Economic society as an empirical concept--The philosophical concept
of society--Sociology, philosophy of law and political science--The
definition of law--Laws and customs--The laws, the natural laws and the
practical principles--Mutability of the laws: the _jus naturale_--The
function of the laws--Legalism: the Jesuit and the Puritan--The
legislative activity as a generically economic activity--The juridical
activity--Law and language.
One of the fundamental empirical concepts of the science of economics
is that of economic society, which is formed by abstracting certain
classes of economic relationships from the mass of relationships of
all kinds among which the life of the individual realizes itself. Any
treatise of economics can be considered as a definition of economic
society; and we know how those definitions are apt to vary according
to the choice of the groups of facts studied, and the method employed,
by different schools of economists. The economic society of the
Marxian is not the economic society of the classical economist; the
Catholic economist, differing from both, will include in his treatment
the consideration of certain ethical relations which give a greater
complexity to his scheme. It would be possible to study the economics
of the individual in perfect isolation from all other human beings,
limiting the elements of this particular form of society to one man,
and that portion of nature from which he draws his food, his clothing,
his shelter; on the other hand, the whole of mankind and the whole of
nature may enter into a single, all-including, economic body. We may
even study animal species, in their relations within themselves, or
with man, or with other animal species, or with nature at large, from
an economic standpoint (symbiosis and parasitism are facts bearing a
close resemblance with human economy)--and thus form an infinite number
of new economic societies. Each of these empirical concepts can be
varied _ad infinitum_, by the mere inclusion or exclusion of certain
classes of relationships.
The empirical, non-rigorous character of the concept of economic
society is self-evident; and it can therefore be usefully employed to
prove by analogy the similar character of the concept of society as
manufactured by jurists, sociologists, and political scientists. It
is against such fictions that philosophy reacts by building a concept
of the isolated individual, that is, of the individual isolated from
the particular classes of relationships which enter into the formation
of particular empirical concepts of society; but it does this only to
plunge the individual again in the midst of that infinite multiplicity,
which is one aspect, and an essential one, of reality, Society as a
philosophical concept cannot be identified with any form of economic
or political society; of such, as mere abstractions, no philosophical
treatment is possible. Society is that real multiplicity, without which
we should have neither knowledge nor action, neither art nor thought,
neither utility nor morality; and from society in this sense, the
individual cannot be isolated, without reducing him, in his turn, to a
merely abstract concept.
The sociologist, the jurist, the political scientist use their
concepts of society for their purposes, which are, in the sense which
is now familiar to our reader, scientific purposes. But very often
they lose sight of the character of these concepts, and treat these
instruments of classification and description as substitutes for
the actual reality which they are, by reason of their abstractness,
utterly unable to reproduce. The sociologist talks of the collective
mind, and of collective representations, as if they had a reality
outside the thought and action of the individual; the jurist builds a
philosophy of law, in which society is opposed to the individual as
a being to another being, and law, as a product of society, at every
point transcends the individual will. The political scientist deals
with the community, or the association, or the State, as with concepts
of which it were possible to give a philosophical definition, valid
for all times, and from which the rules of perfect government could be
rigorously deduced. Of these types of philosophical degenerations of
legitimate scientific thought, it can be roughly said that, because of
the peculiar cultural development of the various nations of Europe, the
first belongs more particularly to England and France, the second to
Italy and Germany; though they are all more or less common in European
culture as a whole. As an Italian, Croce was particularly interested in
the second, the philosophical degeneration of juridical thought, and
therefore his particular treatment of the economic facts underlying
the problems of political society naturally took the shape of an
inquiry into the nature of law. But it ought not to be difficult for
the English or American reader, for whom these problems are not part
of a practically inexistent philosophy of law, but of a long tradition
of political science and theory of government, to translate Croce's
thought into terms of his own cultural experience.
A law is an act of will, whose content is a series or class of actions.
This definition excludes from the concept of law any empirical
social determination; it includes within it all laws which are
merely individual, the laws that the individual lays down to and for
himself, the rules of conduct and programs of life and action, which
the individual follows of his own accord. It may be objected that
individual laws differ from social and political laws, because the
latter are coercive and constrictive, while the former are not. There
is no law, however, that is truly coercive; the individual is always
free either to observe or not to observe the law. What a law does is to
offer a choice or alternative, and this is as true of individual as of
social laws. We may disregard our own rules of conduct or programs of
action, and suffer from doing so, and inflict a punishment on ourselves
for having done so; or we may alter our individual laws as social laws
are altered when they no longer respond to the need of a community,
and are either violently overthrown by rebellion or quietly allowed to
fall into desuetude through non-observance, or modified by the proper
organs of legislation. But the importance of the concept of individual
laws lies in the fact that the so-called social laws have no reality
outside the individual: in order to observe a law it is necessary to
make it one's own, and to rebel against a law is to expel it from one's
personality, of which it was, or tried to become, a part. The only real
laws are, therefore, individual laws.
If the criterion of sanction or coercion is insufficient to draw a
distinction between individual and social laws, we can still less
use it to divide the social laws into customs or unwritten laws, and
political and juridical laws. Both customs and laws carry with them
sanctions, though of a different order, or, to put it in more precise
terms, both offer a choice between probable consequences to the free
individual will. This distinction, like every other subdivision of the
laws (civil, penal, national, international, laws and by-laws, etc.),
is a purely empirical one. But the concept of law comprehends these and
many more in which the jurists have no interest, such as the literary
or artistic laws (that a tragedy should have five acts, or, as at one
time in England, that a novel should fill three volumes), or the rules
of religious life, or the precepts of chivalry, down to the statutes
of a criminal gang and to Balzac's _droit parisien_. In fact, the
empirical distinctions of the laws are coextensive with the empirical
concepts of society, and partake of the same characteristics: to the
preceding examples of laws correspond respectively the republic of
letters, a monastery, the order of knighthood, a band of robbers, and
_le beau monde_. But the only reality, both of the society and of the
law, is the individual assent.
The laws have one point in common with the so-called natural laws;
both are concerned with empirical concepts, or classes. But while the
natural laws are mere indicative statements of fact, the laws can
always be translated from the indicative to the imperative; that is,
they contain a volitive element which is absent from the natural laws.
The volitive element is present, on the other hand, in the practical
principles which have some time received the names of moral or economic
laws, and which can be converted into such imperatives as Will the
universal, or, in particular, Will the good, the useful, the true, the
beautiful. But these principles are concerned with the universal, that
is, with the spirit of man in the necessary forms of its activity, not
with a particular product of the spirit, a class or type of actions, as
do laws in the strict meaning of the word. This distinction between the
practical principles and the laws opens the way to the recognition of a
very important character of the laws: while the practical principles,
because of their universality, have no limits and no exceptions
(and we have already seen that a morally indifferent action is a
contradiction in terms), the laws can never exhaust the universal, and
therefore will always leave outside themselves a margin of actions,
not included in any of the classes to which they refer, and therefore
legally indifferent. In more technical language, we may express the
same idea by saying that all laws, whether imperative or prohibitive
or permissive (a law, according to the ancient formula, _aut iubet aut
vetat aut permittit_), can be reduced to permissive laws: an order is
always at the same time a prohibition, and both orders and prohibitions
implicitly permit all actions which are not contemplated by the law.
Moreover, while the practical principles are immutable, always capable
of giving form to the most varied historical material, the laws are in
perpetual flux and change. The particular modes of change, whether by
evolution or revolution, do not concern the philosopher, for whom all
can be reduced to a angle one: the free will producing a new law under
new conditions. Against the perpetual mutability of the laws, due to
the contingent and historical character of their content, clashes the
concept of an Eternal Code, or Law of Nature (_jus naturale_), which
presumes to determine the content and form of the laws, according to
abstract reason, once and forever. This conception is due to an error
with which we are now familiar, consisting in the transformation of
empirical concepts into principals of universal validity. But from
this particular error, as from all errors, we must distinguish certain
elements of actual and concrete thought which have been historically
associated with it. In the attempts to establish a Law of Nature, we
shall then recognise either new concrete legislative programs, the
new laws appearing as natural and rational by contrast with the old
ones, or an attempt to deduce from, and through, juridical concepts,
the principles of a philosophy of the practical. The principle of
nationality, fighting for realization against the old dynastic law,
appears to its defenders as a typical natural right; and Rousseau,
when deducing the principles of the _jus naturale_, warns us that
he is not dealing with historical truths, but with hypothetical and
conventional reasonings, that is, with principles which transcend every
particular determination and have not a positive, but an ideal value.
We no longer speak of a Law of Nature, but the error which gave rise
to that conception is still vigorous in current social and political
discussions; every attempt to change legal conditions is always
advocated or resisted by an appeal either to natural rights, which are
but arbitrary rationalizations of historical contingencies, or to
abstract reasons, principles, or ideas, of which the particular laws
or institutions are assumed to be the final and necessary expression.
But rationality, morality, and naturality, in the sense in which
these qualities are predicated of one or another type of laws and
institutions, do not belong to any particular historical determination
more than to another; they belong only to the spirit of man and to the
concrete values that it realizes among the ever-changing conditions of
history.
A law, being a volition of a class of actions, and therefore of an
abstraction, is in itself an abstract or unreal volition. What we
actually will is not the law, but the single, individual action
under the law: the reality of the law is only in its execution. In
the individual execution, however, what realizes itself is not the
law, but the practical principle, economic or ethic, of which both
the observance and the non-observance of the law are particular
determinations; the individual practical problems can never be foreseen
seen by the law, which is by its nature general and abstract. What is
then, it may be asked, the use of the laws? Croce's answer is that the
laws are helps to the real volition, in the same way as the empirical
and abstract concepts, though not real knowledge themselves, are helps
to knowledge. In order to determine ourselves to the single action,
it is useful to begin by fixing our attention to the class of which
that single is an element; in order to know either the individual,
or the universal, it is useful to create, between the universal and
the individual, classes and types, general concepts, or, as Croce
calls them, relatively constant variables, through which the process
of actual knowledge is made easier and quicker. We cannot think the
pseudo-concepts, but they help us to think; we cannot will the laws,
but they help us to will. The concept of law is akin to that of plan
or design; in practice, a plan or design, and its execution, are one
and the same thing, as we act by constantly changing our design,
because reality, which is the foundation of our action, is in perpetual
change. But this unreality of the plan, as distinct from the concrete
individual action, does not deprive the plan itself of its practical
uses, which are universally recognized, and which are identical with
the uses of law.
When we identify the empirical laws with the universal practical
principles, economic or ethic, we fall into "legalism," which can be
defined as the belief that universal principles can be definitely
embodied in a limited number of laws, and that, on the other hand,
these laws partake of the character of absoluteness which belongs to
those principles. It is especially in the treatment of ethics that
this confusion has caused its worst effects. The two outstanding types
of legalists are the Jesuit, who admits of the morally indifferent,
the justification through the intention, the pious fraud, and other
practical means for the purely literal observance of the law, supposed
to be a sufficient satisfaction of the moral obligation, and the
Puritan, who maintains that the unchangeable letter of the law is the
only, and always certain, guide of the moral consciousness. Both Jesuit
and Puritan, or to give them the names they assumed in a historical
controversy, both Molinist and Jansenist, have often been in practice
much better than their theories; but we are here interested only in
their theoretical pronouncements, which, though apparently contrasting,
yet combine in substituting the letter for the spirit, and in drying
up, in the name of morality, the living springs of moral activity.
And in both cases, moral legalism is associated with theological
utilitarianism; it is, in fact, but another aspect of the same error.
The will that wills classes of actions, the legislative activity, is
either moral or merely economic, and can therefore be judged as either
moral or immoral, economic or anti-economic. But as the laws are will
in the abstract, our judgment of the laws will also be an abstract
judgment. To pronounce a concrete judgment, we must turn to the moment
of the execution of the law, to the individual practical action, in
which the law realizes itself. In this sphere, it is vain to dispute
whether a law is essentially economic or moral: the economic or moral
character of the law is not determined by the abstract intention of the
legislator, but by the manner of its execution, by the quality of the
individual executor. The punishment which a law assigns for a category
of crimes may be intended by the legislator either to deter or to
emend the criminal; but in the man who abstains from that particular
kind of crime, the law is an economic one if the abstention is entirely
due to the fear of the punishment, it is a moral one if it coincides
with a sincere abhorrence of the crime. No law, therefore, can be said
to be intrinsically moral, and if we want to define the legislative
activity in its full extension, we must define it as generically
practical or merely economic.
The same definition obviously applies to the will that executes the
law, as distinct from the will that formulates it: the juridical
activity, as Croce names it, is also generically practical or
merely economic, and as such united to and distinct from the moral
activity. As the juridical activity, however, does not partake
of the abstractness of the legislative, but is as concrete and
determined as the economic activity, there is actually no possibility
of distinguishing the one from the other; the juridical activity
is therefore identical with the economic activity. This is Croce's
original solution of the fundamental problem of the philosophy of
law; a solution which is closely connected with his recognition of a
utilitarian practical category, distinct from but not opposed to the
moral category, and with his reduction of all laws to individual laws.
The reader must recall what has been said elsewhere of the relations
between economic and moral values; and he will then understand in what
sense it can be said that Croce's theory of law is an answer to the
secular disputes on the relations between law and morality, between
positive and ideal law, historical law and the Law of Nature. And he
will also be able to perceive the difference between the reduction of
the juridical to the mere economic activity, which, as we know, is
also the form through which only morality realizes itself, and the
theories of law as the pure embodiment of force and of the positive,
established right as the only conceivable right, which are nothing but
the counterpart of moral utilitarianism in the field of law. Croce's
theory of law is, as all the rest of his philosophy is, a purely formal
doctrine; not intended to defend one type of laws and institutions
against any other, but attempting to furnish a conception of law, as an
individual, perpetually new activity of the spirit of man, of which all
laws and institutions, all phases and tendencies of political history,
appear as concrete historical manifestations.
The philosophy of law has often had recourse to the philosophy of
language for analogies by which its own problems could be clarified. A
doctrinaire view of the juridical and political problem, for which the
origin of law and society is to be found in an abstract convention,
and which therefore tends to build up, by new conventions, a model
legislation, or an Eternal Code, shows its real nature when related to
the corresponding conception of language as a collection of signs, a
purely symbolical organism, which can be so perfected by reason as to
become an absolute, universal language, embodying in its signs every
conceivable type of logical operations: a universal language, which
should also be a universal symbolic logic. Sharply opposed to the
doctrinaire, the traditionalist views certain types of positive laws
and institutions as endowed with a character of necessity which puts
them above the reach of the individual judgment of man; and as he fails
to discover the ever present creative activity, by which man constructs
his juridical and political world, he also withdraws from the human
spirit the power to create its own language, and makes of words a
divine institution. Equally remote from the sociological as from the
theological concept, which are the extreme theoretical forms of popular
errors, Croce establishes between law and language an analogy by which
both manifest their intrinsic creative and human character. The reality
of law is the individual juridical or economic activity, as the reality
of language is the concrete intuitive activity. Law is the will of the
individual, as language is the knowledge of the individual. Grammars
and dictionaries are the codes of language, mere abstractions from the
actual living flux of the creative expression, as the written laws and
codes are but the grammars of law, mere abstractions from the actual
living flux of political history. Language is not logic, and yet the
logical thought cannot realize itself except through language; law
is not morality, and yet the ethical activity cannot live except by
incorporating itself in laws and institutions, and in the execution of
laws, the concrete, individual life of institutions, that is, in the
juridical and economic activity.
Thus, the end of this exposition of Croce's system, the doctrine of
language with which the system opens links itself intimately with this
doctrine of law, with which it closes. And both as regards language
and as regards law, the last word is, of necessity, a new implicit
affirmation of the identity of the philosophical with the historical
method. The true history of a language is not a history of abstract
grammatical schemes, but the history of the poetry and literature
in which that language has realized itself, a history of individual
expressions; the true history of law is one with the social and
political history of a people, which is, and cannot be but the history
of its practical activity in its effective, individual realization,
that is, juridical and economic history.
[Footnote 1: See _Filosofia della Pratica_, part iii, "Le Leggi," pp.
321-407.]