The laws have one point in common with the so-called natural laws; both are concerned with empirical concepts, or classes. But while the natural laws are mere indicative statements of fact, the laws can always be translated from the indicative to the imperative; that is, they contain a volitive element which is absent from the natural laws. The volitive element is present, on the other hand, in the practical principles which have some time received the names of moral or economic laws, and which can be converted into such imperatives as Will the universal, or, in particular, Will the good, the useful, the true, the beautiful. But these principles are concerned with the universal, that is, with the spirit of man in the necessary forms of its activity, not with a particular product of the spirit, a class or type of actions, as do laws in the strict meaning of the word. This distinction between the practical principles and the laws opens the way to the recognition of a very important character of the laws: while the practical principles, because of their universality, have no limits and no exceptions (and we have already seen that a morally indifferent action is a contradiction in terms), the laws can never exhaust the universal, and therefore will always leave outside themselves a margin of actions, not included in any of the classes to which they refer, and therefore legally indifferent. In more technical language, we may express the same idea by saying that all laws, whether imperative or prohibitive or permissive (a law, according to the ancient formula, aut iubet aut vetat aut permittit), can be reduced to permissive laws: an order is always at the same time a prohibition, and both orders and prohibitions implicitly permit all actions which are not contemplated by the law.
Moreover, while the practical principles are immutable, always capable of giving form to the most varied historical material, the laws are in perpetual flux and change. The particular modes of change, whether by evolution or revolution, do not concern the philosopher, for whom all can be reduced to a angle one: the free will producing a new law under new conditions. Against the perpetual mutability of the laws, due to the contingent and historical character of their content, clashes the concept of an Eternal Code, or Law of Nature (jus naturale), which presumes to determine the content and form of the laws, according to abstract reason, once and forever. This conception is due to an error with which we are now familiar, consisting in the transformation of empirical concepts into principals of universal validity. But from this particular error, as from all errors, we must distinguish certain elements of actual and concrete thought which have been historically associated with it. In the attempts to establish a Law of Nature, we shall then recognise either new concrete legislative programs, the new laws appearing as natural and rational by contrast with the old ones, or an attempt to deduce from, and through, juridical concepts, the principles of a philosophy of the practical. The principle of nationality, fighting for realization against the old dynastic law, appears to its defenders as a typical natural right; and Rousseau, when deducing the principles of the jus naturale, warns us that he is not dealing with historical truths, but with hypothetical and conventional reasonings, that is, with principles which transcend every particular determination and have not a positive, but an ideal value. We no longer speak of a Law of Nature, but the error which gave rise to that conception is still vigorous in current social and political discussions; every attempt to change legal conditions is always advocated or resisted by an appeal either to natural rights, which are but arbitrary rationalizations of historical contingencies, or to abstract reasons, principles, or ideas, of which the particular laws or institutions are assumed to be the final and necessary expression. But rationality, morality, and naturality, in the sense in which these qualities are predicated of one or another type of laws and institutions, do not belong to any particular historical determination more than to another; they belong only to the spirit of man and to the concrete values that it realizes among the ever-changing conditions of history.
A law, being a volition of a class of actions, and therefore of an abstraction, is in itself an abstract or unreal volition. What we actually will is not the law, but the single, individual action under the law: the reality of the law is only in its execution. In the individual execution, however, what realizes itself is not the law, but the practical principle, economic or ethic, of which both the observance and the non-observance of the law are particular determinations; the individual practical problems can never be foreseen seen by the law, which is by its nature general and abstract. What is then, it may be asked, the use of the laws? Croce's answer is that the laws are helps to the real volition, in the same way as the empirical and abstract concepts, though not real knowledge themselves, are helps to knowledge. In order to determine ourselves to the single action, it is useful to begin by fixing our attention to the class of which that single is an element; in order to know either the individual, or the universal, it is useful to create, between the universal and the individual, classes and types, general concepts, or, as Croce calls them, relatively constant variables, through which the process of actual knowledge is made easier and quicker. We cannot think the pseudo-concepts, but they help us to think; we cannot will the laws, but they help us to will. The concept of law is akin to that of plan or design; in practice, a plan or design, and its execution, are one and the same thing, as we act by constantly changing our design, because reality, which is the foundation of our action, is in perpetual change. But this unreality of the plan, as distinct from the concrete individual action, does not deprive the plan itself of its practical uses, which are universally recognized, and which are identical with the uses of law.
When we identify the empirical laws with the universal practical principles, economic or ethic, we fall into "legalism," which can be defined as the belief that universal principles can be definitely embodied in a limited number of laws, and that, on the other hand, these laws partake of the character of absoluteness which belongs to those principles. It is especially in the treatment of ethics that this confusion has caused its worst effects. The two outstanding types of legalists are the Jesuit, who admits of the morally indifferent, the justification through the intention, the pious fraud, and other practical means for the purely literal observance of the law, supposed to be a sufficient satisfaction of the moral obligation, and the Puritan, who maintains that the unchangeable letter of the law is the only, and always certain, guide of the moral consciousness. Both Jesuit and Puritan, or to give them the names they assumed in a historical controversy, both Molinist and Jansenist, have often been in practice much better than their theories; but we are here interested only in their theoretical pronouncements, which, though apparently contrasting, yet combine in substituting the letter for the spirit, and in drying up, in the name of morality, the living springs of moral activity. And in both cases, moral legalism is associated with theological utilitarianism; it is, in fact, but another aspect of the same error.
The will that wills classes of actions, the legislative activity, is either moral or merely economic, and can therefore be judged as either moral or immoral, economic or anti-economic. But as the laws are will in the abstract, our judgment of the laws will also be an abstract judgment. To pronounce a concrete judgment, we must turn to the moment of the execution of the law, to the individual practical action, in which the law realizes itself. In this sphere, it is vain to dispute whether a law is essentially economic or moral: the economic or moral character of the law is not determined by the abstract intention of the legislator, but by the manner of its execution, by the quality of the individual executor. The punishment which a law assigns for a category of crimes may be intended by the legislator either to deter or to emend the criminal; but in the man who abstains from that particular kind of crime, the law is an economic one if the abstention is entirely due to the fear of the punishment, it is a moral one if it coincides with a sincere abhorrence of the crime. No law, therefore, can be said to be intrinsically moral, and if we want to define the legislative activity in its full extension, we must define it as generically practical or merely economic.
The same definition obviously applies to the will that executes the law, as distinct from the will that formulates it: the juridical activity, as Croce names it, is also generically practical or merely economic, and as such united to and distinct from the moral activity. As the juridical activity, however, does not partake of the abstractness of the legislative, but is as concrete and determined as the economic activity, there is actually no possibility of distinguishing the one from the other; the juridical activity is therefore identical with the economic activity. This is Croce's original solution of the fundamental problem of the philosophy of law; a solution which is closely connected with his recognition of a utilitarian practical category, distinct from but not opposed to the moral category, and with his reduction of all laws to individual laws. The reader must recall what has been said elsewhere of the relations between economic and moral values; and he will then understand in what sense it can be said that Croce's theory of law is an answer to the secular disputes on the relations between law and morality, between positive and ideal law, historical law and the Law of Nature. And he will also be able to perceive the difference between the reduction of the juridical to the mere economic activity, which, as we know, is also the form through which only morality realizes itself, and the theories of law as the pure embodiment of force and of the positive, established right as the only conceivable right, which are nothing but the counterpart of moral utilitarianism in the field of law. Croce's theory of law is, as all the rest of his philosophy is, a purely formal doctrine; not intended to defend one type of laws and institutions against any other, but attempting to furnish a conception of law, as an individual, perpetually new activity of the spirit of man, of which all laws and institutions, all phases and tendencies of political history, appear as concrete historical manifestations.
The philosophy of law has often had recourse to the philosophy of language for analogies by which its own problems could be clarified. A doctrinaire view of the juridical and political problem, for which the origin of law and society is to be found in an abstract convention, and which therefore tends to build up, by new conventions, a model legislation, or an Eternal Code, shows its real nature when related to the corresponding conception of language as a collection of signs, a purely symbolical organism, which can be so perfected by reason as to become an absolute, universal language, embodying in its signs every conceivable type of logical operations: a universal language, which should also be a universal symbolic logic. Sharply opposed to the doctrinaire, the traditionalist views certain types of positive laws and institutions as endowed with a character of necessity which puts them above the reach of the individual judgment of man; and as he fails to discover the ever present creative activity, by which man constructs his juridical and political world, he also withdraws from the human spirit the power to create its own language, and makes of words a divine institution. Equally remote from the sociological as from the theological concept, which are the extreme theoretical forms of popular errors, Croce establishes between law and language an analogy by which both manifest their intrinsic creative and human character. The reality of law is the individual juridical or economic activity, as the reality of language is the concrete intuitive activity. Law is the will of the individual, as language is the knowledge of the individual. Grammars and dictionaries are the codes of language, mere abstractions from the actual living flux of the creative expression, as the written laws and codes are but the grammars of law, mere abstractions from the actual living flux of political history. Language is not logic, and yet the logical thought cannot realize itself except through language; law is not morality, and yet the ethical activity cannot live except by incorporating itself in laws and institutions, and in the execution of laws, the concrete, individual life of institutions, that is, in the juridical and economic activity.
Thus, the end of this exposition of Croce's system, the doctrine of language with which the system opens links itself intimately with this doctrine of law, with which it closes. And both as regards language and as regards law, the last word is, of necessity, a new implicit affirmation of the identity of the philosophical with the historical method. The true history of a language is not a history of abstract grammatical schemes, but the history of the poetry and literature in which that language has realized itself, a history of individual expressions; the true history of law is one with the social and political history of a people, which is, and cannot be but the history of its practical activity in its effective, individual realization, that is, juridical and economic history.
[1] See Filosofia della Pratica, part iii, "Le Leggi," pp. 321-407.