III. If Catholic doctrines deserve mention for their conservativism, it is necessary to record the names of Stahl, Ahrens, and Trendelenburg, for no other reason than the great popularity that they enjoyed in the schools. Stahl divides the ethical action of man into two domains, differing in content and character. This dualism is founded upon the double relation of human existence, individual and social, which gives rise to two forms of imperatives: to the imperative of the individual will, of religion, and of morality, and to that which aims at moulding social life and is the imperative of rights. This theory, which has a varied terminology, can be reduced to the theory of exteriority (sociality, rights), and interiority (individuality, morality). In a very similar way Ahrens includes law in the science of the good or Ethic—the fundamental science. He remarks that good intention, virtue, are not sufficient to secure to man that complex of material and spiritual goods of which he has need, and therefore there must be a second mode of effecting in the good, which what is of importance would be, not the motives of the will, but the pursuit of the good and its real existence in life. Trendelenburg (who regrets the classical concept of the identity of Ethic and Law and looks upon the time when they began to be distinguished as a beginning of degeneration) discovers three sides to rights: the logical, the ethical, and the physical (compulsion),[22] of which none, as we see, is truly judicial.
Utilitarians.
For the reasons already indicated, it is not necessary to pause over the juridical ideas of the utilitarians of the eighteenth and nineteenth centuries, whose last celebrated representatives were, in England, Bentham, Austin and Spencer. The German Kirchmann is to be identified with the utilitarian tendency. He reduces morality to the respect inspired, not by the law, but by the person of the legislator, a respect afterwards converted into respect for the law "owing to a peculiarity of human nature, as the result of long custom and exercise." According to this view, rights are defined as "a union of pleasure and morality, whether the first calls the second to its aid or the second the first, in cases when the isolated efficacy of either should prove insufficient." Thus rights are declared to be, not an original principle, but the simple union of two different elements. Jhering failed to surpass utilitarianism, notwithstanding his profound juridical knowledge and his lively intellect. He attempted to impart an original character to his utilitarian theory, by declaring that it was objective in respect to the usual utilitarian theories, but he always remained under the obligation that he had undertaken, of showing how the purest ideality of Ethic could be fortified with such, a conception. The distinctions drawn by Jhering between recompense, compulsion, duty, and love, since they lack a foundation, vacillate and prove but little convincing.[23]
Recent writers of treatises.
IV. Running rapidly through other recent philosophers of Rights, we do not meet with original thoughts that compare with those of Kant, of Fichte, and of Hegel. Lasson conceives of the philosophy of Rights as a part of Ethic and co-ordinates with it three other parts—the philosophy of custom, of morality or doctrine of the virtues and the doctrine of the ethos or of the ethical personality. Rights are the first of these three ethical moments and is concerned with the willing of man as a willing still essentially natural; reason joins it as a force essentially determining and limiting, at first only external; the object of rights is to guarantee the conditions of the common life, in so far as it is the condition for all human ends.—Steinthal recognizes that rights undoubtedly "possess an exteriority altogether opposed to the interiority of Ethic; hence, if they be not apprehended in their profound nature, they may easily be repugnant to moral feeling": they are "the system of modes of compulsion, by means of which are secured social ethical ends." But (we repeat) since the external cannot be separated from the internal, we do not see in what way ethical ends can be distinguished from their modes of realization. Steinthal also says that "Ethic is like a river and Rights like the bed of the river": a comparison that can be variously interpreted, like all comparisons and which for our part we should be disposed to find excellent, were it admitted that as the bed of the river, when it runs dry, yet remains always the bed of a possible river, so Rights can remain without Ethic and yet be always Rights. But the signification in which Steinthal employs that comparison is simply the same as the diad of external and internal; that is to say, he in his turn wishes to distinguish the indistinguishable, so that it would on the contrary be necessary to reply that the bed of the river and the river are not two things but one, because a river without a bed cannot exist and a bed without a river is not the bed of a river.—Schuppe denies that Rights and the State can claim what is immoral, but affirms that all the same they are inferior to the exigencies of morality, because Rights and the State concern individuals in their spatial-temporal concretion, but do not attain to the profundity afforded by conscience in universal. The ethical concept of rights preponderates in Wundt, for he does not conceive of any other object of rights, subjective and objective, save morality. Cohen, in like manner, does not admit other independence to the science of rights save that, of writing in concepts, and of organizing as a system of concepts the rights that is eternally unwritten, the moral law.[24]
As we see, if the names of the writers and sometimes their phraseology change, the thoughts that alternate or combine are always the same. Rümelin, who undertook to criticize a series of definitions of rights, from that of Kant onwards, reproved Kant for having drawn too great a distinction between rights and morality, and others (Ahrens, Stahl, Trendelenburg) for having drawn too little. Finally, he gives his definition in a provisional and tentative manner: "juridical ordinance has the task of assuring to a people that part of the good adapted for realization by a social force, according to universal norms." Jellinek distinguishes the norms of rights from those of religion, of ethicity and of custom, by a triple character: (a) because they are norms for the external conduct of men among themselves; (b) because they derive from a recognized external authority; (c) because their obligatoriness is guaranteed by external powers.—Stammler attaches secondary importance to the element of compulsion, and although he does not explicitly identify justice and morality, assigns to them the same territory, where they should act with different methods, since the perfectionment of the soul, the character and the thought are distinct from right behaviour. And adopting the turn of phrase of a famous proposition of the Critique of Pure Reason, he ends by formulating the following statement: "Justice without love is empty; compassion without a right rule is blind." The Frenchman Duguit transports with greater frankness the centre of rights into morality: he conceives of rights as altogether different from force; not as political, but as limit of force; as consciousness of human solidarity, beneath whose rule we are all placed, State and individual, strong and weak, governors and governed. French philosophers of rights generally oppose the German school, in which the character of force is prominent, so that French juridical philosophy sometimes assumes (for example, in Fouillée) an attitude analogous to that assumed, as we know, by the "generous" French economic school toward the English economists. And merely that some Italian name should not be absent from this review of recent writers, we will record Miraglia, who repeats the old Kantian division, making it yet more empirical: "Morality and rights are part of Ethic, because the good can be chiefly developed in the intimate relations of the conscience, or on the contrary can be developed by preference in the external relations between man and man and between man and thing";—and Vanni, who mixes a little positivistic evolutionism with this empirical reduction, affirming that rights are not originally distinct from morality, but that afterwards they were gradually differentiated, and rights now have the special function of guardianship and guarantee: "that is to say, the ethical minimum alone has been guaranteed, that much of the ethical field as is most directly necessary for the maintenance of life in common, leaving to other forces the task of regulating what is most individual in life." And so on, though it seems that this is enough.[25]
Strident contradictions. Stammler.
Such are the contradictions in which the Philosophy of rights has struggled for about two centuries. Rights do not seem to be identical with Ethic, but they also do not seem to be simply different; they seem to be at once identical and different, but yet it has been found impossible to fix the element of difference with the concepts of external, of compulsion and others such. The thought of a difference between the two forms of activity has not been further eliminated; but neither has it been transformed and absorbed. This is a morbid condition, of which the gravest symptom is the logical absurdity of the aforesaid two rights and two justices. Rümelin talks of the pure ideal justice, which selects from the evidence and judges on the basis of immediate impressions of feeling; and of a realistic, rational, empirical, disciplined and developed justice: two justices that must however act together.[26] Others, seeking relations between those two concepts from a single fact and failing to conquer the difficulty, force logic by distinguishing between concept and ideal of rights, or (as Vanni said) between logical concept and concept of the rational exigencies of rights: as though a concept could be truly logical, if it do not derive from rational exigencies, and as if these can be valid, if they be not the concept itself. Worse still, Stammler affirms the identity of rights with moral rights, and of rights alone with immoral rights, arriving at the already criticized division of effective rights (Gesetzes) into two classes. It "is either right rights (richtiges Recht) or not; and right rights are effective, whose content of will possesses the property of being right. Hence, right rights stand to effective rights as species to genus."[27] To meditate upon this plan of division is more than sufficient to produce the conviction of the failure of the Philosophy of rights, as it has been developed and as it could be developed with the practical presuppositions hitherto admitted. As the result of the direction of studies, from Thomas to the most recent, there remains nothing but the problem itself, as originated by the definitions of Thomas, and become certainly more acute and difficult, owing to later disputes and inquiries, but never solved.
The value of law.
V. Less attention has been bestowed upon the concept of law, upon which it was impossible to obtain full light, on the one hand before the theory of abstract concepts had been developed (representative of class) in their difference from the universal, and on the other before preconceptions as to the necessary social and political character of laws had been discarded.