MORALITY AND LAW
With the dazzling light of his originality still shining before our
eyes, it is impossible to fix our attention upon those doctrines and
classifications which Vico drew from the traditional philosophy and
placed especially in the first book of the _Diritto universale_: though
it is precisely these that have become favourites with many readers,
and are now almost common property through the frequent quotation of
them. That God is "infinite power knowledge and will" (_posse nosse
velle infinitum_) and man "finite power knowledge and will struggling
towards the infinite" (_posse nosse velle finitum quod tendit ad
infinitum_): that the state is the image of God, and because "it has
all things beneath it, nothing above" (_omnia infra se, nil superius
habet_), therefore "it renders account to God alone and to no one else"
(_uni Deo, praeterea reddat rationem nemini_), and that just as in God
freedom is inherent in his eternal reason, so the state freely obeys
the laws it has itself established: that justice "directs and equates
utilities" (_utilitates dirigit et exaequat_), directing, like an
architect, in the building-up of the state, the two particular kinds
of justice, commutative and distributive, the two divine artisans that
measure utility with the two divine measures, arithmetic and geometry,
so that "what is equal when you measure is also just when you choose"
(_quod est aequum cum metiris, idem est iustum quum eligis_), these
and similar assertions seem not merely lacking in originality but
even false or meaningless, adorned though they may be with the name
either of Aristotle or of Campanella or of other philosophers of the
ancient world or the Renaissance. If, to take one, justice consisted
in measuring, a philosophy of justice would be unnecessary, for the
science of calculation and measurement would be enough. Vico himself at
one point involuntarily and ingenuously discloses the vicious circle
of this metaphor substituted for a concept, by saying that men ought
"to share utility equally among themselves, only preserving a _just_
difference where it is a question of desert, and that to preserve the
equality."
More profitable than collecting these second-hand formulae would be to
collect the many acute observations of moral psychology found here and
there in his writings, expressed in his gem-like style; or to recall
his little-known theory of laughter, which he derives from disappointed
expectation and from the weakness of the mind, and therefore denies
the faculty both to animals and to the perfect man, considering a man
who laughs to be a satyr or faun, intermediate between a brute and a
man. But abstaining from such a collection, which forms no part of our
plan, we would rather observe that even in the commonplace distinctions
and classifications mentioned above Vico shows a certain merit: he
recognises, even while he propounds them, the necessary confusion
and identification of all or many of these distinctions. Thus after
distinguishing the two kinds of justice, the three kinds of virtue and
the three kinds of law, he ends by declaring that these dualities,
triplicities and multiplicities each form a unity.
Justice and virtue also, for Vico, form a unity, since that power of
truth, or human reason, which is virtue in so far as it struggles
with selfishness, is also justice in so far as it directs or equates
utilities. This implies that Vico does not distinguish, at least in the
systematic exposition of the _Diritto universale,_ between law and
morality: a distinction which indeed received little emphasis in the
doctrine of natural rights, and is barely indicated in Grotius, for
instance, as one between a greater and less degree of morality. Vico's
doctrine of punishment is also purely moral, and deduced from the
ethical concept of remorse. It is inflicted, he says, by the law, and
is nothing but a social reinforcement of the individual conscience, in
the case where the offender does not himself expiate his crime by means
of remorse and internal punishment.
But the more the problem of the relation between law and morality is
absent in Vico's theoretical formulation and systematic treatment,
the more present it is in his particular observations; indeed it may
be said to pervade the whole of the New Science. Nor could it be
otherwise, seeing that this relation refers to the distinction between
the moral will and the inferior or earlier forms of will; and we know
that all Vico's tendencies were towards exploring the lower and obscure
region of the mind, both cognitive and practical, in the sphere alike
of imagination, will and passion.
He always realised the supreme importance of the passions; and if
he could not approve of giving them the upper hand, if he always
considered the Epicurean morality a morality "of idlers shut up in
their pleasure-gardens," he did not at all approve of excessively
severe moralities such as that of the Stoics, which was no less than
the other a morality of "solitaries," not one for men living in a
state. Stoicism certainly preaches an eternal and immutable justice,
and makes honour the criterion of human action; but it does violence
to human nature, dehumanises it, annuls it and drives it to despair by
pretending that it is quite insensible to the passions, by ignoring
the utility and necessity of the bodily nature, by inculcating that
rule--a rule "harder than iron"--that sins are all equal and that he
who strikes a slave is as guilty as he who kills his father. The
same doubts must have been aroused in Vico's mind by Jansenism, as he
complains that "out of hatred of probability, Christian morality in
France is becoming rigidified." We ought to follow not these solitary
philosophers but rather those political ones, especially the Platonic
type, which recognises that the passions should be not eradicated but
moderated and "converted into human virtues." Thus out of cruelty,
avarice and ambition, the three universal faults of mankind, Providence
elicits the warrior, the merchant and the judge; the bravery, wealth
and wisdom of states. From these three failings, which would destroy
mankind on the earth, civil prosperity is formed.
Concerning matters of utility, Vico observes that "in themselves," _ex
se,_ they are neither good nor bad (_neque turpes neque honestae_) but
become so merely through their relation to the moral consciousness
("but their unfairness is baseness, their fairness, honour: _sed
earum inaequalitas est turpitudo, acqualitas autem honestas_"). In
the empirical science of utility, he defends against Grotius a "prior
natural law," _ius naturale prius,_ to which belong self-defence and
the procreation and upbringing of children: and this right he connects
with the Stoic _ἀδιάφορον._ That it has no moral authority is proved
by the fact that the law which follows it in the historical order, the
"posterior natural law," _ius naturale posterius,_ defined by Justinian
as "that which is established among all men by natural reason and is
preserved by all nations alike" (_quod naturalis ratio inter omnes
homines constituit et apud omnes gentes per aeque custoditur_), is
prior in the order of right, _prius iure,_ overcomes the former when
they conflict and sets upon it the seal of immutability. Now, although
this first natural law is defined and exemplified in a merely empirical
manner, it is surely at bottom nothing but pure law, law not yet
moralised.
But it is upon the concept of "certitude" that law as distinct from
morality properly, according to Vico, rests. The word certitude is used
by him in many senses, neither clearly distinguished nor harmonised nor
deduced one from another: though they all as we have seen unite, rather
confusedly, in the general idea of the spontaneous as distinguished,
from the reflective form of the mind. Certitude in its practical
signification implies among other things an opposition to the "truth"
of volition, and is, in a word, force as against equity and justice,
authority as against reason, mere will as against the moral will.
These are distinctions occurring to our own thoughts, rather than
stated by Vico, who both distinguishes and fails to distinguish. For
instance, he affirms that "certitude proceeds from authority, truth
from reason" (_certuni ab auctoritate est, verum a ratione_) and
immediately afterwards adds that "it is quite impossible for authority
to conflict with reason, for in that case there would be not laws but
abortive laws" (_auctoritas cum ratione omnino pugnare non potest,
nam ita non leges essent, sed monstra legum_). At any rate, the New
Science seems to him, by reason of this treatment of certitude, to
contain a philosophy of authority, which, he adds, "is the source of
what theological moralists call external justice." That is to say, he
connected the concept of certitude with the distinction and terminology
of external and internal, already employed by the scholastic morality,
which, used about this time by Christianus Thomasius, were destined
without any great philosophical merit on his part to give an impetus
to the investigation of the philosophical relations between law and
morality.
Another and kindred meaning of practical certitude in Vico is the
so-called letter of the law, _formula legum;_ which may stand in
opposition to reason and the moral consciousness, but none the less
has its own peculiar value: "_dura lex, sed certa: durum sed scriptum
est_--the law is harsh, but it is certain; it is harsh, but so it is
written." It is in a word the value of law simply as law, which though
devoid of any real ethical content yet has always the value that comes
from a command over the will. "The certitude of law" (writes Vico) "is
a darkening of the reason supported merely by authority, and makes the
law harsh in practical experience by laying down their certitude, which
in good Latin (_certuni_) means particularised, or in the scholastic
terminology individualised." To a certain extent Vico grasped the
individual character which lies at the root of every law. That one
must "judge according to law, not according to example" (_legibus non
exemplis iudicandum_) is a comparatively late principle: the first laws
were strictly _"exempta,"_ exemplary punishments. From real examples
were derived the ideal examples employed by logic and rhetoric: and
when the intelligible universal was understood, it was recognised that
law had a certain universal character.
The primitive society sketched by Vico is, in its juristic aspect,
the myth so to speak of pure law or practical force. Once upon a time
men lived possessed of immense bodily strength, and proportionately
feeble in understanding, who thought all strength greater than their
own divine, and this belief constituted their law. They thought of
the gods simply as beings stronger than themselves, whom they were
compelled to obey, though with a bad grace: like Polyphemus, who if he
had been strong enough would have fought Zeus himself, or Achilles,
who told Apollo that if only they were equally matched he would not
hesitate to try his strength against him. The wisdom of providence
decreed that these fierce men, not tamed as yet by the rule of reason,
should at least fear the divine nature of force and measure reason by
its standard. This is the foundation of the principle of the "external
justice of war." But the myth of the period of force cannot have the
strictness of a philosophical concept, and consequently these strong
men are considered by Vico from another point of view as ethically the
best: "strongest" and "best," _fortissimi_ and _optimi,_ are regarded
as synonymous terms: and their law, though not truth or rational law,
is not pure certitude, but truth "mixed with certitude," _ex certo
mixtum._ But the very mixture of certitude with, and its preponderance
over, truth, which is here asserted, postulates the concept of pure
certitude as presupposed by Vico.
When Vico accused Grotius and the school of natural rights of
commencing their history half-way, with the civilised ages, and
overlooking the earlier periods, the accusation, in its bearing upon
the philosophy of practice, may be translated into a charge of ignoring
the ideal moment of force and confining the attention to justice,
equity and morality. The moment of force, constituting the other
and earlier "half," was the field chosen by Hobbes, before him by
Machiavelli, and still earlier by Epicurus, all of whom treated of this
moment alone, "with impiety towards God, infamy to rulers and injustice
towards nations." Hence the conclusion is easy, that in refuting the
utilitarians and the theorists of force, Vico was at the same time
recognising and absorbing the need which they represented, their only
mistake having been that they developed this need in an abstract and
one-sided way. His "state of nature" is in some respects like that of
Hobbes, with the difference that mankind transcends the latter owing to
the recognition of utility, the former owing to the religious and moral
consciousness. But Vico does not on this account express any gratitude
to Hobbes or Spinoza, Machiavelli or Epicurus, since he believed
himself to have found in a classical author all the materials and the
stimulus he required, all the counter-poise necessary to the Platonic
philosophy. This was one of his "four authors," the one of whom we
said earlier that we had still to see the use which Vico made, namely
Tacitus. This writer for his part contemplates with his unequalled
metaphysical powers man as he is, while Plato contemplates him as he
ought to be. Just as Plato in his universal science explores every
corner of nobility, so Tacitus "descends into every scheme of utility,"
in order that among the infinite chaotic chances of malice and fortune
the man of practical wisdom may act well. To the union in his mind
of Greek philosopher and Roman historian, which he interprets, as is
easily seen, in the manner usual among the "Tacitean" politicians of
the seventeenth century, Vico attributes his own success in sketching
a real idea of eternal history, "which the wise man would construct
both of esoteric wisdom such as Plato's, and of common wisdom such as
that of Tacitus." To Tacitus, finally, he owed the impulse towards the
supreme task of making concrete his ideal, and realising the republic
of Plato in the "dregs of Romulus."