CHAPTER IX

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.

The Philosophy of Giambattista Vico · 第 9 / 21 章