able to lay before you! Who is there, for example, who would not, as we
have done, regard joy as something evidently good in itself, if only it
were not joy in what is bad. Nor has there been any lack of writers on
ethics who have asserted that pleasure and the good were strictly
identical conceptions.[58] Opposed to these were others who bore witness
to the inner worth of insight and such will be supported by all
unprejudiced minds. Many philosophers have wished to exalt knowledge
above all else as the highest good.[59] They recognized, however, at the
same time, a certain inner worth in each act of virtue, while others
have carried this view so far as to recognize only in virtuous action
the highest good.[60]
On the one hand, therefore, we have had sufficient confirmatory tests in
support of our view.
Next with regard to the principles of choice, how often do we not see
the principle of summation applied as, for example, when it is said that
the measure of the happiness of life as a whole and not that of the
passing moment is to be considered.[61] And, again, passing beyond the
limits of the self, when, for example, Aristotle says, that the
happiness of a nation seems to be a higher end than that of an
individual happiness,[62] and that in the same way in a work of art, or
in an organism and similarly in the case of the family, the part always
exists for the sake of the whole; everything is here subordinate to the
“common” (“εἰς τὀ κοινόν”).[63] Even in the case of the whole creation
he makes the same principle hold good. “In what,” he asks,[64]
“regarding all created things consists the good, and the best, which is
its final aim”? Is it immanent or transcendent? And he answers: “Both,”
setting forth as the transcendent aim the divine first cause, likeness
to which everything strives after, while the immanent aim is the
world-order as a whole. The like testimony to the principle of summation
might be taken from the lips of the Stoics.[65] It reappears in every
attempt to construct a theodicy from Plato down to Leibnitz and even
later.[66]
In the precepts of our popular religion, again, the operation of this
principle is also distinctly visible. When it ordains us to love our
neighbour as ourselves, what else is taught but that, in the right
choice, equality (be it our own or that of others) shall fall with equal
weight into the balance, from which follows the subordination of the
single individual to the good of the collective whole; just as the
ethical ideal of Christianity--the Saviour--offers himself as a
sacrifice for the salvation of the world.
And when it is said: “Love God above all else” (and Aristotle also says
that God is much rather to be called the best than the world as a
whole),[67] here also there is a special application of the law of
summation. For how else do we think of God than as the sum of all that
is good raised to an infinite degree?
And so the two propositions: that we should love our neighbour as
ourselves, and love God above all else, are manifestly so closely
related that we are no longer surprised to find added the words that the
one law is like unto the other. The law that we are to love our
neighbour, it should be carefully noted, is not subordinated to that of
love of God, and derived from it, it is, according to the Christian
view, not right because God has required it, rather he requires it
because it is by nature right;[68] and this rightness is made manifest
in the same way, and with the same clearness by means, so to speak, of
the same ray of natural knowledge.
Sufficient testimony has perhaps been offered to the shaping operation
of those factors which have been separately set forth by us, and so we
have, on the one hand, a strengthening of our theory while, on the other
hand, we have in essentials the explanation of that paradoxical
anticipation of philosophical results.
45. We are not to suppose, however, that all has now been said. Not
every opinion regarding law and morality holding good in society to-day,
and which has also the sanction of ethics, flows from these pure and
noble sources which, even when hid, have none the less discharged their
waters in rich abundance. Many such views have arisen in a way quite
unjustifiable from a logical point of view, and an inquiry into the
history of their origin shows that they take their rise in lower
impulses, in egoistic desires through a transformation due, not to
higher influences, but simply to the instinctive force of habit. It is
really true, as so many utilitarians have pointed out, that egoism
prompts men to make themselves agreeable to others and that such
conduct continually practised, develops finally into a habit which is
blind to the original ends. The chief reason for this is the limits of
our mind, the so-called “narrowness of consciousness,” which does not
allow of our always keeping clearly before us the more remote and final
ends side by side with what is immediately in question. In such a way
many a one may be frequently led, by the blind force of habit, to have
regard also for the well-being of others with a certain
self-forgetfulness. Further, it is true, as some have particularly
insisted, that in history it must often have happened that a powerful
person has selfishly reduced to subjection a weaker individual, and
transformed him by force of habit more and more into a willing slave.
And then in this slave-soul an αὐτὀς ἒφα comes in the end to operate
with a blind, but none the less powerful force, an impelling “you
ought,” as though it were a revelation of nature regarding good and bad.
On every violation of a command he feels himself, like a well-trained
dog, uneasy and inwardly tormented. When such a tyrant had, in this way,
reduced many to subjection his prudent egoism would cause him to give
commands helpful to the maintenance of his horde. These orders would in
the same slavish manner become habitual, and as it were, natural to his
subjects. And so regard for the whole of this community would gradually
become for each subject something into which he felt himself driven in
the manner above described. At the same time, we may easily recognize
how, owing to the constant care exercised towards his subjects, habits
must be formed in the tyrant himself favourable to a regard for the
welfare of the community. It may even happen at last that, just as in
the case of the miser, who sacrifices himself for the sake of his gold,
the tyrant may be ready to die for the maintenance of his people.
Throughout the whole process thus described ethical principles do not
exercise the slightest influence. The compulsion which in this way
arises, and the opinions which as a result approve or disapprove of a
certain procedure have nothing whatever to do with the natural sanction
and are devoid of all ethical worth. It may, however, be easily
understood--especially if one considers how one tribe enters into
relations with another and considerations of friendliness begin here too
to prove advantageous,--how this kind of training may lead, indeed one
may venture to say _must_, sooner or later, lead to opinions in
agreement with the principles springing from a true appreciation of the
good.
46. Thus also the blind, purely habitual expectation of similar events
under similar circumstances which animals, and also we ourselves,
practise in countless instances, often coincide with the results which a
complete induction according to the principles of the calculation of
probability would, in the same case, have brought about. The very
similarity of result has led people even with a psychological
education,[69] to regard the two processes as exactly identical,
although they stand wide as the poles asunder, the one completing itself
by means of a purely blind instinct, while the other is illumined by
mathematical evidence. We ourselves should, therefore, be well on our
guard against supposing in such pseudo-ethical developments the
concealed influence of the true ethical sanction.
47. Great, however, as is the contrast, still even these lower processes
have their worth. Nature--and this has been often insisted
on[70]--frequently does well in leaving much which concerns our welfare
to instinctive impulses like hunger and thirst rather than leave
everything to our reason. This, also, is confirmed in our case.
In those very early times in which, as I conceded to Ihering, (why you
will, perhaps, now be better able to see,) nearly every trace of ethical
thought and feeling was absent, much nevertheless was done which was a
preparation for true virtue. Public laws, however much in the first
instance established under the influence of lower motives, were yet
preliminary conditions for the free unfolding of our noblest capacities.
Nor is it a matter of no consequence that, under the influence of this
training, certain passions became moderated and certain dispositions
implanted which made it easier to follow the true moral law in the same
direction. Catiline’s courage was assuredly not the true virtue of
courage if Aristotle is right when he says that they only have such who
go to danger and to death “τοῦ καλοῦ ἔνεκα,” “for the sake of the
morally beautiful.”[71] Augustine might have made use of this instance
when he said: “virtutes ethnicorum splendida vitia.” But who will deny
that if such a man as Catiline had been converted, the dispositions he
had acquired earlier would have made it easier for him to venture to
extremes in the service of the good too? In this way, the ground was
made receptive for the admission of truly ethical impulses and therein
lay a powerful encouragement to the propagation of truth on the part of
those who were foremost in the discovery of ethical knowledge, and first
to hear the voice of a natural sanction. It is in this sense that
Aristotle observed that it is not every one who can study ethics. He who
is to hear about law and morality, must be already well conducted by
dint of habit. In the case of others, he thinks, it is but a waste of
pains.[72]
Indeed, still more may be said in praise of the services rendered to the
recognition of natural law and morality by these pre-ethical, though not
pre-historical, times. The legal ordinances and customs formed in this
time, owing to the reasons previously assigned, approached so closely to
what ethics demands, that this peculiar kind of mimicry blinded many to
the absence of a more thorough going affinity. What, in the one case, a
blind impulse and in the other, knowledge of the good exalts into a law,
is often completely the same in substance. The legislative moral
authority found therefore in these already codified laws and customs the
rough drafts, as it were, of laws, which with a few changes, it could
sanction without more ado. These were the more valuable because, as
seems required from a utilitarian point of view, they were adapted to
the special circumstances of the people. A comparison of the one
constitution with the other made this noticeable, and early helped to
lead to the important knowledge of the real relativity of natural right
and of natural morality. Who knows whether otherwise, it would have been
possible, even for an Aristotle, to succeed to the degree in which he
did in steering clear of all cut and dried doctrinaire theories?
So much, therefore, concerning the pre-ethical times, in order that
these may not be denied the acknowledgment which they deserve.
48. Nevertheless it was then night; though a night which heralded the
coming day, and the dawn of that day witnessed assuredly the most
glorious sunrise which, in the history of the world is yet to rise into
full splendour. I say, is to rise, not has risen, for we still see the
light struggling with the powers of darkness. True ethical motives, in
private as in public life, are still far from being everywhere the
determining standard. These forces--to use the language of the
poet[A]--prove themselves still too little developed to hold together
the structure of the world; and so nature,--and we have need to be
thankful that it is so--keeps the machine going by hunger and love, and,
we must also add, by all those other dark strivings which, as we have
seen, may be developed from self-seeking desires.
[A] Schiller.
49. Of these, and their psychological laws the jurist must, therefore,
if he would truly understand his time, and influence it beneficially,
take cognizance, as well as of the doctrines of natural right and
natural morality which our inquiry has shown to be not the first but--in
so far as hope in the realization of a complete ideal may be cherished
at all--will be the last in the history of the development of law and
morality.
Thus the near relationships of jurisprudence and politics of which
Leibnitz spoke, become evident in their full range.
Plato has said: “It will never be well with the state until the true
philosopher is king, or kings philosophize rightly.” In our
constitutional times we should express ourselves better by saying that
there will never be a change for the better regarding the many evils in
our national life until the authorities, instead of abolishing the
limited philosophical culture required for law students by the existing
regulations, shall rather strive hard to secure that for their noble
profession they shall really receive an adequate philosophical culture.
NOTES
[1] (_p. 2_). Cf. “Über die Entstehung des Rechtsgefühls.” Lecture by
Dr. Rudolf von Ihering, delivered before the Vienna Law Society, March
12, 1884 (_Allgem. Juristenzeitung_, 7 Jahrg., No. 11 seq., Vienna,
March 16-April 13, 1884). Cf. further, v. Ihering, _Der Zweck im
Recht_, vol. ii. Leipzig, 1877-83.
[2] (_p. 2_). For the first point, cf. _Allgem. Juristenzeitung_, 7
Jahrg. p. 122 seq., _Zweck im Recht_, vol. ii. p. 109 seq. For the
second point _Allgem. Juristenzeitung_, 7 Jahrg. p. 171, _Zweck im
Recht_, pp. 118-123. It is here denied that there is any absolutely
valid ethical rule (pp. 118, 122 seq.); further every “psychological”
treatment of ethics, according to which ethics is represented “as twin
sister of logic” is contested.
[3] (_p. 4_). _Allgem. Juristenzeitung_, 7 Jahrg., p. 147; cf. _Zweck
im Recht_, vol. ii. p. 124 seq.
[4] (_p. 4_). Aristotle, _Politics_, i. 2, p. 1252 b. 24.
[5] (_p. 4_). Cf. e.g. _Allgem. Juristenzeitung_, 7 Jahrg. p. 146.
[6] (_p. 5_). _Rep._ 2. 31.
[7] (_p. 5_). _Dig._ 1. 8, 9.
[8] (_p. 6_). Amongst the numerous adherents of this view and one of
its best advocates is J. S. Mill in his _Utilitarianism_, chap. iii.
[9] (_p. 6_). Here also, along with many others, J. S. Mill may
be cited. The motives of hope and fear are, according to him, the
_external_; the motives first described, the feelings developed by
habit, the internal sanction. _Utilitarianism_, chap. iii.
[10] (_p. 7_). Cf. espec. here a discussion in James Mill’s _Fragment
on Mackintosh_, printed by J. S. Mill in the second edition of his
_Analysis of the phenomena of the human mind_, vol. ii. p. 309 seq.;
and Grote’s powerful essay published by A. Bain under the title,
“_Fragments on Ethical Subjects_, by the late George Grote, F.R.S.,”
being a selection from his posthumous papers, London, 1876; Espec.
Essay 1, _On the Origin and Nature of Ethical Sentiment_.
[11] (_p. 9_). D. Hume, _An Enquiry concerning the Principles of
Morals_, London, 1751.
[12] (_p. 9_). Herbart, _Lehrbuch zur Einleitung in die Philosophie_,
81 seq. _Collected Works_, vol. i. p. 124 seq.
[13] (_p. 9_). This comparison with logic should be my best defence
against the charge of placing Herbart’s doctrine in a false light.
Were the logical criterion to consist in judgments of taste
experienced on the appearance of thought-processes in accordance with
or opposition to rule, it would then, in comparison with what it
actually is (the internal self-evidence of a process in accordance
with rule) have to be called external. Similarly Herbart’s criterion
of ethics is rightly characterized as external, however loudly
Herbartians may insist that in the judgment of taste which arises
spontaneously on the contemplation of certain relations of will, an
inner superiority regarding these relations is recognizable.
[14] (_p. 10_). In his _Grundlegung zur Metaphysik der Sitten_, Kant
enunciates his Categorical Imperative in the following forms: “Act
only in accordance with that maxim which you can at the same time
will should become a universal law,” and “Act as if the maxim of your
action were by your will to be raised to a universal law.”
In the _Critique of Practical Reason_ it runs “Act so that the
maxim of your will could on each occasion be valid as a universal
legislative principle,” i.e. as Kant himself explains, in such a way
that the maxim, when raised to a universal law, does not lead to
contradictions and consequent self-abrogation. The consciousness of
this fundamental law was, for Kant, a fact of pure reason, thereby
proclaiming itself to be legislative (sic volo sic jubeo). Beneke has
already observed (_Grundlinien der Sittenlehre_, vol. ii. p. xviii.,
1841; cf. his _Grundlegung zur Physik der Sitten_, a counterpart to
Kant’s _Grundlegung zur Metaphysik der Sitten_, 1822) that it is
nothing more than a “psychologische Dichtung,” and to-day no one able
to judge is any longer in doubt concerning it. It deserves to be noted
that even philosophers like Mansel, who have the highest reverence
for Kant, admit that the Categorical Imperative is a fiction and
absolutely untenable.
The Categorical Imperative has at the same time another and not less
serious defect, i.e. that even when admitted, it leads to no ethical
conclusions. Kant fails, as Mill (_Utilitarianism_, chap. i.) rightly
says “in an almost grotesque fashion” to deduce what he seeks. His
favourite example of a deduction, by which he illustrates his manner
of procedure not only in his _Grundlegung zur Metaphysik der Sitten_
but also in the _Critique of Practical Reason_ is as follows: May
a person, he asks, retain for himself a possession which has been
entrusted to him without a receipt or other acknowledgment? He
answers, No. For he thinks, were the opposite maxim to be raised to
a law, nobody, under such circumstances, would entrust anything to
anybody. The law would then be without possibility of application,
therefore impracticable and so self-abrogated.
It may easily be seen that Kant’s argumentation is false, indeed
absurd. If, in consequence of the law, certain actions ceased to be
practised, the law exercises an influence; it therefore still exists
and has in no way annulled itself. How ridiculous would it appear if
the following question were treated after an analogous fashion: “May
I yield to a person who desires to bribe me?” Yes, since, were I to
think of the opposite maxim as raised to a universal law, then nobody
would seek any longer to bribe another; therefore the law would be
without application, therefore, impracticable, and so self-abrogated.
[15] (_p. 11_). Cf. J. S. Mill, _System of Deductive and Inductive
Logic_, vol. iv. chap. iv. section vi. (towards the end); vol. vi.
chap. ii. section iv. and elsewhere, e.g. in his _Utilitarianism_,
_Essays on Religion_, and in his article on _Comte and Positivism_,
part ii.
[16] (_p. 11_). Cf. with what has been said in the lecture the first
chapter of the Nicomachian Ethics, and it will be seen that Ihering’s
“fundamental thought” in his work _Der Zweck im Recht_, vol. i. p.
vi., viz.: “that no legal formula exists which does not owe its origin
to an end,” is as old as ethics itself.
[17] (_p. 12_). Cases may arise where the consequence of certain
efforts remains in doubt, and two courses are open: one presenting
the prospect of a greater good but with less probability, the other a
lesser good but with a greater probability. In choosing here, account
must be taken of the degree of probability. If A is three times better
than B, but B has ten times as many chances of being attained as A,
then practical wisdom will prefer course B. Supposing that, under
like circumstances, such a procedure always takes place, then (in
accordance with the law of great numbers) the better would, generally
speaking, be realized, a sufficient number of cases being assumed,
and so such a manner of choosing would still obviously correspond to
the principle laid down in the text, i.e. “Choose the best that is
attainable.” The full significance of this remark will be made still
more evident in the course of the inquiry.
[18] (_p. 12_). This truth was familiar to Aristotle (cf. e.g. _De
Anima_, iii. 8). The Middle Ages maintained it, but expressed it
unfortunately in the proposition: _nihil est in intelluctu, quod
non prius fuerit in sensu_. The notions “willing,” “concluding” are
not gained from sensuous perception; the term “sensuous” would in
that case have to be taken so generally that all distinction between
“sensuous” and “super-sensuous” disappears. These notions have
their origin in certain concrete impressions with psychical content
(Anschauungen psychischen Inhalts). From the same source arise the
notions “end,” “cause” (we observe, for example, a causal relation
existing between our belief in the premises and in the conclusion),
“impossibility” and “necessity” (we gain these from judgments which
accept or reject not merely assertorically, but, as it is usually
expressed, apodictically,) and many other notions which some modern
philosophers, failing in detecting the true origin of them, have
sought to regard as categories given _à priori_. I may mention, by
the way, that I am well aware Sigwart and others influenced by him
have recently questioned the peculiar nature of apodictic as opposed
to assertorical judgments. But this is a psychological error which it
is not the place to discuss here. Cf. note 27, p. 83 sub.
[19] (_p. 12_). This doctrine in germ is also found in Aristotle; cf.
espec. _Metaph._: Δ 15, p. 1021 a. 29. This term “intentional,” like
many other terms for important notions, comes from the scholastics.
[20] (_p. 13_). The question of the grounds of this division
is discussed in more detail in my _Psychologie vom empirischen
Standpunkte_ (1874, Bk. ii. chap. vi.; cf. also chap. i. section 5).
The statements there made regarding this division I still consider to
be substantially correct in spite of many modifications respecting
points of detail.
[21] (_p. 13_). Meditat. iii. “Nunc autem ordo videtur exigere, ut
prius omnes meas cogitationes (all psychical acts) in certa genera
distribuam.... Quaedam ex his tanquam rerum imagines sunt, quibus
solis proprie convenit _ideae_ nomen, ut cum hominem, vel chimaeram,
vel coelum, vel angelum, vel Deum cogito; aliae vero alias quasdam
praeterea formas habent, ut cum volo cum timeo, cum affirmo, cum nego,
semper quidem aliquam rem ut subjectum meae cogitationis apprehendo,
sed aliquid etiam amplius quam istius rei similitudinem cogitatione
complector; et ex his aliae _voluntates_ sive _affectus_ aliae autem
_judicia_ appellantur.”
Strangely enough this clear passage has not prevented Windelband
(_Strassb. philos. Abhandl._ p. 171) from ascribing to Descartes the
view that the judgment is an act of volition. What led him astray
is a discussion in the fourth Meditation on the influence of the
will in the formation of judgment. Even scholastics like Suarez had
ascribed too much to this influence, and Descartes goes so far in
exaggeration of this dependence that he considers every judgment (even
the self-evident judgments) as the work of the will. But to “produce
the judgment” and “to be the judgment” are yet manifestly not one
and the same. And, therefore, although Descartes, in the passage
cited, allows his view as to the influence of the will to appear, and
probably it is only on this account that he assigns to the judgment
the third place in the fundamental classification of psychical
phenomena, yet none the less he says without contradiction: _aliae_
voluntates--_aliae_ judicia appellantur.