BENEDETTO CROCE (continued 8)

Distinction between the doctrine and the practice of the Jesuits.

Such is the monstrous logical product, born of the union between legalism and the theory of theological utilitarianism; such is the essence of Jesuitic morality, which has justly aroused horror and disgust. And we call it logical (or illogical) product, because we wish to make it clear that here as elsewhere we are occupied with theories only and are criticizing them alone. In practical action Jesuitic morality was often better than the theory would imply; even the Padre Caramuel, who put the question as to the right possessed by the Jesuits of slaying the Jansenists, must have been at bottom a good man; because, having almost arrived at an affirmative conclusion to his inquiry by dint of perverting the moral law, he was seized by pity and defrauded his own fraud, concluding negatively that the Jansenists occidi non possunt quia nocere non potuerunt, because (said he) they are poor devils, unable to obscure the glorious brilliance of the Company, as the owl does not conceal the light of the sun.[2] And Saint Alphonso dei Liguori, who is usually looked upon as an example of that lurid morality in our day, when he set to work to stir up afresh the ugliness of casuistic in connection with the sixth and ninth commandments, experienced all the repugnance of the gallant gentleman that he was, at such a task, imposed upon him by the traditional mode of treating Ethic, as is to be seen by his declarations, exclamations, and exhortations: Nunc aegre materiam illam tractandam aggredimur, cujus vel solum nomen hominum mentes infidi. Det mihi veniam, quaeso, castus lector!... Ora studiosos ... ut ... eo tempore saepius mentem ad Deum elevent et Virgini immaculatae se commendent, ne dum aliorum animos Deo student acquirere, ipsi suarum detrimentum patiantur.[3] If Jesuitism were also moral corruption, this was not due to its abstract theories, but to the education that it practised, which was depressing, servile, and directed to mortify the strength of the will and of the intelligence, to reduce a man to be like senis baculus, a docile and passive instrument in the hands of others; and to the confusion in consciences as to the real motives of actions, which it not only preserved but increased, lulling souls to sleep with sophisms and allurements of devotion aisées à pratiquer, by means of which the gates of Paradise could be unlocked, and with chemins de velours on which one could mount to the sky with every indulgence. The rigorists and latitudinarians are philosophically equivalent; but it is a fact that in practice the rigorists were generally energetic and austere souls; which should not cause us to forget that the latitudinarians also, amid their distorted theories, sometimes had a lucid vision of the complications of reality and felt the necessity of a morality less abstract and less disharmonic in relation to life, however incorrectly they may nevertheless have developed its theory.

V

JUDICIAL ACTIVITY AS AN ACTIVITY GENERICALLY PRACTICAL (ECONOMIC)

Legislative activity, as generically practical.

The will that wills classes of actions, or the activity that makes laws and that we can henceforward term legislative activity without fear of misunderstanding, is either moral or merely economic; and therefore, when dialecticized, is either moral or immoral, economic or anti-economic. It is true that this will is abstract and indeterminate; but that does not prevent it from being, and from being obliged to be, either moral or merely economic; and, therefore, abstractly moral and abstractly economic, and so also abstractly immoral and anti-economic. A programme of action will be conceived, as they say, wisely or foolishly, to a good or to a bad end, for mere reasons of utility, or with a lively desire for good. The legislator is a volitional man, and as such to be judged both utilitarianly and morally. The laws that are his volitional product are useful or injurious, good or bad. This judgment is also without doubt abstract, for it is necessary first to see the legislator engaged in the practical act of the application of his law, in order to recognize what he can do and who he is. We know many (others or ourselves?) who make plans for the most beautiful lives, legislating admirably for themselves and for others; yet these show themselves mean and bad in action: and we not infrequently find the opposite case of men who calumniate themselves and who, after they have declared the most dishonest, or at least the most amoralistic, of intentions, when they find themselves face to face with the bad action, ugly with the ugliness of sin, say, as the old man in the fable said to Death: "I have not called thee!"

Vanity of disputes as to the character of institutions, economic or ethic: punishment, matrimony, the State, etc.

From these considerations, which seem to be most obvious, a not obvious consequence is to be drawn; namely, that it is perfectly vain to descant upon the utilitarian or moral character of laws, or of these or those laws; to ask oneself, for instance, whether the object of punishment be deterritio or emendatio; if matrimony be an exchange of services or a sacrament, a union of interests or a society with moral ends; if the State be the result of a contract or of a moral idea, and so on. These questions have an immense literature devoted to them, which has been accumulated for centuries, and although they be vain for us, yet they cannot be so for one who has not yet become clear as to the special forms of the practical activity and as to the nature of law. For him they are not vain, since they represent as it were in a concentrated form, the complete philosophical problem concerning the practical; although they must of necessity turn out to be insoluble. Punishment can be conceived and willed as a mere utilitarian menace, to prevent others from performing certain classes of actions, even if they be ethically of the highest value; or as moral solicitude for the amelioration of society and the individual himself who has erred, by obliging him to re-enter himself and change his mind. Even the pain of death can be directed to this end and death that has given or restored to the guilty a day, an hour, an instant of that human life, of that contact with the infinite, which he had lost, may be held not to have been in vain. Matrimony may be instituted for the more regular satisfaction of the sexual instinct and for other similar interests of utilitarian life; and also to secure, that interpénétration of souls, which is the great mover of the moral life. The State may arise from a mere contract which draws together isolated individuals and groups and unites them for defence and offence; and also form the profound moral aspiration of the individuals, who recognize the universal in themselves and are attentive to realize it in modes ever more rich and more lofty. All institutions, all laws may receive this double form; and although there be laws that are merely utilitarian, those that are moral are also, as is clear, utilitarian or economic, and therefore not useless but useful. An amoral man will make for himself amoral laws; and between an amoral man and an amoral woman no other marriage but that of interest is possible; and between a hundred amoral individuals, no other State is possible but that established by contract; and no other punishment will be applicable in such a State save that of mere deterritio. It will be objected that amoral individuals and multitudes do not exist, and it may be true that they do not exist in a continuous manner: but they do exist at certain moments; and this as we know, suffices to justify, indeed to prove necessary, our theory.

Legislative activity as economic.

Thus no other answer is possible to the question asked as to whether the legislative activity be moral or merely economic, save that it may be the one or the other, and therefore, that it is not of necessity moral; thus, defining it in its full extension, it must be called generically practical, or taken in itself, merely economic.

Juridical activity: its economic character.

Passing now from the legislative activity to that of him who realizes and executes the law (an activity that we may call juridical, in order not to confound it with the other), and asking whether juridical activity be moral or distinct from morality and if distinct, what is its distinctive characteristic, the answer cannot but be most simple for us who have attained to our present position. So simple indeed, that to give it would seem to be almost superfluous. Not only must the activity of carrying out the law not be intrinsically diverse from the activity of legislating, but as has been seen, it obeys exclusively practical principles, economic and ethic. Hence the 'juridical activity can be merely economic and it can be moral; and seeing that economicity is the general form that of itself involves the other, the juridical activity is generically practical, or economic. As such and in so far as it is such, it is at once distinct from and united with the moral form.

Its consequent identity with the economic activity.

But juridical activity does not merely enter the economic activity; it is exactly identical with it: juridical activity and economic activity are synonyms. Legislative activity enters economy and nevertheless distinguishes itself from it, as volition of the abstract, indeterminate volition. The juridical activity is on the other hand concrete and determined, like the other, nor is it distinguished from it by any secondary character. It might be attempted to subdistinguish the economic and juridical activity, while admitting the generic identification, and to look upon the latter as such that although obeying the economic principle, it is yet developed under the laws; whereas the former would exist even where laws were wanting. But the distinction would be empirical, of undulating boundaries. Strictly speaking, man is surrounded with laws in all his actions, and he always acts under all the laws, and at the same time he effectually acts under none of them, save that of his own practical conscience.

If the identity and synonymity of law, understood as juridical activity with economy, has not been discovered, that too is connected with the lack of recognition of the practical utilitarian category on the part of philosophers and with their considering it, as they erroneously did, either as egotism and immorality, or as an altogether empirical division, to which was added a concept, also empirical, of the juridical activity itself, which should be limited to what are called laws emanating from the State, sometimes graciously including in them social laws, and always altogether ignoring the fundamental form, individual laws.

The failure to recognize the economic form and the meaning of the problem concerning the distinction between morality and law.

But this failure of recognition has not prevented the appearance and persistence of the problem of the combined unity and distinction of law and morality, which has been the most frequent though the most complicated mode of affirming the claim of a special Philosophy of economy. A serious beginning of meditation upon law had hardly begun, when something was observed in it that it was impossible to resolve into the concepts of Ethic. Hence the generally admitted recognition of the distinction between law and morality and the many attempts at determining of what the peculiar character of the former exactly consisted.

Theories of compulsion and exteriority, as distinctive characters: critique.

This character was placed most frequently and with greater insistence in the two determinations of compulsion and of exteriority. And it was said that law is distinguished from morality because it is possible to exercize compulsion in the juridical, but not in the moral field; or that law deals with the field of external relations, morality with the internal; or that one is the psychical, the other the physical side of action. But as to the first determination, we have already shown that it has no meaning at all when applied to the forms of the spiritual activity, where nothing is compulsory and everything is at once free and necessary: the juridical activity, if it be activity, must likewise always be determined by free agreement. The second, which is the determination of exteriority, is not less inconceivable; for it is not given to separate the external from the internal, since they are both one, nor the word from its meaning, nor the body from its spirit. Compulsion and exteriority, taken strictly as concepts, are therefore, in this case, void and contradictory formulæ. To fill them somehow with a thought, it would be necessary to understand as compulsion certain modes of action, as opposed to certain other modes; for instance, compulsion would be the action by which an accused person was conducted to prison by two policemen and non-compulsion that of him who should be induced to go and constitute himself a prisoner through the persuasion of others; and as exteriority, certain classes of actions opposed to certain others; so that, for example, the deportment of an individual as communal or provincial councillor would belong to external life, his relations with his confessor or with his Æsculapius to internal life. But compulsion and exteriority, reduced to these meanings, become gross and empirical concepts, of which no use can be made in philosophy and which therefore cannot be of the least value as qualifying and distinguishing law from morality.

In the same way, no value is to be attached to such a distinction, when determined from what is licit to what is commanded, from rights to duties, from what is permitted to what is obligatory; because licit and commanded, rights and duties, from what is permitted to what is obligatory, are correlative concepts constituting an indissoluble nexus and it is not possible to separate and to oppose them to one another.

Moralistic theories of rights: critique.

The difficulty of conveniently fixing the distinction with the characters indicated, leads one to think of a different sort of tentative, according to which rights would certainly be distinguished from ethicity, not placed above or beside it, but rather in the very sphere of morality itself, as the species in respect to the genus or the part in respect of the whole. Juridical action would be moral, but it would belong to the inferior levels of morality; it would be occupied with the execution of simple justice, with the establishment of order, proportion, equality; whereas morality would represent more than justice, and would upset the equilibrium of rights with benevolence, generosity, sacrifice, heroism. Rights (it is also said) are limited to the ethical minimum, while morality strives for the maximum; rights are concerned with strict rights or perfect duties, morality with meritorious and supererogatory actions, imperfect duties. But these determinations also pretend to separate the inseparable, by drawing an arbitrary line of division between small and great actions, between least and greatest, and they employ concepts that are altogether empirical, as, for instance, that of justice as distinct from benevolence, of the strictly obligatory from the meritorious and supererogatory; and worse still than this, metaphors and symbols, such as equality, order, regularity; or they operate directly with the arithmetical and geometrical proportion of actions. And consciously or unconsciously a return is made to Ethic pure and simple, with the theories that make juridical activity to consist of the recognition of others as persons, or with the search for general utility (superindividual). When we act in view of the person in other individuals (or in oneself), or of the useful, which is not the useful for the individual, but although it comprehends, yet transcends it:—the merely juridical conscience has already been surpassed, it has been filled with a moral content, that is to say, an ethical form has been given to the practical activity. The double sense of the terms "rights" and "morality" is in this way preserved in words but denied in fact.

Duality of positive and ideal, historical and natural rights, etc.; and absurd attempts at unification and co-ordination.

The dual sense of the terms is also affirmed by the very ancient distinction between positive and ideal, historical and natural rights, right and justice, or, as it has also been formulated, between the two different justices, realistic and idealistic, fruitful in conjunction. Natural rights, with their homonyms just stated, besides the generically practical significations that we have already examined, have also had the narrower one of ethical ideal or morality; and therefore it cannot cause astonishment that it should appear now conjoined with, now detached from positive rights. But how joined and disjoined? For us it is a question of degrees, whence the positivity of both forms is recognized: the second of these is included in the first: the ideal right or morality (if it be right, and not simply abstract excogitation willed by no one, or vague desire) is both positive and historical. But those who posited the distinction without being able to make it definite and so to dominate it were led to conceive one or the other term as negative; and therefore both as negative between themselves and existing only in a third: which meant to reannul the distinction by reducing it to abstract contradiction. If one of the two were conceived as negative, either the ideal justice (that is, the seriousness of moral strength) was denied and turned to ridicule, or positive justice, that is, the seriousness of volitional strength, was presented as something turbid and impure and at best as a human imperfection, to which it was advisable to resign oneself since it would disappear in a society of perfect men or in a future life of perfection. Juridical activity became something contingent and mortal. Matters were even worse, if it were found impossible to eliminate it with similar religious, apocalyptic, or millenary fancies. The negative was then conceived as positive or co-ordinated with the positive: hence incredible logical divisions of rights into forms or species of moral and immoral rights, of just and unjust rights, in which the species has the function of negation of the genus, almost as though the race of horses were to be divided into two kinds: dead and living horses! Unjust or immoral rights are not rights, but a contradiction of them, and if we sometimes describe in this way a real and effective juridical act (an economic act), it is necessary to observe that the denomination is given from the point of view of a superior form of activity. Rights in themselves as rights, understood positively, are never immoral, but only amoral.

Value of all these theories as confused perception of the amoral character of justice.

All these errors, all these sterile tentatives have their origin, as has been said, in the lively consciousness of a distinction existing between right and morality and at the same time of the impossibility of determining this correctly, owing to lack of clarity as to the purely economic form of the practical activity. When the juridical activity has been identified with the economic and when juridical (economic) activity has in consequence been conceived as at once united with and distinct from morality, we are able to recognize that these attempts have nevertheless fulfilled a very useful function; that is to say, they have more or less energetically asserted and defended the position that there existed a characteristic distinction between right and morality and that it was necessary to seek for it. They are therefore far superior, notwithstanding their errors, to that confused ethical conception, which receives rights and morality indistinctly into its bosom, or to the utilitaristic conception, which arrives by a different route at the same indistinction. This merit belongs to the theories of the moral minimum, of justice, of the two justices and of the contest between positive and ideal rights; but in a much greater degree to that of compulsion, of exteriority, of the licit. With these last was almost unconsciously set in relief the fact that right obeys a law different from that of Ethic, and may be called compelled and not free by comparison with it, because not founded upon the necessity of the universal; that in respect to the supreme interiority of Ethic it can be considered as something exterior; that in respect to the ethical imperative, it appears as something indifferentiated or licit. These are without doubt symbols, tautologies, vague and imprecise phrases, but efficacious in keeping the attention alert and in promoting doubt and research.

Confirmations of this character in the ingenuous consciousness.

But the impossibility of absorbing rights into Ethic altogether and without leaving residues is proclaimed or confessed, not only in the theories of philosophers, but by simple thought, and especially by the consciousness we have of the real world being governed, not by abstract morality, but, as is said, by force, or by the will in action. "Disarmed prophets" will be efficacious in poetry, but ridiculous in practical reality: la force prime le droit, precedes it and is always of greater value than an unreal and contradictory ethical right and aspiration, afterwards dissolved in the empty and arbitrary. We will not recall proverbs, maxims, historical examples, though this would be easy; that little story of Franco Sacchetti which preserves "a fair speech" of Messer Ridolfo da Camerino, will suffice for all. One of his nephews had been at Bologna studying law for a good twelve years, and when, having become an excellent lawyer, he returned to Camerino, he went to pay a visit to Messer Ridolfo. When he paid the visit, Messer Ridolfo said, "And what didst thou do at Bologna?" He replied, "My Lord, I have learned reason." Said Messer Ridolfo, "Thou hast spent thy time ill." The young man replied that the saying seemed to him to be very strange. "Why was it ill spent, my Lord?" And Messer Ridolfo said, "Because thou shouldst have learned force, which is worth two of the other." The youth began to smile, and thinking it over again and again, both he and the others that heard, perceived that what Messer Ridolfo had said, was true.[1]

Comparison between right and language. Grammars and codes.

And here too we are at last able to establish a parallel between the practical and theoretic activity, between the problems of the Philosophy of right and those of Logic and Æsthetic. The comparison of right and language has been several times attempted, with very great correction of thought, although necessarily defective execution, since it was customary to conceive both language and right in an abstract and empirical manner. Whoever should wish to take up the inquiry again would do great service, were he to insist upon the fact that since it has been impossible to understand what language really is, so long as grammars and vocabularies were taken as its reality, so it is impossible to understand anything of rights, so long as the eye is fixed upon laws and codes, or what is even worse, upon the commentaries of jurists, or upon the abstract volitional fact, or altogether upon what is not a true and proper volitional fact, but the elaboration of formulæ and of general concepts.

Logic and language; morality and rights.

Only when rights appear as individual and continually new work of individuals, only when the attention is directed to the spectacle of real life and not to the abstractions of legislators and dispenses with the dissertations of jurists, is it possible to state the problem: how does this juridical work coincide with, and how does it differ from moral work? And here too the comparison with language is fitting, although language be not logicity, yet logical thought cannot become concrete, save in speaking; so moral activity cannot live, save by translating itself into laws and institutes, and in the realization of laws and institutes, that is, in the juridical and economic activity.

Finally, just as the history of a language is always arbitrary and abstract, so long as it is considered alone, outside the works in which the language is incarnate and the true history of a language is its poetry and literature, so the true history of the rights of a people (of the rights that have really been executed and not merely formulated in laws and codes, be often proved to be a dead letter) cannot but be altogether one with the social and political history of that people: an altogether juridical or economic history; a history of wants and of labour.

VI

HISTORICAL ANNOTATIONS

Distinction between morality and rights, and its importance for the history of the economic principle.

I. The history of the distinction between morality and rights is very important, precisely because, as has been said, it is the manifestation of the very strongly—felt desire to posit in some way a philosophy of the aethical or amoral practical form: a manifestation which is the most conspicuous of all those that we have had occasion to note on the subject (theory of politics, theory of the inferior appetitive faculty, theory of the passions, etc.).[1] And owing to the impossibility of satisfying that exigency with the intellectual data possessed, the problem of the relation between rights and morality has become anything but an amusing puzzle, a theme for true vain eloquence.

Emmanuel Kant in the Critique of Pure Reason, wishing to give a characteristic example of the difficulty of definitions, found nothing better to record than that jurists were always seeking a definition of rights, but had never succeeded in finding one.[2] And a jurist philosopher of our times (Jhering) has called the definition of rights, in their difference from morality, the "Cape Horn," or the Cape of tempests (or shipwrecks?) of juridical science.

Indistinction up to the time of Thomas.

The problem of that distinction is on the other hand relatively recent and therefore the history of the Philosophy of rights has rightly been placed not further back than the end of the seventeenth century, or not much beyond Christian Thomas.[3] Up to that time, it is not possible to speak strictly of a Philosophy of rights. Treatises of jurisprudence, of rights and of the State, in regard to what of philosophical they contained, were nothing but treatises of Ethic; not indeed because the two sciences were (as they were) materially united in the same books, but precisely because the two concepts were indistinct. The speculations of antiquity for this part also of the Philosophy of the practical have the character of ingenuousness already noted. It would be incorrect to reconstruct a moralistic philosophy from the rights of Plato, founding it, for example, upon the theory developed in the Gorgias as to the eagerness to purge his punishment that should exist in the criminal, similar, in this respect, to the sick man, who knows that the medicine will free him from his disease.[4] The researches of Aristotle also as to justice (perhaps the best the classical world has left us on the subject), look upon justice in a narrow sense, as a virtue among virtues,[5] which should not intrinsically possess any greater reason for distinguishing itself from the other virtues than they for distinguishing among themselves. The pompous definitions of the Roman jurists, still the joy of schools of jurisprudence and of judges' rhetoric, have no philosophical weight and would in any case confirm the identity of rights with Ethicity, if not absolutely with the entire knowable and practical universe. There is hardly a ray of the distinction to be traced in the discussions as to whether rights exist by nature or by convention and in the concept of a ἁπλῶς δίκαιον, opposed to that of πολιτικὸν δίκαιον found in Plato, and more explicitly in Aristotle,[6] and rendered popular by Cicero when speaking of the recta ratio, naturae congruens, diffusa in omnes, constans, sempiterna; of rights not drawn from the Twelve Tables or from the pretorian Edict, but ex intima philosophia; and of rights that on the other hand are varie et ad tempus descriptae populis, whence they have the name of laws favore magis quam re.[7]

This rough distinction between natural and positive, absolute and relative rights; this concept of an ideal right placed face to face with real rights, or of which the real should be an imperfect and partial translation, also reappears in St. Thomas Aquinas and in other scholastics. And there is nothing more than this in those thinkers who founded what was called natural rights in the seventeenth century, such as Grotius and his followers. It is true that the boast of having distinguished rights from morality and religion has usually been attributed to that historical period. But it is hardly necessary to repeat that what was meant by these formulæ were the great social and political questions which took the form of wars of religion in the Europe of the sixteenth and seventeenth centuries; that so-called distinction, therefore, the result of long strife, though it have great practical value as a sign of social transformation, has no doctrinal value. The idea of autonomy, proper to the juridical activity, is absent even in the profound treatise of Vico on universal rights, for this contains only an altogether empirical distinction between virtus and justitia; of these the first cum cupiditate pugnai, and the second utilitates dirigit et exaequat; and both derive their origin from the vis veri or ratio humana; and as all the virtues are connected and none of them can exist alone (nulla virtus solitaria), so virtus and justitia are at bottom one.[8] The work of Vico, which gives a new conception of the relation between ideal and history and most original applications of Roman history, turns out to be nothing but Ethic, when considered beneath the aspect of Philosophy of Rights. Nor on the other hand could the problem of the nature of rights truly form the object of enquiry on the part of utilitarians (Hobbes and others); with whom, if the absorption of rights in morality was not found, this did not arise because the one was distinguished from the other, but because morality itself was denied in what was proper to itself: the problem of the distinction disappeared, because its terms disappeared.

Thomas and his followers.

II. Thomas provided the apple of discord, or as might also be said, cast the leaven of progress into the treatment of rights, when he distinguished three forms of the rectum: the justum, the honestum, the decorum, placing the first in opposition to the other two, the forum externum to the internum, and attributing to rights and justice the character of coercibility.[9] The formula had a rapid and unsuspected fortune, and became current in the schools. Gundling, for instance, defined right as the "ordering of external relations."[10]

Kant and Fichte.

It was completely developed and reasoned out, with all the strictness that its erroneity permitted, in the doctrines of Kant and Fichte, who were the greatest of Thomas's scholars for this part of the study. Kant opposed legality to morality; the juridical imperative is expressed with the formula, "act externally" (handle äusserlich); right is conjoined with the faculty of compulsion (zwingen.) Hence his doctrines are often amoralistic or economic as regards individual juridical institutions, and this is especially the case when he deals with the State, with matrimony, and with punishment; these were followed by Fichte, who made some reservations for matrimony alone, considering it an institution not only juridical, but also natural and moral.[11] On the other hand rights were for Kant something that surpassed the individual will and utility; it was the sum of the conditions by means of which the will of the one can be united with the will of another, according to a universal law of liberty.[12] Fichte in like manner conceived of rights as altogether free of every admixture of morality; as an objective order, arising from the fact of the individual who coherently affirms himself and his own liberty, thus also affirming other individuals and their liberty.[13] Both philosophers thus preserve the moralistic concept of the legal and the justum; rights, although armed with compelling power, are never force alone, but the external ordering of freedom, namely, justice. For this reason, Kant explicitly excludes force, in so far as it is constitutive of rights and speaks of a "force without law"; and both he and Fichte make coercibility to flow, not from the nature of the volitional force itself, but from the violation of order. It is just, says Kant, to repel force with force, when it would interfere with liberty. The right of coercion (repeats Fichte) is founded solely upon the violation of the original right. But it remains obscure what this poor legality, justice, coexistence, and harmony of wills may be; what force may be and why and how it is connected with the preceding definition is not investigated. The distinction of the juridical from the moral sphere is announced and proclaimed more loudly than perhaps was ever done before or since; but to announce and to proclaim is not to carry out. If rights be changed into an ordinance more or less rational, to be identified with the concept of justice, one does not see how they can exist independently of morality. Kant and Fichte were prevented from conceiving the juridical function free from every element of morality or immorality, by the function which they assigned to compulsion (symbol of law), submitting it to ethical exigencies. In this uncertainty, there cannot be wanting and there is not wanting the thought that rights are not indeed an eternal category, but a historical and transitory fact; and as Spinoza had already said, si cum humana natura ita comparatum esset ut homines id quod maxime utile est maxime cuperent, nulla esset opus arte ad concordiam et fidem; Fichte thus looked upon the juridical State simply as a State of necessity opposed to the State of reason: and when perfection has been attained and there is complete accord of all in the common end, "the State" (he said) "disappears as a legislative and compulsive force."[14]

In the ulterior phase of his thought, Fichte Hegel afterwards took further steps toward a closer union between morality and rights. But the complete resolution of the first in the second is effected in the system of Hegel, though it is customary to blame this philosopher for the opposite fault, namely, that he resolves morality in right. Above all, Hegel would hear nothing of the concept of force in right: facts of force and of violence, as, for instance, the relation between a slave and his master, appertain, according to him, to a circle, which lies on this side of right, to the subjective spirit, to a world in which wrong can still be right. The fact that violence and tyranny are met with in positive rights is an accidental thing and does not affect its real nature. For Hegel, as for his predecessors, co-operation arises only as reaction from the violation of what is just, and is violence preservative of liberty, suppression of the previous violence. "To define abstract and rigorous rights as law which we can be compelled to obey, means" (writes Hegel) "to see them as a consequence of what takes place only by the cross road of wrong." But there is more: abstract rights, which form the first moment of the Philosophy of the practical in Hegel, are unreal; he opposes to them the second moment, morality, which also is abstract and unreal, consisting of the good intention, which has not yet been incorporated in action and life: thus concrete reality is realized only in the third moment, in the ethos, which synthetizes the abstract rights and the abstract morality of the intention in social life.[15] From this it is clear that the purely juridical moment does not possess effective spiritual autonomy for Hegel; so much so, that it is placed by him upon the same plane as abstract and unreal morality. In consequence of his identification of rights with ethicity, Hegel is opposed to Kant and Fichte in his definitions of single rights; he rejects the compulsory and contractual theory of the State and (the Kantian) theory of matrimony as a strict contract made between individuals as to the reciprocal use of their bodies.[16] The compulsory theory of punishment seemed to him to reduce the latter to a mere economic fact, by means of which "the State as judging power, opens a business with goods called crimes exchangeable for other goods, and the code is the list of prices."[17]

Herbart and Schopenhauer.

Herbart too denies the originality of the character of compulsion in the idea of rights, and this is one of his five practical ideas, or, "the agreement of many wills, thought as a rule that eliminates strife." But even in this superficial moralistic reduction, force reappears all of a sudden, one knows not how: society has need of an external bond, in order to subsist; force and power (Macht) are added to society and the State arises.[18] The same contradictions are to be found in Schopenhauer: after he has posited the two virtues of justice and benevolence, he makes a chapter of morality out of the pure doctrine of law. The science of rights in the specific sense borrows this chapter in order to study its opposite: all the limits that morality looks upon as not to be passed without intention of wrong-doing, on the contrary are considered by the science of rights as limits, of which violation by others is not to be tolerated and from which one has the right to expel others. Thus the distinction between internal and external is in this way reproduced in all its unmaintainability under the denomination of rights and their opposite. But the bridge of asses is always the junction of rights with force, that is to say, with the element extraneous to Ethic; and in this connection Schopenhauer has nothing better to offer than a comparison. "As there are certain chemical substances never to be found pure and isolated, but always in some sort of combination with another element, which gives to them the necessary consistency; so rights, when they must set foot in the real world and dominate it, have need of a small adjunct of will and force, in order to be able (notwithstanding its nature, which is really ideal and therefore ethereal) to operate and persist in this real and material world, without evaporating and flying to heaven, as was the case with Hesiod."[19]

Rosmini and others.

Rosmini presents the two elements not well harmonized, as the eudæmonological and the ethical. Rights for him are not mere eudæmonism, but a eudæmonistic fact, produced by moral right and receiving form from it; hence the science of rights "stands between Eudæmonology and Ethic, so that one of its ends extends to the one and the other to the other." It would not be easy to explain and to justify what he calls a mediate science, composed of Eudæmonology and Ethic; and it would be far less easy to explain how this science comes to be "completely distinct" as regards its components. If rights have a moral form, they are moral and not eudæmonological. Owing to this difficulty Rosmini was led to introduce the concept of the licit as criterion of differentiation, defining right as "a personal faculty and power of enjoying, acting and being able to act, a lawful good that must not be impeded by others."[20] Juridically understood this constitutes a tautology, ethically something worse. Other Catholic authors (Taparelli, for example) deplore the separation of ethos from jus, introduced (they say) by Protestant doctrines and the limitation of right to what a man can externally exact from others according to law; "whence it happens that in the enumeration of laws, actions are sometimes posited that are real moral faults in the agent"; maintaining on the contrary the necessity of treating morality and rights together, "for rights are part of morality in the same way that trigonometry and conic sections are a part of geometric theories."[21]

Stahl, Ahrens, Trendelenburg.

III. If Catholic doctrines deserve mention for their conservativism, it is necessary to record the names of Stahl, Ahrens, and Trendelenburg, for no other reason than the great popularity that they enjoyed in the schools. Stahl divides the ethical action of man into two domains, differing in content and character. This dualism is founded upon the double relation of human existence, individual and social, which gives rise to two forms of imperatives: to the imperative of the individual will, of religion, and of morality, and to that which aims at moulding social life and is the imperative of rights. This theory, which has a varied terminology, can be reduced to the theory of exteriority (sociality, rights), and interiority (individuality, morality). In a very similar way Ahrens includes law in the science of the good or Ethic—the fundamental science. He remarks that good intention, virtue, are not sufficient to secure to man that complex of material and spiritual goods of which he has need, and therefore there must be a second mode of effecting in the good, which what is of importance would be, not the motives of the will, but the pursuit of the good and its real existence in life. Trendelenburg (who regrets the classical concept of the identity of Ethic and Law and looks upon the time when they began to be distinguished as a beginning of degeneration) discovers three sides to rights: the logical, the ethical, and the physical (compulsion),[22] of which none, as we see, is truly judicial.

Utilitarians.

For the reasons already indicated, it is not necessary to pause over the juridical ideas of the utilitarians of the eighteenth and nineteenth centuries, whose last celebrated representatives were, in England, Bentham, Austin and Spencer. The German Kirchmann is to be identified with the utilitarian tendency. He reduces morality to the respect inspired, not by the law, but by the person of the legislator, a respect afterwards converted into respect for the law "owing to a peculiarity of human nature, as the result of long custom and exercise." According to this view, rights are defined as "a union of pleasure and morality, whether the first calls the second to its aid or the second the first, in cases when the isolated efficacy of either should prove insufficient." Thus rights are declared to be, not an original principle, but the simple union of two different elements. Jhering failed to surpass utilitarianism, notwithstanding his profound juridical knowledge and his lively intellect. He attempted to impart an original character to his utilitarian theory, by declaring that it was objective in respect to the usual utilitarian theories, but he always remained under the obligation that he had undertaken, of showing how the purest ideality of Ethic could be fortified with such, a conception. The distinctions drawn by Jhering between recompense, compulsion, duty, and love, since they lack a foundation, vacillate and prove but little convincing.[23]

Recent writers of treatises.

IV. Running rapidly through other recent philosophers of Rights, we do not meet with original thoughts that compare with those of Kant, of Fichte, and of Hegel. Lasson conceives of the philosophy of Rights as a part of Ethic and co-ordinates with it three other parts—the philosophy of custom, of morality or doctrine of the virtues and the doctrine of the ethos or of the ethical personality. Rights are the first of these three ethical moments and is concerned with the willing of man as a willing still essentially natural; reason joins it as a force essentially determining and limiting, at first only external; the object of rights is to guarantee the conditions of the common life, in so far as it is the condition for all human ends.—Steinthal recognizes that rights undoubtedly "possess an exteriority altogether opposed to the interiority of Ethic; hence, if they be not apprehended in their profound nature, they may easily be repugnant to moral feeling": they are "the system of modes of compulsion, by means of which are secured social ethical ends." But (we repeat) since the external cannot be separated from the internal, we do not see in what way ethical ends can be distinguished from their modes of realization. Steinthal also says that "Ethic is like a river and Rights like the bed of the river": a comparison that can be variously interpreted, like all comparisons and which for our part we should be disposed to find excellent, were it admitted that as the bed of the river, when it runs dry, yet remains always the bed of a possible river, so Rights can remain without Ethic and yet be always Rights. But the signification in which Steinthal employs that comparison is simply the same as the diad of external and internal; that is to say, he in his turn wishes to distinguish the indistinguishable, so that it would on the contrary be necessary to reply that the bed of the river and the river are not two things but one, because a river without a bed cannot exist and a bed without a river is not the bed of a river.—Schuppe denies that Rights and the State can claim what is immoral, but affirms that all the same they are inferior to the exigencies of morality, because Rights and the State concern individuals in their spatial-temporal concretion, but do not attain to the profundity afforded by conscience in universal. The ethical concept of rights preponderates in Wundt, for he does not conceive of any other object of rights, subjective and objective, save morality. Cohen, in like manner, does not admit other independence to the science of rights save that, of writing in concepts, and of organizing as a system of concepts the rights that is eternally unwritten, the moral law.[24]

As we see, if the names of the writers and sometimes their phraseology change, the thoughts that alternate or combine are always the same. Rümelin, who undertook to criticize a series of definitions of rights, from that of Kant onwards, reproved Kant for having drawn too great a distinction between rights and morality, and others (Ahrens, Stahl, Trendelenburg) for having drawn too little. Finally, he gives his definition in a provisional and tentative manner: "juridical ordinance has the task of assuring to a people that part of the good adapted for realization by a social force, according to universal norms." Jellinek distinguishes the norms of rights from those of religion, of ethicity and of custom, by a triple character: (a) because they are norms for the external conduct of men among themselves; (b) because they derive from a recognized external authority; (c) because their obligatoriness is guaranteed by external powers.—Stammler attaches secondary importance to the element of compulsion, and although he does not explicitly identify justice and morality, assigns to them the same territory, where they should act with different methods, since the perfectionment of the soul, the character and the thought are distinct from right behaviour. And adopting the turn of phrase of a famous proposition of the Critique of Pure Reason, he ends by formulating the following statement: "Justice without love is empty; compassion without a right rule is blind." The Frenchman Duguit transports with greater frankness the centre of rights into morality: he conceives of rights as altogether different from force; not as political, but as limit of force; as consciousness of human solidarity, beneath whose rule we are all placed, State and individual, strong and weak, governors and governed. French philosophers of rights generally oppose the German school, in which the character of force is prominent, so that French juridical philosophy sometimes assumes (for example, in Fouillée) an attitude analogous to that assumed, as we know, by the "generous" French economic school toward the English economists. And merely that some Italian name should not be absent from this review of recent writers, we will record Miraglia, who repeats the old Kantian division, making it yet more empirical: "Morality and rights are part of Ethic, because the good can be chiefly developed in the intimate relations of the conscience, or on the contrary can be developed by preference in the external relations between man and man and between man and thing";—and Vanni, who mixes a little positivistic evolutionism with this empirical reduction, affirming that rights are not originally distinct from morality, but that afterwards they were gradually differentiated, and rights now have the special function of guardianship and guarantee: "that is to say, the ethical minimum alone has been guaranteed, that much of the ethical field as is most directly necessary for the maintenance of life in common, leaving to other forces the task of regulating what is most individual in life." And so on, though it seems that this is enough.[25]

Strident contradictions. Stammler.

Such are the contradictions in which the Philosophy of rights has struggled for about two centuries. Rights do not seem to be identical with Ethic, but they also do not seem to be simply different; they seem to be at once identical and different, but yet it has been found impossible to fix the element of difference with the concepts of external, of compulsion and others such. The thought of a difference between the two forms of activity has not been further eliminated; but neither has it been transformed and absorbed. This is a morbid condition, of which the gravest symptom is the logical absurdity of the aforesaid two rights and two justices. Rümelin talks of the pure ideal justice, which selects from the evidence and judges on the basis of immediate impressions of feeling; and of a realistic, rational, empirical, disciplined and developed justice: two justices that must however act together.[26] Others, seeking relations between those two concepts from a single fact and failing to conquer the difficulty, force logic by distinguishing between concept and ideal of rights, or (as Vanni said) between logical concept and concept of the rational exigencies of rights: as though a concept could be truly logical, if it do not derive from rational exigencies, and as if these can be valid, if they be not the concept itself. Worse still, Stammler affirms the identity of rights with moral rights, and of rights alone with immoral rights, arriving at the already criticized division of effective rights (Gesetzes) into two classes. It "is either right rights (richtiges Recht) or not; and right rights are effective, whose content of will possesses the property of being right. Hence, right rights stand to effective rights as species to genus."[27] To meditate upon this plan of division is more than sufficient to produce the conviction of the failure of the Philosophy of rights, as it has been developed and as it could be developed with the practical presuppositions hitherto admitted. As the result of the direction of studies, from Thomas to the most recent, there remains nothing but the problem itself, as originated by the definitions of Thomas, and become certainly more acute and difficult, owing to later disputes and inquiries, but never solved.

The value of law.

V. Less attention has been bestowed upon the concept of law, upon which it was impossible to obtain full light, on the one hand before the theory of abstract concepts had been developed (representative of class) in their difference from the universal, and on the other before preconceptions as to the necessary social and political character of laws had been discarded.

In antiquity.

But the difficulties contained in that concept had several times been observed in antiquity. In a dialogue between Alcibiades and Pericles, preserved in the Memorabilia, it is asked if all laws be laws, or only those that are just; and it is shown that it does not suffice that a law should be a law, in order to ensure its observance.[28] No true solution, however, was reached in this, as in many questions discussed at this period by Greek philosophy. The Crito is rather a stupendous work of art than a philosophical thesis, for it shows to the life the state of soul of Socrates, and the importance that he attributed to the laws and to the social order: the reason alleged for obedience to them, being placed in the fact that we have tacitly or explicitly agreed to remain within the boundaries of a given state, has in it something of the sophistical. Even in antiquity was seen the necessity of tempering the rigidity of laws by means of the equable, το ἐπιεικέç, which Aristotle defined as the correction of the law where it sins through its character of generality (ἐπανόρθωμα νόμου ᾗ ἐλλείπει διὰ τὸ καθόλου).[29] But it was not possible to escape from empiricism by means of the concept of equity. The law sins, not once, but always, through abstractness, or better, it never sins at all, because its function resides precisely in that abstractness.—In modern times Diderot felt and expressed all the gravity of the conflicts that arise, alike from the observance and from the inobservance of the law, and he expresses this in his Entretien d'un père avec ses enfants sur le danger de se mettre au-dessus des lois. "Mon père (remarks one of the sons at the end of the dialogue), c'est qu'à la rigueur il n'y a pas de lois pour le sage.... Parlez plus bas.... Toutes étant sujettes à des exceptions, c'est à lui qu'il appartient de juger des cas où il faut s'y soumettre ou s'en affranchir.—Je ne serais pas trop fâché (concludes the father), qu'il y eût dans la ville un ou deux citoyens, comme toi; mais je n'y habiterais pas, s'ils pensaient tous de même."[30]

Romanticism.

The attitude of rebellion to the laws showed itself in German thought and literature in the preromanticism of the Sturm und Drang (for instance in the Räuber of Schiller), and in Romanticism properly so called, when among others appeared the theories that limited the State, such as those of Wilhelm von Humboldt, and theories of sexual relations, such as those of Friedrich Schlegel. In the Lucinde is displayed great horror for bourgeois customs and for every sort of constraint, sexual relations being advocated with woman, family, love and fidelity, but without matrimony.

Jacobi.

Jacobi represents this attitude in several of his writings, with great elevation of soul, and especially in the Woldemar (1779, 1794-96), the most lively protest that has ever been made against law in the name of the individual. Here the question treated is precisely whether we should follow the inspirations of our own conscience or the laws of our own people. Sides are taken against "the compulsion and violence exercised by usages, customs, habits, and against those who do not think, save by means of those laws, holding them sacred, with resolute soul and mind inert"; and "that audacious heroic spirit is celebrated, which raises itself above the laws and common morality that it may produce a new order of things." "His heart alone tells man immediately what is good; his heart alone, his instincts only, can tell him immediately: to love it is his life. Reflection teaches him to know and to practise what leads to good. Habit assures and makes his the wisdom that he has acquired." "But this individual initiative," he observes, "may be the cause of abuse and misunderstandings." "Without doubt," replied Jacobi, "but what cannot be misunderstood has little meaning, and what cannot be abused has but little force in use." Men may be divided into two classes; the one exaggerates fear, the other hope and courage. The former are circumspect, always in doubt, they fear the truth because it may be misunderstood, they fear great qualities, lofty virtue, because of the aberrations to which it may give rise; and they have evil always before their eyes. The latter are the bold (who could be called the irreflective in the Platonic sense) and they behave with less exactitude; they are not so perplexed, they trust rather to the voice of their heart than to any word from without; they build rather upon courage than upon virtue, which generally keeps them waiting too long. They sometimes ask themselves with Young: Is virtue then alone baptized and are the passions pagan? "If," says Jacobi, "I must keep to one of these classes, I choose the second." "Yes," he exclaims elsewhere, opposing the abstractness of Kant,—"yes, I am atheist and impious, yes, I will to lie, in opposition to the will that wills nothing, as Desdemona lied when dying, I will to lie and to deceive like Pylades, when he slew himself for the sake of Orestes; I will to slay like Timoleon; to break laws and oaths like Epaminondas and John de Witt; to commit suicide like Otho; to despoil the temple like David; to pluck ears of corn on the Sabbath day, if only because I am hungry and the law is made for man, not man for the law. By the sacrosanct conscience that I have within me, I know that the privilegium aggratiandi for such crimes against the pure letter of the law, rational, absolute and universal, is the sovran right of man himself, the seal of his dignity, of his divine nature."[31] But it must be remarked upon reading these effusions (most sincere, as all that came from the pen of Jacobi), that they are rather manifestations of states of the soul than theories, and therefore, strictly speaking, not to be theoretically censured, as is the case with all affirmations that place in relief one side of reality, without denying the others by doing so.

Hegel.

Hegel discovered this, observing in relation to our last extract: "Neither of the two sides can be wanting to moral beauty, neither its liveliness as individuality, by which it does not obey the dead concept, nor the form of concept and of law, universality and objectivity, which is the side exclusively considered by Kant, by means of the absolute abstraction to which he submitted liveliness, thereby suffocating it. The passage cited as to the liveliness and freedom of the moral life does not exclude objectivity, but does not express it either." Hence the danger of the romantic attitude, which had no need of exhortations such as those of Jacobi, for it already too much preferred magnanimous to honest, noble to moral action; and was much inclined to free itself of the law itself under the pretext of freeing itself from the letter of the law. Meeting empirical with empirical observations, Hegel also remarked that the examples of the violation of laws due to the divine majesty of man, adduced by Jacobi, were conditioned by the natural temperament, by actual situations, and especially by circumstances of supreme misfortune, of supreme and rare necessity, in which few individuals find themselves. "It would be very sad for liberty if it could only prove its majesty and become actual in extraordinary cases of cruel laceration of the moral and natural life and in extraordinary individuals. The ancients, on the other hand, found the highest morality in the life of a well-ordered State." Hegel admitted that the affirmation of Jacobi, "The law is made for man, not man for the law," contained a great truth, when it was intended to allude in this way to the positive or statutory law. But the opposite was also true, when the allusion was to the moral law, taken as universal, outside of which, when the individual was separated from it, there was nothing but appetites and sensible impulses, which can only be means for the law.[32]

But we must not fail to recognize that Hegel does not avail himself of this most exact distinction in his philosophy, for there the dominating motive is respect for the laws and the tendency to attack individual initiative. Hegel repeats many times with complacency the saying of the Pythagorean, that the best way of educating a young man is to make him citizen of a State ruled by good laws; and he remarks that Herculeses belong to primitive and barbarous times, and that individual valour has but a small field in times of culture. He was most averse to criticism of and rebellion against the authority of the State; for these did not seem to him to correspond to the reality of the spirit. That surface is not the reality; at bottom all desire order; and it is necessary to distinguish apparent political sentiment from that which men really will, for within them they will the thing, but hesitate as to particulars, and enjoy the vanity of censuring.[33] Men believe that the State exists and that in it alone are particular interests realized; but habit makes invisible to them that upon which our entire existence depends. There is in short in Hegel, besides the philosopher, a politician and moralist regretful of the excesses of revolutionaries and of unbridled romanticism; and there is also in him the desire for an exact inquiry into the function and limits of positive law.[34]

Recent doctrines.

In recent times there have been many and very various manifestations connected with the concept of this function and of its limits, and it would occupy much space to enumerate and to illustrate them all. We shall mention three, very distant and different. The first, which belongs to the political and social field, is the doctrine of anarchy and is opposed to laws of all sorts; it is a not purely philosophical doctrine, though it involves philosophical questions.[35] The other two, which more properly belong to the juridical field, are, the assertion of the importance of laws and of the duty of defending their existence, even where their violation by others does not interfere with our individual interests, or when their defence costs individual sacrifices (this was the argument of a vigorous little book by Jhering);[36]—and by way of contrast the demand for a free creation of the law by the judge (die freie Rechtsfindung,) which has given rise to discussions that are yet burning, more directly provoked by a little book of Kantorowicz (Gnaeus Flavius).[37]

Natural rights and their dissolution. The historical school of rights.

VI. If then there has not been a great gain in clearness of fundamental concepts, as regards this part of the subject, there has on the contrary been an indubitable advance in consciousness acquired as to the mutability of laws and as to the consequent contradictoriness of the idea of natural Rights. This, with its complement, the catalogue of innate natural and inalienable rights of man, had great success in the seventeenth century for political and social reasons, attaining its highest development in the century following. But it may be said that the doctrine of innate rights was liquidated by Kant in the Metaphysic of Custom, when he wrote the proposition that liberty is the only original and innate rights, which belong to man through his very humanity,[38] at the very moment when it was most energetically affirmed in a practical form in the Declaration of the Rights of Man. In the system of Hegel the constructions of natural rights began to lose their rigidity; becoming indeed historical categories of Ethicity or Sittlichkeit, determinations of the spirits of various peoples (Volksgeister,) which are in their turn determinations of the Absolute or of the Idea. Owing to this view (without taking into account his error of wishing to philosophize and to make dialectical what is historical and empirical), Hegel connected himself closely with the historical school of rights (Hugo, Savigny, etc.). This, notwithstanding the exaggeration by which he seemed to deny the value of the ideal demands made of rights, had the merit of shaking the old conception of natural rights. This has retained its place in treatises from that time onward in a more or less worm-eaten and unstable condition by the force of inertia; or it has been preserved by Catholic writers (by Rosmini not less than by the Padre Taparelli), whose conception is of necessity but little historical; or it has reappeared in those curious Catholics and anti-historians, the positivists (Spencer, Ardigò). But that natural rights are nothing but new historical rights in the struggle of their becoming, is a conviction that has penetrated the general consciousness.

The comparison between rights and language.

We also owe to the historical school the comparison between the life of rights and the life of language; this was prepared by the discoveries of comparative linguistic, which although substantially correct, yet had, as we have observed, the defect of limiting itself to the grammatical form of both facts, not to their genuine and direct reality. Jacobi, in the already quoted effusions of Woldemar, had recourse to the same comparison, for other reasons and with a more exact understanding of its terms; speaking there of the moral infraction of laws, he wrote: "For such exceptions, for such licences of lofty poetry, the grammar of virtue has no definite rules and therefore does not mention them No grammar, least of all the general and philosophical, could contain in itself all that appertains to a living language, and teach how, in every epoch, every dialect must be formed. But it would be unwise to affirm that every one may speak as they feel inclined." And again, "Virtue is free art; and as artistic genius gives laws to art by its creations, so moral genius gives laws to human conduct: just, good, noble, excellent, is what the just, good, noble, and excellent man practises, achieves and produces in conformity with his character; he invents virtue, procures and generates adequate expression for human dignity."[39]

The concept of law, and the studies of comparative Rights and of the general Doctrine of Rights.

VII. The study of the concept of law is also progressing, and henceforth is not confined to so-called juridical laws and to legislations and codes. Researches into primitive rights and into those of savage and barbarous peoples, known as juridical Ethnography or comparative rights, have greatly contributed to destroy many prejudices; as also the attention that has been directed to facts called social, that is to say, not strictly political. A school that has had independent yet partly similar manifestations in England (Austin, Sumner Maine, etc.) and in Germany, where it has taken the name of school of the general Doctrine of Rights (allgemeine Rechtslehre, according to the denomination given to it by Adolph Merkel), studies in particular the concept of law in its various classes and subclasses; and from it there cannot but issue a more correct understanding of the concept of law, as from the refinement of political Economy into pure Economy has come, first Psychology and then the Philosophy of economy. Meanwhile (and as far as we know) the literature of the school, dominated as it is by the needs of jurisprudence, maintains an empirical or intellectualistic character; and jurists, rather than philosophers themselves, are those that most cultivate it. The distinctions and sub-distinctions of the laws are conducted with subtlety, but are without solid foundation, because the concept posited as basis of law is uncertain and arbitrary. Limiting ourselves to a single example, let us mention Bierling, perhaps the most philosophical of those various writers. Bierling first of all excludes from the concept of law the modes of man's conduct toward God, toward himself, and toward animals; but he gives no serious reason for this. He then arrives, by a mere arbitrary act, at the limiting of the concept of law to the manner of men's conduct among themselves, and defines rights in the juridical sense (as he calls it: "in general, all that men living together in any sort of community reciprocally recognize as a norm and rule of this living together"). He then introduces into the concept thus defined, not by deduction, but as the result of a second arbitrary act, the concept of exteriority, adding that, "the object of law is a definite external procedure of man toward man."[40] In all this is evident the bad influence of jurisprudence and of its empirical preoccupations.

legalism and moral casuistic.

VIII. Ethical legalism became a bitter question for Christianity, precisely because of the contest between lofty Christian morality and its legalitarian form, chiefly inherited from Judaism. In the ancient world there is almost no trace of the question, just because the struggle was never acute.[41] Hence the difficulties debated among the patristics and the scholastics as to derogability from divine laws and the consequent distinctions between a perfect and an imperfect moral life, between precepts and counsels; and as recourse is had to precedents in judicial questions, so here with these ethical problems concerning exceptions made by God to the moral law, to the precepts of the Bible (where some were not beautiful).[42] The practical needs of confession give origin to books on casuistic, of which collections exist dating from the fourteenth and fifteenth centuries. The Reformation manifested aversion to these treatises: Luther said that moral theologians had first extinguished in men the fear of God and had then placed soft cushions beneath their hands and feet; and Melanchthon lamented that the Christian Republic was honoured theologastrorum sententiis de conscientiae casiobus, inestricabilibus, ubi nunquam non ex quaestione quaestio nascitur, and called them conscientiarum cauteria.[43]

Probabilitism and Jesuitic morality.

The inconclusiveness of legalism was converted into a most powerful poison by the Jesuits, with their probabilitism, of which precursors were not wanting in the Middle Ages, but it received definite form from the Dominican Bartolomeo Medina in 1577. From that time onward probabilitism began to be surrounded with a copious literature, which continually increased in the course of the seventeenth century, to decline in the century following. The opposition originated by the Jansenists, whose capital literary document, the Provinciales of Pascal also dates from the seventeenth century (1656), was the period of the greatest vigour of the doctrine. But if the most perfect and most Christian moral conscience dwelt in the Jansenists and in Pascal and if the absurd consequences to which probabilitism led became clearly evident in that polemic, yet it cannot be said that philosophically the error was finally superseded. Ere this could have happened, it would have been necessary, on the one hand to destroy all possibility of theological utilitarianism (which was impossible to carry out in a religious and transcendental Ethic, owing to its mystical and irrationalistic character) and on the other to destroy legalism. Pascal himself (and St. Augustine, to whom he appeals) was always confined in the legislative conception of morality; hence he speaks of the laws of "not slaying," which it was necessary to obey strictly, save in the cases established by God or when he gives particular orders to put certain persons to death. The Catholic Church, always astutely political, condemned without hesitation the extreme rigorists, who wish that the law should always be followed and the extreme latitudinarians, who think that any sort of reasons, however slight and improbable, suffice for not observing the law; allowing intermediate sects to discuss among themselves until they were out of breath, that is to say, the moderate rigorists, the probabiliorists or tutiorists, the equiprobabilitists and the probabilitists. Sant Alfonso dei Liguori adhered to these last, who were of opinion that it is always permissible to do what we wish, provided always that there be probable reasons, though less probable than those that militate in favour of the law. In his Dissertatio de usu moderato opinionis probabilis,[44] he thus exposed the principal argument of his thesis: Peto ab adversariis ut indicent (si possunt) tibinam legem hanc esse scriptam invenerint, quod teneamur inter opiniones probabiles probabiliores sequi? Haec lex quidem, prout universalis, deberet omnibus esse nota et certa: at quomodo ista lex certa dici potest, cum communis sententia doctorum, saltem longe major illorum pars, post tantum discrimen absolute asserant, hanc legem non adesse? Usque dum igitur de tali lege dubitatum, opinio quod adsit haec lex sequendi probabiliora, quamvis alicui videatur probabilior, nunquam tamen lex dici potest, sed appellanda erit mera opinio, utpote ex fallibili motivo deducta, quae vim nequaquam habet, ut lex, obligandi. This doctrine still retains in our day very firm supporters among the Jesuits (Cathrein,[45] Lehmkuhl,[46] etc.).

Critique of the concept of the licit.

But if the destruction of theological utilitarianism has been brought about by the criticism of the transcendental and by idealistic Ethic, that of legalism, with its expression as the licit, the permissible, or morally indifferent, appears in Fichte and in Schleiermacher. Kant did not treat the question explicitly and, as observed, we can deduce from certain of his utterances that he did not altogether abandon the concept of the licit.[47]

Fichte.

But Fichte, in a note to his Natural Rights, wrote: "A right is evidently something of which a man can avail himself or not; and is therefore the result of a law that is merely permissive. ... The permission is not expressly given by the law and is deduced by interpretation from its limitation. And the limitation of a law is shown by the fact of its being something conditioned. It is not absolutely apparent, therefore, that a permissive law which commands in an unconditioned manner and therefore extends to all, can be deduced from the moral law."[48]

Schleiermacher.

What was a mere mention in Fichte became an ample demonstration in the celebrated memoir of Schleiermacher, On the Concept of the Licit (1826), which resolutely drove the licit out of the field of Ethic, by demonstrating its altogether juridical nature: "The original seat of this concept cannot be the domain of Ethic, in which it is not admissible: it appertains to the domain of law and of positive law; and there is something originally licit in civil life, precisely in this sense that there is something half-way between what is commanded and what is forbidden, the proper object of law."[49]

Rosmini.

Rosmini, owing to having ignored this origin of the lawful, proceeded to divide human actions into four classes: the prohibited, the licit, the commanded, and the superogatory; the last three were all innocent, but the licit was simply innocent, while the commanded and the superogatory were also furnished with moral value. Hence arose grave errors in his Ethic and in his Philosophy of law and definitions that it is impossible to grasp, such as the following relating to superogatory actions: "The obligatory consists in preserving the moral order, but the superogatory consists in preserving the said order in a more excellent and perfect manner, with fuller, more frequent, and more ardent acts of the will. These second not only preserve the moral order, but augment it, almost creating a part of it themselves with their activity; they make themselves not only followers of the good, but authors of the good itself." Rosmini also considered that the posing of the question of probabilitism represented progress in Ethic; that is, upon "what man should do, if he found himself in doubt as to performing or omitting to perform an action." But the solution of the question that he gave on his account amounted (be it said to his honour) to the annihilation of legalism, since for him a doubtful law does not oblige when it is positive Rights, but it does oblige when it is moral law, that is, when there is a fear of offending against the supreme and necessary law, which wills absolutely to be always fulfilled.[50] In other terms, the true practical law is never (even when it appears to be so) positive law; and the concept of law, which always has a positive meaning, is extraneous to Ethic and to the Philosophy of the practical: a result to which Rosmini does not attain, or at least is not conscious of attaining.

CONCLUSION

The Philosophy of the Spirit as the whole of Philosophy.

With the Philosophy of the practical terminates the exposition that we had proposed to give of the Philosophy of the Spirit; and the exposition of the whole of Philosophy also terminates, because the Spirit is the whole of Reality.

Here at the end, this proposition has no need of such proof or verification as is customary in calculation. Because the proof of Philosophy is intrinsic to it and consists of the reciprocal confronting of the development of thought and its demands, between the System and Logic. And Logic, as we know, if it be in a certain sense the whole of Philosophy (philosophy in brief or in idea or in potentiality), is also a part among the parts of the philosophical system; so that the confrontation of the System and of Logic, of thought in act and thought in idea, between thought and the thought of thought, has been continuously present and active in the course of the exposition, and the coincidence of the two processes and their confluence into one has been clearly demonstrated.

Correspondence between Logic and System.

Logic affirms the thinkability of the real and the inconceivability of any limit that could be put to thought, of every excogitation of the unknowable. And Philosophy, examining every part of the real, has not found any place in which to lodge the unknowable in thought. Logic posits as the ideal of the concept, that it should be universal and not general, concrete and not abstract; that it should be pure of intuitions such as those of mathematics and differ from them in being necessary and not conventional; fruitful in intuitions like those of the empirical sciences, but differing from them by its infinite fecundity which dominates every possible manifestation of the real. And the system has effectively shown that this desideratum of Logic is not a chimæra and that the Spirit is indeed that concept which corresponds to the ideal of the concept: there is nothing that is not a manifestation of the Spirit (an effectual manifestation, not conventional or metaphorical). Logic, rejecting all dualism or pluralism, wills that the philosophical concept shall be a unique concept or of the One, and does not suffer heterogeneous concepts at its side. And the system has confirmed that the concept of the Spirit alone fulfils the logical condition of the concept; and that the concept of Nature, far from being a concept of something real, is the hypostasis of a manner of elaborating reality, not philosophical but practical; thus the concept itself of Nature, in so far as it is effectual, is nothing but the product of a function of the Spirit.

On the other hand, the Logic of the idea of the concept deduces that it must be a synthesis of itself and of its opposite. For its opposite, far from being heterogeneous and different, is flesh of the flesh and blood of the blood of the concept itself, as negation is of affirmation. And the system has led us before the Spirit or Reality as development, which is the true reality of the real and synthesis of opposites. Logic deduces that the concept is synthesis of itself and of the distinct from itself, of the universal and of the individual, and that therefore Philosophy must flow into History, and mediate its comprehension. And the system shows the capacity of its principles for interpreting the complex reality of History, and above all the history of philosophy itself, by solving its problems. Logic does not admit other distinctions of the concept than those that are the outcome of its own nature, such as the relations of subject-object and of individual-universal; and the system has confirmed these distinctions, duplicating itself as Philosophy of knowledge and Philosophy of action, of theory and of practice; subdividing itself as to the first, into Æsthetic and Logic; as to the second, into Economic and Ethic. And since the demand of the concept has been entirely satisfied, when these divisions have been exhausted, we have not found the possibility of new subdivisions, for example into various æsthetic or into various ethical categories among the particular sub-forms of the Spirit.

Dissatisfaction at the end of every system, and its irrational motive.

Some are seized as with a sense of dissatisfaction and delusion when they arrive at the end of the philosophical system and at the result that there is no reality save the Spirit and no other Philosophy save the Philosophy of the Spirit; and they do not wish to resign themselves to accepting that and nothing else as Reality, although obliged to do so by logical necessity. A world beyond which there is no other seems to them poor indeed; an immanent Spirit, trammelled and far inferior by comparison with a transcendental Spirit, an omnipotent God outside the world; a Reality penetrable by thought, less poetical than one surrounded with mystery; the vague and indeterminate, more beautiful than the precise and determined. But we know that they are involved in a psychological illusion, similar to his who should dream of an art so sublime that every work of art really existing would by comparison appear contemptible; and the dreamer of this turbid dream, should not succeed in achieving a single verse. Impotent are those poets most refined; impotent those insatiable philosophers.

Rational motive: the inexhaustibility of Life and of Philosophy.

But precisely because we know the genesis of their psychological illusion, we know that there is in it (and there could not fail to be) an element of truth. The infinite, inexhaustible by the thought of the individual, is Reality itself, which ever creates new forms; Life is the true mystery, not because impenetrable by thought, but because thought penetrates it to the infinite with power equal to its own. And since every moment, however beautiful, would become ugly, were we to dwell in it, so would life become ugly, were it ever to linger in one of its contingent forms. And because Philosophy, not less than Art, is conditioned by Life, so no particular philosophical system can ever contain in itself all the philosophable; no philosophical system is definite, because Life itself is never definite. A philosophical system solves a group of problems historically given and prepares the conditions for the posing of other problems, that is, of new systems. Thus it has always been and thus it will always be.

In such a sense, Truth is always surrounded with mystery, an ascending to ever higher heights, which are without a summit, as Life is without a summit. At the end of one of his researches every philosopher just perceives the uncertain outlines of another, which he himself, or he who comes after him, will achieve. And with this modesty, which is of the nature of things themselves, not my personal sentiment; with this modesty, which is also confidence that I have not thought in vain, I bring my work to a conclusion, offering it to the well disposed as an instrument of labour.

THE END