The Philosophy of the Practical: Economic and Ethic

by Benedetto Croce

Recent doctrines.

In recent times there have been many and very various manifestations connected with the concept of this function and of its limits, and it would occupy much space to enumerate and to illustrate them all. We shall mention three, very distant and different. The first, which belongs to the political and social field, is the doctrine of anarchy and is opposed to laws of all sorts; it is a not purely philosophical doctrine, though it involves philosophical questions.[35] The other two, which more properly belong to the juridical field, are, the assertion of the importance of laws and of the duty of defending their existence, even where their violation by others does not interfere with our individual interests, or when their defence costs individual sacrifices (this was the argument of a vigorous little book by Jhering);[36]—and by way of contrast the demand for a free creation of the law by the judge (die freie Rechtsfindung,) which has given rise to discussions that are yet burning, more directly provoked by a little book of Kantorowicz (Gnaeus Flavius).[37]

Natural rights and their dissolution. The historical school of rights.

VI. If then there has not been a great gain in clearness of fundamental concepts, as regards this part of the subject, there has on the contrary been an indubitable advance in consciousness acquired as to the mutability of laws and as to the consequent contradictoriness of the idea of natural Rights. This, with its complement, the catalogue of innate natural and inalienable rights of man, had great success in the seventeenth century for political and social reasons, attaining its highest development in the century following. But it may be said that the doctrine of innate rights was liquidated by Kant in the Metaphysic of Custom, when he wrote the proposition that liberty is the only original and innate rights, which belong to man through his very humanity,[38] at the very moment when it was most energetically affirmed in a practical form in the Declaration of the Rights of Man. In the system of Hegel the constructions of natural rights began to lose their rigidity; becoming indeed historical categories of Ethicity or Sittlichkeit, determinations of the spirits of various peoples (Volksgeister,) which are in their turn determinations of the Absolute or of the Idea. Owing to this view (without taking into account his error of wishing to philosophize and to make dialectical what is historical and empirical), Hegel connected himself closely with the historical school of rights (Hugo, Savigny, etc.). This, notwithstanding the exaggeration by which he seemed to deny the value of the ideal demands made of rights, had the merit of shaking the old conception of natural rights. This has retained its place in treatises from that time onward in a more or less worm-eaten and unstable condition by the force of inertia; or it has been preserved by Catholic writers (by Rosmini not less than by the Padre Taparelli), whose conception is of necessity but little historical; or it has reappeared in those curious Catholics and anti-historians, the positivists (Spencer, Ardigò). But that natural rights are nothing but new historical rights in the struggle of their becoming, is a conviction that has penetrated the general consciousness.

The comparison between rights and language.

We also owe to the historical school the comparison between the life of rights and the life of language; this was prepared by the discoveries of comparative linguistic, which although substantially correct, yet had, as we have observed, the defect of limiting itself to the grammatical form of both facts, not to their genuine and direct reality. Jacobi, in the already quoted effusions of Woldemar, had recourse to the same comparison, for other reasons and with a more exact understanding of its terms; speaking there of the moral infraction of laws, he wrote: "For such exceptions, for such licences of lofty poetry, the grammar of virtue has no definite rules and therefore does not mention them No grammar, least of all the general and philosophical, could contain in itself all that appertains to a living language, and teach how, in every epoch, every dialect must be formed. But it would be unwise to affirm that every one may speak as they feel inclined." And again, "Virtue is free art; and as artistic genius gives laws to art by its creations, so moral genius gives laws to human conduct: just, good, noble, excellent, is what the just, good, noble, and excellent man practises, achieves and produces in conformity with his character; he invents virtue, procures and generates adequate expression for human dignity."[39]

The concept of law, and the studies of comparative Rights and of the general Doctrine of Rights.

VII. The study of the concept of law is also progressing, and henceforth is not confined to so-called juridical laws and to legislations and codes. Researches into primitive rights and into those of savage and barbarous peoples, known as juridical Ethnography or comparative rights, have greatly contributed to destroy many prejudices; as also the attention that has been directed to facts called social, that is to say, not strictly political. A school that has had independent yet partly similar manifestations in England (Austin, Sumner Maine, etc.) and in Germany, where it has taken the name of school of the general Doctrine of Rights (allgemeine Rechtslehre, according to the denomination given to it by Adolph Merkel), studies in particular the concept of law in its various classes and subclasses; and from it there cannot but issue a more correct understanding of the concept of law, as from the refinement of political Economy into pure Economy has come, first Psychology and then the Philosophy of economy. Meanwhile (and as far as we know) the literature of the school, dominated as it is by the needs of jurisprudence, maintains an empirical or intellectualistic character; and jurists, rather than philosophers themselves, are those that most cultivate it. The distinctions and sub-distinctions of the laws are conducted with subtlety, but are without solid foundation, because the concept posited as basis of law is uncertain and arbitrary. Limiting ourselves to a single example, let us mention Bierling, perhaps the most philosophical of those various writers. Bierling first of all excludes from the concept of law the modes of man's conduct toward God, toward himself, and toward animals; but he gives no serious reason for this. He then arrives, by a mere arbitrary act, at the limiting of the concept of law to the manner of men's conduct among themselves, and defines rights in the juridical sense (as he calls it: "in general, all that men living together in any sort of community reciprocally recognize as a norm and rule of this living together"). He then introduces into the concept thus defined, not by deduction, but as the result of a second arbitrary act, the concept of exteriority, adding that, "the object of law is a definite external procedure of man toward man."[40] In all this is evident the bad influence of jurisprudence and of its empirical preoccupations.

legalism and moral casuistic.

VIII. Ethical legalism became a bitter question for Christianity, precisely because of the contest between lofty Christian morality and its legalitarian form, chiefly inherited from Judaism. In the ancient world there is almost no trace of the question, just because the struggle was never acute.[41] Hence the difficulties debated among the patristics and the scholastics as to derogability from divine laws and the consequent distinctions between a perfect and an imperfect moral life, between precepts and counsels; and as recourse is had to precedents in judicial questions, so here with these ethical problems concerning exceptions made by God to the moral law, to the precepts of the Bible (where some were not beautiful).[42] The practical needs of confession give origin to books on casuistic, of which collections exist dating from the fourteenth and fifteenth centuries. The Reformation manifested aversion to these treatises: Luther said that moral theologians had first extinguished in men the fear of God and had then placed soft cushions beneath their hands and feet; and Melanchthon lamented that the Christian Republic was honoured theologastrorum sententiis de conscientiae casiobus, inestricabilibus, ubi nunquam non ex quaestione quaestio nascitur, and called them conscientiarum cauteria.[43]