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._]