I might go still further; and, coming back to the concession which I appeared to make in favor of the loud-voiced preachers of the exact sciences, I stand on perfectly firm ground in denying that the excessive importance which a very great number of minds bestows on them, and the exclusive study to which they give themselves up, are for the sciences themselves a condition of progress. What this study can produce is able practitioners, who will solve successfully problems whose data somebody has already furnished them; the artisans of science, who may build up with skill the edifice whose plan they find traced out beforehand; watchful pilots, who by the aid of their compass and marine chart may guide their ship safely into port. But the geniuses capable of discovering new lands, of opening up to science new horizons, you will never find among the minds who have only learnt to navigate by the compass of equation. Not by the aid of formulas are great discoveries made; they are the effect of that sort of divination which those intelligences possess which are accustomed to raise themselves in all things to the most general principles, and grasp in the variety of phenomena the analogy of laws. If Kepler had only proceeded by the aid of formulas, he would never have discovered the laws of worlds; and Leibnitz would undoubtedly have been a far less distinguished geometrician had he not been an equally eminent philosopher.
We may, then, affirm that the study of philosophy—which is necessary to enlarge the mind of the scholar—is of immense utility in the advancement of the sciences, even of those very ones which seem to have the least connection with this queen of sciences.
II.
NECESSITY OF PHILOSOPHY FOR THE FORMATION OF THE JURISCONSULT.
If it is thus with the sciences whose objects are distinct from that of philosophy, what shall we say of jurisprudence, which treats of the rights and duties of the members of human society? Here the connection is much more direct, since the object which we are about to indicate is precisely that which moral philosophy treats of. Between the two sciences there is no other difference than this: while moral philosophy treats only of essential rights and duties, that is to say, of those which result from the very nature of man, and depend on the necessary will of the Creator, jurisprudence has for its more particular object those rights which are derived immediately from the civil authority, and which have been established by a positive law. But who does not see that this second species of rights and duties presupposes the first and leans upon it for its necessary support? In order to proceed rationally to the study of the acts of civil authority, and take into account the duties which it imposes, we must know whence proceeds this authority, from whom does it hold the right of making laws, what is its mission, and how far does its power extend. We must know also what is law, what are its conditions, when it begins and when it ceases to compel, what are the causes which dispense with its observance, what the objects to which its provisions should extend. Where shall we seek the solving of these questions, and of many others which form the necessary preliminary of all rational jurisprudence, unless from philosophy? Open the most celebrated treatises; the Treatise on Laws by Domat, for instance, and see if he is ashamed to borrow from the metaphysicians their principles and their definitions. By how many eminent jurisconsults has the Treatise on Laws of Suarez been used? How often have his general theories, though altogether removed from the different special legislations, served, nevertheless, as the connecting clue to lead them out of the labyrinth of their provisions, and furnished the most precious indications for the determination of the rights which they only defined imperfectly?
More than ever has it become necessary in our days to establish solidly, in the minds of those who are destined to make laws or watch over their execution, these fundamental notions on the origin, the end, and the extent of civil authority, and on the conditions of its exercise. For one must be blind not to comprehend that from the ignorance and reversing of these notions springs the overturning of modern societies. Strange it is that public order, which has never had to withstand such radical attacks as in these our days, should find its worst foes, not in those who deny the legitimacy of law, but, on the contrary, in the very men who have exaggerated beyond measure the power of the law. What in effect is that system but socialism, according to which we must recognize no other right, no other duty, save such as emanate from the social will; which extends to everything the power of the law; and which, grinding under this pitiless roller every natural right and every relation of property and family, leaves nothing to subsist before the state, save isolated individualities? Since the hand of God first founded human society, never has an error so fatal to its existence sprung up. Yet this error, since we must confess it, has had for its upholders, through many ages, a great number of jurisconsults, who have done their best to establish the principles on which it leans, detesting all the while the consequences which it deduces from them. In place of borrowing from a sound philosophy the true notions with regard to the mission of civil authority, they are pleased to give it an extension without limits, not perceiving that they thereby impose on it an overwhelming responsibility, and that in lessening the rights which should give it equilibrium, they weaken at the same time its solidity. Alas! how many “men of order,” how many grave jurisconsults, are in our days completely socialistic in their ideas, and yet fail to perceive that their doctrines only furnish that party, whose criminal efforts they oppose with all the force that is in them, with arms which are only too powerful!
Philosophy is not only useful to the jurisconsult in furnishing him with the general notions on the origin, end, and exercise of legislative power; in addition, it throws a light over the detail of laws, atones for their deficiencies, fixes their uncertainties, reconciles their opposition, and by discovering the motives of their provisions, determines the limits within which they ought to be restrained.
The written law, in fact, is not enough for itself. Its end is not to promulgate all duties. There are a great number, and they are the most essential, which are anterior to it, and which the finger of God has graven on the soul of every man coming into this world, and which his Eternal Word promulgates in the depth of every conscience. It is on this unwritten law that human society leans; it is only in virtue of the rights and duties of which it is the source that men have been able to unite themselves into different groups and establish civil societies. Unless they had been previously submitted the one to the other by some obligation, they would never have bound themselves by any contract; their agreements would have been determined by convenience; they would never have believed in duties. The civil law presupposes, then, a law anterior and superior to it, by which all the necessary relations of men are defined with a sovereign authority, since it is the authority of God himself, and with an irresistible clearness, since it is the very light of reason. The mission of the human legislator consists merely in adding to the essential duties, which the natural law prescribes for all men, those which result from the constitution of the different groups which form civil societies. It is the natural law which bids man love his fellows and co-operate for their happiness; the civil law, supporting itself on this general obligation, determines the particular services which the citizens owe one another for the common defence of their interests. The natural law establishes the family, and promulgates the essential rights of parents and children; the civil law surrounds the exercise of these rights by the guarantees necessary to certify their existence, to ward off the dangers which threaten them, to ensure their stability, and prevent their conflict. The natural law lays the foundation of property, in bestowing on each man the fruit of his labor, and commanding him to provide for his own future and that of his children; but it belongs to the civil law to determine the necessary forms for the authentication of the acquisition and transfer of property, and to prevent this right, which is so necessary to social order, from becoming a source of disorder.
We see, then, that in all its provisions the civil law presupposes the natural law, of which it is but the complement and final determination. The rights which it establishes are real rights beyond doubt; they are sacred and inviolable rights, which divine justice, the protector of all order, takes under its guarantee, and for which it reserves a sanction as eternal as for the rights of which it is the immediate source: but nevertheless these are but secondary rights, which are only binding so long as they are conformable with the rights which are preordained, and lose all their force from the moment that they become contrary to them; for there is no such thing as right against right, as Bossuet has so well said. Whence it follows that no man can acquire a complete and sure knowledge of civil legislation, unless he has first of all made a serious study of that part of philosophy which is called natural right.
But it is clear that this moral and practical part of philosophy does not subsist alone; it is only the consequence of principles established in the speculative and metaphysical part; it is, then, philosophy in its entirety which he ought to study with the most laborious attention who destines himself for the teaching or the practice of jurisprudence. There alone will he find the final reason of human laws: thence will he draw those great principles to which he ought to go back at all times when he wishes to solve one of those difficult cases which the civil law has not foreseen, or for which she has furnished insufficient data. It will often happen that two laws appear in opposition, and right will clash against right. To whom shall we turn to reconcile these apparent or real antinomies, which are found in the letter of the law? To whom, unless to the supreme lawgiver, of whom the framers of laws are but the interpreters; to the spirit of the law, to that eternal reason whose oracular decisions philosophy records? Unhappy the jurisconsult who, before investing himself with the toga of the magistracy, or taking upon himself the defence of the rights of his fellows, shall not have entered into the sanctuary where these luminous oracles are expounded by the mouth of sages, and who persuades himself that the letter of the code is enough to enable him to acquit himself of his difficult functions! The letter is a useful instrument undoubtedly, an instrument necessary even, indispensable; but it is nothing more than instrument. To hit its mark it requires to be ably handled. Philosophy alone gives this power and freedom in the management of the written law, because it alone shows its end, mechanism, and motives. Guided by its light, the true jurisconsult will advance with confidence, and apply the law with intelligence; he will resolve it into its different parts, take in his hands the links that bind them together, and show their connection with the different problems, whose complexity rendered their solution more difficult. The superficial jurisconsult, on the contrary, unaided by the torch of philosophy, will always grope upon the earth when he seeks to penetrate the inner mechanism of laws and the essence of things; as the law cannot foresee the diversity of particular cases, he will ever be embarrassed in the application of its general provisions; a slave to the letter, he allows himself to be guided by, instead of guiding it, as every good workman ought to guide his instrument. If he strives to free himself from it, and lift himself above it, it is only to wander at haphazard in the region of guesswork. So he goes on, pushed from one extreme to another, not fleeing a servile application of the written law, more or less opposed to its spirit, and always uncertain, only to lose himself in conjecture more uncertain and more dangerous still; in place of being the defender and the minister of justice, he will too often be its executioner, and will verify but too faithfully the truth of that saying: “The letter without the spirit can only be a principle of death.”