MORALITY AND LAW
The coercion which the community exercises upon its members, by means of
which it forces them to adapt their actions and abstention from action
to the standard it has set up, has two forms: Custom and Law. Are the
two really different? What is their relation, one to the other? These
are questions worth investigating.
Ever since the earliest times, grave men have meditated on the relation
between Custom and Law. They were forced by evidence and practical
experience to note a difference between the two institutions, but at the
same time they had the definite impression that they trace their origin
to the same source. Socrates distinguishes between the written laws of
his country and the unwritten ones which express the will of the gods.
The former constitute positive Law which the citizen must observe and to
which he must submit; the latter, however, are higher, for they emanate
from the gods themselves. The immutability of the unwritten laws is a
proof that they are superior to the written ones. Written laws vary from
state to state. They are the work of individual law-givers who were
sometimes wise men and sometimes unreasonable tyrants. But all contain
certain precepts which are everywhere alike, which everywhere impose
the same rules upon man. It is almost as if one and the same law-giver
had co-operated in the making of all the laws that obtain in the
different towns and countries, and are so unlike one another in many
points. This common law-giver, whose will is manifest in all laws,
however far removed they be from one another, is the Deity. That is
essentially Socrates' train of thought as given by Xenophon in his
_Memorabilia_. The Attic sage speaks the language of his time, which, by
the way, is still that of many present-day people. The Deity, whose will
permeates all written laws and to whom they may be traced, is the
principle of Morality. Hugo Grotius, in a manner more appropriate to
modern thought, expresses it thus: "Law and Morality spring from the
same source, namely, the strong social instinct natural to man. They
bear witness to reasonable solicitude for the welfare of the community."
This placing on an equality of Law and Custom, of _jus_ and _mos_, is
very remarkable in such a strictly professional thinker, such a positive
jurist as Grotius. Kant discriminates between the doctrine of Virtue and
the doctrine of Law; he keeps them apart, but he emphasizes their
connexion, and the two together make up his doctrine of Ethics.
As a matter of fact, no fundamental difference between Law and Custom
exists; only Law is enforced differently to Custom. It would be going
too far to say: Law has sanctions and Custom has none. The latter has
sanctions too, but they are of a different kind to those of the Law. He
who transgresses Custom will suffer the contempt of his fellow men, and
this may become so penetratingly severe that the most hardened and
shameless rascal must feel it. In an old, loose form of society where
individualism is highly developed, and each one goes his own way, paying
little regard to the others, there an unscrupulous, conscienceless rogue
may sin against Socrates' unwritten law without being penalized. In a
young, closely-knit community, however, in which the feeling of intimate
connexion between the members is lively and vivid, he would be
proscribed, as soon as he was found out, and it would be impossible for
him to remain, say, for example, in a small town of the United States.
Public opinion would make it so hot for him that he would be glad to
escape with a whole skin. But this punishment is exceptional for
transgressions of Custom, whereas it is the rule for those of the Law.
The sanction of the Law is stricter than that of Custom, just as the Law
itself is stricter than is Custom. The Law concerns itself with concrete
cases in which consideration for one's fellow men must be practised,
duties to him fulfilled, and his claims respected. These cases are
defined by Law as clearly as possible, whereas Custom confines itself to
generalities and determines the whole attitude of the individual to his
neighbour. Custom embraces the outer and inner life of man and
supervises his opinions, which are the parents of his deeds, and also
his deeds themselves; Law is only concerned with actions, and refrains
from penetrating to the intimacy of thoughts, unless the latter alter
the essential character of the action, as premeditation in an act of
revenge and temporary or permanent irresponsibility alter the judgment
of offences and crimes. Law is a miserly extract of custom, a meagre
selection from its variety, a concentration and embodiment of its
surging vagueness. It may be compared with crystals, which in their
geometrically accurate forms are crystallized clearly and definitely out
of a liquid, the mother liquor; or with the heavenly bodies which
agglomerate out of surging primal nebulæ. Custom is the primitive thing,
Law is derived from it. It appeals to its descent from Custom, and
founds, at any rate tacitly, its claim to respect on these grounds. A
law which ran counter to Custom, which was confessedly in opposition to
Custom, could never be maintained or prevail, though it bristled with
the menace of the most dreadful punishments.
The relationship of mother to child between Custom and Law may be
obscure to the majority; it is clear to the analytical mind. Recognition
of the essential unity of both phenomena explains an assumption which
was widespread among the best intellects from the Middle Ages until well
into the eighteenth century, but which has now been abandoned as
erroneous by more positive, though indeed narrower, legal minds. This
assumption is that there is a natural Law antecedent to historical Law,
which exists and acts beside and above the latter, and which forms the
basis and the measure of every positive law, of every concrete legal
judgment. It is comprehensible that the nineteenth century swept away
the idea of natural Law and freely made fun of it. To a sternly
disciplined legal mind it must indeed seem grotesque if a judge, in
order to arrive at a verdict in some concrete dispute, cites the rights
to which man is born instead of a certain text of the law, or even,
following Schiller's advice, reaches up to the stars and brings down
thence the eternal Law. Even this procedure is not so farcical as it
seems to stupid article-mongers and hair-splitting paragraphists, for
the procedure of equity of the English judges, who are not prone to
clowning, is at bottom nothing but this reaching up to the stars and
this judging by the rights to which man is born. The feud between
natural Law and historical Law was really a quarrel about a word. Jean
Jacques Rousseau, his contemporaries and disciples, simply made a
mistake in their choice of an expression. They were guilty of an
inaccuracy when they spoke of natural Law. They should have said: "the
innate claim of man that his person should be respected," or, "natural
consideration for one's fellow man," or, most shortly and simply,
"Morality." To the latter legal lights would have raised none of the
objections with which they victoriously opposed natural Law.
The beginnings of Morality coincide with the beginnings of society, as
the latter could not have existed for a single day without the former.
Since men, forced by the struggle for existence, emerged from their
original, natural solitude and united in a community, they have had to
watch over their impulses, suppress their desires, do things they
disliked, and in all their actions and abstentions from action consider
their neighbours' feelings, as they demanded that their feelings, too,
should be considered. That was Morality which limited the vainglory and
arbitrary conduct of unfettered man. It included all rules that
determine the attitude of man to man. There was no distinction between
Custom and Law. Men were ruled by custom which was traditional in their
community and observed by all; and their Custom had the force of Law.
Formulated laws, and more especially written laws, appear comparatively
late. True, Asia has old examples of such; the Manava Dharma Shastra,
the book of laws of the Indian Manu, the Chinese Chings, the law of
Hammu Rabi, and that other law, akin to this, though not derived from
it, but probably drawn from a similar older source, the law of the
Pentateuch. The laws of Draco, Solon and Lycurgus and the Roman Twelve
table law are appreciably younger; much later still the _leges
barbarorum_ were written down, some of them, like the prescriptive Law
of the Germans set down in the "_Sachsenspiegel_," not till the end of
the Middle Ages. It is peculiar to most of the old Asiatic laws that
they contain both rules of conduct and legal regulations, and that they
do not differentiate between these two kinds of precepts.
Let us take one example: the Ten Commandments. Beside such positive
orders as "Thou shalt not steal"; "Thou shalt not kill"; "Honour thy
father and thy mother"; we find such as give rules for the character and
course of spiritual happenings, regarding which others cannot observe
whether they are obeyed or not, like the commandments respecting man's
relationship to God, or admonishing man not to covet his neighbour's
wife or goods. Those are subjective impulses, spiritual moods which are
revealed only to the eye of conscience as long as they do not betray
themselves in action, and which by their very nature cannot be the
subject of Law which deals only with outward manifestations of thought
and will, and is concerned only with things done.
In constitutional Law, too, no less than in criminal and civil Law, the
eighteenth century tends to preface certain laws with universal moral
principles, and to establish by formal law that the former are derived
from the latter. The Declaration of Independence of the United States in
July, 1774, says: We consider the following truths self-evident: that
all men are born equal; that the Creator has bestowed upon them
inalienable rights, amongst which are the right to life, to freedom, to
the pursuit of happiness, etc. So before these rights are guaranteed by
the Law, they are announced to belong by birth and nature to man, to be
independent of any particular and express bestowal by the law-giver, and
beyond all dispute or even argument. Of the thirteen States which formed
the original Union, ten accompanied their constitution by a Bill of
Rights which repeated the essential contents of the Declaration of
Independence of July, 1774; seven of them placed them as an introduction
before their fundamental law, and three of them incorporated them in the
latter. Two others, New York and Georgia, distributed them among various
articles of their constitution. Rhode Island alone refrained from a
general declaration. The States which joined the Union later, with few
exceptions followed the example of their predecessors and built up their
constitution on the foundation of an explicit statement of the natural
rights of man. The French Revolution followed the course which the
United States had indicated, and began its constitution of 1791 with the
"Declaration of the rights of men and citizens," which is not a law in
the technical sense of the word, but is superior to all positive Law,
constitutes the latter's standard and touchstone, and straightway makes
all laws invalid which are not animated by its spirit or which
contradict it.
In the beginning, therefore, there was Morality, and the first laws,
which formulated its precepts either in oral tradition or in writing,
recommended without distinction what was good and desirable, and what
was necessary and expedient. The differentiation of the Morality, which
the commonwealth felt to be its code of right and wrong, into Custom and
Law took place in late times. It was most definite in Rome, where for
the first time a clear distinction was made between men's relation to
their gods and their relation to one another; the former was left to the
individual's conscience, the latter subjected to the power of the State;
the elements of feeling and of dim perception were banished from the Law
which confined its attention to deeds which it regulated in a
high-handed manner. Law chose from out the all-embracing sphere of
Morality one narrow area, that of mankind's immediate, material
interests, and took this as its sole theme. The object of all Morality
is to enable men to live together in a community peacefully and
prosperously; within the bounds of this more general purpose, the task
of the Law is to suppress by force the grosser hindrances to this
harmony among individuals, and by material means of coercion
emphatically oblige everyone to respect the interests of his neighbour.
What every responsible man of sound mind demands first and foremost is a
proper respect for the possessions that are his by birth and
acquisition, that is for his life, for his bodily welfare, for all the
goods he owns that minister to his needs, his comfort and his pleasure.
He who lays violent hands on these possessions, or threatens to endanger
them, is recognized to be an enemy; man arms himself against such an
one, fights against him, tries, if he have a strong character, to
destroy him, or flees from him if he is too weak to triumph over him;
man only yields to such an one if he simply cannot help himself, but he
does so with hatred and revenge in his heart, and in a state of mind
which, if it becomes fairly widespread, sets every man's hand against
his fellow-men and leads to the ruin and even to the dissolution of the
community. Hence the task of Law is effectively to protect the
individual from the infringement of his rights by others. It places the
organized forces of the community at the service of the individual whose
interests are threatened, for the criminal law penalizes more or less
severely attempts against life and health, unlawful seizure of property
whether by force or cunning, malicious molestation and offence; the laws
of commerce keep watch over the faithful fulfilment of contracts dealing
with the fair exchange of goods or the execution of work, and in case of
need enforce it.
A select few, everywhere only a small minority, has a different scale of
values to that of the masses. For them "life is not the supreme thing."
There are things they value more highly. The masses have no
understanding for these people's needs and fine feelings. Their
self-respect and their dignity are dear to them as wealth, their honour
more sacred than life itself. Unhesitatingly they sacrifice their
property to freedom, and more unbearable than anxiety for their material
interests is life in surroundings in which brutality, vulgar sentiments,
harsh egotism, malice, hypocrisy and treachery preponderate. The Law
does not consider this minority. It is the creation and the servant of
the great majority. It clings to earth and is incapable of lofty
flights. It is of no service to the elect in the preservation of their
noblest spiritual possessions or the defence of their ideals against
clumsy maltreatment. It declares itself to be incompetent to deal with
any but material affairs.
Therein lies at one and the same time the strength and the weakness of
the Law. Its strength lies in the fact that it definitely limits its
sphere of action and strives to achieve positive results by positive
means, results intelligible even to a mean understanding. Its weakness
lies in the fact that it ignores man's highest and noblest interests.
And these interests are there, they too deserve consideration and
protection, they have a right to demand that the guarantee of the
community should embrace them as well. The well-being of the community,
which is the object of Morality and of Law too, demands that such
conditions should be created and maintained, as should enable the elect
also to enjoy life or at least find existence bearable. But Law does
not suffice for that. No law enjoins upon the careless throng of
pachyderms to spare the tenderest and noblest sensibilities of lofty
natures; no judge punishes thoughtless or purposely malicious injury to
them. To remedy this evil we must rise from the lowly plain of Law, the
natural dwelling-place of the masses, to the heights of Morality, the
habitual abode of superior minds. At the theological stage of
civilization refuge is sought with the gods in whose hands the
protection of essential, spiritual possessions is placed. They are
expected to punish the wicked whose evil deeds are beyond the reach of
any penal code, they are expected to soothe and comfort when life is
hard or even unendurable. That is the compromise that the elect made
with life in the hard times of European barbarism. They escaped from the
world and thus avoided contact with the repugnant masses. They shut
themselves up in cloistered cells away from mankind and held mystic
intercourse with God. Among the people, cruel authorities with
difficulty maintained discipline and scanty law and order by means of
flogging and the pillory, torture, the gallows and the wheel. The
minority of the elect disciplined themselves, suppressed their lower
impulses by self-imposed mortification, and with the help of prayer and
belief in God's promised millennium managed to keep their heads above
water despite the crushing spectacle of the life of those times.
Long before the Christian era, the Greeks of noble disposition felt the
need of living in an atmosphere of higher intellectuality and morality
than that of the market-place, and they hid themselves behind the
cloud-curtain of the Eleusinian Mysteries, where they kept to
themselves, escaped the rule of the rude Law, and followed the nobler
precepts of Morality. Whenever the measure of Morality contained in
positive law did not suffice for the minority with higher aspirations,
this minority adopted the same expedient, a form of esotericism; small
circles were formed outside the community in which there was added to
the current legal code a superstructure of stricter rules, more finely
shaded duties, more courteous consideration. Present-day life also
offers examples of this tendency which is met with in all ages. There
are select circles and professions in which the standard of
irreproachableness is far higher than among the mass of the people.
There a man is not held blameless, simply because he has never
transgressed a positive law, never come into conflict with the powers of
justice. He must be as unspotted in the eye of moral justice as he is in
that of the Law. A club or association that is self-respecting will not
admit to membership a candidate reputed to lie, to have an evil tongue,
to break his word, to be a toady and a snob, though none of these
offences are punishable by law. It has happened that a corps of German
officers has forced one of their number to send in his papers because he
has seduced and deserted a respectable girl, an adventure flattering to
the vanity of puppies who, as like as not, boast of it, and with which a
judge can only deal if the injured girl appeals to him--and even then he
cannot punish the offender, but merely sentence him to pay damages.
Almost the whole world is agreed on the point that the Law does not
sufficiently protect honour. Positive Law evidently does not consider it
of such value as material possessions, for the defence of which it knows
itself to be qualified. But there are numbers of people whose honour is
dearer to them than their fortune, even than their life, and trembling
with indignation they see that a thief who steals their purse with a few
shillings is haled off to prison, while a slanderer who sullies their
honour either goes unpunished, or at most gets off with a fine, which
merely adds official insult to the injury. In this case the Law has
lagged so far behind Morality that individuals try of their own accord
to bridge the gulf without counting on the intervention of the
community. For aspersions of their honour the masses take revenge with
fists and cudgels, often with bloody results; and among the elect they
resort to duels with lethal weapons, a preposterous proceeding due to
desperation, and a bitter indictment of the prevailing laws. It is a
deed of self-help, like the formation of a vigilance committee among the
anarchical throng of a lawless rabble. Hardly to be justified on
reasonable grounds, it is intelligible from the point of view of
historical tradition, and as a survival of dim and primitive ideas. In
early days a properly regulated duel was an ordeal showing the judgment
of heaven. It was the general conviction that God would give victory to
the right and crush the wrong. When human Law failed, the injured party
appealed to the source of all Law and placed his cause in the hands of
the Almighty. From this point of view the duel is no unsuitable means
of preventing plots to evade the law. Even if the injured party is
inexperienced in the use of the weapon, even if his opponent is skilled
and vastly his superior, he need not worry, for God fights on his side.
Therefore he is more sure of success than if he entrusted his cause to
fallible human judges. But from the moment that the duel ceases to be
regarded as a means of arriving at the verdict of God, nothing can be
urged in its defence, and that it nevertheless persists is a fact that
can only be accounted for by the inadequacy of the current laws.
It really is astonishing that the Law does not yet appraise honour at
its true value. Educated people almost unanimously regret and condemn
the backwardness of the Law in this respect, all the more so because the
tremendous development of the respectable, as well as of the
disreputable, Press facilitates and aggravates libel to a hitherto
undreamed-of extent, and no defence can overtake the slander which is
quickly spread broadcast. Doubtless public opinion will urge that
measures be taken to bring the Law into line with the views now held on
all sides on the significance of honour, its defencelessness and its
need for protection. That this has not yet been done is due to the
slowness with which the Law adapts itself to the demands of a Morality
which grows ever more profound and more refined. Law, which originally
devoted itself only to the crudest material interests, very slowly
extends the range of its protection, but it does so continually, with an
ever-widening embrace, including more and more delicate, more and more
noble, possessions, taking into consideration ever higher and ever finer
needs. What early legislator would have thought of man's needing
protection not only against murder, grievous bodily harm and
maltreatment, but also against the dangers due to ignorance and
carelessness in light-heartedly spreading infectious diseases, and
contaminating water and the air? Who would have dreamed in former times
that positive Law would consider the sensitiveness of nerves, desire for
beauty, dislike of ugliness and forbid disturbing street noises, protect
the countryside from wicked disfigurement, and prevent the construction
of buildings which would spoil the artistic architectural plan of a
city?
These little traits, these concessions to personal demands, which to a
coarse mind do not seem obviously justified, go to prove that positive
Law continues to grow beyond the bounds of its unavoidably crude
materialism, and strives to rise into the regions of the unwritten law
of the Peripatetics, where ideal possessions are of more importance than
those which have traditionally come within the scope of criminal and
civil Law. Law and Custom have a natural tendency to approach more and
more nearly to one another, to become merged in one another where the
line that divides them is but faintly indicated. The closer the union
between them, the more perfect is the Morality of a society. Absolute
perfection would be reached if Law, which has been derived by
differentiation from Morality, should, after a protracted period of
development, return to its source and be completely merged again in
Morality. But that is a dream which can never be realized as long as
man is constituted as he is at the present time. Enthusiasts have
dreamed of it, and in their imagination have seen an anarchical and
lawless society in which no positive Law, no sanctions of force were
needed, and in which the understanding and conscience of individuals
would suffice to ensure the rule of good faith and goodness, and the
curbing of selfishness. As far as man can tell we shall never attain
this Utopia. We shall never be able to do without positive Law, not only
on account of undeveloped and perverse natures, in which animalism has
the upper hand of humanity, and which must be kept under strict
discipline, but because a sure guide is needed in cases of doubt and
irresolution which confuse even the good, nay, the best, men when
passion and violent desire, with their heavy thunderclouds, darken the
outlook of Reason, and judgment wavers amid the hurly-burly of a
spiritual tempest. All that we may hope for and should desire is that
Law should be filled with the spirit of Morality and embrace as many
moral ideas as possible.
It lies in the nature of the thing that Morality was never clearly and
definitely formulated, for as soon as this was done it assumed the
character of Law. It remained general and slightly vague, it spoke to
men in such indefinite terms as "good," "virtue," "duty," "love of one's
neighbour," "unselfishness," "patience"--terms into which everyone can
read the meaning which suits his thoughts and feelings. Mankind has
never lacked moral teachers. The Indian Shastras and the Chings,
Confucius and Meng Tse, the prophets of Israel and Ben Sirach, Plato
and the wise men of the Stoics, the Zend Avesta, Jesus and Paul, the
platonic ethics of Nicomachus, those of Epictetus and Marcus Aurelius,
thousands of years ago preached the principles which exhaust the whole
field of Morality, and beyond the essentials of which none of the later
moralists have gone; neither the "Imitation of Christ" nor Ibn Bachia,
Spinoza, the Scotch school and Kant, up to Wundt and Guyau.
But what about the effect of the doctrines which they advocated gently
or passionately, adducing proofs or uttering threats? To lend weight to
them they either appealed to God, threatening mankind with His wrath and
vengeance, or to Reason, which, according to them, could advise man only
for his good. Perhaps they could intimidate those who had blind faith
and convince the reasonable. But there are many of little faith, and
more still who are unreasonable, and on these the persuasion, warnings
and conclusions of the Moralists had no effect. For these it was
imperative to clothe the minimum of Morality, the minimum without which
no society can exist, in the definite form of laws, and so create the
Law to which the weapons of the community lend compelling force. Thus
the whole material of Ethics is divided into Morality and Law. The
Theologians and Scholiasts who trace all binding rules of human conduct
back to revelations of the Divine Will recognized on principle only one
single law: but the aspect of practical life made even them distinguish
between the "_lex indicativa_" and the "_lex præceptiva_," between an
indication or counsel and precept or command. The "_lex indicativa_" is
Morality, the "_lex præceptiva_" is the Law.
Codes are the normal expression of the Law. Not all Law is formulated in
this way, for there is a recognized Law of custom, but all laws,
codified or not, become a part of the prevailing Law. Naturally, and as
is only reasonable, all Law is pre-existent in the consciousness of the
majority, and the law-giver's rôle is limited to setting down in
paragraphs universally acknowledged principles dictated by public
opinion. However, there are an appreciable number of historical
instances in which this procedure is reversed; the law-giver, without
inquiring whether his ideas were in accord with the general conscience,
arbitrarily clothed his dictates to the community in paragraphs which it
had to accept as Law. It is clear that this procedure is extremely
risky. Even if the law-giver possesses superior wisdom, even if he is
far in advance of his people and his age, even if his intentions are of
the best, there is grave danger that the moral feeling of the people
will revolt against the laws thus forced on them. Outwardly they yield
to the pressure of public authority, but they obey the Law with a keen
inner sense of opposition; a chasm yawns between conscience and the
practice of the Law, ideas of Morality and Law become confused, the
moral foundation of all laws totters, and the public gets into the habit
of regarding the Law as something alien and hostile, which cannot be
disregarded with impunity, but which it is not only not culpable, but
even meritorious to evade.
An enormous amount has been written on the subject of what a law is, and
all this literature expresses in endless words very few and, almost
without exception, very mediocre thoughts. I should consider it an
unpardonable waste of time to devote any considerable space to this
rubbish, either in order merely to quote opinions or to investigate and
confute them. Perhaps the best thing said of the laws is Hobbes's
description: Civil Law (the law of the country) is nothing but a
guarantee of natural Law. It is true that this definition implies a
supposition: the existence of natural Law which, however, is not binding
in itself but requires the sanctions of the law of the country.
Moreover, it is only correct if we add the limitation that it does not
guarantee all natural Law, but only a part of it. Hobbes is also forced
by his definition of the law of a country to explain what he means by
natural Law, and he does not evade this duty. "Natural Law," he says,
"is the decree of true Reason (_ratiocinatio recta_) with regard to what
we must do and what avoid for our self-preservation.... Transgression of
natural Laws is due to false Reason (_ratiocinatio falsa_)."
In spite of its vagueness this explanation of Hobbes's shows that what
he really means by natural Law is Morality, and in this respect his
views on the relation of natural Law to civil Law, that is, of Morality
to Law, practically coincide with mine. Nevertheless, he ignobly denies
the moral decency of his doctrine of Law when later on he coldly and
dryly remarks: All that the state commands is just, all that it forbids
is unjust. Saying this he stupidly and obsequiously makes the civil
code the source of Law, whereas by his own definition Law (he says
"Natural Law") is the source of the civil code. It is more pardonable
for Pusendorf, a formal jurist, to say: "Law is the decree (_decretum_)
with which a superior binds his subject (_sibi subjectum_)." That
interpretation of Law is possible if it is considered from outside; it
is a means of coercion in the hands of the mighty to subjugate the
dependant; this point of view ignores the essential; but Pusendorf has
no concern with this, for he makes no claim to be a philosopher, he
keeps within the bounds of juridical practice.
The Bishop of Seville, Saint Isidor, the most respected theologian of
the time between the last patristic writers and St. Thomas Aquinas,
gives the following definition of Law: "Law is an institution
(_constitutio_) made by the people, by which the nobles (_majores
natu_), together with the common folk, have given a sanction to some
ordinance." This says little about the essence of Law, but it leads to
the question of the origin of laws. On this subject, too, whole
libraries full of books have been written since the time of Plato and
Aristotle; luckily, for the most part, they now only serve as food for
moths and worms.
From this tangle of hair-splitting and sophistry, from this muddle of
syllogisms, dogmatism and deep-sounding phrases which mean nothing at
all, one thought emerges pretty clearly, to wit, that only the highest
authority in the State has the right to make laws. On this point there
is perfect unanimity; and that is natural, for it is so obvious that it
has no need to be circumstantially investigated and proved in the fifty
thousand books that have been written on the subject. It is perfectly
clear that one cannot possibly force all the members of a state to obey
certain commands and prohibitions which the Law contains, unless one is
stronger than each one of them, and therefore the Law must necessarily
emanate from the highest power in the state. It is beside the point to
obscure this simplest and most transparent fact by questions as to the
right of the law-giver. He needs no theoretical right since he has the
might. To use Kant's expression, positive Law is not a creation of the
mind ([Greek: noumenon]), it is a phenomenon; its existence is a matter
of empiricism, not of reason; it is a matter of fact and is under no
obligation to justify itself intellectually to the intellect. No
law-giver has ever troubled to tack on a preamble or an addition to the
law he promulgates proving that he has the right to enact it.
But in the literature dealing with this matter opinions differ widely as
to who embodies or possesses the highest power in the state. According
to some it is the king, because he wields the sword and therefore can
enforce unconditional obedience; according to others it is the Church,
because the Law, to be binding, must be moral, and Morality is
established by God since the Church is the representative of God on
earth. Others again regard the people as a whole as the highest power,
because without their assent no law can prevail, and because even the
king only has the power of which the people divests itself to transfer
it to him. History has advanced beyond this quarrel.
To-day no one dares to dispute the fact that the nation alone is
qualified to enact laws for itself through the agency of its chosen
representatives, and that no law can be binding for the people without
their explicit or tacit consent. In Switzerland, where they have
instituted the referendum, the people by their vote can repudiate a law,
made by their representatives in their name, before it comes into force;
and in the other constitutional states they have recourse to the
following expedient: whenever a law is promulgated which seems
inacceptable to them, at the next Parliamentary election they vote for
men who are pledged to do away with it. The people have the power to
make laws, therefore they also have the right to do so, and they do not
hesitate to revolt if this right is tampered with. In recent times no
nation outside Russia has submitted to having laws forced on it, in
framing which it has not co-operated, and which it has not expressly
accepted. The United States tore themselves away from the Mother Country
with the cry: "No taxation without representation!" and more than a
hundred years before that the English people had irrefutably proved to
the Stuart king, Charles I, that he had no right to make and unmake
laws, by condemning him in a court of law with legal formalities and
then having his head cut off by a masked executioner.
The legal code is the concrete form of the Law, and the Law is the
crystallization of the most material part of Morality. And as Morality
binds every member of the community, as man is only tolerated in the
community on condition that he respects Morality, it is a matter of
logic that he should also respect the Law; that is to say, that he must
not only submit to it because he fears punishment if he fails to do so,
but that he must feel obedience to the Law to be part of his Morality,
that he must act lawfully at the dictate of his own conscience, and not
because of the threat of the power of the state. This might be
enunciated as a principle without reservation and without limitation, if
in practice the laws always were, as in theory they should be, moral.
But this is not necessarily the case. The law is a form, and every form
can be abused by filling it with unlawful contents. If an unscrupulous
adulterator of wine fills a champagne bottle of the usual shape,
complete with metalled and wired cork and a label recommending it, with
some disgusting mixture and puts it on the market, he is severely
punished for adulteration of food and infringement of the law protecting
trade marks. But if the government publish in the _Gazette_ foolish,
risky, and perhaps absolutely immoral orders in the form of a law, duly
arranged in chapters, articles and paragraphs, as the people are
accustomed to seeing their moral laws expressed, who impugns them for
it?
The examples of this in history are only too numerous. To this category
belong all laws seeking to maintain the validity of state authority at
the expense of the natural rights of thinking and feeling men, e.g. all
religious persecutions, the maltreatment of socialists, excise laws and
duties which hamper freedom of work and movement, or are tantamount to
robbing a particular man or all citizens. As a rule, laws of this kind
can be imposed upon the people only in a despotically ruled state, since
the people in this case has no share in legislation; but constitutional
government is no guarantee against it, for parliamentary majorities can
be forced to enact tyrannical laws, by fanning the flame of national or
party fanaticism, by encouraging prejudices, or by intimidation; this is
proved by Bismarck's May laws and Socialist laws, and also by the laws
passed by the National Assembly at Versailles against the rebels of the
Commune and against Paris. Obedience to such laws cannot reasonably be
demanded. Only a Hobbes will dispute this, for whom "everything that the
state commands is just, everything that it prohibits is unjust," or the
Digest according to which "_quod principi placuit, legis habet vigorem_"
(what pleases the ruler has the force of law). Legal enactments, though
they be immoral, are yet formal Law; as a matter of fact, however, they
are wrong, and even if their originator has the power by brute force to
secure obedience to them, no man who tries to evade them and to get them
abolished will be accused of immorality.
A trivial objection strikes one at once. Only a despotic megalomaniac
will forbid his subjects to make representations in the proper quarters,
and in the proper way, for the purpose of getting a bad law abrogated;
but as long as it is in force it must be obeyed. For if every citizen
were allowed to make a selection of the laws according to his choice,
acquiescing in some and rejecting others, this would lead straight to
anarchy. The reply to this is that anarchy, although a terrible evil, is
notwithstanding a lesser one than an immoral law, that is, a law which
sins against Morality. For the maintenance of law and order which the
State guarantees is only preferable to anarchy because it enables
individuals to live together in peace, and guarantees liberty of
movement and respect for persons, life and property. But if the State
acts wrongly, and interferes in the feelings and convictions of
individuals, if it uses brute force to compel them to actions and
abstentions against which all the good in them rebels, then its law and
order is law and disorder, and it is the State itself which brings about
a condition of anarchy by making force the ruling factor in the life of
the individual. For the latter it is all one whether he has to yield to
the force of the State or that of his neighbour. Nay, more, his position
is worse in a condition of anarchy caused by the State, than in that
which existed before the State was formed, because it is easier to meet
force with force, when this emanates from an individual who is one's
equal, than when it is exercised by the superior organization of the
State. The State which enacts immoral laws denies its own principle and
causes its own dissolution.
The intellectual constructions of the eighteenth century, of which the
most famous is J. J. Rousseau's "Social Contract," are not taken
literally by anyone nowadays. Nobody seriously believes that one day
individuals living in a state of nature banded themselves together and
made a contract, by virtue of which they renounced certain liberties
and rights and transferred them to a superior authority which was to
rule them so as to promote the general welfare, peace and happiness. But
if the procedure was not quite so simple as this, at least it is certain
that the State undertakes the task which Rousseau expressly prescribes
as its aim. If, however, through its fault, the fault of its
legislation, the welfare of the community suffers, and peace and
happiness are not promoted but hindered, disturbed and destroyed, then
every citizen has the moral right to revolt against the State and
paralyse its pernicious might; not because it has broken a formal
contract with its citizens, but because it has become inimical to the
peaceful life of mankind, the purpose of every social community. If
anyone is troubled at the thought that there is no reliable standard
whereby to test the morality of a law and no place indicated where such
a measure can be applied, he may take comfort by remembering that all
Morality is surrendered to the feelings and judgment of the majority and
has no other sanction than this. History teaches us that the majority
does not acquit itself too badly of its duty. Public opinion suffices to
maintain Morality at a certain level in a community. And if public
opinion is capable of ensuring respect for the unwritten law of Morality
without the sanctions of State Law, it may surely be recognized as a fit
judge of the morality of a law. That is the theory of the right of
citizens to defend themselves by all means, even by force, against
immoral laws. Practically, it is of no importance, because nowadays, at
least in all progressive and liberally governed States, the people have
constitutional means at their disposal to prevent or quickly to rid
themselves of laws that are obnoxious.
Morality includes the Law, whereas Law is only a part of Morality. Owing
to its coercive nature, the Law is obliged to be concrete and material
and to ignore all the imponderable, barely perceptible, spiritual and
dream-like things which hover round Morality, surround it with an
atmosphere and transport it beyond definite boundaries into the realm of
the unconscious and visionary. The total exclusion of the element of
feeling which Morality includes, constitutes the most profound
difference between it and the Law. Law protects order but knows no love.
The separation of Law from Morality is due to the pressure of
selfishness which thinks it has made the greatest possible concession
when it rises to the height of saying with Ulpian: "_Neminem laedere.
Suum cuique reddere. Honeste vivere._" Injure no one; that is, refrain
from the ruthless use of force; render to each his own; that is, do not
retain in rascally fashion what belongs to another; live honourably;
that is, give no offence to your neighbour by disorderly conduct and
depravity.
Well and good. At a pinch one can live like that. But the words pity,
kindness, love of one's neighbour do not occur in Ulpian's pithy
statements, and the Law knows nothing of them.
The Law guards each man's well-earned possessions, but it bids no one
make sacrifices. Morality can demand these. It can insist that the
individual should freely, and urged by his own inner impulse, impose
sacrifices upon himself, reduce his possessions in favour of another,
disturb his personal comfort at any moment, perhaps even risk his life;
that is to say, that of his own free will he should do just those things
from which the Law carefully shields him. Where the Law says: injure no
one! Morality says often enough: injure yourself to do good to your
neighbour. Where the Law says: to each man his own! Morality not seldom
says: to each man your own if he needs it more than you do. Morality
counts on the existence of a quality of which the Law has no need:
Sympathy. To be moral we must feel in our own being at the time, or
retrospectively, the subjective experiences of our neighbour, with the
same quality of emotion that he feels; his pain must be our pain, as his
pleasure must be our pleasure. For the man who cannot do this--who
realizes in his mind the circumstances of his neighbour only as an
image, and without the concomitant note of feeling--it is impossible to
rise to the height of Morality. It is not his fault, for the gift of
sympathy is an organic disposition, which you either do or do not
possess, which you can develop or suppress, but which you cannot create
if it is lacking. Nevertheless, the lack of sympathy is a pitiable
infirmity, for it prevents a man from scaling the heights of Morality.
To respect the Law is to practise a wise selfishness. To act morally is
to divest oneself of selfishness and attain the privilege of
unselfishness. To behave in strict accordance with the Law earns the
merited praise of civic blamelessness. But to act morally is a virtue
which is of incomparably higher quality than that of mere
blamelessness. The law-abiding man, the honest man, is praised as having
been "_Integer vitae sceleris purus_." That is an acceptable epitaph.
But the man of active Morality, willingly suffering for others, provides
an example which reconciles millions to the hardships of life. The
former is a worthy man, but the latter is a saint.