In antiquity.
But the difficulties contained in that concept had several times been observed in antiquity. In a dialogue between Alcibiades and Pericles, preserved in the Memorabilia, it is asked if all laws be laws, or only those that are just; and it is shown that it does not suffice that a law should be a law, in order to ensure its observance.[28] No true solution, however, was reached in this, as in many questions discussed at this period by Greek philosophy. The Crito is rather a stupendous work of art than a philosophical thesis, for it shows to the life the state of soul of Socrates, and the importance that he attributed to the laws and to the social order: the reason alleged for obedience to them, being placed in the fact that we have tacitly or explicitly agreed to remain within the boundaries of a given state, has in it something of the sophistical. Even in antiquity was seen the necessity of tempering the rigidity of laws by means of the equable, το ἐπιεικέç, which Aristotle defined as the correction of the law where it sins through its character of generality (ἐπανόρθωμα νόμου ᾗ ἐλλείπει διὰ τὸ καθόλου).[29] But it was not possible to escape from empiricism by means of the concept of equity. The law sins, not once, but always, through abstractness, or better, it never sins at all, because its function resides precisely in that abstractness.—In modern times Diderot felt and expressed all the gravity of the conflicts that arise, alike from the observance and from the inobservance of the law, and he expresses this in his Entretien d'un père avec ses enfants sur le danger de se mettre au-dessus des lois. "Mon père (remarks one of the sons at the end of the dialogue), c'est qu'à la rigueur il n'y a pas de lois pour le sage.... Parlez plus bas.... Toutes étant sujettes à des exceptions, c'est à lui qu'il appartient de juger des cas où il faut s'y soumettre ou s'en affranchir.—Je ne serais pas trop fâché (concludes the father), qu'il y eût dans la ville un ou deux citoyens, comme toi; mais je n'y habiterais pas, s'ils pensaient tous de même."[30]
Romanticism.
The attitude of rebellion to the laws showed itself in German thought and literature in the preromanticism of the Sturm und Drang (for instance in the Räuber of Schiller), and in Romanticism properly so called, when among others appeared the theories that limited the State, such as those of Wilhelm von Humboldt, and theories of sexual relations, such as those of Friedrich Schlegel. In the Lucinde is displayed great horror for bourgeois customs and for every sort of constraint, sexual relations being advocated with woman, family, love and fidelity, but without matrimony.
Jacobi.
Jacobi represents this attitude in several of his writings, with great elevation of soul, and especially in the Woldemar (1779, 1794-96), the most lively protest that has ever been made against law in the name of the individual. Here the question treated is precisely whether we should follow the inspirations of our own conscience or the laws of our own people. Sides are taken against "the compulsion and violence exercised by usages, customs, habits, and against those who do not think, save by means of those laws, holding them sacred, with resolute soul and mind inert"; and "that audacious heroic spirit is celebrated, which raises itself above the laws and common morality that it may produce a new order of things." "His heart alone tells man immediately what is good; his heart alone, his instincts only, can tell him immediately: to love it is his life. Reflection teaches him to know and to practise what leads to good. Habit assures and makes his the wisdom that he has acquired." "But this individual initiative," he observes, "may be the cause of abuse and misunderstandings." "Without doubt," replied Jacobi, "but what cannot be misunderstood has little meaning, and what cannot be abused has but little force in use." Men may be divided into two classes; the one exaggerates fear, the other hope and courage. The former are circumspect, always in doubt, they fear the truth because it may be misunderstood, they fear great qualities, lofty virtue, because of the aberrations to which it may give rise; and they have evil always before their eyes. The latter are the bold (who could be called the irreflective in the Platonic sense) and they behave with less exactitude; they are not so perplexed, they trust rather to the voice of their heart than to any word from without; they build rather upon courage than upon virtue, which generally keeps them waiting too long. They sometimes ask themselves with Young: Is virtue then alone baptized and are the passions pagan? "If," says Jacobi, "I must keep to one of these classes, I choose the second." "Yes," he exclaims elsewhere, opposing the abstractness of Kant,—"yes, I am atheist and impious, yes, I will to lie, in opposition to the will that wills nothing, as Desdemona lied when dying, I will to lie and to deceive like Pylades, when he slew himself for the sake of Orestes; I will to slay like Timoleon; to break laws and oaths like Epaminondas and John de Witt; to commit suicide like Otho; to despoil the temple like David; to pluck ears of corn on the Sabbath day, if only because I am hungry and the law is made for man, not man for the law. By the sacrosanct conscience that I have within me, I know that the privilegium aggratiandi for such crimes against the pure letter of the law, rational, absolute and universal, is the sovran right of man himself, the seal of his dignity, of his divine nature."[31] But it must be remarked upon reading these effusions (most sincere, as all that came from the pen of Jacobi), that they are rather manifestations of states of the soul than theories, and therefore, strictly speaking, not to be theoretically censured, as is the case with all affirmations that place in relief one side of reality, without denying the others by doing so.
Hegel.
Hegel discovered this, observing in relation to our last extract: "Neither of the two sides can be wanting to moral beauty, neither its liveliness as individuality, by which it does not obey the dead concept, nor the form of concept and of law, universality and objectivity, which is the side exclusively considered by Kant, by means of the absolute abstraction to which he submitted liveliness, thereby suffocating it. The passage cited as to the liveliness and freedom of the moral life does not exclude objectivity, but does not express it either." Hence the danger of the romantic attitude, which had no need of exhortations such as those of Jacobi, for it already too much preferred magnanimous to honest, noble to moral action; and was much inclined to free itself of the law itself under the pretext of freeing itself from the letter of the law. Meeting empirical with empirical observations, Hegel also remarked that the examples of the violation of laws due to the divine majesty of man, adduced by Jacobi, were conditioned by the natural temperament, by actual situations, and especially by circumstances of supreme misfortune, of supreme and rare necessity, in which few individuals find themselves. "It would be very sad for liberty if it could only prove its majesty and become actual in extraordinary cases of cruel laceration of the moral and natural life and in extraordinary individuals. The ancients, on the other hand, found the highest morality in the life of a well-ordered State." Hegel admitted that the affirmation of Jacobi, "The law is made for man, not man for the law," contained a great truth, when it was intended to allude in this way to the positive or statutory law. But the opposite was also true, when the allusion was to the moral law, taken as universal, outside of which, when the individual was separated from it, there was nothing but appetites and sensible impulses, which can only be means for the law.[32]
But we must not fail to recognize that Hegel does not avail himself of this most exact distinction in his philosophy, for there the dominating motive is respect for the laws and the tendency to attack individual initiative. Hegel repeats many times with complacency the saying of the Pythagorean, that the best way of educating a young man is to make him citizen of a State ruled by good laws; and he remarks that Herculeses belong to primitive and barbarous times, and that individual valour has but a small field in times of culture. He was most averse to criticism of and rebellion against the authority of the State; for these did not seem to him to correspond to the reality of the spirit. That surface is not the reality; at bottom all desire order; and it is necessary to distinguish apparent political sentiment from that which men really will, for within them they will the thing, but hesitate as to particulars, and enjoy the vanity of censuring.[33] Men believe that the State exists and that in it alone are particular interests realized; but habit makes invisible to them that upon which our entire existence depends. There is in short in Hegel, besides the philosopher, a politician and moralist regretful of the excesses of revolutionaries and of unbridled romanticism; and there is also in him the desire for an exact inquiry into the function and limits of positive law.[34]