This definition excludes above all from the concept of law a

determination that is generally considered essential to it, the

determination of _society_; this amounts to saying that it also extends

the concept of law to the case of the _isolated individual._ But in

order that there may be no misunderstanding in relation to a point

like this of the highest importance, it will be well to show that the

word "society" has a double meaning, philosophical and empirical, and

if we exclude its empirical sense from the concept of law, it would

neither be possible nor our wish, to exclude its philosophical sense.

Reality is unity and multiplicity together, and an individual is

conceivable, in so far as he is compared with other individuals, and

the process of reality is effective, in so far as individuals enter

into relations with one another. Without multiplicity there would not

be knowledge, action, art or thought, utility or morality; therefore

the isolated individual, torn from the reality that constitutes him

and that he constitutes, is something abstract and absurd. But he

is no longer absurd, when understood in another way, with polemical

intention against a false concept; as an individual not absolutely,

but relatively isolated, in respect to certain contingent conditions

which had wrongly been held essential: in which case the concept of

society is conversely itself abstract and unreal. "Society," indeed,

is also used to mean a multiplicity of beings of the same species, and

it is evident that here an arbitrary element enters into the problem,

for the naturalistic concept of sameness of species is arbitrary

and approximative; hence the pretended sameness might fail and the

society yet exist all the same. A man may not be able to find those

who resemble him among a multitude of men and conduct himself as if

they did not exist; but this does not prevent his living in the society

of beings that are called natural, with his dog, his horse, with

plants, with the earth, with the dead and with God. When he is placed

in solitude or isolated from the other beings, said to belong to the

same species as himself, that other society, or the communion with

what remains to him of reality, will always continue, thus enabling

him to continue his life of contemplation, of thought, of action and

of morality. In order to understand the Spirit in its universality,

we must separate it from contingencies, and society in the empirical

sense is contingency, which the concept of the isolated individual

(isolated from it and not from reality, from the _societas hominum,_

not from the _societas entium_), enables us to surpass. The great

services which this concept has rendered to Logic, to Æsthetic and

especially to Economy, are known, for the latter only began to develop

the philosophical spirit in itself, when it conceived economic facts

as they take place in the individual, prior to what is called society,

thus positing the concept of an isolated economy. Conversely, Economic,

Æsthetic, Ethic and all philosophical problems and sciences lost their

true nature and became bastardized, when gross _sociologism_ replaced

among social contingencies those universals, which philosophers had

with great labour removed from them and thought in their purity.

Defining laws, then, as facts that occur, not only in society,

but also in the isolated individual, our intention is simply to

concentrate attention upon the concept of _true society,_ which is _all

reality,_ and not allow it to be diverted and confused with accidental

determinations, of the kind that may and may not be.

[Sidenote: _Laws as individual product: programmes of individual life._]

No great art is required to find instances of individuals who make

laws for themselves, carry them out and change them, grant rewards to

themselves and inflict upon themselves punishments; nor is there any

need to incommode the worthy Robinson of the economists to this end.

Without being obliged to make the effort of imagining ourselves cast

upon a desert island and provided only with a sack of corn and the

Bible, it suffices to have eyes and to observe our daily life, for

numbers of examples of internal legislation to present themselves.

Those laws, made for our use and consumption, are called _programmes

of life._ Who can live without programmes? Who does not decide that he

will desire certain actions and avoid certain others? From youth onward

we begin to legislate in this way and this production of internal laws

is interrupted only by death. We say, for instance:--"I shall devote

my life to agriculture: I shall live in the country every year from

June to November; from December to February I shall come to town,

that I may not lose touch with political or social life; from March

to May I shall travel, for pleasure and instruction." This programme

is subdivided and completed with other programmes, according to the

various conditions and possibilities taken into consideration; and laws

are established as to the way one should conduct oneself in respect to

religion, family, friends, the State, the Church and also in respect to

this or that individual; for (as is observed by Logic) the individual

conceived as a fixed being, also becomes a concept, abstraction, group,

series, or class. He who wished it, would be able to establish a

parallel between programmes or individual laws and laws that are called

social: in the individual would be found fundamental statutes, laws,

rules, ordinances, temporary arrangements, contracts, single laws and

all the other legal forms found in societies. Now in what conceivable

way do the programmes of the individual differ from those of society?

Are not those laws _programmes,_ and are not those programmes _laws?_

[Sidenote: _Exclusion of the character of compulsion and critique of

this concept._]

To this interrogation of ours, which does not express a doubt within

us, but states what seems to be an undeniable fact, defying any sort

of contradiction, may be objected (and it is a common objection)

that there is a great difference between individual laws and those of

society or of the State: these are compulsory, those are not; and for

this reason these are true laws, while the others are mere programmes.

But we cannot attach any importance to this objection, at least as thus

formulated; because, having now traversed the whole of the Philosophy

of the practical, general, and special, we have never met with what

is called compulsion in the circle of willing and doing, save in the

negative sense of deficiency of will and action. No action can ever

be compulsory; every action is free, because the Spirit is freedom;

there may not be action in a certain case, but a compulsory action

is inconceivable, since it is a question of terms that exclude one

another. Does the fact give the lie to our assertion? Let us examine

the fact for a little, face to face and without preconceptions. Let us

for this purpose take an extreme case: for instance, that of the law of

a most powerful despot, who, being in command of police, should order a

group of men to bring their first-born to sacrifice to the god in whom

he believes, but they do not. Are the men who hear this manifestation

of will constrained by it? What menace can make him who wishes to say

no, say yes? That group of men will rebel, will take up arms, will

rout the troops of the despot, will put him to death, or render him

incapable of harming; and in this hypothesis the law will not reveal

any character, of compulsion. But in the other hypothesis also, where

they do not rebel and in the meantime bow to the will of the despot,

either that they may not risk their own lives, or because they defer

their rebellion to a more propitious moment and consign their sons

to death; they will not have suffered any compulsion, but will have

freely willed: they will have willed to preserve their own lives at

the expense of their sons'; or to sacrifice some of them in order to

have the time to put themselves into such a position that they may be

able to rebel with the hope of victory. Thus we find in social laws,

now observance, now inobservance of the law; but both occur in freedom.

Inobservance may be followed by what is called punishment (that is to

say, the legislator who has imposed a given class of actions, will

adopt certain definite measures against those who do not obey them; to

wit: he will will another class of actions, destined to render possible

the first, because the punishment is a new condition of things set

before the individual, according to which he must alter his previous

mode of action); but the punishment always finds itself face to face

with the freedom of the individual. He will be able freely to observe

the law in order to avoid the punishment or its recurrence; but he will

also be able freely to rebel against it, as in the instance adduced.

[Sidenote: _Identical characteristics of individual and social laws._]

If compulsion be wanting to individual laws, this is because it is

also always wanting to social laws: while, on the contrary, what is

really present in social laws is equally present in the observances and

rebellions, rewards and punishments of individual laws.

To return to the former example: the individual who has decided to

devote himself to agriculture as programme of life, may be seized

all of a sudden with a great desire to devote himself to painting or

to music; and what had previously pleased may henceforward displease

him: that intimacy with mother earth, with harvests and vintages,

which seemed to be the very life for him, his true ideal, may come to

seem to him tiresome and repugnant. But if he be a serious person,

if he do not will and not will at every moment, if he do not present

in his own individuality a complete resemblance to those peoples

who change in mid-November the laws made in October and proceed

from revolution to revolution, he will examine his situation and

will recognize, for instance, that the desire arisen in his soul is

a velleity that does not answer to his true vocation and that the

first programme must remain intact; hence will take place in him a

struggle between that programme and the new rebellious volition. It

may happen that in this case the individual will sometimes neglect

the programme traced, in order to abandon himself to the temptations

of his pictorial or musical dilettanteism; but since this will happen

against his individual law, and since force must remain on the side of

law, this breach of observance will be followed by special measures,

such as the throwing away of brushes and violin, or by his forbidding

to himself those moments of recreation in such amusements, which he

used to allow himself and which have now become dangerous. In other

words, the individual inflicts punishments on himself in case of the

non-observance of his law, and these punishments must be held to be

such in the strictest sense of the term. And if we accept the other

hypothesis, analogous to that made in the case of social laws, should

the individual find himself possessed with so vehement a desire of

becoming a painter or a musician, as to be compelled to believe that

the original programme, the original law of his individuality, did

not correspond, or no longer corresponded with his true temperament,

he will rebel against the law and destroy it in himself, in the same

manner as in the other example the people destroyed the law of the

despot, by fighting with him, imprisoning, or slaying him.

[Sidenote: _Individual laws as in ultimate analysis alone real._]

Individual programmes or laws then are laws, and this concept includes

the isolated individual as well as society; and therefore the character

of sociality is not essential to the concept of law. Thus, to be more

precise, the only laws that really exist are individual laws and it is

not possible to conceive of social and individual laws as two forms

of the general concept of laws; unless individual and society be both

understood in the empirical sense, thus abandoning philosophical

consideration. If the individual be understood in the philosophical

sense, in which he is the Spirit concrete and individualized, it

is clear that what are called social laws can also be reduced to

individual laws; because, in order to observe a law, we must make

it our own, that is to say, individualize it, and in order to rebel

against it, we must expel it from our own personality, in which it

wished unduly to remain or to introduce itself.

[Sidenote: _Critique of the division of laws into judicial and social

and into their sub-classes. Empiricity of every division of laws._]

The exclusion of the character of sociality from the concept of law

frees philosophy from a series of problems, grafted upon that pretended

character. The principal of these was that of the distinction of social

laws into political and judicial, on the one hand and merely social

on the other; and the further distinction of judicial law into public

and private, civil and penal, national and international, into laws

properly so called and regulations, and so on. If the concept itself of

social law be empirical, then all the distinctions and sub-distinctions

of it proposed must also be empirical, and altogether without

philosophical value. So true is this that it is impossible to decide

for one distinction or definition against another, or to correct those

hitherto given by proposing new ones. Whoever undertakes to examine

any one of these distinctions, at once realizes the aphilosophical

character affirmed of them _a priori._ Thus judicial or political laws

have been distinguished from the merely social, with the affirmation

that those are compulsory, these conventional; whereas compulsion is

impossible in both cases, for the reasons given, and if by compulsion

be meant the threat of a penalty, this is to be found in merely social

laws, not less than in judicial. The law against the falsification

of public money is usually described as judicial: he who falsifies

it runs the risk of undergoing some years' imprisonment. It is a law

called social that we must answer a salutation with a salutation: he

who does not do this runs the risk of being held ill-bred and excluded

from the society of the well-bred. What essential difference is there

between the two laws? An attempt has been made to differentiate them by

saying that the former has emanated from and is sustained by a _supreme

power,_ vigilant as to its observance, the second from particular

circles of individuals. But where is the seat of this supreme power?

Certainly not in a superindividual, who dominates individuals, but in

individuals themselves. And in this case its power and value correspond

with the power of the individuals who compose it; that is to say,

it is the law of a circle, empirically considered to be larger and

stronger, but whose volitions are realized in so far as the individuals

composing it spontaneously conform to them, because they recognize the

convenience of doing so. Monarchs who believed themselves to be most

powerful, have realized at certain moments that the power did not at

all reside in their persons or title, but in a universal consensus

of opinion, failing which their power vanished, or was reduced to a

gesture of solitary command, not far removed from the ridiculous. Laws

that seem to be excellent remain unapplied, because they meet with

tacit general resistance, or as is said, do not accord with custom:

this should suffice to enlighten the mind as to the inseverable unity

of what is called the State and what is called society. The State

is not a being, but a mobile complex of varied relations between

individuals. It may be convenient to limit this complex as well as

possible, to make a being of it to oppose other complexes: of this

there can be no doubt; and let us leave to jurists the excogitation

of these and other similar distinctions, fictitious but opportune;

nor let us consider that their work should be declared in the least

absurd. We only say that it must not be forgotten that the fictitious

is fictitious, as is the claim made to reason about it as rational

and philosophical, and to fill volumes and volumes with tiresome

disquisitions, which are necessarily vain, though the distinctions that

form their object are not vain in their circle. We who are not jurists

but philosophers, and to whom it is therefore not permitted to produce

and adopt practical distinctions, must conceive as laws and include

equally in the same category, alike the English _Magna Charta_ and

the statute of the Sicilian _Mafia,_ or of the Neapolitan _Camorra;_

the _Regula monachorum_ of Saint Benedict and that of the _brigata

spendereccia_ that was sung in sonnets by Folgore di San Geminiano and

Cene della Chitarra and is recorded by Dante in the _Inferno;_ the

canon law and the military code, and that _droit parisien,_ which a

certain personage of Balzac had studied for three years in the blue

boudoir of one lady and in the rosy drawing-room of another, and which,

although no one ever speaks of it, yet constitutes (says the great

novelist) _une haute jurisprudence sociale, qui, bien apprise et bien

pratiquée, mène à tout._[1] What more can be said? Even those _literary

and artistic laws are laws_ which express the will to produce works,

possessing this or that other kind of argument and arrangement, as

would be the law that drama should be divided into five or three acts

or _days,_ and that romances must not exceed four or five hundred

pages, 16mo, and that a monumental statue must be nude or heroically

clad. It is evident that if anybody violate these laws, he may be

excluded (and he was indeed excluded) from the academies of good

taste, which did not prevent his being received for that very reason

into the anti-academies of the independents: in just the same way as

to have incurred punishments announced by the penal code is a title of

admission to certain criminal societies.

[Sidenote: _Extension of the concept of law._]

These examples that we have selected among the most extraordinary

and the most apt to scandalize, help to make it quite clear that the

concept of law must be taken in its full logical extension, when

we wish to philosophize about it. Among the many obstacles that

philosophy meets with is a curious sort of false shame, which looks

upon contact with certain arguments as injurious to the dignity of

philosophy: a contact which is avoided by arbitrarily narrowing and

therefore falsifying philosophical concepts. That of law especially

has a tradition of _solemnity,_ and brings with it associations that

must be broken in pieces. Otherwise it is impossible even to understand

what are those _firm and unwritten laws_ of the gods, which Antigone

opposed to the decrees of men and how they exercise their efficiency;

or _the sayings of Lacedaemon,_ in obedience to which fell the three

hundred at Thermopylae; or _the laws of the fatherland,_ which, with

their irresistible authority, caused Socrates to remain at the moment

when others counselled and facilitated his flight. Life is composed of

big and little actions, of least and greatest, or better, of a very

dense web of very diverse actions; and it is not a too brilliant idea

to cut that web in pieces and to throw away some of the pieces as less

beautiful, in order afterwards to contemplate in those pieces only that

have been thus selected, cut out and disconnected, the web that no

longer exists.

[1] Balzac, _Le Père Goriot_ (ed. Paris, Calman Lévy, 1891), p. 85.

II

THE CONSTITUTIVE ELEMENTS OF LAWS. CRITIQUE OF PERMISSIVE LAWS AND OF

NATURAL LAW

[Sidenote: _The volitional character and the character of class._]

The undue restrictions and empirical divisions of the concept of

laws having been destroyed, if our attention be now directed to the

character that has been determined as properly belonging to them,

we have the means of distinguishing them from the other spiritual

forms with which they are often confused, partly as the result of the

metaphors and homonyms usual in ordinary speech. Laws, as has been

said, are _volitional acts_ concerning _classes_ of actions. Therefore,

where the volitional element or the element of class is wanting, there

cannot be law, save in name and by metaphor.

[Sidenote: Distinction of laws from the so-called laws of nature.]

So-called _laws of nature_ or _naturalistic laws_ are not laws,

owing to the absence of the volitional element: they consist of

simple enunciations of relations between empirical concepts, that

is, of rules. This is an instance of what is called a natural law:

platinum melts at a temperature of 1780 degrees; or this other of a

grammatical law: that in the Greek language masculine nouns of the

second declension have the genitive in _ου_(with exceptions, in this

as in the other case). But they are laws in about the same way as

the King of Cups is king; and indeed it is known historically that

this denomination was transported by the Stoics from the domain of

politics, where it had first appeared, to that of nature. Empirical

concepts and rules may, as we know, assume an imperative literary form;

hence it will be said: "If you wish to melt platinum, heat it to 1780

degrees"; "If you wish to speak Greek, decline masculine nouns of the

second declension with an _ου_ in the genitive." But the literary form

does not change anything of their true nature: those imperatives are

hypothetical imperatives, that is, false imperatives, improper laws.

Grammatical and chemical laws will remain mere formulæ, instruments

of knowledge, and not at all of action, until some one obliges me or

I oblige myself to talk Greek, or to open a chemical laboratory where

platinum is melted. The jurist who elaborates cases and rules is not

the legislator: the latter alone (with a sword in one hand) can endow

the excogitations cf the other with the character of law.

[Sidenote: _Implication of the second in the first._]

Certainly an act of will is necessary in order to construct empirical

concepts, formulæ, and rules (as indeed we know), an act of will

which is not that of the will implied in every act of thought, but

is a special and explicit act which, by manipulating representations

and concepts, makes a _quid medium,_ which is neither representation

nor concept, and although altogether irrational from the theoretical

point of view, is of use in the economy of the spirit. But the law in

its true meaning is a volitional act, which _assumes_ that primary

volitional act whence are formed the pseudo-concepts or concepts of

class _as already completed;_ precisely because it is the will which

has for its _object_ a _class_ of objects. It is not possible to

impose speaking according to the rule of the Greek language, or to

melt platinum according to its chemical formula, before these rules

have been laid down. And here appears very clearly the difference

between those two kinds of spiritual products, which the imperative

literary form, given to classes and rules, darkens and confuses. This

difference can be recognized in concrete cases by means of a most

simple expedient: if the rule (as we have already had occasion to

prove) can be converted into a statement of class, then the law is

inconvertible. "If you wish to melt platinum, heat it to 1780 degrees"

is a proposition that is exactly equal to "platinum melts at 1780

degrees." But the law, "Let there be opened in every city a chemical

laboratory where platinum is to be melted," is not to be converted from

the imperative to the indicative, whatever efforts we make.

[Sidenote: _Distinction of laws from practical principles._]

If the volitional element be wanting to naturalistic laws, it is

certainly present in other spiritual formations also denominated and

considered as laws: but not that of _class,_ therefore neither are

these laws. Such is the case with economic and moral law, and through

them, with logical and æsthetic laws. The moral law says, "Will the

universal"; that is to say, "Will the good, the useful, the true, the

beautiful." Therefore (considered in reality and not in scientific

theory, where it appears as the concept of itself) it is a volitional

act. But this volitional act has the spirit itself for object, which

is and exists, in so far as it wills and affirms itself; it has for

object a form or a _universal,_ whereas laws have for object something

material and at the same time not instantaneous, something more or less

fixed, something _general:_ a _class,_ not an _idea._ Universal laws

(that would better be called _principles_) are the Spirit or producer;

true and proper laws are the special product of the spirit; therefore

the first can certainly be called laws, but for an altogether different

reason to the second.

[Sidenote: _Laws and single acts._]

Owing to the absence of the element of generality or of class, no

one would describe a single individuated act as law. The resolution

and action by which I do not rise from my seat at this moment and go

eagerly to meet the friend whose coming at the wrong moment interrupts

me at my work, is a volitional act, not a law; such as on the other

hand would be the volitional act that I might form within myself,

consisting in the intention or the programme of receiving my friends

seated and in a lukewarm way, whenever they should come to visit me in

the hours before noon, in order to make them understand by this act of

mine that they disturb me at my work, and that they should abstain from

their inopportune visits, unless they wish to submit to the penalty of

meeting with anything but a cordial reception from their friend.

[Sidenote: _Identity of imperative, prohibitive, and permissive laws._]

From the general but not universal character that we must recognize

to the content of laws, we have the solution of certain controversies

of the greatest importance which have been and are much discussed,

hitherto without a satisfactory or duly demonstrated conclusion. In

the first place, we must mention the dispute as to whether or no there

exist _permissive_ laws, and whether the formula that the law _aut

jubet aut vetat aut permittit_ is to be accepted. It has generally been

admitted that the law _aut jubet aut vetat,_ and that the permission

is nothing but the removal of a previous inhibition, that is, the

partial or total abrogation of a law. But in reality, the law, since it

is a volitional act, _jubet_ only; to command is to will: to command

that a chemical laboratory be opened in every city means to will that

one should be opened. And since every willing is at the same time a

not-willing, as every affirmation is at the same time a negation, every

command is at the same time an inhibition, and every _jubeo_ is a

_veto_ (whether the will be expressed in the literary form of positive

or negative, of command or of inhibition, is here without importance).

[Sidenote: _Permissive character of every law, and impermissive

character of every principle._]

The Philosophy of the Practical: Economic and Ethic · 第 26 / 32 段