MORALITY AND LEGAL JUSTICE
I
The _absolute_ moral principle, the _demand_, namely, or the
_commandment_ to be perfect as our Father in heaven is perfect, or to
realise in ourselves the image and likeness of God, already contains in
its very nature the recognition of the _relative_ element in morality.
For it is clear that the demand for perfection can only be addressed
to a being who is imperfect; urging him to _become_ like the higher
being, the commandment presupposes the lower stages and the relative
degrees of advance. Thus, the absolute moral principle or the perfect
good is for us, to use Hegel’s language, a unity of itself and its
other, a synthesis of the absolute and the relative. The existence of
the relative or the imperfect, as distinct from the absolute good,
is a fact not to be got over, and to deny it, to _confuse_ the two
terms, or, with the help of dialectical tricks and on the strength of
mystical emotions, to affirm them as identical, would be false. Equally
false, however, is the opposite course--the _separation_, namely, of
the relative from the absolute, as of two wholly distinct spheres
which have nothing in common. From this dualistic point of view man
himself, whose striving towards the absolute is inseparably connected
with relative conditions, proves to be the incarnation of absurdity.
The only rational point of view, which both reason and conscience
compel us to adopt, consists in recognising that the actual duality
between the relative and the absolute resolves itself for us into a
free and complete unity (but not by any means into an empty identity
of indifference) through the real and moral process of approaching
perfection--a process ranging from the rigid stone to the glory and
freedom of the sons of God.
At each stage the relative is connected with the absolute as a means
for _concretely_ bringing about the perfection of all; and this
connection justifies the lesser good as a condition of the greater. At
the same time it justifies the absolute good itself, which would not
be absolute if it could not connect with itself or include in one way
or another all concrete relations. And indeed, nowhere in the world
accessible to us do we find the two terms in separation or in their
bare form. Everywhere the absolute principle is clothed with relative
forms, and the relative is inwardly connected with the absolute and
held together by it. The difference lies simply in the comparative
predominance of one or the other aspect.
When some two species of concrete relations or some two domains within
which they are exemplified are separated from and opposed to one
another, one being regarded as absolute and another as purely relative
in meaning, we may be certain that the opposition itself is purely
relative. Each of the two domains is simply a special instance of the
relation between the absolute and the relative,--relation different in
form and degree, but identical in nature and supreme purpose. And it is
in this relation of both to the absolute that the positive connection
or the unity of the two consists.
Within the limits of the active or practical life of humanity there
is apparent opposition between the moral sphere in the strict sense
and the sphere of legal justice. From ancient times, beginning with
the pagan Cynics and the Christian gnostics, and down to our own day,
this opposition has been taken to be unconditional. Morality alone has
been regarded as absolute, and legal justice, as a purely conventional
phenomenon, has been rejected in the name of the absolute demands. One
immediately feels that this view is false, but moral philosophy compels
us to disregard this feeling which may, after all, be deceptive, and to
consider the true relation between morality and legal justice from the
standpoint of the absolute good. Is this good justified by its relation
to justice? A person interested in etymology may note that the answer
is already contained in the terms of the question. This philological
circumstance will be discussed further on, but it must not as such
prejudge the philosophic problem.
II
In his lectures on Criminal Law Professor N. S. Tagantsev quotes, among
other things, the following Prussian enactment of the year 1739:
“If an advocate or a procurator or any similar person ventures to
present any petition to his Royal Majesty, either personally or through
somebody else, it is the pleasure of his Royal Majesty that the
aforesaid person should be hanged without mercy, and a dog be hanged by
the side of him.”
Of the legality or conformity to law of the enactment in question
there can be no doubt; and there can be equally no doubt of its being
opposed to the most elementary demands of justice. The opposition seems
to be intentionally emphasised by extending the punishment of the
advocate or procurator to the perfectly innocent dog. Similar, though
not such glaring cases of disagreement between morality and positive
right, between justice and law, are frequently met with in history.
The question must then be asked, how is this fact to be regarded, and
which of the two conflicting principles are we to adopt in practical
life? The answer appears to be clear. Moral demands have an inherent
character of being absolutely binding, which may be entirely absent
from the enactments of positive law. Hence the conclusion seems
legitimate that the question as to the relation between morality and
legal justice is settled by a simple rejection of the latter as a
binding principle of action. All human relations must accordingly be
reduced to purely moral interaction, and the sphere of the legal or
juridical determinations and relations must be entirely rejected.
This conclusion is very easily thought of, but is also extremely
thoughtless. This ‘antinomy,’ or the absolute opposition between
morality and law, has never subjected its fundamental assumption to any
consistent or far-reaching criticism.
That a formally legal enactment, such as the edict of the king of
Prussia, quoted above, is opposed to the demands of morality is only
too obvious. But it may well be that it is also opposed to the demands
of legal justice itself. The possibility of conflict between the
formal legality of certain actions and the essence of legal justice
will become clearer to the reader if I give a concrete instance of an
analogous conflict between the formally-moral character of an action
and the true nature of morality.
It was reported in the papers a little while ago that a woman suspected
of causing the illness of a boy by means of a bewitched apple was
terribly injured and almost killed by the crowd in the centre of
Moscow--near St. Panteleimon’s Chapel in Nikolsky Street. Now these
people acted independently of any interested motives or external
considerations; they had no personal enmity to the woman and no
personal interest in beating her; their sole motive was the feeling
that so outrageous a crime as the poisoning of an innocent babe by
means of sorcery ought to meet with just retribution. Thus it cannot
be denied that their behaviour had a formally-moral character, though
every one will agree that it certainly was essentially immoral. If,
however, the fact that revolting crimes may be committed from purely
moral motives does not lead us to reject morality as such, there is
no reason why such essentially unjust, though legal, enactments as
the Prussian law of 1739 should be regarded as sufficient ground for
rejecting legal justice. In the case of the crime in Nikolsky Street
it is not the moral principle that is at fault, but the insufficient
development of the moral consciousness in the half-savage crowd; in the
case of the absurd Prussian law it is not the idea of legal justice or
law that is at fault, but only the small degree to which the idea of
justice was developed in the consciousness of King Friedrich-Wilhelm.
It would not be worth while to discuss the subject were it not for
the bad habit, which has become established of late, especially with
reference to legal questions, to deduce, contrary to logic, general
conclusions from concrete particular instances.
III
It is not legal justice and morality that conflict and are incompatible
with one another, but the different states both of the legal and
the moral consciousness. Apart from these states and their concrete
expressions, there exist, however, in the domain of legal justice,
just as much as in the domain of morality, abiding and essential norms,
the presence of which is unconsciously admitted even by the spirit of
lying, in his sophistic attack on jurisprudence:
All rights and laws are still transmitted
Like an eternal sickness of the race,--
From generation unto generation fitted
And shifted round from place to place.
Reason becomes a sham, Beneficence a worry:
Thou art a grandchild, therefore woe to thee.
The right born with us, ours in verity
This to consider, there’s, alas! no hurry.
Even Mephistopheles recognises this _natural right_, and merely
complains that it is ignored.[167] In truth, however, it is referred
to whenever a question of right arises. No fact belonging to the legal
sphere, no expression of legal justice, can be judged of except by
reference to a general conception or norm of justice. Mephistopheles
himself applies this conception or norm when he says that certain
rights and laws, once rational and beneficial, have become senseless
and mischievous. He indicates here one aspect of the case only, namely,
the so-called _conservatism_ of legal justice. This fact, too, has its
rational foundation, and the disadvantages which it involves, and upon
which Mephistopheles exclusively dwells, are cancelled by another fact,
not mentioned by the spirit of lying for his own reasons--the fact,
namely, that legal consciousness gradually develops, and that legal
enactments are, as a fact, improved. This unquestionable _progress_
in the domain of legal justice can be shown even in the case of
the unjust law quoted above. I do not simply mean that enactments
like the Prussian edict of 1739 have become utterly impossible in
any European country, and that the penalty of death even for the
worst and unquestionable crimes has long been condemned by the best
representatives of the legal profession. I contend that this edict
itself meant unquestionable progress in comparison with the state of
things which had once prevailed in Brandenburg and Pomerania, as in the
rest of Europe, when every powerful baron could calmly put peaceful
people to death for motives of personal vengeance, or for the sake of
seizing their property. At the time of Frederick the Great’s father
it was the king alone who had the power to take a man’s life, and, in
doing so, he had no personal or selfish purpose in view. It is obvious,
indeed, that Friedrich Wilhelm’s object in composing his edict was
to put down denunciation and slander by the threat of the penalty of
death, and not actually to deprive of life advocates, procurators, and
dogs. The barons of the old times were unquestionably guilty of murder
and robbery, but the king, even when publishing the revolting edict,
was still acting as the guardian of justice, though at a very low level
of legal consciousness.
This difference of degree, this actual progress in legal justice, the
steady advance of the legal enactments towards legal norms, conformable
to, though not identical with, the moral demands, sufficiently proves
that the relation between the two principles is not merely negative.
It shows that it is unpermissible from the point of view of morality
itself to dismiss the whole range of legal facts and problems by a
simple and meaningless rejection of them.
IV
The relation between the moral and the legal sphere is one of the
fundamental questions of practical philosophy. It is really the
question as to the relation between the ideal moral consciousness
and the actual life. The vitality and the fruitfulness of the moral
consciousness depends upon this relation being understood in a positive
sense. Between the ideal good on the one hand and the evil reality
on the other lies the intermediate sphere of law and justice, whose
function is to give concrete embodiment to the good, to limit and to
correct the evil. Justice and its embodiment--the state--condition the
actual organisation of the moral life of humanity. Moral preaching
which takes up a negative attitude towards justice as such could have
no objective basis or means of expression in the real environment that
is foreign to it, and would remain at best an innocent pastime. If,
on the other hand, the formal conceptions and institutions of legal
justice were completely severed from the moral principles and purposes,
legality would lose its absolute basis and become purely arbitrary.
Indeed, in order consistently to carry out the separation between
legal right and morality it would be necessary to give up the ordinary
use of speech, which, in all languages, unmistakably testifies to
the fundamental inner relation between the two ideas. The conception
of right and the correlative conception of duty form so essential a
part of the system of moral ideas that they may serve as a direct
expression of them. Every one understands and no one would dispute such
moral affirmations as: I am conscious of the _duty_ to abstain from
everything shameful, or, what is the same thing, I recognise that human
dignity (in my own person) has a _right_ to my respect; it is my _duty_
to help my neighbours as much as in me lies and to serve the common
good, _i.e._ my neighbours and society as a whole have a _right_ to my
help and service; finally, it is my _duty_ to harmonise my will with
what I regard as the highest of all, or, in other words, the absolutely
highest has a _right_ to a religious attitude on my part (which is the
ultimate basis of all religious worship).
There is not a single moral relation which could not be correctly and
intelligibly expressed in terms of right. One would think that nothing
could be more remote from the juridical order of ideas than love for
one’s enemies. And yet if the supreme moral law proclaims it my _duty_
to love my enemies, it is clear that my enemies have a _right_ to my
love. If I deny love to them, I act unjustly, I sin against what is
_right_. Here we have a term which alone embodies the essential unity
of the juridical and the moral principles.[168] For rights are nothing
more than the expression of what is right, and, on the other hand, all
virtues[169] are reducible to the idea of right or justice, _i.e._
to what is right or due in the ethical sense. This is not a case of
accidental similarity of terms, but of essential homogeneity and inner
connection of the ideas themselves.
It does not, of course, follow that the sphere of legal justice and
morality coincide, or that the moral and the juridical conceptions
should be confused. One thing only is indisputable, namely, that
there is a positive and intimate relation between the two spheres,
which does not permit of one being rejected in the name of the other.
The question, then, is in what precisely does the connection and the
difference between them consist.
V
The fact that we speak of _moral right_ and moral duty, on the one hand
proves the absence of any fundamental opposition or incompatibility of
the moral and the juridical principles, and, on the other, indicates an
essential difference between them. In designating a given right (_e.g._
the right of my enemy to my love) as _moral_ only, we imply that in
addition to the moral there exist other rights, _i.e._ rights in a more
restricted sense, or that there exists _right as such_, which is not
directly and immediately characterised as moral. Take, on the one hand,
the duty of loving our enemies and their corresponding right to our
love, and on the other, take the duty to pay one’s debts, or the duty
not to rob and murder one’s neighbours and their corresponding right
not to be robbed, murdered, or deceived by us. It is obvious that there
is an essential difference between the two kinds of relation, and that
only the second of them falls within the scope of justice in the narrow
sense of the term.
The difference can be reduced to three main points:
(1) A purely moral demand, such, _e.g._, as the love for one’s
enemies, is unlimited or all-embracing in nature; it presupposes moral
perfection, or, at any rate, an unlimited striving towards perfection.
Every limitation admitted as a matter of _principle_ is opposed to
the nature of the moral commandment and undermines its dignity and
significance. If a person gives up the absolute moral ideal as a
principle, he gives up morality itself and leaves the moral ground.
Juridical law, on the contrary, is essentially limited, as is clearly
seen in all cases of its application. In the place of perfection it
demands the lowest, the minimum degree of morality, that is, simply,
actual restraint of certain manifestations of the immoral will. This
distinction, however, is not an opposition leading to real conflict.
From the moral point of view it cannot be denied that the demand
conscientiously to fulfil monetary obligations, to abstain from
murder, robbery, etc., is a demand for what is good--though extremely
elementary--and not for what is evil. It is clear that if we ought to
love our enemies, it goes without saying that we ought to respect the
life and property of all fellow-men. The higher commandments cannot be
fulfilled without observing the lower. As to the juridical side of the
matter, though the civil or the penal law does not demand the supreme
moral perfection, it is not opposed to it. Forbidding every one to
murder or be fraudulent, it cannot, and indeed has no need to, prevent
any one from loving his enemies. Thus with regard to this point (which
in certain moral theories is erroneously taken to be the only important
one), the relation between the two principles of the practical life may
be only expressed by saying that _legal justice is the lowest limit or
the minimum degree of morality_.
(2) The unlimited character of the purely moral demands leads to
another point of difference. The way in which such demands are to
be fulfilled is not definitely prescribed, nor is it limited to any
concrete external manifestations or material actions. The commandment
to love one’s enemies does not indicate, except as an example,
what precisely we ought to do in virtue of that love, _i.e._ which
particular actions we ought to perform and from which to abstain. At
the same time, if love is expressed by means of definite actions, the
moral commandment cannot be regarded as already fulfilled by these
actions and as demanding nothing further. The task of fulfilling
the commandment, which is an expression of the absolute perfection,
remains infinite. Juridical laws, on the contrary, prescribe or
prohibit perfectly definite external actions, with the performance
or non-performance of which the law is satisfied and demands nothing
further. If I produce in due time the money I am owing, and pass it
to my creditor, if I do not murder or rob any one, etc., the law is
satisfied and wants nothing more from me. This difference between the
moral and the juridical law once more involves no contradiction. The
demand for the moral inner disposition, so far from excluding external
actions, directly presupposes them as its own proof or justification.
No one would believe in the inward goodness of a man if it never
showed itself in any works of mercy. On the other hand, the request
to perform definite actions is in no way opposed to the inner states
corresponding to them, though it does not demand them. Both the moral
and the juridical laws are concerned with the inner being of man, with
his will; but while the first takes this will in its universality and
entirety, the second has only to do with particular expressions of it
in respect of certain external facts, which fall within the province
of justice in the narrow sense,--such as the inviolability of the
life and property of each person, etc. What is of importance from the
juridical point of view is precisely the objective expression of our
will in committing or in refraining from certain actions. This is
another essential characteristic of legal justice, and, in addition to
the original definition of it as a certain minimum of morality, we may
now say that legal justice is the demand for the _realisation_ of this
minimum, _i.e._ for _carrying out a certain minimum of the good_, or,
what is the same thing, for doing away with a certain amount of evil.
Morality in the strict sense is immediately concerned, not with the
external realisation of the good, but with its inner existence in the
heart of man.
(3) This second distinction involves a third one. The demand for moral
perfection as an inner state presupposes free or voluntary fulfilment.
Not only physical but even psychological compulsion is here, from
the nature of the case, both undesirable and impossible. External
realisation of a certain uniform order, on the contrary, admits of
direct or indirect _compulsion_. And in so far as the direct and
immediate purpose of legal justice is precisely the realisation or the
external embodiment of a certain good--_e.g._ of public safety--in so
far the compelling character of the law is a necessity; for no genuine
person could seriously maintain that by means of verbal persuasion
alone all murders, frauds, etc., could be immediately stopped.
VI
Combining the three characteristics indicated we obtain the following
definition of legal justice in its relation to morality: _legal justice
is a compulsory demand for the realisation of a definite minimum of the
good, or for a social order which excludes certain manifestations of
evil_.
The question has now to be asked, what is the ground for such a
demand, and in what way is this compulsory order compatible with the
purely moral order, which apparently by its very nature excludes all
compulsion. It may be urged that once the perfect good is established
in consciousness as an ideal, each ought to be allowed freely to
realise it as much as in him lies. Why, it will be said, make into a
law the compulsory minimum of morality, when we ought freely to fulfil
the maximum? Why declare under penalty, ‘Thou shalt not kill,’ when we
ought mildly to exhort people not to be angry?
All this would be perfectly true were the moral problem a theoretical
one and were the perfect good compatible with selfish impassibility or
indifference to the sufferings of others. But since the true conception
of the good _necessarily_ includes the principle of altruism, which
demands corresponding behaviour on our part, _i.e._ demands that
compassion for the ills of others should prompt us actively to save
them from evil, moral duty certainly requires us to do more than simply
to profess the perfect ideal. In the natural course of things, which
ought not to be approved of or acquiesced in, but which it is childish
not to take into account, what would happen is this: whilst some would
be freely striving towards the supreme ideal and grow perfect in
impassibility, others would exercise themselves, unhindered, in every
conceivable crime and would certainly exterminate the first before they
could attain a high degree of moral perfection. But even supposing
that men of good will were by some miracle saved from extermination by
the bad ones, these good men themselves would obviously prove to be
_insufficiently_ good if they would be content with pious conversations
about the good, instead of actively helping their neighbours and
protecting them against the extreme and destructive forms of evil.
Moral interest demands personal freedom as a condition apart from
which human dignity and higher moral development is impossible. But
man cannot exist, and, consequently, cannot perfect his freedom and
his moral nature apart from society. Moral interest therefore demands
that personal freedom should not conflict with the conditions which
render the existence of society possible. This demand cannot be carried
into effect by means of the ideal of moral perfection, which the
individual is to attain by his own free efforts. For the essential
practical purpose before us this ideal gives both too much and too
little--its demands are too great and its concrete results too small.
Of the person who recognises it, the ideal demands that he should love
his enemies; but it cannot compel those _who do not recognise_ its
demands to abstain even from murder and robbery. The strict moralist
will perhaps say, ‘We don’t want people to abstain from crimes unless
they do so voluntarily’; but in saying this he would be guilty of
obvious injustice. He will have forgotten to ask the opinion of the
plundered people themselves and of the families whose members have been
murdered--as though the injury they had suffered is the ground for
regarding them as completely rightless.
The moral law has been given to man ‘that he might live thereby’;
and if human society did not exist, morality would remain merely an
abstract idea. The existence of society, however, depends not on the
perfection of some, but on the security of all. This security is not
guaranteed by the moral law, which is non-existent for persons in
whom anti-social instincts predominate, but it is safeguarded by the
compulsory law which has actual power over every one. To appeal to
the gracious power of Providence to restrain and exhort lunatics and
criminals is sheer blasphemy. It is impious to lay upon the Deity that
which can be successfully performed by a good legal system.
The moral principle demands, then, that men should freely seek
perfection. To this end the existence of society is necessary. Society
cannot exist if each person wishing to do so may, without let or
hindrance, rob and murder his neighbours. Hence the compulsory law,
which actually prevents these extreme expressions of the evil will, is
a _necessary condition of moral perfection_; as such it is demanded by
the moral principle itself, though it is not a direct expression of it.
Let it be granted that the highest morality, on its ascetic side,
demands that I should be indifferent to the prospect of being killed,
mutilated, or robbed. But the same supreme morality on its altruistic
side does not permit me to remain indifferent to the fact that my
neighbours may, without interference from any one, become murderers or
be murdered, robbers or the robbed, and that society, apart from which
the individual cannot live and develop, should run the risk of being
destroyed. Such indifference would be a clear sign of moral death.
The demand for personal liberty presupposes for its realisation the
restriction of that liberty to the extent in which, at the given state
of humanity, it is incompatible with the existence of society or with
the common good. From the point of view of abstract thought there
appears to be an opposition between these two interests, both of which
are equally binding morally. In reality, however, they coincide, and
legal justice is the offspring of their union.
VII
The principle of legal justice may be considered in the abstract,
and in that case it is simply a direct expression of moral justice.
I affirm my freedom as my right in so far as I recognise the freedom
of others as their right; but the conception of right necessarily
involves, as we have seen, an objective element, or a demand to be
realised. Right must be capable of realisation: that is, the freedom
of others, whether recognised by me or not, must, independently of my
personal feeling of justice, restrict my freedom within limits equally
binding upon every one. This demand for compulsory justice follows from
the idea of the common good or public interest, or, what is the same
thing, from the idea of the realisation of the good, which inevitably
requires that justice should be an actual fact and not an idea merely.
The degree and the means of the realisation depend, of course, upon the
state of the moral consciousness in the given society and upon other
historical conditions. The natural right thus becomes the positive
right, and can, from this point of view, be formulated as follows:
_legal justice is the historically changeable determination of the
necessary equilibrium, maintained by compulsion, between two moral
interests--that of personal freedom and of the common good_.
It would be a fatal confusion of ideas to believe that justice has for
its purpose material equalisation of private interests. Justice as
such has nothing to do with this. It is concerned only with the two
main factors of human life--the freedom of the individual and the good
of society. When legal justice limits itself to this and does not
introduce the element of compulsion into private relations, it does
the best service to morality. The individual must be moral by his free
choice, and for that he must have _a certain freedom to be immoral_.
Within certain limits justice secures this freedom to him, though it in
no way inclines him to take advantage of it. Had not the creditor the
right to compel his debtor to pay the money owing to him, he would not
be able by a free moral act to renounce his right and to forgive a poor
man his debt. On the other hand, the fact that the debtor is compelled
to abide by the obligation he has freely entered upon, preserves his
freedom and his full rights in relation to the creditor: he is not
dependent upon the creditor’s will but upon his own decision and the
law of the land. The interest of individual freedom coincides in this
case with the interest of the common good, since without the security
of free contracts there can be no normal social life.
The harmony of the two moral interests is still more obvious in the
case of the penal law. It is clear that the freedom of the individual,
or his natural right to live and to strive for perfection, would be an
empty sound if it depended upon the whim of every other individual who
might want to murder or to cripple his neighbour, or to deprive him of
the means of subsistence. It is our moral right to defend our freedom
and safety from the attacks made upon it by the evil will of others,
and it is our moral duty to help other people to do the same. This
common duty is discharged for the benefit of all by the penal law.
Legal compulsion in this sphere secures the freedom of peaceful
citizens, but it leaves sufficient room for the exercise of evil
propensities and compels no one to be virtuous. A malicious man may, if
he likes, give vent to his malice in evil-speaking, intrigues, slander,
quarrels, etc. It is only when the evil will attacks the objective
public rights of the individuals, and threatens the security of society
itself, that it becomes necessary for the sake of the common good,
which coincides with the freedom of peaceful citizens, to limit the
freedom of evil. In the interests of freedom, legal justice allows men
to be wicked, and does not interfere with their free choice between
good and evil. But in the interests of the common good it prevents the
evil man from becoming an _evil-doer_, dangerous to the very existence
of society. The purpose of legal justice is not to transform the world
which lies in evil into the kingdom of God, but only to prevent it from
changing _too soon_ into hell.
Such premature hell has threatened and, to a certain extent, still
threatens humanity _on two sides_. The normal society, that is, a
society that leads a secure and worthy existence and progresses towards
perfection, is conditioned by the proper balance being maintained
between the individual and the collective interest. Hence, anomalies
perilous to society may arise either from the excess of individual
power, breaking up the social solidarity, or, on the contrary, from the
excess of social control crushing the individual. The first anomaly
menaces humanity with the burning hell of anarchy; the second, with
the icy hell of despotism, _i.e._ of the same anarchy or arbitrariness
concentrated at one point and pressing upon society from without.
In actual history the balance between free individual powers and the
collective power of the social organisation is, of course, movable
and variable, made up of a number of particular deviations and
rectifications. But the very fact that we _note_ these variations is
sufficient to prove that above them lie the abiding norms of social
and individual relations--the eternal boundaries which spring from the
very nature of morality, and cannot, without fatal consequences, be
overstepped by society either in the one direction or in the other. The
most universal and in this sense the most important of these boundaries
is that which limits the _compelling_ power of social organisations
to the domain of the objective or practical good, leaving all the
rest, _i.e._ all the inner or spiritual world of man, to the entire
responsibility of individuals and of free associations. To defend the
life and property of every one against the attacks of external and
internal enemies, to secure to all the necessary education, food,
medical assistance, and all that is connected therewith (means of
communication, post, etc.),--this is the practical good which can and
ought to be realised by the organised power of the society. For this
end society must inevitably impose certain restrictions or liabilities.
The _compulsory_ character of these restrictions is _specific_ only,
for it is clear that a person who, for instance, voluntarily abstains
from crimes does not experience any personal inconvenience from the
legal and penal institutions. Speaking generally, all restrictions due
to the necessary organisation of social forces are as little opposed to
individual freedom as the fact that if I intend to buy a thing I must
pay for it, or that if I do not want to get wet in the rain I must take
an umbrella.
The _essential_ characteristic of the good which is conditioned by
the organisation of legal justice in society is not its compulsory
character--which is merely a possible consequence of it--but _the
direct objectivity of its aim_. What is above all things important is
that certain things should and certain things should not _exist as a
fact_. It is important that there should be protection against savage
peoples, so that they should not burn and destroy towns and villages;
it is important that evil men should not rob and murder the wayfarers;
it is important that the population should not be exterminated by
diseases; it is important that every one should have access to
intellectual education and enlightenment.
These necessary goods are external in character, and the way to obtain
them is also external, admitting of compulsion where it is inevitable.
To the immediate, essential work of the law courts, hospitals, schools,
it makes no difference whatever whether they are supported by voluntary
subscriptions or by compulsory taxation. The same thing, however,
cannot be said of spiritual goods, which from their very nature cannot
be compulsory. There are, in the last resort, two such goods for man:
virtue, _i.e._ _inner inclination of our will to the good as such_, and
truth or right belief, _i.e._ _inner agreement of our reason with truth
as such_. It is clear from these definitions alone that freedom or
spontaneousness forms an essential part of both the spiritual or inward
goods. Therefore all compulsory external action in this sphere is, in
the first place, _a fraud_. The purpose of _externally_ compelling
or forcing a man to have an inner, _i.e._ an _inwardly_ determined,
disposition for the good, or an inner receptivity for the true,
cannot possibly be achieved, and is indeed a logical contradiction or
absurdity; and to use compulsion to no purpose is obviously an evil.
Hence, all compulsory measures with regard to spiritual things in the
supposed interests of truth and virtue are nothing other than the use
of evil means for a false purpose--an abuse in the fullest sense.
There are three kinds of violence in our world: (1) _brutal_ violence,
such as is committed by murderers, highwaymen, corrupters of children;
(2) _human_ violence, necessarily permitted by the compulsory
organisation of society for safeguarding the external goods of life;
and (3) violent intrusion of the external social organisation into the
spiritual life of man, with the false purpose of safeguarding the inner
goods--a species of violence which is _wholly_ false and evil, and may
therefore justly be called _diabolical_.
VIII
From the nature of legal justice, which serves the external or the
objective good, it follows that truth and virtue must always remain a
private concern, and one which is perfectly free. In addition to the
principle of unlimited religious tolerance, certain other consequences
follow from this.
In the domain of the penal as well as of the civil law the freedom of
the individual is limited, not by the private or subjective interest of
other individuals _taken separately_, but by the good of all. Many vain
and self-conscious people would rather be plundered or even crippled
than suffer secret abuse, slander, and heartless condemnation. If,
therefore, legal justice aimed at the protection of private interest
as such, it would in cases of this kind have to limit the freedom of
slanderers and evil-speakers even more than the freedom of robbers and
men of violence. But it does not do so, for verbal insults are not so
detrimental to the safety of society, and do not indicate so menacing
a degree of evil will as the crimes against person and property. Even
if the law intended to cope with such actions, it would be impossible
for it to take into account all the forms and degrees of individual
sensibility to insults. And if it could do so, it would be unjust, for
it is impossible to prove that the guilty person intended to cause
the high degree of suffering which he did cause in reality. _Common_
law may only be guided by definite intentions and objective actions
which can be verified by every one. Besides, in the cases which do
not fall within the scope of penal law, the injured person may, if he
likes, avenge himself on the injurer by the same means. His freedom
in this respect is respected as much as that of his adversary. And if
he is morally superior to the latter, and thinks that he ought not to
avenge himself, he would not in any case have appealed to the law,
however sensible he may have been of the injury. If he abstains from
personal revenge, so much the better for him and for society, which
is at liberty freely to express its moral judgment. What matters from
the legal point of view is not the evil will _as such_, and not the
result of action, which may, _as such_, be accidental, but only the
connection of the intention with the result, or the extent to which the
evil will is realised in action. It matters to it because the degree
of realisation and the corresponding degree of danger to society may
be determined objectively and is an external evil, the protection from
which is an external good, admitting of legal compulsion.
IX
Since the essence of legal justice consists in maintaining the balance
between two moral interests--that of individual liberty and of the
common good, it is clear that though the latter interest may _limit_
the former it may not under any circumstances _abolish it_. For in that
case the balance would obviously be disturbed and disappear through the
destruction of one of the terms of the relation. Therefore measures
against the criminal should never go so far as to deprive him of
life or to take away his freedom for ever. Laws which permit capital
punishment, lifelong penal servitude, or lifelong solitary confinement
cannot be justified from the legal point of view--they contradict the
very nature of legal justice. Besides, the contention that in certain
cases the common good requires that a given person should be completely
done away with, involves a logical self-contradiction. Common good is
_common_ just because in a certain sense it contains the good of _all_
individual persons _without exception_; if it did not, it would be the
good of the majority. It does not follow that it therefore is a mere
sum of private interests, or that it allows of unlimited individual
freedom. This would be another contradiction, since the unlimited
freedom of one individual may, and actually does, conflict with the
liberty of others. But the conception of the _common good_ implies
with logical necessity that in _restricting_ particular interests and
activities within common bounds it cannot _do away with_ a single
bearer of such interests and activities by depriving him of life or
of all possibility of free action. The common good must, in one way
or another, be the good of _this individual also_. But if it deprives
him of existence and of the possibility of free action--that is, of
the possibility of any good at all--it ceases to be a good for him; it
itself then becomes merely a private interest, and therefore loses its
right to limit personal liberty.[170]
With reference to this point, too, we see that the demands of morality
entirely coincide with the essence of legal justice. Speaking
generally, although legal justice in exercising compulsion to secure
the minimum of good differs from morality in the strict sense, yet in
its exercise of compulsion it observes the demands of morality, and
must on no account conflict with it. If, therefore, some positive law
is opposed to the moral consciousness of the good, we may be _a priori_
certain that it does not satisfy the essential demands of justice
either. So far as such laws are concerned, it is not in the interests
of justice that they should be retained, but that they should be
_lawfully_ repealed.
X
External compulsion is one of the essential characteristics of the
norms of legal justice as distinct from moral norms in the strict
sense. Hence, justice from its very nature requires _guarantees_,
_i.e._ sufficient power to enforce the realisation of its norms.
Every person in virtue of his absolute moral worth has an inalienable
right to exist and to strive for perfection. This moral right would,
however, be an empty word were its actual realisation to depend
entirely upon external happenings and the arbitrary will of others. To
be real, a right must contain within itself the conditions of its own
realisation, _i.e._ it must be safeguarded from violation. The first
and essential condition of this is communal life, since a solitary man
is obviously powerless against the forces of nature, wild beasts, and
brutal men. But being the necessary _defence_ of individual liberty,
or of the natural rights of man, communal life involves at the same
time a _limitation_ of these rights--not an accidental or arbitrary
limitation, but one that follows from the nature of the case and is
inwardly binding. Making use of the social organisation to safeguard my
existence and free activity, I must recognise in my turn the right of
that organisation to exist and to exercise its authority over me--that
is, I must submit my activity to conditions that are necessary to
the existence and the development of society. In this case the two
interests coincide, for if I desire to realise my right, or to secure
for myself a sphere of free activity, I must determine the degree of
the realisation or the extent of the freedom in accordance with the
fundamental demands of the social good, apart from which there can be
no realisation of my rights at all nor _any_ safeguards of my freedom.
The individual’s subordination to society is in perfect agreement with
the absolute moral principle which does not sacrifice the particular
to the universal, but unites them by an inner bond of solidarity. In
surrendering to society his unlimited but insecure and unreal freedom,
the individual has his determined or rational freedom secured to
him--the sacrifice is as profitable as the exchange of a dead lion for
a living dog.
The definite limitation of personal freedom in given conditions of time
and place, in accordance with the demands of the common good, or, what
is the same thing, a certain balance or a constant harmony between
these two principles, is a positive right or _law_ in the strict sense.
Law, as such, is a universally recognised and impersonal--_i.e._
independent of personal opinions and desires--determination of right,
or an expression of a proper balance (under given conditions and in
certain respects), between individual liberty and the good of the
whole. It is a definition or a _general_ notion which finds concrete
realisation through particular judgments in the _individual_ cases or
instances.
Hence the three necessary characteristics of law are: (1) its
_publicity_; an enactment that is not made _generally_ known cannot
be universally binding, _i.e._ cannot be a positive law; (2) its
_concreteness_; it is the norm of some particular definite relations
in a given real environment and not the expression of any abstract
truth or ideal;[171] (3) its _real applicability_ in each _individual_
case; this is ensured by the law being always accompanied by a
‘sanction,’ _i.e._ by its holding out the threat of compulsory and
punitive measures if its demands are unfulfilled or its prohibitions
violated.[172]
In order that the sanction might not remain an empty threat the law
must be supported by some real power sufficient to carry its demands
into execution. In other words, justice must have its actual bearers or
representatives in society who would be sufficiently powerful to give a
binding force to the laws they publish and to the sentences they pass.
Such actual representatives of justice or agents of the law are called
_authorities_.
I am bound to demand that the social whole should safeguard my natural
rights in a way in which I myself am unable to safeguard them, and in
doing so I am bound in reason and conscience to recognise the positive
right of this social whole to use means and methods of action without
which it could not fulfil this necessary and desirable task. Namely,
I must leave to the social whole, (1) the power to issue generally
binding laws; (2) the power to judge, in accordance with these laws,
private affairs and actions; and (3) the power to compel each and all
to fulfil the legal verdicts and all other measures necessary for
general security and welfare.
It is clear that these three different powers--the legislative, the
judicial and the executive, though necessarily _distinct_, cannot be
_separate_, and ought on no account to conflict with one another:
they all have one and the same purpose--to serve the common good in
accordance with the law. Their unity finds its real expression in
their being equally subordinate to one supreme authority, invested
with all the positive rights of the social whole as such. This central
power finds immediate expression as legislative authority. Judicial
authority is conditioned by the first, since a court of justice is not
autonomous, but acts in accordance with a law that is binding upon it.
The first two authorities condition the third, which is concerned
with enforcing laws and verdicts. In virtue of this inner connection,
without the one supreme authority in one form or another there could
be neither universally binding laws, nor regular functioning of
justice, nor effective administration, and the purpose of social
organisation could not be attained. It is clear, of course, that the
due relationship between the three authorities is violated both by
separating and placing them in hostile opposition to one another, and
by confusing them and distorting their natural order. This happens, for
instance, when the second authority, the judicial one, is subordinate
not to the first but to the third, and is dependent not upon the law
but upon the different organs of the executive power.
The social body with a definite organisation, containing in itself the
fulness of positive rights or the one supreme authority, is called
_the state_. In every organism it is necessary to distinguish the
organising principle, the system of the organs or of the instruments
whereby the organisation is carried out and the totality of elements to
be organised. Corresponding to this, we distinguish in the collective
organism of the state, taken in the concrete, (1) the supreme
authority; (2) its different organs or subordinate authorities; (3)
the substratum of the state, _i.e._ the mass of the population of a
given territory, consisting of individuals, families and other more or
less broad private unions subordinate to the authority of the state.
In the state alone does justice find all the conditions necessary for
its concrete realisation, and from this point of view the state is the
_embodiment of justice_.
Without dwelling here upon the question as to the actual historical
origin and the supreme sanction of the state authority,[173] I have
simply indicated its _formal basis_ as the necessary condition of a
just organisation of society. In its simplest practical expression the
meaning of the state consists in subordinating, within its limits,
violence to justice, arbitrariness to legality, and replacing the
chaotic and destructive conflict of the particular elements of natural
humanity by a regular order of existence. Compulsion is exercised by
the state only in the last extremity, the extent of it is determined
beforehand in accordance with law, and it is justified by the fact that
it proceeds from a common and impartial authority. This authority,
however, extends only to the boundaries of the given state’s territory.
There is no supreme authority above individual states, and therefore
conflicts between them are in the last resort decided by means of
violence only--by _war_. That this fact contradicts the _absolute_
principle of morality, there can be no question. The _relative_
significance of war and the best means of abolishing it are the last
of the fundamental practical questions which the collective life of
historical humanity puts before the moral consciousness.
FOOTNOTES:
[167] Apart from the direct meaning of this remark, it may be regarded
as a kind of prophecy of the persecution which, a quarter of a century
after Goethe’s death, the idea of the natural right suffered in
jurisprudence. There are signs which show that this persecution is
coming to an end.
[168] In all languages, moral and juridical conceptions are expressed
either by the same terms or by terms derived from the same root. The
Russian _dolg_, like the Latin _debitum_ (hence the French _devoir_)
and the German _Schuld_ have both a moral and a juridical meaning; in
the case of δική and δικαιοσύνη, _jus_ and _justitia_, of the Russian
_pravo_ and _pravda_, the German _Recht_ and _Gerechtigkeit_, the
English _right_ and _righteousness_, the two meanings are distinguished
by the use of suffixes. Cp. also the Hebrew _tsedek_ and _tsedakàh_.
[169] See above, Part I., Chapter V.: “Virtues.”
[170] After what has been said in Chapter VI. on the penal question,
I need not explain that the moral principle not only permits but in
certain cases actually demands that the criminal should for a time be
deprived of liberty, both for his own good and for the sake of public
safety. But it is morally impossible to inflict the penalty of death,
or to pass a sentence depriving a man of liberty for the rest of his
life.
[171] Certain law-codes still preserve--on paper--enactments which
require that people should abstain from drunkenness, be pious, honour
their parents, etc. But such spurious laws are merely a vestige of the
primitive state in which the moral and the juridical conceptions were
confused or merged into one.
[172] The pious wishes of the lawgiver referred to in the last note are
not accompanied by any sanction, which fact sufficiently proves that
they are spurious laws.
[173] See above, Part III., Chapters I. and VI., and below, Chapters
IX. and X.