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;