BENEDETTO CROCE (continued 7)

Rejection of both these conceptions.

But we do not run the risk of colliding with the obstacle placed before us with these philosophical views, because we have constantly rejected them both throughout the whole of our exposition of the Philosophy of the spirit and have demonstrated their falsity. Partial Philosophy is a contradictory concept: thought either thinks all or nothing; and if it had a limit it would have it as thought and therefore as surpassed. Whoso admits something unknowable, declares everything unknowable, and inevitably falls into total scepticism. Nor is the idea of a discontinuous philosophy divided into a whole and its parts, with the whole outside the parts and the parts outside the whole less inconceivable; so that, while Ethic is being studied, the whole (complete Philosophy) seems problematical; and a part (Ethic) can be known to some extent without knowing the whole (the whole of Philosophy). This is a false view, ultimately derived from the empirical sciences, in which it is possible to apprehend one order of phenomena independently of the others; and to apprehend phenomena without explicitly posing or by dismissing to another occasion the philosophical problem as to their truth. Philosophy is a circle and a unity and every point of it is intelligible only in relation to all the others. The didascalic convenience of exposing a group of philosophical problems separately from others—or also (if it please others, as it has not pleased us) of dividing the exposition into particular philosophical sciences, and into general Philosophy (also called Metaphysic)—should not lead to the misconception that the indivisible is really being divided. The whole of Philosophy is at once enunciated with the first philosophical proposition; and the others that come after will all be nothing but explanations of the first.

The ethical form as volition of the universal.

Therefore, since we have never denied faith to thought, nor broken in pieces the unity of Philosophy, we have no secret to reveal at this point; not even a poor secret, like the exponents of discontinuous Philosophy, who solemnly make known at the end what they have assumed from the beginning. Our formal ethical principle is never empty form that must only now be filled with a content. It is full form, form in the philosophical and universal sense, which is also content and therefore universal content. We have not restricted ourselves to defining the ethical form as universal form, which would have resulted in tautologism; but we have defined it volition of the universal, thus distinguishing it from the economic form, which is simply volition of the individual. And if we now ask ourselves what is the universal, we must reply that the answer has already been given, and that whoever has not yet understood, whoever indeed has not understood it for some time, will never understand it. The universal has been the object of all our Philosophy of the Spirit, and we have always had to keep it before our eyes, in studying, not only the practical function, but any other function of the spirit; just as we cannot have the idea of the branch of a tree without the idea of the trunk from which it springs and without which there would not be the branch of a tree. That concept, then, is not a deus ex machina to appear unexpectedly at the end of the play and hastily bring it to a conclusion, but the force that has animated it from the first to the last scene.

The universal as the Spirit (Reality, Liberty, etc.).

What is the universal? It is the Spirit, it is Reality, in so far as it is truly real, that is, in so far as it is unity of thought and willing; it is Life, in so far as realized in its profundity as this unity itself; it is Freedom, if a reality so conceived be perpetual development, creation, progress. Outside the Spirit nothing is thinkable in a truly universal form. Æsthetic, Logic, Historic, this very Philosophy of the practical, have demonstrated and confirmed this truth in every way. Every other concept brought forward reveals itself (and has revealed itself beneath our analysis), either as a feigned universal, or as something contingent that has been abstracted and generalized, or as the hypostasis of certain of our particular spiritual products, such as mathematical formulæ, or as the negation of the Spirit, on which is conferred positive value (first with metaphor and then with metaphysic).

And the moral individual who wills the universal, or that which transcends him as an individual, turns precisely to the Spirit, to real Reality, to true Life, to Liberty. The universal is in concrete the universal individualized, and the individual is real in so far as he is also universal. He is not able to assert one part of himself without asserting the other (under the penalty of stopping half-way, dimidiatus vir, and so of again becoming nothing). But in order to assert them both, he must first posit the one as explicit and the other as implicit, and then make the other also explicit. Man as economic individual, at the first moment (so to speak) of his revealing himself to life and to existence, cannot will, save individually: will his own individual existence. There is no man, however moral he be, who does not begin in this way. How could he ever surpass and finally deny his own individual life, if he had not first affirmed it and did not reaffirm it at every instant? But he who should stop at that affirmation of the individual, regarding the first stage of development as the resting-place, would enter into profound contradiction with himself. He should will, not only his own self individualized, but also that self, which, being in all selves, is their common Father. Thus he promotes the realization of the Real, lives a full life and makes his heart beat in harmony with the universe: cor cordium.

The moral individual has this consciousness of working for the Whole. Every action, however diverse, which conforms to ethical duty, conforms to Life; and if, instead of promoting Life, it should depress and mortify it, for that very reason it would be immoral. Where facts seem to demonstrate the contrary, the interpretation of facts is erroneous, since it affirms as a criterion of judgment a life which is not that true life, which, as we know, we serve even by dying—dying as an individual, as a collectivity, as a social class, or as a people. The most humble moral act can be resolved into this volition of the Spirit in universal. Thus it happens that the soul of a simple and ignorant man, altogether devoted to his rude duty, vibrates in unison with that of the philosopher, whose mind receives into it the universal Spirit: what the one thinks at that moment, the other does, thus attaining by his own path to that full satisfaction, that act of life, that fruitful conjunction with the Real, which the other has attained to by a different path. It may be said that the moral man is a practical philosopher and the philosopher a theoretic actor.

Moral acts as volitions of the Spirit.

This criterion of the Spirit, of Progress, of Reality, is the intimate measure of our acts in the moral conscience, as it is the foundation, more or less clearly expressed, of our moral judgments. Why do we exalt Giordano Bruno, who allowed himself to be condemned to the stake for asserting his philosophy? Perhaps for the calmness with which he faced the torture? But many fanatics, even malefactors, are capable of this, and it may sometimes even be a simple sensual desire, of which we have seen examples in history and of which a modern Italian poet has lately sung, exalting the beauty of the flame and the voluptuousness of the pyre. By facing death and refusing to deny his philosophy, Bruno contributed to the creation of a larger form of civilization, and for this reason he is not only a victim, but also a martyr, in the etymological sense of the word: witness and realizer of a demand of the Spirit in universal.—Why do we praise the charitable man? Perhaps because he yields to the emotion caused by the spectacle of suffering. But emotion in itself is neither moral nor immoral, and thus to yield to it materially is weakness, that is, immorality. The charitable man, when he removes or mitigates suffering, relights a life and reconquers a force for the common work, which both he and the person whom he has benefited, must serve.

Critique of antimoralism.

There is indeed nothing more foolish than antimoralism, so much the fashion in our day; it is an ugly echo of unhealthy social conditions, of one-sided theories ill understood (Marxism, Nietzscheianism). Antimoralism is justified, in so far as it combats moral hypocrisy in favour of effective morality instead of that of mere words, but it loses all meaning when it inflates empty phrases or combines contradictory propositions and preaches against morality itself. By so doing, it thinks to celebrate strength, health and freedom, but on the contrary exalts servitude to unbridled passions, the apparent health of the invalid and the apparent strength of the maniac. Morality (begging pardon of literary immoralists), far from being a pedantic fiction or the consolation of the impotent, is good blood against bad blood.

Confused tendencies of tautological, material, religious formulæ, etc., toward the Ethic of the Spirit.

We must also declare that this truth concerning the ethical principle understood as will that has for its end the universal or the Spirit, is to some extent confirmed by several of the formulæ that we have criticized, which have erred only in defining it, either confusing altogether the universal and the contingent, or have fallen into tautologism. Those who posit Life, or the interest of the Species, Society or the State, as the end of morality, have in view that Life, that Species, that Society, or that ideal State, which is the Spirit in universal, although they are not able to define it clearly. The same may be said of other formulæ, which often have a better intention at starting than that realized in the development of the relative doctrines, or, on the contrary, a development superior to their bad initial intention.

The Ethic of the Spirit and religious Ethic.

This function of symbol possessed by idealist Ethic, this affirmation that the moral act is love and volition of the Spirit in universal, is to be found above all in religious and Christian Ethic, in the Ethic of love and of the anxious search for the divine presence. This is the fundamental characteristic of religious Ethic, which remains unknown to vulgar rationalists and intellectualists, to so-called free-thinkers, and to frequenters of masonic lodges, owing to their narrow party passion or lack of mental subtlety. There is hardly an ethical truth (and we have already had occasion to refer to this matter) that cannot be expressed with the words that we have learned as children from traditional religion, and which rise spontaneously to the lips, as the most elevated, the most appropriate and the most beautiful; words which are certainly impregnated with mythology, but are also weighty with profound philosophical content. There is without doubt an exceedingly strong antithesis between the idealist philosopher and the religious individual, but it is not greater than that within ourselves, when, in the imminence of a crisis, we are divided in soul and yet very near to unity and to interior conciliation. If the religious man cannot but see in the philosopher his adversary, his mortal foe, the philosopher, on the other hand, sees in him his younger brother, his very self of a moment past. Hence he will feel himself more nearly allied to an austere, emotional, religious Ethic, troubled with phantoms, than to an Ethic that is superficially rationalistic: for this latter is only in appearance more philosophical than the other, since if it possess the merit of recognizing (verbally only, or with psittacism, as Leibnitz would have said) the supreme rights of reason, yet in plucking thought from the soil in which it has grown and depriving it of vital sap, it exercises them very ill.

III

HISTORICAL NOTES

Merit of the Kantian Ethic.

I. It is the singular merit of Kant to have put an end, once for all, to every material Ethic, by proving its utilitarian character: a merit that is not cancelled by the lacunæ that exist in other parts of his thought, entangling him unawares in the materialism and in the utilitarianism that he had surpassed. It would be anti-historical to desire to judge a thinker by the contradictions into which he falls and so to declare his work to be a failure and of no importance, when it is only imperfect. There are errors in all the works of man, and error is always contradiction; but he who has the eye of the historian discovers where lies the true strength of a thought and does not deny the light, because of necessity accompanied with shadow. Before Kant, ethic was either openly utilitarian or such that although presenting itself in the deceitful form of Ethic of sympathy, or religious Ethic, was yet reducible to utilitarianism. Kant conducted an implacable and destructive war, not only against admitted utilitarian forms, but also against those that were masked and spurious, called by him material Ethic.

The predecessors of Kant.

In this too, his predecessors are to be found in traditional philosophy of Christian origin, or, if it be preferred, Platonic (opposition of material to formal Ethic can already be observed in the attitude of Aristotle to Plato). If the fathers and the scholastics had been divided as to the question of the relation between moral laws and the divine will, and many of them, especially the mystics, had made that law to depend upon the divine will and upon nothing else, yet views had not been wanting, according to which the power of changing at will the moral laws, that is to say, of changing his own essence, was denied to God, since he could not be supra se. Religious Ethic was cleansed of every admixture of arbitrarism and utilitarianism by this solution, accepted by nearly all religious thinkers of the seventeenth and eighteenth centuries (by Cudworth, by Malebranche, and finally by Leibnitz). On the other hand, we cannot but recognize that many other material formulæ used to be understood in an ideal, or, as we have said, in a symbolical manner; and certainly that very eudæmonism of Aristotle, toward which Kant showed himself too severe, was not the pleasure and happiness of the hedonists and utilitarians, and the mediety (μεσότης) proposed as the distinctive character of virtue, although without doubt empty and often incoherent, was already almost a formal principle. The same is to be said of the Stoic principle of following nature; and coming to the immediate predecessors of Kant, of that perfectio already mentioned, which Kant, after wavering a little, reduced to happiness, not, however, without stating that it is a more indeterminate concept than any other. With Kant, however, the point was admitted, that the moral law is not to be expressed in any formula, which contains representative and contingent elements.

Defect of that Ethic: agnosticism.

The defect of the Kantian Ethic is the defect of his whole philosophy: agnosticism, which prevents his truly surpassing either the phenomenon or the thing in itself, leading him, on the one hand, toward empiricism, on the other toward that transcendental metaphysic, which no one had done more to discredit than himself. He combated the concept of the good or supreme good as the principle of Ethic, and he was right in so far as he understood it as object of any sort, of "a good," as of a "thing." But this did not exempt him from the duty of defining the supreme good as that which is not exhausted in any particular object, or of determining the universal. Now his philosophy was incapable of attaining to the universal.

Critique of Hegel and of others.

Hence the involuntary return to utilitarianism, clearly stated by Hegel in his youthful essay upon natural Right. The practical principle of Kant (remarked Hegel) is not a true but a negative absolute; hence with him the principle of morality becomes converted into immorality: since every fact can be thought in the form of universality, it is never known what fact should be received into the law. In the famous example of the deposit, Kant had said that it is necessary to keep faith as regards the deposit, otherwise there would no longer be deposits.[1] But if there were no more deposits, how would this constitute a contradiction to the form of the law? There would perhaps be contradiction and absurdity for material reasons, but it is already agreed that this is not to be brought up in the argument. Kant wishes to justify property, but he does not attain to more than the tautology, that property, if it be property, must be property, opening the way to the free choice of conceiving at will as duties these or those contingent definitions of property. The moral maxims of Kant, owing to the empirical determinations that they assume, are contradictory, not only of one another, but of themselves. This inevitable degeneration of the Kantian Ethic was called by Hegel tautology and formalism.[2] Other thinkers were also affected by the utilitarianism of the Kantian Ethic: Schopenhauer even declared that his doctrine has no other foundation than egoism, since it can be reduced to the concept of reciprocity, and he protested against the Kantian theory that we should be compassionate to animals, in order to exercize ourselves in the virtue of compassion, judging it to be the effect of the Judæo-Christian views of Kant.[3] Schopenhauer was in some respect right in these observations, although as regards animals we must note that the same attitude is found in Spinoza and in other thinkers and that it derives from material and utilitarian Ethic; and for the rest that it would be very unjust to see nothing but egoism in the categoric imperative of Kant, for this, we repeat, though it constitute its danger, does not constitute its essential character.

Kant and the concept of freedom.

Nevertheless, in Kant himself, in this thinker, so rich in contradictions and suggestions, was indicated the concept which, when elaborated, was to constitute the principle, not merely of tautological and formalistic, but of concrete and formal Ethic, the concept of freedom. By means of this concept Kant enters into the heart of the real and reaches that region of which mysticism and religion had from time to time caught a glimpse and had here and there attained. As the origin of the rigid Kantian ethical conception and of his abhorrence for the material and mundane is to be found in Christianity (and in Paganism), so the origin of the concrete moral idea is to be sought in St. Augustine, and also in St. Paul, in the mystics and in the great French Christians of the seventeenth century; in that virtue of which Pascal wrote as plus haute que celle des pharisiens et des plus sages du paganisme, and it operates with omnipotent hand, by means of which alone is it possible dégager l'âme de l'amour du monde, la retirer de ce quelle a de plus cher, la faire mourir à soi-même, la porter et l'attacher uniquement et invariablement à Dieu.[4] The successors of Kant, especially Fichte and Hegel, closed the circle which he had left open, and altogether excluding transcendency, they made of God freedom and of freedom reality. Fichte, who expelled the phantom of the thing in itself from theoretical philosophy, removed from the categoric imperative the appearance of qualitas occulta, which it had borne in the Philosophy of the practical, illuminating that tenebrous region, ready to receive any sort of phantasm or superstition, such as belief in a moral law arbitrarily imposed by the divinity.[5] Hegel does not recognize duty and the categoric imperative, but freedom only, and as he says, the free spirit is that in which subject and object coincide and freedom is freely willed.

Ethic in the nineteenth century.

II. After the classical epoch of modern philosophy, in the general regression of Ethic, the concept of the concreteness and universality of the practical principle was also lost. Omitting the utilitarians, who no longer have a place here, it must suffice to record how there was a return either to the formalistic principles, which Hegel criticized in Kant (for instance the principle of the Ethic of Rosmini, the respect for being, afterwards combated by Gioberti), or directly to those material principles which Kant had already excluded. Such are the compassion of Schopenhauer, the five practical ideas of Herbart, the love of Feuerbach, benevolence as the supreme ethical idea of Lotze, the theological morality of Baader, the life of Nietzsche, and the like.

The principles of the first were completed with a religious conception (here too Rosmini may afford an example), and those of the second, when they did not reveal themselves as utilitarian or tautological, showed an obscure tendency toward the Ethic of Freedom. This must not be overlooked in the Ethic of Nietzsche, which despite the rocks and mud that the thought of Nietzsche drags with it, is yet anti-hedonistic and anti-utilitarian and quite full of the sense of Life as activity and power. Positivistic evolutionism is also often unconscious idealism; and the moral actions, united to evolution, can be interpreted as those which correspond to the Spirit in universal. The concepts of the pessimists alone are altogether incapable of idealistic interpretation (for example, Schopenhauer), and those of the semi-pessimist and semi-idealist Hartmann are strangely contradictory. He makes morality to consist of the promotion of civilization, whence so lofty a condition of the spirit can be attained that it will be possible to decree universal suicide by means of the vote of all the world.

The question asked after Kant, whether Ethic should be formal or material, is one that we have made more precise in the other form, whether Ethic should be abstract or concrete, full or empty, tautological or expressive—that is (with even greater precision), whether Ethic can be established before and without a philosophical system and even be reconciled with agnosticism, has no longer been understood, even by its pretended followers, the Neocriticists or Neokantians. These have either believed they had solved it by means of moderate utilitarianism, or by going outside it and denying the most secure result of the Kantian critique of Ethic; or they have discussed it tiresomely, without making a step in advance. Progress indeed was possible on one condition alone: that a philosophical system should be constructed not inferior to that of the postkantian idealists. But this would have been tantamount to demanding the death of neokantianism or neocriticism, which has not only not attempted to surpass the idealistic systems, but has even maintained that we should philosophize without a system, declaring that a system is altogether inconceivable. The Neokantians can thus be recognized as the descendants of Kant; but in the same way as the last descendant of the Hapsburgs in Spain, who was neither emperor, king, soldier, nor man, could be recognized as the descendant of Charles the Fifth, who was man, soldier, king, and emperor: because, like his great predecessor, he possessed the deformed, hanging lip of the Hapsburgs.

THIRD PART

LAWS

I

LAWS AS PRODUCTS OF THE INDIVIDUAL

Definition of law.

Law is a volitional act, which has for content a series or class of actions.

Philosophical and empirical concepts of society.

This definition excludes above all from the concept of law a determination that is generally considered essential to it, the determination of society; this amounts to saying that it also extends the concept of law to the case of the isolated individual. But in order that there may be no misunderstanding in relation to a point like this of the highest importance, it will be well to show that the word "society" has a double meaning, philosophical and empirical, and if we exclude its empirical sense from the concept of law, it would neither be possible nor our wish, to exclude its philosophical sense. Reality is unity and multiplicity together, and an individual is conceivable, in so far as he is compared with other individuals, and the process of reality is effective, in so far as individuals enter into relations with one another. Without multiplicity there would not be knowledge, action, art or thought, utility or morality; therefore the isolated individual, torn from the reality that constitutes him and that he constitutes, is something abstract and absurd. But he is no longer absurd, when understood in another way, with polemical intention against a false concept; as an individual not absolutely, but relatively isolated, in respect to certain contingent conditions which had wrongly been held essential: in which case the concept of society is conversely itself abstract and unreal. "Society," indeed, is also used to mean a multiplicity of beings of the same species, and it is evident that here an arbitrary element enters into the problem, for the naturalistic concept of sameness of species is arbitrary and approximative; hence the pretended sameness might fail and the society yet exist all the same. A man may not be able to find those who resemble him among a multitude of men and conduct himself as if they did not exist; but this does not prevent his living in the society of beings that are called natural, with his dog, his horse, with plants, with the earth, with the dead and with God. When he is placed in solitude or isolated from the other beings, said to belong to the same species as himself, that other society, or the communion with what remains to him of reality, will always continue, thus enabling him to continue his life of contemplation, of thought, of action and of morality. In order to understand the Spirit in its universality, we must separate it from contingencies, and society in the empirical sense is contingency, which the concept of the isolated individual (isolated from it and not from reality, from the societas hominum, not from the societas entium), enables us to surpass. The great services which this concept has rendered to Logic, to Æsthetic and especially to Economy, are known, for the latter only began to develop the philosophical spirit in itself, when it conceived economic facts as they take place in the individual, prior to what is called society, thus positing the concept of an isolated economy. Conversely, Economic, Æsthetic, Ethic and all philosophical problems and sciences lost their true nature and became bastardized, when gross sociologism replaced among social contingencies those universals, which philosophers had with great labour removed from them and thought in their purity. Defining laws, then, as facts that occur, not only in society, but also in the isolated individual, our intention is simply to concentrate attention upon the concept of true society, which is all reality, and not allow it to be diverted and confused with accidental determinations, of the kind that may and may not be.

Laws as individual product: programmes of individual life.

No great art is required to find instances of individuals who make laws for themselves, carry them out and change them, grant rewards to themselves and inflict upon themselves punishments; nor is there any need to incommode the worthy Robinson of the economists to this end. Without being obliged to make the effort of imagining ourselves cast upon a desert island and provided only with a sack of corn and the Bible, it suffices to have eyes and to observe our daily life, for numbers of examples of internal legislation to present themselves. Those laws, made for our use and consumption, are called programmes of life. Who can live without programmes? Who does not decide that he will desire certain actions and avoid certain others? From youth onward we begin to legislate in this way and this production of internal laws is interrupted only by death. We say, for instance:—"I shall devote my life to agriculture: I shall live in the country every year from June to November; from December to February I shall come to town, that I may not lose touch with political or social life; from March to May I shall travel, for pleasure and instruction." This programme is subdivided and completed with other programmes, according to the various conditions and possibilities taken into consideration; and laws are established as to the way one should conduct oneself in respect to religion, family, friends, the State, the Church and also in respect to this or that individual; for (as is observed by Logic) the individual conceived as a fixed being, also becomes a concept, abstraction, group, series, or class. He who wished it, would be able to establish a parallel between programmes or individual laws and laws that are called social: in the individual would be found fundamental statutes, laws, rules, ordinances, temporary arrangements, contracts, single laws and all the other legal forms found in societies. Now in what conceivable way do the programmes of the individual differ from those of society? Are not those laws programmes, and are not those programmes laws?

Exclusion of the character of compulsion and critique of this concept.

To this interrogation of ours, which does not express a doubt within us, but states what seems to be an undeniable fact, defying any sort of contradiction, may be objected (and it is a common objection) that there is a great difference between individual laws and those of society or of the State: these are compulsory, those are not; and for this reason these are true laws, while the others are mere programmes. But we cannot attach any importance to this objection, at least as thus formulated; because, having now traversed the whole of the Philosophy of the practical, general, and special, we have never met with what is called compulsion in the circle of willing and doing, save in the negative sense of deficiency of will and action. No action can ever be compulsory; every action is free, because the Spirit is freedom; there may not be action in a certain case, but a compulsory action is inconceivable, since it is a question of terms that exclude one another. Does the fact give the lie to our assertion? Let us examine the fact for a little, face to face and without preconceptions. Let us for this purpose take an extreme case: for instance, that of the law of a most powerful despot, who, being in command of police, should order a group of men to bring their first-born to sacrifice to the god in whom he believes, but they do not. Are the men who hear this manifestation of will constrained by it? What menace can make him who wishes to say no, say yes? That group of men will rebel, will take up arms, will rout the troops of the despot, will put him to death, or render him incapable of harming; and in this hypothesis the law will not reveal any character, of compulsion. But in the other hypothesis also, where they do not rebel and in the meantime bow to the will of the despot, either that they may not risk their own lives, or because they defer their rebellion to a more propitious moment and consign their sons to death; they will not have suffered any compulsion, but will have freely willed: they will have willed to preserve their own lives at the expense of their sons'; or to sacrifice some of them in order to have the time to put themselves into such a position that they may be able to rebel with the hope of victory. Thus we find in social laws, now observance, now inobservance of the law; but both occur in freedom. Inobservance may be followed by what is called punishment (that is to say, the legislator who has imposed a given class of actions, will adopt certain definite measures against those who do not obey them; to wit: he will will another class of actions, destined to render possible the first, because the punishment is a new condition of things set before the individual, according to which he must alter his previous mode of action); but the punishment always finds itself face to face with the freedom of the individual. He will be able freely to observe the law in order to avoid the punishment or its recurrence; but he will also be able freely to rebel against it, as in the instance adduced.

Identical characteristics of individual and social laws.

If compulsion be wanting to individual laws, this is because it is also always wanting to social laws: while, on the contrary, what is really present in social laws is equally present in the observances and rebellions, rewards and punishments of individual laws.

To return to the former example: the individual who has decided to devote himself to agriculture as programme of life, may be seized all of a sudden with a great desire to devote himself to painting or to music; and what had previously pleased may henceforward displease him: that intimacy with mother earth, with harvests and vintages, which seemed to be the very life for him, his true ideal, may come to seem to him tiresome and repugnant. But if he be a serious person, if he do not will and not will at every moment, if he do not present in his own individuality a complete resemblance to those peoples who change in mid-November the laws made in October and proceed from revolution to revolution, he will examine his situation and will recognize, for instance, that the desire arisen in his soul is a velleity that does not answer to his true vocation and that the first programme must remain intact; hence will take place in him a struggle between that programme and the new rebellious volition. It may happen that in this case the individual will sometimes neglect the programme traced, in order to abandon himself to the temptations of his pictorial or musical dilettanteism; but since this will happen against his individual law, and since force must remain on the side of law, this breach of observance will be followed by special measures, such as the throwing away of brushes and violin, or by his forbidding to himself those moments of recreation in such amusements, which he used to allow himself and which have now become dangerous. In other words, the individual inflicts punishments on himself in case of the non-observance of his law, and these punishments must be held to be such in the strictest sense of the term. And if we accept the other hypothesis, analogous to that made in the case of social laws, should the individual find himself possessed with so vehement a desire of becoming a painter or a musician, as to be compelled to believe that the original programme, the original law of his individuality, did not correspond, or no longer corresponded with his true temperament, he will rebel against the law and destroy it in himself, in the same manner as in the other example the people destroyed the law of the despot, by fighting with him, imprisoning, or slaying him.

Individual laws as in ultimate analysis alone real.

Individual programmes or laws then are laws, and this concept includes the isolated individual as well as society; and therefore the character of sociality is not essential to the concept of law. Thus, to be more precise, the only laws that really exist are individual laws and it is not possible to conceive of social and individual laws as two forms of the general concept of laws; unless individual and society be both understood in the empirical sense, thus abandoning philosophical consideration. If the individual be understood in the philosophical sense, in which he is the Spirit concrete and individualized, it is clear that what are called social laws can also be reduced to individual laws; because, in order to observe a law, we must make it our own, that is to say, individualize it, and in order to rebel against it, we must expel it from our own personality, in which it wished unduly to remain or to introduce itself.

Critique of the division of laws into judicial and social and into their sub-classes. Empiricity of every division of laws.

The exclusion of the character of sociality from the concept of law frees philosophy from a series of problems, grafted upon that pretended character. The principal of these was that of the distinction of social laws into political and judicial, on the one hand and merely social on the other; and the further distinction of judicial law into public and private, civil and penal, national and international, into laws properly so called and regulations, and so on. If the concept itself of social law be empirical, then all the distinctions and sub-distinctions of it proposed must also be empirical, and altogether without philosophical value. So true is this that it is impossible to decide for one distinction or definition against another, or to correct those hitherto given by proposing new ones. Whoever undertakes to examine any one of these distinctions, at once realizes the aphilosophical character affirmed of them a priori. Thus judicial or political laws have been distinguished from the merely social, with the affirmation that those are compulsory, these conventional; whereas compulsion is impossible in both cases, for the reasons given, and if by compulsion be meant the threat of a penalty, this is to be found in merely social laws, not less than in judicial. The law against the falsification of public money is usually described as judicial: he who falsifies it runs the risk of undergoing some years' imprisonment. It is a law called social that we must answer a salutation with a salutation: he who does not do this runs the risk of being held ill-bred and excluded from the society of the well-bred. What essential difference is there between the two laws? An attempt has been made to differentiate them by saying that the former has emanated from and is sustained by a supreme power, vigilant as to its observance, the second from particular circles of individuals. But where is the seat of this supreme power? Certainly not in a superindividual, who dominates individuals, but in individuals themselves. And in this case its power and value correspond with the power of the individuals who compose it; that is to say, it is the law of a circle, empirically considered to be larger and stronger, but whose volitions are realized in so far as the individuals composing it spontaneously conform to them, because they recognize the convenience of doing so. Monarchs who believed themselves to be most powerful, have realized at certain moments that the power did not at all reside in their persons or title, but in a universal consensus of opinion, failing which their power vanished, or was reduced to a gesture of solitary command, not far removed from the ridiculous. Laws that seem to be excellent remain unapplied, because they meet with tacit general resistance, or as is said, do not accord with custom: this should suffice to enlighten the mind as to the inseverable unity of what is called the State and what is called society. The State is not a being, but a mobile complex of varied relations between individuals. It may be convenient to limit this complex as well as possible, to make a being of it to oppose other complexes: of this there can be no doubt; and let us leave to jurists the excogitation of these and other similar distinctions, fictitious but opportune; nor let us consider that their work should be declared in the least absurd. We only say that it must not be forgotten that the fictitious is fictitious, as is the claim made to reason about it as rational and philosophical, and to fill volumes and volumes with tiresome disquisitions, which are necessarily vain, though the distinctions that form their object are not vain in their circle. We who are not jurists but philosophers, and to whom it is therefore not permitted to produce and adopt practical distinctions, must conceive as laws and include equally in the same category, alike the English Magna Charta and the statute of the Sicilian Mafia, or of the Neapolitan Camorra; the Regula monachorum of Saint Benedict and that of the brigata spendereccia that was sung in sonnets by Folgore di San Geminiano and Cene della Chitarra and is recorded by Dante in the Inferno; the canon law and the military code, and that droit parisien, which a certain personage of Balzac had studied for three years in the blue boudoir of one lady and in the rosy drawing-room of another, and which, although no one ever speaks of it, yet constitutes (says the great novelist) une haute jurisprudence sociale, qui, bien apprise et bien pratiquée, mène à tout.[1] What more can be said? Even those literary and artistic laws are laws which express the will to produce works, possessing this or that other kind of argument and arrangement, as would be the law that drama should be divided into five or three acts or days, and that romances must not exceed four or five hundred pages, 16mo, and that a monumental statue must be nude or heroically clad. It is evident that if anybody violate these laws, he may be excluded (and he was indeed excluded) from the academies of good taste, which did not prevent his being received for that very reason into the anti-academies of the independents: in just the same way as to have incurred punishments announced by the penal code is a title of admission to certain criminal societies.

Extension of the concept of law.

These examples that we have selected among the most extraordinary and the most apt to scandalize, help to make it quite clear that the concept of law must be taken in its full logical extension, when we wish to philosophize about it. Among the many obstacles that philosophy meets with is a curious sort of false shame, which looks upon contact with certain arguments as injurious to the dignity of philosophy: a contact which is avoided by arbitrarily narrowing and therefore falsifying philosophical concepts. That of law especially has a tradition of solemnity, and brings with it associations that must be broken in pieces. Otherwise it is impossible even to understand what are those firm and unwritten laws of the gods, which Antigone opposed to the decrees of men and how they exercise their efficiency; or the sayings of Lacedaemon, in obedience to which fell the three hundred at Thermopylae; or the laws of the fatherland, which, with their irresistible authority, caused Socrates to remain at the moment when others counselled and facilitated his flight. Life is composed of big and little actions, of least and greatest, or better, of a very dense web of very diverse actions; and it is not a too brilliant idea to cut that web in pieces and to throw away some of the pieces as less beautiful, in order afterwards to contemplate in those pieces only that have been thus selected, cut out and disconnected, the web that no longer exists.

II

THE CONSTITUTIVE ELEMENTS OF LAWS. CRITIQUE OF PERMISSIVE LAWS AND OF NATURAL LAW

The volitional character and the character of class.

The undue restrictions and empirical divisions of the concept of laws having been destroyed, if our attention be now directed to the character that has been determined as properly belonging to them, we have the means of distinguishing them from the other spiritual forms with which they are often confused, partly as the result of the metaphors and homonyms usual in ordinary speech. Laws, as has been said, are volitional acts concerning classes of actions. Therefore, where the volitional element or the element of class is wanting, there cannot be law, save in name and by metaphor.

Distinction of laws from the so-called laws of nature.

So-called laws of nature or naturalistic laws are not laws, owing to the absence of the volitional element: they consist of simple enunciations of relations between empirical concepts, that is, of rules. This is an instance of what is called a natural law: platinum melts at a temperature of 1780 degrees; or this other of a grammatical law: that in the Greek language masculine nouns of the second declension have the genitive in ου(with exceptions, in this as in the other case). But they are laws in about the same way as the King of Cups is king; and indeed it is known historically that this denomination was transported by the Stoics from the domain of politics, where it had first appeared, to that of nature. Empirical concepts and rules may, as we know, assume an imperative literary form; hence it will be said: "If you wish to melt platinum, heat it to 1780 degrees"; "If you wish to speak Greek, decline masculine nouns of the second declension with an ου in the genitive." But the literary form does not change anything of their true nature: those imperatives are hypothetical imperatives, that is, false imperatives, improper laws. Grammatical and chemical laws will remain mere formulæ, instruments of knowledge, and not at all of action, until some one obliges me or I oblige myself to talk Greek, or to open a chemical laboratory where platinum is melted. The jurist who elaborates cases and rules is not the legislator: the latter alone (with a sword in one hand) can endow the excogitations cf the other with the character of law.

Implication of the second in the first.

Certainly an act of will is necessary in order to construct empirical concepts, formulæ, and rules (as indeed we know), an act of will which is not that of the will implied in every act of thought, but is a special and explicit act which, by manipulating representations and concepts, makes a quid medium, which is neither representation nor concept, and although altogether irrational from the theoretical point of view, is of use in the economy of the spirit. But the law in its true meaning is a volitional act, which assumes that primary volitional act whence are formed the pseudo-concepts or concepts of class as already completed; precisely because it is the will which has for its object a class of objects. It is not possible to impose speaking according to the rule of the Greek language, or to melt platinum according to its chemical formula, before these rules have been laid down. And here appears very clearly the difference between those two kinds of spiritual products, which the imperative literary form, given to classes and rules, darkens and confuses. This difference can be recognized in concrete cases by means of a most simple expedient: if the rule (as we have already had occasion to prove) can be converted into a statement of class, then the law is inconvertible. "If you wish to melt platinum, heat it to 1780 degrees" is a proposition that is exactly equal to "platinum melts at 1780 degrees." But the law, "Let there be opened in every city a chemical laboratory where platinum is to be melted," is not to be converted from the imperative to the indicative, whatever efforts we make.

Distinction of laws from practical principles.

If the volitional element be wanting to naturalistic laws, it is certainly present in other spiritual formations also denominated and considered as laws: but not that of class, therefore neither are these laws. Such is the case with economic and moral law, and through them, with logical and æsthetic laws. The moral law says, "Will the universal"; that is to say, "Will the good, the useful, the true, the beautiful." Therefore (considered in reality and not in scientific theory, where it appears as the concept of itself) it is a volitional act. But this volitional act has the spirit itself for object, which is and exists, in so far as it wills and affirms itself; it has for object a form or a universal, whereas laws have for object something material and at the same time not instantaneous, something more or less fixed, something general: a class, not an idea. Universal laws (that would better be called principles) are the Spirit or producer; true and proper laws are the special product of the spirit; therefore the first can certainly be called laws, but for an altogether different reason to the second.

Laws and single acts.

Owing to the absence of the element of generality or of class, no one would describe a single individuated act as law. The resolution and action by which I do not rise from my seat at this moment and go eagerly to meet the friend whose coming at the wrong moment interrupts me at my work, is a volitional act, not a law; such as on the other hand would be the volitional act that I might form within myself, consisting in the intention or the programme of receiving my friends seated and in a lukewarm way, whenever they should come to visit me in the hours before noon, in order to make them understand by this act of mine that they disturb me at my work, and that they should abstain from their inopportune visits, unless they wish to submit to the penalty of meeting with anything but a cordial reception from their friend.

Identity of imperative, prohibitive, and permissive laws.

From the general but not universal character that we must recognize to the content of laws, we have the solution of certain controversies of the greatest importance which have been and are much discussed, hitherto without a satisfactory or duly demonstrated conclusion. In the first place, we must mention the dispute as to whether or no there exist permissive laws, and whether the formula that the law aut jubet aut vetat aut permittit is to be accepted. It has generally been admitted that the law aut jubet aut vetat, and that the permission is nothing but the removal of a previous inhibition, that is, the partial or total abrogation of a law. But in reality, the law, since it is a volitional act, jubet only; to command is to will: to command that a chemical laboratory be opened in every city means to will that one should be opened. And since every willing is at the same time a not-willing, as every affirmation is at the same time a negation, every command is at the same time an inhibition, and every jubeo is a veto (whether the will be expressed in the literary form of positive or negative, of command or of inhibition, is here without importance).

Permissive character of every law, and impermissive character of every principle.

As to permissive laws, these are inconceivable side by side with the imperative or prohibitive, not indeed because no law ever permits, but because by the very fact that those are imperative or prohibitive, they are at the same time permissive: every jubeo or veto is at the same time a permitto. Principles, as universal volitions, never permit, because nothing escapes their command; but a single volitional act, affirming itself, does not exclude for that reason the possibility that other volitional acts, indeed infinite acts, should be affirmed; for the singular never exhausts its universal. And laws are volitions of class, they impose groups of single acts—groups that are more or less rich, but always contingent: hence a law always leaves all the other actions and classes of action that can be the object of will unwilled (that is, neither commanded nor prohibited), and, therefore, permitted. And even if we take all the laws formulated up to a given moment, all together they do not exhaust the universal; and if new laws be accumulated, one upon the other, be divided and split up "with panting breath," to obtain complete exhaustion, a progressus in infinitum will certainly be attained, but never exhaustion, which is unattainable. This amounts to saying that outside law or laws, there is always the permitted, the lawful, the indifferent, the privilege, the right, or whatever be termed the concept correlative to that of command, veto, or duty, a duality of terms that expresses the finitude of law; hence, when a determined privilege, a determined legal right, a determined right, has been annulled by a new law, when something previously indifferent has been differentiated, privilege, the permitted, the indifferent, right, always arise from the bosom of the new law.

Mutability of laws.

Another contingent character of the content of laws is their mutability. Laws are changeable, whereas principles, or laws of the universal content, are unchangeable, and ready to give form to all the most various historical material. Since actual conditions are constantly changing, it is necessary to add new laws to the old, to retouch and correct these, or to abolish them altogether. This is to be seen equally in the programmes of individual lives, as in the programmes of social and political laws.

Empirical concepts as to the modes of change.

The question as to the number of modes of changing that laws possess does not concern us, because, philosophically speaking, there is never but one mode: the free will that produces the new law in new conditions of fact. Involuntary changing can only be a formula for indicating certain changes, always voluntary, that occur in a less solemn way than others; but from these, can never be absent the solemnity of the human will that celebrates itself. Thus, in like manner, the question as to whether we should recognize conservation or revolution as the fundamental concept of practical life, does not concern us; for every conservative is at the same time a revolutionary, since he is always obliged to adapt the law that he wishes to preserve to the new facts; and every revolutionary is also a conservative, since he is obliged to start from certain laws that he preserves, at any rate provisionally, that he may change others and substitute for them new laws, which he in his turn intends to preserve. Revolution for revolution's sake, the cult of the Goddess Revolution, is an insane effort, which is so none the less because it has sometimes appeared in History and like all insane efforts it ends with suicide. Revolution revolutionizes itself and turns into reaction. Thus when revolutionaries and conservatives are distinguished and opposed to one another, an empirical distinction is made there also, the meaning of which is to be found in the historical circumstances among which it has arisen. Count Cavour was a conservative in respect to certain problems and revolutionary in respect to certain others, to such a degree that he seemed to the Mazzinians to be a conservative and to the clericals and legitimists a revolutionary. Robespierre, if he were a revolutionary for the Girondins and at last even for the neo-moderate Danton, yet to the eyes of Hébert and of Chaumette seemed to be a conservative, enemy of the free development of the rights of man.

Critique of the eternal Code or natural Right.

We should on the other hand be very careful as to the demand so often made and also so far as possible put into execution, for an eternal code, a limit-legislation or model, a universal, rational, or natural justice, as it has been variously termed. Natural justice, universal legislation, eternal code, claim to fix the transitory and are therefore a contradictory concept: contradictory precisely to the principle of the mutability of laws, which is the necessary consequence of their contingent and historical character. Were natural Right permitted to do what it announces, were God to permit that the affairs of Reality should be carried on according to the ill-assorted ideas of writers and professors, we should witness with the formation and application of the eternal Code, the cessation ipso facto of Development, the end of History, the death of Life and the dissolution of Reality.

Natural justice as the new justice.

This world-ending does not take place, because, though it be possible to dwell in contradiction, it is impossible to make it concrete and actual: God, that is to say Reality, does not permit this. Thus it happens that under the name of natural justice, two sorts of products have existed in turn, or sometimes a mixture of those two different products, which have nothing to do with the programme announced. On the one hand, projects of new laws that seemed better than the old or good by comparison with these judged more or less bad, have been proposed as natural or rational justice, and precisely for this reason the old laws were called unnatural and irrational and the new rational and natural. Just as passionate and erotic temperaments, uninstructed by the experience of their past, swear with the utmost seriousness that their new love will be constant, eternal and their last, so man, when he creates new laws, is often seized with the illusion that his laws will not change as did the old ones, forgetting that the old ones were once young and that they "satisfied divers" in their heyday, to express oneself in the words of the old carnavalesque song. Those natural laws are historical, those eternal laws are transitory, like all the others. All know how in certain times and places, religious tolerance, freedom of trade, private property, constitutional monarchy, have been proclaimed eternal; and in others, the extirpation of unbelievers, commercial protection, communism, the republic, and anarchy.

Natural justice as philosophy of the practical.

Universal concepts, which were nothing but the Principles of the philosophy of the practical themselves, have on the other hand had a tendency to be classed as natural justice and to surpass the transitory and contingent. They are certainly eternal and unchangeable, but no longer laws, for they are formal and not material. Thus treatises of natural justice have sometimes become simply treatises (sometimes very valuable) of the Philosophy of the practical and especially of Ethic.—When (as to tell the truth has generally been the case) a practical description has accompanied a general treatment of Ethic, leading to a series of proposals for social, judicial or political reform, there has then occurred a mingling of two different productions, which we have mentioned, philosophy and casuistic. But a natural justice has always remained unachieved, because unachievable and contradictory.

Critique of natural justice.

In our times, owing to the increase of the historical sense, the constructions of natural justice and of the eternal Code have almost altogether lost the attraction they once exercized. But absurd problems having their origin in those contradictory concepts still persist and absurd methods of treating problems of similar origin legitimate when taken in their true terms. An example of the first of these two kinds of diseased residues is the treating of the natural rights of man and the attempt to establish what rights belong to man by nature and what by historical contingencies. Among the first are enumerated the right to life, to liberty, to work, to the family and so on; and among the second, those that have their origin in the Italian State or in special contracts that have been concluded. But no right of any sort belongs to man outside society (which in this case means outside history), that is to say, considered as spirit in universal, save that of existing as spirit, which indeed is not a right, but necessary reality. Catalogues of natural rights are either tautologies, which repeat that man as spirit has the right (and therefore at the same time the duty) of developing himself as spirit (and he does develop in this manner, if he be man and be alive); or they are arbitrary rationalizations of historical contingencies, such as the right to work, which is nothing but the formula of the workpeople of the ateliers nationaux in forty-eight, or of the insurgents of Lyons; or the right to private property, which was the formula of the burghers against the bonds of feudalism and is again their formula against the modern proletariat movement.

Jusnaturalism persisting in judgments and juridical problems.

We must recognize examples of the second kind of error in the discussions constantly held as to social or political institutions, when instead of combating them as irrational, or of defending them as rational in historical circumstances, they are defended and combated because they differ from or conform to the true idea of right or to the true idea of those particular institutions, recourse being thus had to abstract reasons, as has very well been said. A reformer will maintain the recognition of the right of women to the administrative or political vote, because women also form part of the State and have general and particular interests, which they wish to guarantee directly, without the inter-position of men, whose interests are sometimes at variance with theirs: an argument that a conservative will deny altogether, making appeal to the function of woman, enclosed by eternal law in the circle of the family. A reformer will propose divorce as the natural complement to matrimony, because, where spiritual agreement ends, there too should end every other tie, whereas a conservative will oppose the argument as contradictory to the very essence of matrimony, comparing such a proposal with concubinage, or with what is called free love. And so on.—When such arguments are heard, it is remarked that natural rights are not dead. But the question as to the political vote for women may be serious or ridiculous, according to place and time; as divorce is loftily moral or profoundly immoral, according to time and place, and it is only mental narrowness or ignorance that can place outside humanity, or believe to be living or persisting in immorality, peoples that practise divorce or indissoluble matrimony, or those of to-day, who refuse the vote to women or those of the future who will recognize their right to it, if they do recognize it. But even polygamy or free love is not immoral, irrational and unnatural, once it has been an institution considered legitimate in certain times and places; nor even, we insist upon saying it (however repugnant to our hearts and to our stomachs of civilized Europeans), anthropophagy, for even among the anthropophagi were men (we hope it will be admitted), who felt themselves to be most virtuous in their clearest consciousness of self, and who nevertheless ate their like with the same tranquillity that we eat a roast chicken, without hatred of the chicken, but being quite well aware, for the moment at any rate, that we are not able to do otherwise. The unconscious reasoners on the basis of natural law must have forgotten that page of Cornelius Νepos, which, however, they must certainly have translated in their first years at the gymnasium: Expertes literarum Graecarum nihil rectum nisi quod ipsorum moribus conveniat putabunt. Hi, si didicerint non eadem omnibus esse honesta atque turpia, sed omnia majorum institutis judicari, non admirabuntur nos in Graiorum virtutibus exponendis mores eorum secutos. Neque enim Cimoni fuit turpe Atheniensium summo viro, sororem germanam habere in matrimonium: quippe quum ejus cives eodem uterentur instituto; at id quidem nostris moribus nefas habetur. Laudi in Graecia ducitur adolescentulis quam plurimos habere amatores. Nulla Lacedaemoni tam est nobilis vidua quae non ad scenam eat mercede conducta.... And he continues to give further examples.[1] So ancient are the unreasonable tendency to be scandalized and the reasonable defence of the variety of customs made by good sense.

III

UNREALITY OF THE LAW AND REALITY OF ITS EXECUTION. FUNCTION OF LAW IN THE PRACTICAL SPIRIT

Law as abstract and unreal volition.

Since law is the volition of a class of actions, it is the volition of an abstract. But as we already know, to will an abstract is tantamount to willing abstractly. And to will abstractly is not truly to will, for we will only in concrete, that is, in a determined situation and with a volitional synthesis corresponding to that situation, such that it is immediately translated into action, or better, is at the same time effective action. Consequently it seems that we should declare the volition that is law to be a pretended volition: contradictory, because lacking a single, unique and determined situation; ineffectual, because springing from the insecure ground of an abstract concept; a volition, in fact, that is not willed; a volitional act, not real, but unreal.

Ineffectuality of laws and effectuality of practical principles.

Such indeed it is. What is really wanted is not the law, but the single act, done under the law, as it is called, that is to say, the execution of the law. The single volition is the only one that is carried out: the execution of the law is the only thing really and truly willed and done. When the law has been formulated, life continues ceaselessly to propound its problems, and these either do not enter into the provisions of the law and are solved simply and solely with universal practical principles (economic and ethic), or they do enter into them and then it is necessary to apply the law, unless it be held to be more convenient to change it, or (this would be a pathological case) action be not taken against it, although there be consciousness that this is ill done.

But even when we are in the situations foreseen by the law and act in accordance with it, or, as is said, apply or carry out the law, we must not allow ourselves to be misled by all these metaphors; for we must consider that the single situations in which we will and act can never be foreseen by the law, nor is it possible to act in accordance with it, to follow it out and to apply it. Situations are not foreseen, because nothing is foreseen, and the real fact is always a surprise, something that happens once only and we can only know it as it is after it has happened. For the new fact a new measure is necessary; for the new body a new suit of clothes. The measure of the law, on the other hand, since it is abstract, hesitates between the universal and the individual and is without the strength of either. To carry out the law? But it is only the pedant of life who proposes to do such a thing, as it is only the pedant of art who attempts to apply the rules of art. The true artist follows the impulse of his æsthetic conscience, the practical man the initiative of his practical genius. What is called the single act, observance and execution of the law, obeys, not the law, but the ethical or practical principle, and obeys it individually. The man who has his head full of laws that he has made for himself or has accepted from others, makes a deep reverence to the Ladies' Law when the time comes for action, and proceeds on his own initiative.

Exemplificatory clarification.

It is the law that at the age of twenty we must present ourselves in our district and do military service for a certain time. Let us for the moment set aside the case in which those called upon to serve rebel and, having seized the power of the government, abolish the law of conscription, and re-establish that of voluntary enlistment. And let us likewise set aside the other case, in which the conscripts violate the law by deserting and going abroad, or hide in a cave, like a hero of Padre Bresciani, or (like a good Tolstoian who applies the principle of non-resistance to evil) allow themselves to be put in prison rather than touch arms. Let us select the case of the peaceful burgess who becomes a warrior that he may not go to prison; or of the good citizen who recognizes his duty of serving his country and for that reason obeys the law. In presenting himself in his district and in the regiment, he has obeyed, not the voice of the law (which is a voice), but his moral conscience, or simply his economic conscience. This has already been demonstrated and we need not insist upon it. But how can he ever obey the law, which directs him to do military service of precisely this or that nature? Each individual has his own temperament, his own talent, his own particular physical strength, and each one will lend his services entirely in his own way, different from that of another. And (be it noted) he will not do so only more or less well or observing the law more or less, but really in a different way, even when all observe the law with equal diligence and scrupulosity. It may seem as if all carry out a military exercise at the same moment, but the fact is that each man moves in a different way to the others; or that in a parade march all walk in the same way, but, as a matter of fact, all (even in the Prussian army) walk in a different way. If we look at it as a whole and from a distance, there seems to be uniformity; if we look at it from near at hand we discover the difference. If we could make the experiment of comparing a regiment of fifty years before with one of fifty years after, leaving military regulations, arms, accoutrements, and everything else unaltered in the interval, the lack of uniformity of the apparent uniformity would leap to the eyes, a lack of uniformity that would have been rendered possible by the changes that had taken place in the surrounding life, in the culture, the moral education, the political conscience, the mode of nourishment, the dwellings, and so on. But the experiment is possible, if not in time, then in space, that is to say, by observing the application of the same military regulations upon two different populations. Thus one seems to have in hand one book written in two different languages; which is literally no longer the same book, but two different books. Giusti translated into Milanese and Porta translated into Florentine are no longer Porta or Giusti, but two new poets.

Doctrines against the utility of laws. Their unmaintainability.

This indubitable truth, as to the impossibility of applying the law and of incorporating it in facts, and as to the necessity of acting in each case, according to historical exigencies, is the true reason for the turning of so many people's heads at different times and in different places, causing them to proclaim nothing less than the inutility of laws and to ask for their abolition. If it be necessary to come eventually to the individual action, and if deliberation and execution must be remitted to the action of the individual, what is the object of binding ourselves with bonds, which it is afterwards necessary to tear off and to break, that we may act? What is the object of laboriously constructing instruments, which we are obliged to throw away when we come to practical action, that we may use our naked hands? Owing to such ingenuous reasonings as these, people have come to long for a society without laws, in which each will do his own share of work, on account of its attractiveness alone, as we find among the Harmonicists of Fourier and in many other anarchical Utopias. Or they have sighed for the absolute paternal government of the good old days, for the geniality of a good-hearted tyrant, untrammelled with laws, who will be able to follow the best dictates of his heart. Or, to descend to less strange and more actual examples, it has been proposed that the judge should on each occasion create the law, according to the case before him; that is to say, that he should cease to be a judge (not having a law to apply, and properly speaking not being able to give judgment) and be a free decider of litigation and corrector of customs; or at least that he should free himself from legal fictions and judge according to the individual reality of each individual case.

Unsustainability of such confutations.

These theories are without doubt unsustainable, not excluding the last, which has the appearance of being moderate; because the so-called judicial fiction is intrinsic to the law and exists even when we think that it is not present, for it is always a fiction to place a concrete case in an abstract category. But defenders of the utility of law have met these erroneous doctrines with the bad argument that law does not admit of individual solutions, and demands strict obedience, because the moment of individuality, of inobservance, and of violation that may be called legitimate, does actually exist in the law and is intrinsic to its very nature. Both adversaries and defenders of law are therefore philosophically wrong, those who assert its inutility and those who claim for it an impossible utility.

Empirical meanings of those controversies.

And we say "philosophically," for it is well known that in this case, as in so many other disputes of philosophic appearance, are often concealed disputes of a practical and political nature, in which right and wrong are divided and connected in an altogether different manner. The adversaries of laws are often nothing but adversaries of too many laws, or legitimately demand a less pedantic and mechanical office for the judge than that which he often has at present; whereas the maintainers of laws are opposed to revolutionaries, who would wish to abrogate the definite laws, on which civil progress rests, or to discredit all laws, and cause society to enter upon a terrible crisis that would not promise good results. But all this is extraneous to the philosophic problem.

Necessity of laws.

If the defenders of the utility of laws had wished to make use of an argument of good sense against their adversaries, of the sort that imposes, even when it does not rigorously demonstrate their contention, they might have simply noted the demand for laws, for ordinances, for justice, for the State, which appears at all points of human history.—Better a bad government than no government at all; better laws that are mediocre, but stable, than the frantic pursuit for better and better laws, with the instability that is the inevitable consequence! And on the other hand, may God save us from genial despots, from inspired judges, from tribunals that dive into treasures of equity!—These are the utterances that we hear in history. Battles have been fought for legality, and rivers of blood have been shed for it; for legality are faced the troubles of litigation, and energetic action is displayed, which only superficial intellects can consider a waste of time and trouble; for no trouble is superfluous when we are protecting our own rights, and none is more sacred, since it also guards the offended majesty of the law, the rights of all. Those who declaim against laws can well do so with a light heart, for the law surrounds, protects, and preserves their life for them. No sooner had all laws disappeared than they would lose the wish to declaim:

In such wise as when sometimes in the wood The shepherd spies the wolf, and straight has lost Spirit and sense, and words die on his tongue;

and he would be obliged to have speedy recourse to the remedy and make laws of some sort again, whatever they be, that he may again resume his calm, his work and his gossip.

Laws as preparation for action.

Passing from consideration ad oculos to the philosophical, it is to be said, on the other hand, that the utility of law does not at all reside in its effectuality, which is something impossible, since the single act of the individual is alone effectual; but in this, that in order to will and to carry out the single act, it is usually necessary to address oneself to the general, of which that individual is a single case; that is, to address oneself to the group, of which the individual is a component part, just as in aiming we generally begin by aiming at the region where is the point upon which the aim will be fixed. Law is not a real and effectual volition; it is without doubt an imperfect and contradictory volition, but for that very reason a preparation for the synthetic and perfect volition. Law, in short, since it is the volition of an abstract, is not a real volition, but an aid to real volition; as (to employ the usual comparison) wooden bridges and scaffoldings are aids to the construction of a house and have not been useless, because they must be pulled down when the house has been built.

Analogy between the practical and the theoretical spirit: practical laws and empirical concepts.

Here the analogy between the constitution of the practical and of the theoretical spirit is again shown to be most exact. We meet with theoretical forms in the latter also, which are not really so and are contradictory in themselves, positing representations that function as universals and universals that are representative: arbitrary forms, in which the will undertakes to command what it is not possible to command, that is to say, representations and concepts, things which precede and do not follow the volitional and practical form. But we know that those fictitious concepts, those formulæ, those laws that are not laws, those admitted falsities, which, therefore, are not falsities, serve as a help to memory, and assist thought in finding its way amid the multiform spectacle of the world, which it must penetrate for itself. We do not think them, but they help us to think; we do not imagine them, but they help us to imagine. Thus the philosopher generally fixes his mind upon the pseudo-concepts, that he may afterwards rise to the universals; and the artist also turns his attention to them that he may find beneath them the individual, the lively and ingenuous intuition that he seeks. The same pseudo-concepts, made the object of volition and changed from formulæ to laws, fulfil an analogous office in the practical spirit, making it possible for the will to will in a certain direction, where it afterwards meets the useful action, which is always individuated.

The promotion of order in reality and representation.

Another aspect of the analogy is not less important. The pseudo-concepts would not be possible, if reality did not offer the like side by side with the unlike; which is not the universal and necessary, but the general, a contingent (so to speak) less contingent than others, a relatively constant variable. Pseudo-concepts are arbitrary, not because they posit the like where is the unlike, but because they make that variable rigid, which is only relatively constant, making of it something absolutely constant and changing the like into the identical. Now the practical spirit, which creates reality, has need to create not only the unlike, but also the like; not only that which lasts an instant, but also that which endures almost unchanged for a year, a century, a millennium, or a millennium of millenniums; not only the individual, but also the species, not only the great man, but also the people, not only the actions that do not occur again, but also those that return periodically, similar, though not identical. Laws fulfil this function, for they constitute what is called the social, or cosmic order. This order, however, is always relative and includes instability in itself; it is a rectilinear figure, which, on being closely examined, reveals itself as also curvilinear. For this reason it is necessary to make laws, and it is necessary to violate, though obeying them in their execution.

Origin of the concept of plan or design.

This function of law as an unreal volition, aiding nevertheless and preparing the real, throws light upon a concept that we have had to reject when exposing the nature and method of functioning of the volitional act; that is to say, on the concept of plan or design or model, as proper to the practical activity, which is said to act by carrying out a pre-established design. We have already demonstrated that design and the execution of the design are in reality all one, and that man acts by changing his design at every instant, because reality, which is the basis of his action, changes. And as in the Philosophy of the practical in general, so in particular in Ethic, the concept of pre-established design has no place; because, if it be true than in ethicity the universal is distinguished from the merely individual action, it is also true that the universal does not exist in concrete, save incorporated and individualized as this or that good action. The universal of ethicity is not a design and cannot be willed for itself outside all individuation, in the same way as to fall in love is to fall in love with an individual and not with love. But that concept of design, proposed for action and carried out by its means, though erroneously adopted in Economy and in Ethic, must nevertheless have its legitimate meaning in some special order of facts; otherwise it would not be possible to make even erroneous use of it. This meaning is to be found, as has been seen, in the fact of laws.

IV

CONFUSION BETWEEN LAWS AND PRACTICAL PRINCIPLES. CRITIQUE OF PRACTICAL LEGALISM AND OF JESUITIC MORALITY

Transformation of principles into practical laws: legalism.

Nothing perhaps better makes clear the true nature of laws than the examination of the very grave errors introduced by their means into the Philosophy of the practical: for, owing to the failure to perceive the character of mere aid proper to their function, laws have been confused with practical principles, these being looked upon as laws and those as principles.

Genesis of the concept of the practically licit and indifferent.

We always live surrounded by innumerable laws, although these are always finite in number. The Decalogue also admonishes: "Take not the name of God in vain"; "Honour thy father and thy, mother"; "Thou shalt not steal"; "Thou shalt commit no murder"; "Thou shalt not covet thy neighbour's house, nor his wife, nor his man-servant, nor his maid-servant, nor his ox, nor his ass, nor anything that is his"; etc. The decalogue or hectalogue of prudence admonishes us: "Raise not up against thee too many enemies "; "Mind your own business"; "Conciliate him who is more powerful than thou"; "Hurt him who hurts thee"; etc. Those laws that are so many and so minute easily lead to the false belief that they suffice together to regulate our economic action and our moral life, and that practical principles can be substituted for and be fully represented by a Decalogue or code, which should be the true and proper regulator of human life.

But the Decalogue, the code, the Corpus juris, ample and minute though they be, are not, as we know, capable of exhausting the infinity of actions conditioned by the infinite variety of facts. Every law brings with it, as its necessary correlative, as the shadow of its light, actions that are indifferent and indifferentiable, the legally indifferent, the licit, the permissible, the right, the faculty of doing or of not doing. As an inevitable consequence of this, practical principles having been conceived as a series or complex of laws, the concept of the practically indifferent must also be posited and the licit changed from legal to practical.

Consequence of this: the arbitrary.

And this is what happens. At every moment of life we find ourselves face to face with actual situations, to which the laws that we possess either do not apply at all, or apply only in the approximative way that we have seen; at every moment of life, we find ourselves without the guidance of the law, face to face with the indifferent and the indifferentiated. The practical man knows well that the laws were a mere help, merely a preparatory stage to action, and that he must in each case face the actual situation as it arises, intuite and perceive it in its originality, and perform his own action with originality. But he who has accepted the legalitarian conception of the practical activity and has abandoned practical principles as useless or looked upon them as non-existent, now that he finds himself abandoned also by the laws, in which he had put too much trust, has no other guide on which to fall back save his own will.

And will is not a guide but the lack of a guide; it is not action but inaction, that is to say, contradictory action; not activity, but passivity, not prudence and good, but imprudence and evil.

Thus the legalitarian conception of practical principles produces neither more nor less than the death of the practical, installing passivity in the place of activity, evil in the place of good.

The legalitarian theory, which proposes to fix and to determine with precision the true concept of freedom, arrives at just the opposite result: the will.

Ethical legalism as simply a particular case of practical legalism.

It is opportune to remark here that moral legalism, which has hitherto alone occupied the attention of critics, is nothing but a particular case of general practical legalism, and if the particular and not the general case has been observed, this has depended upon the failure to recognize the economic form in its autonomy, so common with philosophers. But from the examples that we have given, it has clearly resulted that legalism is an error which embraces alike Economy and Ethic, introducing into both the philosophic absurdity of the practically indifferent. Even a man without moral conscience, or one deprived of it for a moment, if he conceive the guidance of his utilitarian action in the form of laws, loses the compass of his utilitarianism and falls into the arbitrary, which is the ruin of his own individuality. If (to resume the usual example) I impose upon myself the not drinking of wine as a hygienic law, and it happen to me to find myself at a certain moment in such physiological conditions that a glass of wine can accelerate the beating of the heart and restore to me the strength of which I am in need; and if, through faith in the established law, I forget that the law is conditional and not absolute and that the only absolute law is to do at a given moment what is useful at that moment; it is evident that by so reasoning and acting, I am substituting superstition and therefore the arbitrary for prudence and that I am causing injury to myself.

Critique of the practically indifferent.

It is necessary to maintain against the morally and practically indifferent, that it is a concept altogether external to Ethic and Economic and devastates it terribly whenever it penetrates into it, or (what is worse) subtly corrupts it. In Economic as in Ethic, in the true and proper practical field, there is no faculty that is not also obligation; there is no right that is not at the same time a duty; there is nothing licit that is not forbidden; nor permitted that is not turned into a command. πάντα ἔξεστιν, ἀλλ' οὐ πάντα συμφέρει, said St. Paul,[1] in obscure but suggestive language that has been much discussed—all is allowed to us but we do not allow anything—we should say in explanation; everything can and should be spiritually elaborated by the will and receive the form of freedom. But in order to destroy that paradoxical concept at the roots, it is necessary to reach the point underground where the concept of practical legalism is to be found, and to show, as we have done, its origin, in the confusion between principles and laws.

Contests between rigorists and latitudinarians and their common error.

In vain have the rigorists, becoming aware of the ruin that menaced the theory of Ethic, struggled against the theoreticians of the morally indifferent, or latitudinarians. So long as neither party left the legalitarian field, one side was right against the other and both were equally wrong, Pharisees and Sadducees, Jansenists and Molinists. The rigorists clung desperately to the law, refusing to admit that it could be doubtful and give rise to the morally indifferent; the law was certain. But the law is never really either doubtful or certain: revolving upon empirical concepts, it never limits anything with precision and therefore is not certain; having for its object, not concrete action, but only preparation for it, does not propose to limit the illimitable and so is neither uncertain nor doubtful: it stands on this side or the other of such categories. Thus the rigorists also found themselves face to face with the morally indifferent, and had no way of vanquishing it. They could advise the choice of the most painful and repugnant action, self-denial, self-tormenting; but this too was a kind of wilfulness and evil. The latitudinarians, on the other hand, could enlarge the field of the morally indifferent at their pleasure, placing in evidence the dubiety of law and its consequent impotence as a practical principle; but since they did not recognize any practical principle outside the form of law, they were finally obliged to have recourse to it, that they might have some point of orientation in the guidance of their lives. And since they could not find it in the law itself, recognized as doubtful, they were obliged to place it in the authority of its interpreters; and when these authorities were at variance, in the adding up of authorities (just as is done for the Roman jurists in the law of citation made by Theodosius II.); and since, finally, two or three or four or a hundred authorities, when they are uncertain, are not of greater value than one who is equally uncertain, any sort of authority finally had to suffice them as justification for an action. Probabilitism, far from being merely an illegitimate degeneration of legalism, is its logical consequence. Reduced as they were to authority, why should one be of more account than another, when all are estimable people worthy of credence? Why should the precedence be given to Papinian over Paul or over Ulpian? If Villalobos be of opinion that a priest who has committed a moral sin cannot say mass the same day, Sanchez, on the other hand, Jopines that he can: why, then, should a priest who finds himself in that case follow Villalobos rather than Sanchez? It is true that if he make a blind choice between Villalobos and Sanchez, he becomes the prey of self-will; but self-will and legalism are indissoluble, and the more carefully he tries to free himself from the bond, the more tightly it winds itself around him.

Jesuitic morality as doctrine of fraud against the moral law.

Practical legalism can also give rise to a monstrously absurd theory, which we shall call Jesuitic morality, not because it is peculiar to the Jesuits or to Catholicism, but as dutiful homage to the most conspicuous and likewise the most celebrated in literature of its historical incarnations. The theory of Jesuitic morality admits that we can rationally defraud ethical law.

Concept of legal fraud.

That the law is defrauded or eluded every day, taken in itself, is neither moral nor immoral, since it is an expedient of social strife like another, and in certain cases may be a legitimate act of war and a fraud only in name. A law held to be iniquitous should be combated openly; but if the imposer of the iniquitous law, or he who wishes to profit by it, have committed a mistake in drafting it, so that it can be interpreted in such a way as to become good, or at least better, it is very natural that the adversary should profit by the mistake, if for no other reason than that he may discredit the law as equivocal and lacking in precision and compel society to discuss it again. Who does not applaud the fraud of Portia, when it is a question of saving the life of the noble Antonio from a Shylock? And if even the ferox animus of Shylock has found defenders, as symbol of the tenacity with which we must make our own rights respected, yet Portia also will always find her supporters, as symbol of ingenious rebellion against an unjust law.

Absurdity of the fraud against ones self and against the moral law.

But what is altogether irrational and yet seems to be admitted by Jesuitic morality, is the fraud against oneself, and so against one's own moral conscience. To defraud one's own conscience, to rebel against it with violence or with artifice, is contradiction, wilfulness, evil. It sometimes happens that we exert ourselves to still what is called the internal voice of admonition, the Socratic demon, or the guardian angel. This happens in the utilitarian, not less than in the moral field; when, for instance, we yield to a pleasure which we know to be harmful and had intended to avoid for that reason, and when by dint of subtleties we try to persuade ourselves that it differs from that which we had recognized as harmful. We attempt, but we never really succeed; we may be able to obscure our conscience for an instant, but we can never permanently and altogether darken it; the effort itself calls for the light that we would avoid.

Jesuitic morality not explainable as mere legalism.

But that pretension of Jesuitic morality cannot on the other hand derive from mere ethical legalism, because legalism produces the contradictions that we have already placed in relief; it generates the morally indifferent and at the same time suppresses it; and when it has suppressed again generates, in order again to suppress it; and so on to infinity, an anxious and sterile doing and undoing. But it never authorizes fraud. Simple legalism will never justify our pretending to ourselves when a definite action is willed or when we have a definite intention, that we will another action and have a different intention; or, as they say, direction of the intention: the intention is that which it is and it does not allow itself to be directed at will. To obey the letter of the law with the clear intention of breaking it in spirit will never be justified.

Jesuitic morality as alliance between legalism and theological utilitarianism.

The pretension of Jesuitic morality becomes illuminated and transparent to the intellect, only when we make the hypothesis of an alliance between practical legalism and theological utilitarianism; that is to say, when not only do we conceive morality as a series or complex of legislative decisions, but when we likewise consider these to be nothing less than the product of the will of God. They are not in themselves moral as such, and to observe them does not arise of intrinsic necessity; but they are obeyed as the lesser evil, through fear of worse or in hope of future advantage. In this case there is a silent struggle between God the legislator and man, a struggle between the weak and the overbearing, in which the strength of the weak lies in ingenuity, their tactic in fraud. Hence the dominant concept of Jesuit morality: to get the better of the divine laws as far as possible, to do the least possible of what they command; and when called upon to give an account of one's own actions before the tribunal of confession, or before the universal judgment, so to subtilize upon the law, that from the interpretation thus put upon it, what has been done seems to belong to the licit and permissive. God forbids man to kill man; but does he intend to forbid this, when the motive for this killing is the glory of God himself? When the slayer acts as though he were the hand of God himself and is all one with him? Without doubt, no: so that it will be lawful for the Jesuit to kill or cause to be killed his Jansenist adversary, who injures divine interests by disclosing the defects of the holy Company, which is the image of God upon earth: that killing, then, is not only lawful, but ordained. But if he want to kill his adversary, not through zeal for the divine glory, but because of the injury that he causes to the personal and immoral interests of the Jesuit? This too is permitted, provided that when killing him, though animated with personal hate, he withdraw his regard from the real motive, and directing his intention to the divine glory, thus justify the means by the end.