[1] See Filosofia della Pratica, part ii, "L'attività pratica nelle tue forme speciali," pp. 211-319.
[X. THE LAWS][1]
Economic society as an empirical concept—The philosophical concept of society—Sociology, philosophy of law and political science—The definition of law—Laws and customs—The laws, the natural laws and the practical principles—Mutability of the laws: the jus naturale—The function of the laws—Legalism: the Jesuit and the Puritan—The legislative activity as a generically economic activity—The juridical activity—Law and language.
One of the fundamental empirical concepts of the science of economics is that of economic society, which is formed by abstracting certain classes of economic relationships from the mass of relationships of all kinds among which the life of the individual realizes itself. Any treatise of economics can be considered as a definition of economic society; and we know how those definitions are apt to vary according to the choice of the groups of facts studied, and the method employed, by different schools of economists. The economic society of the Marxian is not the economic society of the classical economist; the Catholic economist, differing from both, will include in his treatment the consideration of certain ethical relations which give a greater complexity to his scheme. It would be possible to study the economics of the individual in perfect isolation from all other human beings, limiting the elements of this particular form of society to one man, and that portion of nature from which he draws his food, his clothing, his shelter; on the other hand, the whole of mankind and the whole of nature may enter into a single, all-including, economic body. We may even study animal species, in their relations within themselves, or with man, or with other animal species, or with nature at large, from an economic standpoint (symbiosis and parasitism are facts bearing a close resemblance with human economy)—and thus form an infinite number of new economic societies. Each of these empirical concepts can be varied ad infinitum, by the mere inclusion or exclusion of certain classes of relationships.
The empirical, non-rigorous character of the concept of economic society is self-evident; and it can therefore be usefully employed to prove by analogy the similar character of the concept of society as manufactured by jurists, sociologists, and political scientists. It is against such fictions that philosophy reacts by building a concept of the isolated individual, that is, of the individual isolated from the particular classes of relationships which enter into the formation of particular empirical concepts of society; but it does this only to plunge the individual again in the midst of that infinite multiplicity, which is one aspect, and an essential one, of reality, Society as a philosophical concept cannot be identified with any form of economic or political society; of such, as mere abstractions, no philosophical treatment is possible. Society is that real multiplicity, without which we should have neither knowledge nor action, neither art nor thought, neither utility nor morality; and from society in this sense, the individual cannot be isolated, without reducing him, in his turn, to a merely abstract concept.
The sociologist, the jurist, the political scientist use their concepts of society for their purposes, which are, in the sense which is now familiar to our reader, scientific purposes. But very often they lose sight of the character of these concepts, and treat these instruments of classification and description as substitutes for the actual reality which they are, by reason of their abstractness, utterly unable to reproduce. The sociologist talks of the collective mind, and of collective representations, as if they had a reality outside the thought and action of the individual; the jurist builds a philosophy of law, in which society is opposed to the individual as a being to another being, and law, as a product of society, at every point transcends the individual will. The political scientist deals with the community, or the association, or the State, as with concepts of which it were possible to give a philosophical definition, valid for all times, and from which the rules of perfect government could be rigorously deduced. Of these types of philosophical degenerations of legitimate scientific thought, it can be roughly said that, because of the peculiar cultural development of the various nations of Europe, the first belongs more particularly to England and France, the second to Italy and Germany; though they are all more or less common in European culture as a whole. As an Italian, Croce was particularly interested in the second, the philosophical degeneration of juridical thought, and therefore his particular treatment of the economic facts underlying the problems of political society naturally took the shape of an inquiry into the nature of law. But it ought not to be difficult for the English or American reader, for whom these problems are not part of a practically inexistent philosophy of law, but of a long tradition of political science and theory of government, to translate Croce's thought into terms of his own cultural experience.
A law is an act of will, whose content is a series or class of actions. This definition excludes from the concept of law any empirical social determination; it includes within it all laws which are merely individual, the laws that the individual lays down to and for himself, the rules of conduct and programs of life and action, which the individual follows of his own accord. It may be objected that individual laws differ from social and political laws, because the latter are coercive and constrictive, while the former are not. There is no law, however, that is truly coercive; the individual is always free either to observe or not to observe the law. What a law does is to offer a choice or alternative, and this is as true of individual as of social laws. We may disregard our own rules of conduct or programs of action, and suffer from doing so, and inflict a punishment on ourselves for having done so; or we may alter our individual laws as social laws are altered when they no longer respond to the need of a community, and are either violently overthrown by rebellion or quietly allowed to fall into desuetude through non-observance, or modified by the proper organs of legislation. But the importance of the concept of individual laws lies in the fact that the so-called social laws have no reality outside the individual: in order to observe a law it is necessary to make it one's own, and to rebel against a law is to expel it from one's personality, of which it was, or tried to become, a part. The only real laws are, therefore, individual laws.
If the criterion of sanction or coercion is insufficient to draw a distinction between individual and social laws, we can still less use it to divide the social laws into customs or unwritten laws, and political and juridical laws. Both customs and laws carry with them sanctions, though of a different order, or, to put it in more precise terms, both offer a choice between probable consequences to the free individual will. This distinction, like every other subdivision of the laws (civil, penal, national, international, laws and by-laws, etc.), is a purely empirical one. But the concept of law comprehends these and many more in which the jurists have no interest, such as the literary or artistic laws (that a tragedy should have five acts, or, as at one time in England, that a novel should fill three volumes), or the rules of religious life, or the precepts of chivalry, down to the statutes of a criminal gang and to Balzac's droit parisien. In fact, the empirical distinctions of the laws are coextensive with the empirical concepts of society, and partake of the same characteristics: to the preceding examples of laws correspond respectively the republic of letters, a monastery, the order of knighthood, a band of robbers, and le beau monde. But the only reality, both of the society and of the law, is the individual assent.