X. THE LAWS[1]

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.]

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