THE HISTORICAL ASPECT OF LAW
As the cognitive mind passes from feeling without noticing to noticing
with disturbed and confused faculties, and thence to the reflection
of the clear mind, so analogously the volitional mind passes from
the state of nature to practical certitude and thence to practical
truth. In the correlative empirical science, the transition is more
or less that from the savage to the heroic or barbaric condition and
from the latter to the civilised. In these three types of society, all
the manifestations of life correspond: thus there are three kinds of
character, three kinds of manners and customs, three kinds of law and
therefore of states, three kinds of language and writing, three kinds
of authority, reason and justice, and three divisions of history.
Confused and sometimes self-contradictory though Vico may be in fixing
the particulars of these various correspondences, his general idea is
plain. Where reflection is at a low ebb and imagination flourishes, the
passions also flourish, habits are violent, governments aristocratic
or feudal, families subjected to strict paternal rule, laws severe,
legal procedure symbolical, language couched in metaphor and writing in
hieroglyphics. Where on the other hand reflection predominates, poetry
becomes either separate from or charged with philosophy, manners and
customs lose their violence, the passions are brought into subjection,
the people take the government into their own hands, all members of
the family are alike citizens of the state, law is mitigated by equity
and its procedure simplified, language loses its metaphorical clothing
and writing becomes alphabetical. Mixed forms, which some politicians
aim at producing artificially, would be abortions: and though we do
find natural hybrid forms which retain a tinge of the earlier, each
one, by reason of its own unity, always tries so far as possible to
divest its subject of every property belonging to other forms.
Which of the various social types forms the foundation of the others
and supplies the criterion for judging them? or what is the criterion
and standard by which they must all alike be judged? For Vico, such a
question is meaningless. Governments, he says, must adapt themselves
to the nature of the people governed: the school of princes is the
morality of nations. We may shudder at war, at the law of the stronger,
at the reduction of the conquered to slavery, that is, to chattels:
but the society which expressed itself in these customs was necessary
and therefore good. The worship of strength, as we have said, occupied
the position and discharged the function of the as yet impossible rule
of reason. Later came the period of fully developed human reason, when
men no longer valued each other by the standard of force, but by virtue
of their rational nature, which is the true and eternal human nature,
recognised one another as equals. The change of time brought change of
customs: and the new were no less good, but no more so, than the old.
It would be as useless to seek the common measure of these various
social types, as to ask what is the real age of the individual life,
the common measure of childhood, youth, maturity and old age. The
comparison is one presented by Vico himself. As children shape all
their ideas according to their whims and carry them out with violence,
as youths animate everything by their imagination, as grown men guide
their affairs rather by pure reason and old men by sound prudence;
so it is with the human race, which after its feeble, isolated and
poverty-stricken origins, grows at first in unrestrained liberty, then
rediscovers the necessaries, utilities and comforts of life by genius
and imagination (the age of poetry), and finally cultivates wisdom by
means of reason (the age of philosophy). Similarly, natural right arose
first in laws so to speak of just passion and just violence: then it
was clothed in various myths of just reason: and finally it was openly
proclaimed in its pure rationality and noble truth.
By such a method of handling and passing judgment upon governments,
laws and customs, Vico, escaped another of the leading doctrines or
suppositions of the school of natural rights, the abstraction and
anti-historicism we mentioned in its own place, which resulted in the
conception of a natural law standing above positive law and therefore
constituting a kind of eternal code, a perfect scheme of legislation,
not yet fully actual but to be actualised, whose outlines show up
clearly in the works of the school through their veil of doctrine and
philosophy. But this eternal code was in its most important part a
contingent and transitory code; or at least it advocated a code in
agreement with the reformatory and revolutionary tendencies of these
writers, publicists as they were rather than philosophers.
Vico rids himself of the ideal eternal code without seeming to do
so: though he is quite ready to recognise that the "philosophers'
natural right," _ius naturale philosophorum,_ is in idea eternal, and
inexorably laid down "in accordance with eternal reason," _ad rationis
aeternae libellam._ But from this verbal concession of eternity made
out of respect for the old traditional scholastic philosophy, whose
influence he felt now and then, he goes on to deny its real eternity
and supra-historical character; since instead of placing it above
and outside history he puts it in the place which belongs to it,
within history. The law of violence or heroic law, after passing into
the law of uncivilised society, gradually attains a certain limit of
clarity, in which state the only thing wanting to its perfection is
that some school of philosophers should complete it by establishing it
with reasoned principles, upon the idea of eternal justice: and this
reasoning and systematisation is the _"ius naturale philosophorum"_ the
extreme form of the historical development of law, not its unchanging
rule; a product, not a standard. Hence Vico's charge against Grotius
of confusing the _"ius naturale philosophorum,"_ the law composed of
reasoned principles derived from moralists, theologians and, in part,
jurists, with the natural law of nations, _ius naturale gentium_ (in
Grotius's language, confusing natural law with an arbitrary or positive
form of law): of misunderstanding the Roman jurists, who intended to
speak solely of the latter: and of offering to correct and venturing to
criticise writers whose faults on inspection vanish.
The eternal code, considered in its essentials, is a Utopia: and since
the first and greatest of Utopias is Plato's Republic, it is important,
in order better to decide the point at issue, to examine Vico's
attitude towards the political scheme of Plato. If we may listen to
his own words, the _Republic_ was another of his many incentives and
examples when he conceived the New Science. With the study of Plato
began the unconscious awakening in him of "the thought of conceiving
an ideal eternal law, to be expressed in a universal state built on
the idea or plan of providence, on which idea, indeed, are founded
all the states of every period and race: an ideal Republic like that
which Plato ought, as a consequence of his divine metaphysic, to have
conceived." He ought, but could not, owing to his "ignorance of the
first man's fall"; ignorance, that is, of the original state of nature
and of the exclusively poetic or "common" wisdom which followed it:
an ignorance maintained by the error, common to the minds of all men,
of measuring by oneself the almost unknown nature of other people,
as Plato exalted the rude and barbaric beginnings of Gentile man to
the perfect state of his loftiest esoteric knowledge of the divine,
and fancied these earliest men to possess a high degree of this
esoteric wisdom, whereas on the contrary they were really "brutes,
all stupidity and ferocity." In consequence of this learned error
Plato, instead of conceiving an eternal Republic and the laws of an
eternal justice by which Providence governs the nations of the world
and directs it by means of the common needs of mankind, by which it is
led to the common consciousness of the whole human race, "conceived
an ideal Republic and a merely ideal justice, by which nations are
not guided at all." In fact, they ought not to be guided by it: since
among the determinations of the perfect state there are some which are
dishonourable and detestable, such as the community of wives. Thus Vico
took from Plato the idea of an eternal state, but entirely inverted it
by the reservation which he added to it, that the true eternal republic
is not the abstract state of Plato, but the course of history in all
its phases, including the brutes at one end and Plato at the other.
This is the "republic of mankind," the "great state of mankind," the
"universal republic" (_generis humani respublica, magna generis humani
civitas, respublica universa_) of which he means to investigate the
"form, ranks, societies, occupations, laws, crimes, punishments, and
science of jurisprudence" (_formam ordines societates negotia leges
peccata poenas et scientiam in ea tractandi iuris_) and to follow
the development of all these "from their origin, the beginnings of
humanity, under the control of divine Providence, national custom
and authority" (_a suis usque primis humanitatis originibus, divina
providentia moderante, moribus gentium ac proinde auctoritate_), that
is to say, "by means of the various elements of human utility and
necessity, or even by means of opportunities arising by the spontaneous
action of circumstances" (_per varia utilitatum et necessitatum,
humanarum rudimenta, sive adeo per ipsarum sponte rerum oblatas
occasiones_). The "great state of the nations founded and governed by
God" is thus nothing else than History.
While refusing a fixed code and the draft of a model society, we do
not mean to deny the possibility of a practical aspect of the science
conceived by Vico, the New Science in its triple form of ideal history,
typical history and historical history. Every truth has its practical
side, that is to say, its practical consequences: and thinking in this
or that way of the nature and development of mankind involves this or
that practical line of conduct. A man who believes for instance in
the docile innocence of savage races will approach them with a smile
on his face, kindly words on his lips and the alphabet and catechism
of rights and duties in his hand: one who believes in Vico's "brutes"
will adopt somewhat sterner methods, perhaps even fire and the sword.
One who, like Vico, believes that "custom is more potent than law" and
that "custom changes not at a blow, but gradually and slowly" will
not be inclined to hasty legislation, and will not delude himself
into thinking he can remodel human nature after an ideal of his own
devising. Such conduct in any case is not theory, but practice: and
when the attempt is made to reduce it to theory, either a chaotic
confusion of necessary and contingent determinations results, or else
if we avoid these errors and strive to attain a strictly doctrinal form
of conduct, we get neither more nor less than the scientific theory
itself, from which our conduct derived.
The thought of following up the New Science with a practical theory
appropriate to it evidently occurred to Vico. Even in the first
Italian edition of the work he stated two "practical" corollaries:
first, a new art of criticism, to serve as a light to distinguish
the truth in obscure and legendary history; and secondly an art of
diagnosis, so to speak, for determining the degrees of necessity or
utility in human affairs, and as its ultimate consequence, the chief
end of this science, consisting in the recognition of indubitable
symptoms of the conditions of nations. Properly considered, these arts
of criticism and diagnosis unite into one, namely the better knowledge
which it was possible, owing to the principles laid down by Vico, to
obtain concerning the past and present life of nations.
This idea is repeated and explained in other parts of the same work.
The sciences, studies and arts developed up to now, says Vico,
deal with particular objects: the New Science, on the other hand,
investigating as it does the principles themselves which lie at the
source of all studies, is able to establish the ἀκμή or state of
perfection of the entire system, and the degrees and extremes by which
and within which human nature like all other mortal things must run
its course and come to an end: so that through this science we can
answer the practical questions how a nation in its rise may come to its
state of perfection, and how in its decadence it may be stimulated to
new life. The state of perfection would consist in a nation's resting
upon fixed principles both demonstrated by unchanging reason and put
into practice by human habits; principles in which the esoteric wisdom
of the philosopher would extend a helping hand to the common wisdom
of nations, thus uniting men of the greatest academic reputation with
all those of wisdom in the state, the philosophers with the statesmen;
and the science of civil matters divine and human, religion and law, a
theology and morality imposed by command and acquired by habituation,
would be supplemented by the science of natural laws divine and
human, a theology and morality imposed by reason and acquired by
ratiocination: so that to transgress such principles would be true
error, the wandering not of men but of wild animals.
The practical aspect of the New Science, then, was simply a summary or
duplicate of the science itself, emphasising the two leading elements
of spontaneous and reflective wisdom, certitude and truth, and the
necessity of bearing both in mind.
Years later, in one of the elaborations of the second _Scienza
Nuova_ made by Vico, we again meet with the idea and the phrase of a
practical aspect of this science, in the title of a special concluding
paragraph which he proposed to add to his work. It begins thus: "The
whole of this work has now been thought out as a mere contemplative
science dealing with the common character of nations: for this reason
it may seem to offer no assistance to human prudence in order either
to prevent or to delay the entire ruin of nations on the path of
decadence, and thus to lack the practical side which every science must
have whose subject-matter is dependent upon the human will, all such
sciences being called practical." Now in what could such a practical
side consist? "This practical application can easily be found from the
contemplation itself of the course of the history of nations: which the
wise men (statesmen) and princes of states observing, could by means
of good ordinances, laws and examples recall peoples to their ἀκμή
or state of perfection." In other words: a man warned is half saved.
Contemplation is the only principle of conduct which the New Science
can supply. The other half of salvation depends not on the person
warning, namely thought, but upon the person warned, upon action. It
does not occur to Vico to try to determine the "ordinances, laws and
examples" whose adoption would be of value in this or that crisis
or situation. This would not be a philosopher's task, as in fact
he himself clearly recognises next moment, when he says: "The only
practical principles we philosophers can supply are ones which can be
confined to the academic sphere."
It would certainly be rash to claim precise knowledge of Vico's
reasons for omitting this note on practical principles in the final
manuscript of the last edition of the _Scienza Nuova,_ just as he had
omitted in the second work of that title the assertions on the subject
which had appeared in the first. But we may at least venture to guess
that the principal reason was the obvious emptiness of this passage,
promising as it did a practical application which it failed to provide,
and finally confessing that such a practical application was either
impossible or already included in the theory itself.