Morals and the Evolution of Man

by Max Simon Nordau

From this tangle of hair-splitting and sophistry, from this muddle of syllogisms, dogmatism and deep-sounding phrases which mean nothing at all, one thought emerges pretty clearly, to wit, that only the highest authority in the State has the right to make laws. On this point there is perfect unanimity; and that is natural, for it is so obvious that it has no need to be circumstantially investigated and proved in the fifty thousand books that have been written on the subject. It is perfectly clear that one cannot possibly force all the members of a state to obey certain commands and prohibitions which the Law contains, unless one is stronger than each one of them, and therefore the Law must necessarily emanate from the highest power in the state. It is beside the point to obscure this simplest and most transparent fact by questions as to the right of the law-giver. He needs no theoretical right since he has the might. To use Kant's expression, positive Law is not a creation of the mind (νουμενον), it is a phenomenon; its existence is a matter of empiricism, not of reason; it is a matter of fact and is under no obligation to justify itself intellectually to the intellect. No law-giver has ever troubled to tack on a preamble or an addition to the law he promulgates proving that he has the right to enact it.

But in the literature dealing with this matter opinions differ widely as to who embodies or possesses the highest power in the state. According to some it is the king, because he wields the sword and therefore can enforce unconditional obedience; according to others it is the Church, because the Law, to be binding, must be moral, and Morality is established by God since the Church is the representative of God on earth. Others again regard the people as a whole as the highest power, because without their assent no law can prevail, and because even the king only has the power of which the people divests itself to transfer it to him. History has advanced beyond this quarrel.

To-day no one dares to dispute the fact that the nation alone is qualified to enact laws for itself through the agency of its chosen representatives, and that no law can be binding for the people without their explicit or tacit consent. In Switzerland, where they have instituted the referendum, the people by their vote can repudiate a law, made by their representatives in their name, before it comes into force; and in the other constitutional states they have recourse to the following expedient: whenever a law is promulgated which seems inacceptable to them, at the next Parliamentary election they vote for men who are pledged to do away with it. The people have the power to make laws, therefore they also have the right to do so, and they do not hesitate to revolt if this right is tampered with. In recent times no nation outside Russia has submitted to having laws forced on it, in framing which it has not co-operated, and which it has not expressly accepted. The United States tore themselves away from the Mother Country with the cry: "No taxation without representation!" and more than a hundred years before that the English people had irrefutably proved to the Stuart king, Charles I, that he had no right to make and unmake laws, by condemning him in a court of law with legal formalities and then having his head cut off by a masked executioner.

The legal code is the concrete form of the Law, and the Law is the crystallization of the most material part of Morality. And as Morality binds every member of the community, as man is only tolerated in the community on condition that he respects Morality, it is a matter of logic that he should also respect the Law; that is to say, that he must not only submit to it because he fears punishment if he fails to do so, but that he must feel obedience to the Law to be part of his Morality, that he must act lawfully at the dictate of his own conscience, and not because of the threat of the power of the state. This might be enunciated as a principle without reservation and without limitation, if in practice the laws always were, as in theory they should be, moral. But this is not necessarily the case. The law is a form, and every form can be abused by filling it with unlawful contents. If an unscrupulous adulterator of wine fills a champagne bottle of the usual shape, complete with metalled and wired cork and a label recommending it, with some disgusting mixture and puts it on the market, he is severely punished for adulteration of food and infringement of the law protecting trade marks. But if the government publish in the Gazette foolish, risky, and perhaps absolutely immoral orders in the form of a law, duly arranged in chapters, articles and paragraphs, as the people are accustomed to seeing their moral laws expressed, who impugns them for it?

The examples of this in history are only too numerous. To this category belong all laws seeking to maintain the validity of state authority at the expense of the natural rights of thinking and feeling men, e.g. all religious persecutions, the maltreatment of socialists, excise laws and duties which hamper freedom of work and movement, or are tantamount to robbing a particular man or all citizens. As a rule, laws of this kind can be imposed upon the people only in a despotically ruled state, since the people in this case has no share in legislation; but constitutional government is no guarantee against it, for parliamentary majorities can be forced to enact tyrannical laws, by fanning the flame of national or party fanaticism, by encouraging prejudices, or by intimidation; this is proved by Bismarck's May laws and Socialist laws, and also by the laws passed by the National Assembly at Versailles against the rebels of the Commune and against Paris. Obedience to such laws cannot reasonably be demanded. Only a Hobbes will dispute this, for whom "everything that the state commands is just, everything that it prohibits is unjust," or the Digest according to which "quod principi placuit, legis habet vigorem" (what pleases the ruler has the force of law). Legal enactments, though they be immoral, are yet formal Law; as a matter of fact, however, they are wrong, and even if their originator has the power by brute force to secure obedience to them, no man who tries to evade them and to get them abolished will be accused of immorality.

A trivial objection strikes one at once. Only a despotic megalomaniac will forbid his subjects to make representations in the proper quarters, and in the proper way, for the purpose of getting a bad law abrogated; but as long as it is in force it must be obeyed. For if every citizen were allowed to make a selection of the laws according to his choice, acquiescing in some and rejecting others, this would lead straight to anarchy. The reply to this is that anarchy, although a terrible evil, is notwithstanding a lesser one than an immoral law, that is, a law which sins against Morality. For the maintenance of law and order which the State guarantees is only preferable to anarchy because it enables individuals to live together in peace, and guarantees liberty of movement and respect for persons, life and property. But if the State acts wrongly, and interferes in the feelings and convictions of individuals, if it uses brute force to compel them to actions and abstentions against which all the good in them rebels, then its law and order is law and disorder, and it is the State itself which brings about a condition of anarchy by making force the ruling factor in the life of the individual. For the latter it is all one whether he has to yield to the force of the State or that of his neighbour. Nay, more, his position is worse in a condition of anarchy caused by the State, than in that which existed before the State was formed, because it is easier to meet force with force, when this emanates from an individual who is one's equal, than when it is exercised by the superior organization of the State. The State which enacts immoral laws denies its own principle and causes its own dissolution.

The intellectual constructions of the eighteenth century, of which the most famous is J. J. Rousseau's "Social Contract," are not taken literally by anyone nowadays. Nobody seriously believes that one day individuals living in a state of nature banded themselves together and made a contract, by virtue of which they renounced certain liberties and rights and transferred them to a superior authority which was to rule them so as to promote the general welfare, peace and happiness. But if the procedure was not quite so simple as this, at least it is certain that the State undertakes the task which Rousseau expressly prescribes as its aim. If, however, through its fault, the fault of its legislation, the welfare of the community suffers, and peace and happiness are not promoted but hindered, disturbed and destroyed, then every citizen has the moral right to revolt against the State and paralyse its pernicious might; not because it has broken a formal contract with its citizens, but because it has become inimical to the peaceful life of mankind, the purpose of every social community. If anyone is troubled at the thought that there is no reliable standard whereby to test the morality of a law and no place indicated where such a measure can be applied, he may take comfort by remembering that all Morality is surrendered to the feelings and judgment of the majority and has no other sanction than this. History teaches us that the majority does not acquit itself too badly of its duty. Public opinion suffices to maintain Morality at a certain level in a community. And if public opinion is capable of ensuring respect for the unwritten law of Morality without the sanctions of State Law, it may surely be recognized as a fit judge of the morality of a law. That is the theory of the right of citizens to defend themselves by all means, even by force, against immoral laws. Practically, it is of no importance, because nowadays, at least in all progressive and liberally governed States, the people have constitutional means at their disposal to prevent or quickly to rid themselves of laws that are obnoxious.

Morality includes the Law, whereas Law is only a part of Morality. Owing to its coercive nature, the Law is obliged to be concrete and material and to ignore all the imponderable, barely perceptible, spiritual and dream-like things which hover round Morality, surround it with an atmosphere and transport it beyond definite boundaries into the realm of the unconscious and visionary. The total exclusion of the element of feeling which Morality includes, constitutes the most profound difference between it and the Law. Law protects order but knows no love. The separation of Law from Morality is due to the pressure of selfishness which thinks it has made the greatest possible concession when it rises to the height of saying with Ulpian: "Neminem laedere. Suum cuique reddere. Honeste vivere." Injure no one; that is, refrain from the ruthless use of force; render to each his own; that is, do not retain in rascally fashion what belongs to another; live honourably; that is, give no offence to your neighbour by disorderly conduct and depravity.

Well and good. At a pinch one can live like that. But the words pity, kindness, love of one's neighbour do not occur in Ulpian's pithy statements, and the Law knows nothing of them.

The Law guards each man's well-earned possessions, but it bids no one make sacrifices. Morality can demand these. It can insist that the individual should freely, and urged by his own inner impulse, impose sacrifices upon himself, reduce his possessions in favour of another, disturb his personal comfort at any moment, perhaps even risk his life; that is to say, that of his own free will he should do just those things from which the Law carefully shields him. Where the Law says: injure no one! Morality says often enough: injure yourself to do good to your neighbour. Where the Law says: to each man his own! Morality not seldom says: to each man your own if he needs it more than you do. Morality counts on the existence of a quality of which the Law has no need: Sympathy. To be moral we must feel in our own being at the time, or retrospectively, the subjective experiences of our neighbour, with the same quality of emotion that he feels; his pain must be our pain, as his pleasure must be our pleasure. For the man who cannot do this—who realizes in his mind the circumstances of his neighbour only as an image, and without the concomitant note of feeling—it is impossible to rise to the height of Morality. It is not his fault, for the gift of sympathy is an organic disposition, which you either do or do not possess, which you can develop or suppress, but which you cannot create if it is lacking. Nevertheless, the lack of sympathy is a pitiable infirmity, for it prevents a man from scaling the heights of Morality.