As to permissive laws, these are inconceivable side by side with the

imperative or prohibitive, not indeed because no law ever permits, but

because by the very fact that those are imperative or prohibitive,

they are at the same time permissive: every _jubeo_ or _veto_ is at

the same time a _permitto._ Principles, as universal volitions, never

permit, because nothing escapes their command; but a single volitional

act, affirming itself, does not exclude for that reason the possibility

that other volitional acts, indeed infinite acts, should be affirmed;

for the singular never exhausts its universal. And laws are volitions

of class, they impose groups of single acts--groups that are more or

less rich, but always contingent: hence a law always leaves all the

other actions and classes of action that can be the object of will

unwilled (that is, neither commanded nor prohibited), and, therefore,

_permitted._ And even if we take all the laws formulated up to a

given moment, all together they do not exhaust the universal; and if

new laws be accumulated, one upon the other, be divided and split up

"with panting breath," to obtain complete exhaustion, a _progressus in

infinitum_ will certainly be attained, but never exhaustion, which is

unattainable. This amounts to saying that outside law or laws, there

is always _the permitted, the lawful, the indifferent, the privilege,

the right,_ or whatever be termed the concept correlative to that

of command, veto, or duty, a duality of terms that expresses the

_finitude_ of law; hence, when a determined privilege, a determined

legal right, a determined right, has been annulled by a new law, when

something previously indifferent has been differentiated, privilege,

the permitted, the indifferent, right, always arise from the bosom of

the new law.

[Sidenote: _Mutability of laws._]

Another contingent character of the content of laws is their

_mutability._ Laws are changeable, whereas principles, or laws of

the universal content, are unchangeable, and ready to give form to

all the most various historical material. Since actual conditions

are constantly changing, it is necessary to add new laws to the old,

to retouch and correct these, or to abolish them altogether. This is

to be seen equally in the programmes of individual lives, as in the

programmes of social and political laws.

[Sidenote: _Empirical concepts as to the modes of change._]

The question as to the number of modes of changing that laws possess

does not concern us, because, philosophically speaking, there is never

but one mode: the free will that produces the new law in new conditions

of fact. Involuntary changing can only be a formula for indicating

certain changes, always voluntary, that occur in a less solemn way

than others; but from these, can never be absent the solemnity of the

human will that celebrates itself. Thus, in like manner, the question

as to whether we should recognize conservation or revolution as the

fundamental concept of practical life, does not concern us; for every

conservative is at the same time a revolutionary, since he is always

obliged to adapt the law that he wishes to preserve to the new facts;

and every revolutionary is also a conservative, since he is obliged to

start from certain laws that he preserves, at any rate provisionally,

that he may change others and substitute for them new laws, which he

in his turn intends to preserve. Revolution for revolution's sake, the

cult of the Goddess Revolution, is an insane effort, which is so none

the less because it has sometimes appeared in History and like all

insane efforts it ends with suicide. Revolution revolutionizes itself

and turns into reaction. Thus when revolutionaries and conservatives

are distinguished and opposed to one another, an empirical distinction

is made there also, the meaning of which is to be found in the

historical circumstances among which it has arisen. Count Cavour was

a conservative in respect to certain problems and revolutionary in

respect to certain others, to such a degree that he seemed to the

Mazzinians to be a conservative and to the clericals and legitimists

a revolutionary. Robespierre, if he were a revolutionary for the

Girondins and at last even for the neo-moderate Danton, yet to the eyes

of Hébert and of Chaumette seemed to be a conservative, enemy of the

free development of the rights of man.

[Sidenote: _Critique of the eternal Code or natural Right._]

We should on the other hand be very careful as to the demand so

often made and also so far as possible put into execution, for _an

eternal code, a limit-legislation or model, a universal, rational, or

natural_ justice, as it has been variously termed. Natural justice,

universal legislation, eternal code, claim to fix the transitory

and are therefore a contradictory concept: contradictory precisely

to the principle of the mutability of laws, which is the necessary

consequence of their contingent and historical character. Were natural

Right permitted to do what it announces, were God to permit that the

affairs of Reality should be carried on according to the ill-assorted

ideas of writers and professors, we should witness with the formation

and application of the eternal Code, the cessation _ipso facto_ of

Development, the end of History, the death of Life and the dissolution

of Reality.

[Sidenote: _Natural justice as the new justice._]

This world-ending does not take place, because, though it be possible

to dwell in contradiction, it is impossible to make it concrete and

actual: God, that is to say Reality, does not permit this. Thus it

happens that under the name of natural justice, two sorts of products

have existed in turn, or sometimes a mixture of those two different

products, which have nothing to do with the programme announced. On the

one hand, projects of new laws that seemed better than the old or good

by comparison with these judged more or less bad, have been proposed

as natural or rational justice, and precisely for this reason the old

laws were called unnatural and irrational and the new _rational and

natural._ Just as passionate and erotic temperaments, uninstructed by

the experience of their past, swear with the utmost seriousness that

their new love will be _constant, eternal and their last,_ so man, when

he creates new laws, is often seized with the illusion that his laws

will not change as did the old ones, forgetting that the old ones were

once young and that they "satisfied divers" in their heyday, to express

oneself in the words of the old carnavalesque song. Those natural

laws are historical, those eternal laws are transitory, like all the

others. All know how in certain times and places, religious tolerance,

freedom of trade, private property, constitutional monarchy, have been

proclaimed eternal; and in others, the extirpation of unbelievers,

commercial protection, communism, the republic, and anarchy.

[Sidenote: _Natural justice as philosophy of the practical._]

Universal concepts, which were nothing but the Principles of the

philosophy of the practical themselves, have on the other hand had a

tendency to be classed as natural justice and to surpass the transitory

and contingent. They are certainly eternal and unchangeable, but no

longer laws, for they are formal and not material. Thus treatises of

natural justice have sometimes become simply treatises (sometimes

very valuable) of the Philosophy of the practical and especially of

Ethic.--When (as to tell the truth has generally been the case) a

practical description has accompanied a general treatment of Ethic,

leading to a series of proposals for social, judicial or political

reform, there has then occurred a _mingling_ of two different

productions, which we have mentioned, philosophy and casuistic. But a

natural justice has always remained unachieved, because unachievable

and contradictory.

[Sidenote: _Critique of natural justice._]

In our times, owing to the increase of the historical sense, the

constructions of natural justice and of the eternal Code have almost

altogether lost the attraction they once exercized. But absurd problems

having their origin in those contradictory concepts still persist

and absurd methods of treating problems of similar origin legitimate

when taken in their true terms. An example of the first of these two

kinds of diseased residues is the treating of the _natural rights_ of

man and the attempt to establish what rights belong to man by nature

and what by historical contingencies. Among the first are enumerated

the right to life, to liberty, to work, to the family and so on; and

among the second, those that have their origin in the Italian State

or in special contracts that have been concluded. But no right of any

sort belongs to man outside society (which in this case means outside

history), that is to say, considered as spirit in universal, save that

of existing as spirit, which indeed is not a right, but necessary

reality. Catalogues of natural rights are either tautologies, which

repeat that man as spirit has the right (and therefore at the same

time the duty) of developing himself as spirit (and he does develop

in this manner, if he be man and be alive); or they are arbitrary

rationalizations of historical contingencies, such as the right to

work, which is nothing but the formula of the workpeople of the

_ateliers nationaux_ in forty-eight, or of the insurgents of Lyons; or

the right to private property, which was the formula of the burghers

against the bonds of feudalism and is again their formula against the

modern proletariat movement.

[Sidenote: _Jusnaturalism persisting in judgments and juridical

problems._]

We must recognize examples of the second kind of error in the

discussions constantly held as to social or political institutions,

when instead of combating them as irrational, or of defending them as

rational in historical circumstances, they are defended and combated

because they differ from or conform to the true idea of right or to

the true idea of those particular institutions, recourse being thus

had to abstract reasons, as has very well been said. A reformer will

maintain the recognition of the right of women to the administrative

or political vote, because women also form part of the State and

have general and particular interests, which they wish to guarantee

directly, without the inter-position of men, whose interests are

sometimes at variance with theirs: an argument that a conservative

will deny altogether, making appeal to the function of woman, enclosed

by eternal law in the circle of the family. A reformer will propose

divorce as the natural complement to matrimony, because, where

spiritual agreement ends, there too should end every other tie, whereas

a conservative will oppose the argument as contradictory to the very

essence of matrimony, comparing such a proposal with concubinage,

or with what is called free love. And so on.--When such arguments

are heard, it is remarked that natural rights are not dead. But

the question as to the political vote for women may be serious or

ridiculous, according to place and time; as divorce is loftily moral or

profoundly immoral, according to time and place, and it is only mental

narrowness or ignorance that can place outside humanity, or believe to

be living or persisting in immorality, peoples that practise divorce

or indissoluble matrimony, or those of to-day, who refuse the vote to

women or those of the future who will recognize their right to it, if

they do recognize it. But even polygamy or free love is not immoral,

irrational and unnatural, once it has been an institution considered

legitimate in certain times and places; nor even, we insist upon saying

it (however repugnant to our hearts and to our stomachs of civilized

Europeans), anthropophagy, for even among the anthropophagi were men

(we hope it will be admitted), who felt themselves to be most virtuous

in their clearest consciousness of self, and who nevertheless ate their

like with the same tranquillity that we eat a roast chicken, without

hatred of the chicken, but being quite well aware, for the moment

at any rate, that we are not able to do otherwise. The unconscious

reasoners on the basis of natural law must have forgotten that

page of Cornelius Νepos, which, however, they must certainly have

translated in their first years at the gymnasium: _Expertes literarum

Graecarum nihil rectum nisi quod ipsorum moribus conveniat putabunt.

Hi, si didicerint non eadem omnibus esse honesta atque turpia, SED

OMNIA MAJORUM INSTITUTIS JUDICARI, non admirabuntur nos in Graiorum

virtutibus exponendis mores eorum secutos. Neque enim Cimoni fuit turpe

Atheniensium summo viro, sororem germanam habere in matrimonium: quippe

quum ejus cives eodem uterentur instituto; at id quidem nostris moribus

nefas habetur. Laudi in Graecia ducitur adolescentulis quam plurimos

habere amatores. Nulla Lacedaemoni tam est nobilis vidua quae non ad

scenam eat mercede conducta..._. And he continues to give further

examples.[1] So ancient are the unreasonable tendency to be scandalized

and the reasonable defence of the variety of customs made by good sense.

[1] _Vitae excell. imper.,_ pref.

III

UNREALITY OF THE LAW AND REALITY OF ITS EXECUTION. FUNCTION OF LAW IN

THE PRACTICAL SPIRIT

[Sidenote: _Law as abstract and unreal volition._]

Since law is the volition of a class of actions, it is the volition

of an _abstract._ But as we already know, to will an abstract is

tantamount to willing abstractly. And to will abstractly is not truly

to will, for we will only in concrete, that is, in a determined

situation and with a volitional synthesis corresponding to that

situation, such that it is immediately translated into action, or

better, is at the same time effective action. Consequently it seems

that we should declare the volition that is law to be a pretended

volition: contradictory, because lacking a single, unique and

determined situation; ineffectual, because springing from the insecure

ground of an abstract concept; a volition, in fact, that is not willed;

a volitional act, not real, but _unreal._

[Sidenote: _Ineffectuality of laws and effectuality of practical

principles._]

Such indeed it is. What is really wanted is not the law, but the

single act, done _under_ the law, as it is called, that is to say,

the _execution_ of the law. The single volition is the only one that

is carried out: the execution of the law is the only thing really

and truly willed and done. When the law has been formulated, life

continues ceaselessly to propound its problems, and these either do not

enter into the provisions of the law and are solved simply and solely

with universal practical principles (economic and ethic), or they do

enter into them and then it is necessary _to apply_ the law, unless

it be held to be more convenient to change it, or (this would be a

pathological case) action be not taken against it, although there be

consciousness that this is ill done.

But even when we are in the situations foreseen by the law and act in

accordance with it, or, as is said, _apply or carry out_ the law, we

must not allow ourselves to be misled by all these metaphors; for we

must consider that the single situations in which we will and act can

never be foreseen by the law, nor is it possible to act in accordance

with it, to follow it out and to apply it. Situations are not foreseen,

because nothing is foreseen, and the real fact is always a surprise,

something that happens once only and we can only know it as it is

after it has happened. For the new fact a new measure is necessary;

for the new body a new suit of clothes. The measure of the law, on the

other hand, since it is abstract, hesitates between the universal and

the individual and is without the strength of either. To carry out the

law? But it is only the pedant of life who proposes to do such a thing,

as it is only the pedant of art who attempts to apply the rules of art.

The true artist follows the impulse of his æsthetic conscience, the

practical man the initiative of his practical genius. What is called

the single act, observance and execution of the law, obeys, not the

law, but the ethical or practical principle, and obeys it individually.

The man who has his head full of laws that he has made for himself or

has accepted from others, makes a deep reverence to the Ladies' Law

when the time comes for action, and proceeds on his own initiative.

[Sidenote: _Exemplificatory clarification._]

It is the law that at the age of twenty we must present ourselves in

our district and do military service for a certain time. Let us for

the moment set aside the case in which those called upon to serve

rebel and, having seized the power of the government, abolish the law

of conscription, and re-establish that of voluntary enlistment. And

let us likewise set aside the other case, in which the conscripts

violate the law by deserting and going abroad, or hide in a cave, like

a hero of Padre Bresciani, or (like a good Tolstoian who applies the

principle of non-resistance to evil) allow themselves to be put in

prison rather than touch arms. Let us select the case of the peaceful

burgess who becomes a warrior that he may not go to prison; or of the

good citizen who recognizes his duty of serving his country and for

that reason obeys the law. In presenting himself in his district and

in the regiment, he has obeyed, not the voice of the law (which is a

voice), but his moral conscience, or simply his economic conscience.

This has already been demonstrated and we need not insist upon it.

But how can he ever obey the law, which directs him to do military

service of precisely this or that nature? Each individual has his own

temperament, his own talent, his own particular physical strength, and

each one will lend his services entirely in his own way, different from

that of another. And (be it noted) he will not do so only more or less

well or observing the law more or less, but really in a different way,

even when all observe the law with equal diligence and scrupulosity.

It may seem as if all carry out a military exercise at the same

moment, but the fact is that each man moves in a different way to the

others; or that in a parade march all walk in the same way, but, as a

matter of fact, all (even in the Prussian army) walk in a different

way. If we look at it as a whole and from a distance, there seems to

be uniformity; if we look at it from near at hand we discover the

difference. If we could make the experiment of comparing a regiment

of fifty years before with one of fifty years after, leaving military

regulations, arms, accoutrements, and everything else unaltered in

the interval, the lack of uniformity of the apparent uniformity would

leap to the eyes, a lack of uniformity that would have been rendered

possible by the changes that had taken place in the surrounding life,

in the culture, the moral education, the political conscience, the

mode of nourishment, the dwellings, and so on. But the experiment is

possible, if not in time, then in space, that is to say, by observing

the application of the same military regulations upon two different

populations. Thus one seems to have in hand one book written in two

different languages; which is literally no longer the same book,

but two different books. Giusti translated into Milanese and Porta

translated into Florentine are no longer Porta or Giusti, but two new

poets.

[Sidenote: _Doctrines against the utility of laws. Their

unmaintainability._]

This indubitable truth, as to the impossibility of applying the law and

of incorporating it in facts, and as to the necessity of acting in each

case, according to historical exigencies, is the true reason for the

turning of so many people's heads at different times and in different

places, causing them to proclaim nothing less than the inutility

of laws and to ask for their abolition. If it be necessary to come

eventually to the individual action, and if deliberation and execution

must be remitted to the action of the individual, what is the object of

binding ourselves with bonds, which it is afterwards necessary to tear

off and to break, that we may act? What is the object of laboriously

constructing instruments, which we are obliged to throw away when we

come to practical action, that we may use our naked hands? Owing to

such ingenuous reasonings as these, people have come to long for a

society without laws, in which each will do his own share of work, on

account of its attractiveness alone, as we find among the Harmonicists

of Fourier and in many other anarchical Utopias. Or they have sighed

for the absolute paternal government of the good old days, for the

geniality of a good-hearted tyrant, untrammelled with laws, who will

be able to follow the best dictates of his heart. Or, to descend to

less strange and more actual examples, it has been proposed that the

judge should on each occasion create the law, according to the case

before him; that is to say, that he should cease to be a judge (not

having a law to apply, and properly speaking not being able to give

judgment) and be a free decider of litigation and corrector of customs;

or at least that he should free himself from _legal fictions_ and judge

according to the individual reality of each individual case.

[Sidenote: _Unsustainability of such confutations._]

These theories are without doubt unsustainable, not excluding the last,

which has the appearance of being moderate; because the so-called

judicial fiction is intrinsic to the law and exists even when we

think that it is not present, for it is always a fiction to place a

concrete case in an abstract category. But defenders of the utility of

law have met these erroneous doctrines with the bad argument that law

does not admit of individual solutions, and demands strict obedience,

because the moment of individuality, of inobservance, and of violation

that may be called legitimate, does actually exist in the law and is

intrinsic to its very nature. Both adversaries and defenders of law

are therefore philosophically wrong, those who assert its inutility and

those who claim for it an impossible utility.

[Sidenote: _Empirical meanings of those controversies._]

And we say "philosophically," for it is well known that in this case,

as in so many other disputes of philosophic appearance, are often

concealed disputes of a practical and political nature, in which right

and wrong are divided and connected in an altogether different manner.

The adversaries of laws are often nothing but adversaries of too many

laws, or legitimately demand a less pedantic and mechanical office

for the judge than that which he often has at present; whereas the

maintainers of laws are opposed to revolutionaries, who would wish

to abrogate the definite laws, on which civil progress rests, or to

discredit all laws, and cause society to enter upon a terrible crisis

that would not promise good results. But all this is extraneous to the

philosophic problem.

[Sidenote: _Necessity of laws._]

If the defenders of the utility of laws had wished to make use of an

argument of good sense against their adversaries, of the sort that

imposes, even when it does not rigorously demonstrate their contention,

they might have simply noted the demand for laws, for ordinances,

for justice, for the State, which appears at all points of human

history.--Better a bad government than no government at all; better

laws that are mediocre, but stable, than the frantic pursuit for

better and better laws, with the instability that is the inevitable

consequence! And on the other hand, may God save us from genial

despots, from inspired judges, from tribunals that dive into treasures

of equity!--These are the utterances that we hear in history. Battles

have been fought for _legality,_ and rivers of blood have been shed for

it; for legality are faced the troubles of litigation, and energetic

action is displayed, which only superficial intellects can consider

a waste of time and trouble; for no trouble is superfluous when we

are protecting our own rights, and none is more sacred, since it also

guards the offended majesty of the law, the rights of all. Those who

declaim against laws can well do so with a light heart, for the law

surrounds, protects, and preserves their life for them. No sooner had

all laws disappeared than they would lose the wish to declaim:

In such wise as when sometimes in the wood

The shepherd spies the wolf, and straight has lost

Spirit and sense, and words die on his tongue;

The Philosophy of the Practical: Economic and Ethic · 第 27 / 32 段