatively recent and therefore the history of the Philosophy of rights has rightly been placed not further back than the end of the seventeenth century, or not much beyond Christian Thomas.[3] Up to that time, it is not possible to speak strictly of a Philosophy of rights. Treatises of jurisprudence, of rights and of the State, in regard to what of philosophical they contained, were nothing but treatises of Ethic; not indeed because the two sciences were (as they were) materially united in the same books, but precisely because the two concepts were indistinct. The speculations of antiquity for this part also of the Philosophy of the practical have the character of ingenuousness already noted. It would be incorrect to reconstruct a moralistic philosophy from the rights of Plato, founding it, for example, upon the theory developed in the Gorgias as to the eagerness to purge his punishment that should exist in the criminal, similar, in this respect, to the sick man, who knows that the medicine will free him from his disease.[4] The researches of Aristotle also as to justice (perhaps the best the classical world has left us on the subject), look upon justice in a narrow sense, as a virtue among virtues,[5] which should not intrinsically possess any greater reason for distinguishing itself from the other virtues than they for distinguishing among themselves. The pompous definitions of the Roman jurists, still the joy of schools of jurisprudence and of judges' rhetoric, have no philosophical weight and would in any case confirm the identity of rights with Ethicity, if not absolutely with the entire knowable and practical universe. There is hardly a ray of the distinction to be traced in the discussions as to whether rights exist by nature or by convention and in the concept of a ἁπλῶς δίκαιον, opposed to that of πολιτικὸν δίκαιον found in Plato, and more explicitly in Aristotle,[6] and rendered popular by Cicero when speaking of the recta ratio, naturae congruens, diffusa in omnes, constans, sempiterna; of rights not drawn from the Twelve Tables or from the pretorian Edict, but ex intima philosophia; and of rights that on the other hand are varie et ad tempus descriptae populis, whence they have the name of laws favore magis quam re.[7]
This rough distinction between natural and positive, absolute and relative rights; this concept of an ideal right placed face to face with real rights, or of which the real should be an imperfect and partial translation, also reappears in St. Thomas Aquinas and in other scholastics. And there is nothing more than this in those thinkers who founded what was called natural rights in the seventeenth century, such as Grotius and his followers. It is true that the boast of having distinguished rights from morality and religion has usually been attributed to that historical period. But it is hardly necessary to repeat that what was meant by these formulæ were the great social and political questions which took the form of wars of religion in the Europe of the sixteenth and seventeenth centuries; that so-called distinction, therefore, the result of long strife, though it have great practical value as a sign of social transformation, has no doctrinal value. The idea of autonomy, proper to the juridical activity, is absent even in the profound treatise of Vico on universal rights, for this contains only an altogether empirical distinction between virtus and justitia; of these the first cum cupiditate pugnai, and the second utilitates dirigit et exaequat; and both derive their origin from the vis veri or ratio humana; and as all the virtues are connected and none of them can exist alone (nulla virtus solitaria), so virtus and justitia are at bottom one.[8] The work of Vico, which gives a new conception of the relation between ideal and history and most original applications of Roman history, turns out to be nothing but Ethic, when considered beneath the aspect of Philosophy of Rights. Nor on the other hand could the problem of the nature of rights truly form the object of enquiry on the part of utilitarians (Hobbes and others); with whom, if the absorption of rights in morality was not found, this did not arise because the one was distinguished from the other, but because morality itself was denied in what was proper to itself: the problem of the distinction disappeared, because its terms disappeared.