_legalism_ and the theory of _theological utilitarianism_; such is
the essence of Jesuitic morality, which has justly aroused horror and
disgust. And we call it _logical_ (or illogical) product, because
we wish to make it clear that here as elsewhere we are occupied with
theories only and are criticizing them alone. In practical action
Jesuitic morality was often better than the theory would imply; even
the Padre Caramuel, who put the question as to the right possessed by
the Jesuits of slaying the Jansenists, must have been at bottom a good
man; because, having almost arrived at an affirmative conclusion to
his inquiry by dint of perverting the moral law, he was seized by pity
and defrauded his own fraud, concluding negatively that the Jansenists
_occidi non possunt quia nocere non potuerunt,_ because (said he)
they are poor devils, unable to obscure the glorious brilliance of
the Company, as the owl does not conceal the light of the sun.[2] And
Saint Alphonso dei Liguori, who is usually looked upon as an example
of that lurid morality in our day, when he set to work to stir up
afresh the ugliness of casuistic in connection with the sixth and ninth
commandments, experienced all the repugnance of the gallant gentleman
that he was, at such a task, imposed upon him by the traditional mode
of treating Ethic, as is to be seen by his declarations, exclamations,
and exhortations: _Nunc aegre materiam illam tractandam aggredimur,
cujus vel solum nomen hominum mentes infidi. Det mihi veniam, quaeso,
castus lector!... Ora studiosos ... ut ... eo tempore saepius mentem
ad Deum elevent et Virgini immaculatae se commendent, ne dum aliorum
animos Deo student acquirere, ipsi suarum detrimentum patiantur._[3]
If Jesuitism were also moral corruption, this was not due to its
abstract theories, but to the education that it practised, which was
depressing, servile, and directed to mortify the strength of the will
and of the intelligence, to reduce a man to be like _senis baculus,_
a docile and passive instrument in the hands of others; and to the
confusion in consciences as to the real motives of actions, which it
not only preserved but increased, lulling souls to sleep with sophisms
and allurements of devotion _aisées à pratiquer,_ by means of which the
gates of Paradise could be unlocked, and with _chemins de velours_ on
which one could mount to the sky with every indulgence. The rigorists
and latitudinarians are philosophically equivalent; but it is a fact
that in practice the rigorists were generally energetic and austere
souls; which should not cause us to forget that the latitudinarians
also, amid their distorted theories, sometimes had a lucid vision of
the _complications_ of reality and felt the necessity of a morality
less abstract and less disharmonic in relation to life, however
incorrectly they may nevertheless have developed its theory.
[1] 1 Cor. x. 23.
[2] Pascal, _Prov._ 1. 7.
[3] _Theol. moralis_ 7, Bassano, 1773, i. 168.
V
JUDICIAL ACTIVITY AS AN ACTIVITY GENERICALLY PRACTICAL (ECONOMIC)
[Sidenote: _Legislative activity, as generically practical._]
The will that wills classes of actions, or the activity that makes
laws and that we can henceforward term _legislative activity_ without
fear of misunderstanding, is either moral or merely economic; and
therefore, when dialecticized, is either moral or immoral, economic or
anti-economic. It is true that this will is abstract and indeterminate;
but that does not prevent it from being, and from being obliged to be,
either moral or merely economic; and, therefore, abstractly moral and
abstractly economic, and so also abstractly immoral and anti-economic.
A programme of action will be conceived, as they say, wisely or
foolishly, to a good or to a bad end, for mere reasons of utility, or
with a lively desire for good. The legislator is a volitional man, and
as such to be judged both utilitarianly and morally. The laws that
are his volitional product are useful or injurious, good or bad. This
judgment is also without doubt abstract, for it is necessary first to
see the legislator engaged in the practical act of the application of
his law, in order to recognize what he can do and who he is. We know
many (others or ourselves?) who make plans for the most beautiful
lives, legislating admirably for themselves and for others; yet these
show themselves mean and bad in action: and we not infrequently find
the opposite case of men who calumniate themselves and who, after they
have declared the most dishonest, or at least the most amoralistic, of
intentions, when they find themselves face to face with the bad action,
ugly with the ugliness of sin, say, as the old man in the fable said to
Death: "I have not called thee!"
[Sidenote: _Vanity of disputes as to the character of institutions,
economic or ethic: punishment, matrimony, the State, etc._]
From these considerations, which seem to be most obvious, a not
obvious consequence is to be drawn; namely, that it is perfectly vain
to descant upon the utilitarian or moral character of laws, or of
these or those laws; to ask oneself, for instance, whether the object
of _punishment_ be _deterritio_ or _emendatio_; if _matrimony_ be an
exchange of services or a sacrament, a union of interests or a society
with moral ends; if the _State_ be the result of a contract or of a
moral idea, and so on. These questions have an immense literature
devoted to them, which has been accumulated for centuries, and although
they be vain for us, yet they cannot be so for one who has not yet
become clear as to the special forms of the practical activity and as
to the nature of law. For him they are not vain, since they represent
as it were in a concentrated form, the complete philosophical problem
concerning the practical; although they must of necessity turn out
to be insoluble. Punishment can be conceived and willed as a mere
utilitarian menace, to prevent others from performing certain classes
of actions, even if they be ethically of the highest value; or as
moral solicitude for the amelioration of society and the individual
himself who has erred, by obliging him to re-enter himself and change
his mind. Even the pain of death can be directed to this end and death
that has given or restored to the guilty a day, an hour, an instant
of that human life, of that contact with the infinite, which he had
lost, may be held not to have been in vain. Matrimony may be instituted
for the more regular satisfaction of the sexual instinct and for
other similar interests of utilitarian life; and also to secure, that
interpénétration of souls, which is the great mover of the moral life.
The State may arise from a mere contract which draws together isolated
individuals and groups and unites them for defence and offence; and
also form the profound moral aspiration of the individuals, who
recognize the universal in themselves and are attentive to realize it
in modes ever more rich and more lofty. All institutions, all laws may
receive this double form; and although there be laws that are merely
utilitarian, those that are moral are also, as is clear, utilitarian
or economic, and therefore not useless but useful. An amoral man will
make for himself amoral laws; and between an amoral man and an amoral
woman no other marriage but that of interest is possible; and between
a hundred amoral individuals, no other State is possible but that
established by contract; and no other punishment will be applicable in
such a State save that of mere _deterritio._ It will be objected that
amoral individuals and multitudes do not exist, and it may be true that
they do not exist in a continuous manner: but they do exist at certain
moments; and this as we know, suffices to justify, indeed to prove
necessary, our theory.
[Sidenote: _Legislative activity as economic._]
Thus no other answer is possible to the question asked as to whether
the legislative activity be moral or merely economic, save that it may
be the one or the other, and therefore, that it is not of necessity
moral; thus, defining it in its full extension, it must be called
_generically practical,_ or taken in itself, _merely economic._
[Sidenote: _Juridical activity: its economic character._]
Passing now from the legislative activity to that of him who realizes
and executes the law (an activity that we may call _juridical,_ in
order not to confound it with the other), and asking whether juridical
activity be moral or distinct from morality and if distinct, what is
its distinctive characteristic, the answer cannot but be most simple
for us who have attained to our present position. So simple indeed,
that to give it would seem to be almost superfluous. Not only must the
activity of carrying out the law not be intrinsically diverse from the
activity of legislating, but as has been seen, it obeys exclusively
practical principles, economic and ethic. Hence the 'juridical activity
can be merely economic and it can be moral; and seeing that economicity
is the general form that of itself involves the other, the juridical
activity is generically practical, or _economic. _ As such and in so
far as it is such, it is at once distinct from and united with the
moral form.
[Sidenote: _Its consequent identity with the economic activity._]
But juridical activity does not merely enter the economic activity;
it is exactly identical with it: juridical activity and economic
activity are _synonyms._ Legislative activity enters economy and
nevertheless distinguishes itself from it, as volition of the abstract,
indeterminate volition. The juridical activity is on the other hand
concrete and determined, like the other, nor is it distinguished from
it by any secondary character. It might be attempted to subdistinguish
the economic and juridical activity, while admitting the generic
identification, and to look upon the latter as such that although
obeying the economic principle, it is yet developed _under the laws;_
whereas the former would exist even where _laws were wanting._ But the
distinction would be empirical, of undulating boundaries. Strictly
speaking, man is surrounded with laws in all his actions, and he always
acts under all the laws, and at the same time he effectually acts under
none of them, save that of his own practical conscience.
If the identity and synonymity of law, understood as juridical activity
with economy, has not been discovered, that too is connected with the
lack of recognition of the practical utilitarian category on the part
of philosophers and with their considering it, as they erroneously
did, either as egotism and immorality, or as an altogether empirical
division, to which was added a concept, also empirical, of the
juridical activity itself, which should be limited to what are called
laws emanating from the State, sometimes graciously including in them
social laws, and always altogether ignoring the fundamental form,
individual laws.
[Sidenote: _The failure to recognize the economic form and the meaning
of the problem concerning the distinction between morality and law._]
But this failure of recognition has not prevented the appearance and
persistence of the problem of the _combined unity and distinction of
law and morality,_ which has been the most frequent though the most
complicated mode of affirming the claim of a special Philosophy of
economy. A serious beginning of meditation upon law had hardly begun,
when something was observed in it that it was impossible to resolve
into the concepts of Ethic. Hence the generally admitted recognition
of the distinction between law and morality and the many attempts
at determining of what the peculiar character of the former exactly
consisted.
[Sidenote: _Theories of compulsion and exteriority, as distinctive
characters: critique._]
This character was placed most frequently and with greater insistence
in the two determinations of _compulsion_ and of _exteriority._ And it
was said that law is distinguished from morality because it is possible
to exercize compulsion in the juridical, but not in the moral field;
or that law deals with the field of external relations, morality with
the internal; or that one is the _psychical,_ the other the _physical_
side of action. But as to the first determination, we have already
shown that it has no meaning at all when applied to the forms of the
spiritual activity, where nothing is compulsory and everything is at
once free and necessary: the juridical activity, if it be activity,
must likewise always be determined by free agreement. The second, which
is the determination of exteriority, is not less inconceivable; for it
is not given to separate the external from the internal, since they are
both one, nor the word from its meaning, nor the body from its spirit.
Compulsion and exteriority, taken strictly as concepts, are therefore,
in this case, void and contradictory formulæ. To fill them somehow with
a thought, it would be necessary to understand as compulsion certain
modes of action, as opposed to certain other modes; for instance,
compulsion would be the action by which an accused person was conducted
to prison by two policemen and non-compulsion that of him who should
be induced to go and constitute himself a prisoner through the
persuasion of others; and as exteriority, certain classes of actions
opposed to certain others; so that, for example, the deportment of
an individual as communal or provincial councillor would belong to
external life, his relations with his confessor or with his Æsculapius
to internal life. But compulsion and exteriority, reduced to these
meanings, become gross and empirical concepts, of which no use can be
made in philosophy and which therefore cannot be of the least value as
qualifying and distinguishing law from morality.
In the same way, no value is to be attached to such a distinction,
when determined from what is licit to what is commanded, from rights
to duties, from what is permitted to what is obligatory; because licit
and commanded, rights and duties, from what is permitted to what is
obligatory, are correlative concepts constituting an indissoluble nexus
and it is not possible to separate and to oppose them to one another.
[Sidenote: _Moralistic theories of rights: critique._]
The difficulty of conveniently fixing the distinction with the
characters indicated, leads one to think of a different sort of
tentative, according to which rights would certainly be distinguished
from ethicity, not placed above or beside it, but rather in the
very sphere of morality itself, as the species in respect to the
genus or the part in respect of the whole. Juridical action would be
moral, but it would belong to the inferior levels of morality; it
would be occupied with the execution of simple _justice,_ with the
establishment of order, proportion, equality; whereas morality would
represent _more than justice,_ and would upset the equilibrium of
rights with benevolence, generosity, sacrifice, heroism. Rights (it
is also said) are limited to the _ethical minimum,_ while morality
strives for the _maximum;_ rights are concerned with strict rights or
_perfect_ duties, morality with meritorious and supererogatory actions,
_imperfect_ duties. But these determinations also pretend to separate
the inseparable, by drawing an arbitrary line of division between small
and great actions, between least and greatest, and they employ concepts
that are altogether empirical, as, for instance, that of justice
as distinct from benevolence, of the strictly obligatory from the
meritorious and supererogatory; and worse still than this, metaphors
and symbols, such as equality, order, regularity; or they operate
directly with the arithmetical and geometrical proportion of actions.
And consciously or unconsciously a return is made to Ethic pure and
simple, with the theories that make juridical activity to consist of
the recognition of others as _persons,_ or with the search for _general
utility_ (superindividual). When we act in view of the _person_ in
other individuals (or in oneself), or of the useful, which is not the
useful for the individual, but although it comprehends, yet transcends
it:--the merely juridical conscience has already been surpassed, it has
been filled with a moral content, that is to say, an ethical form has
been given to the practical activity. The double sense of the terms
"rights" and "morality" is in this way preserved in words but denied in
fact.
[Sidenote: _Duality of positive and ideal, historical and natural
rights, etc.; and absurd attempts at unification and co-ordination._]
The dual sense of the terms is also affirmed by the very ancient
distinction between _positive and ideal, historical_ and _natural_
rights, _right_ and _justice,_ or, as it has also been formulated,
between the _two different justices,_ realistic and idealistic,
fruitful in conjunction. Natural rights, with their homonyms just
stated, besides the generically practical significations that we have
already examined, have also had the narrower one of ethical ideal or
morality; and therefore it cannot cause astonishment that it should
appear now conjoined with, now detached from positive rights. But how
joined and disjoined? For us it is a question of degrees, whence the
positivity of both forms is recognized: the second of these is included
in the first: the ideal right or morality (if it be right, and not
simply abstract excogitation willed by no one, or vague desire) is
both positive and historical. But those who posited the distinction
without being able to make it definite and so to dominate it were led
to conceive one or the other term as negative; and therefore both as
negative between themselves and existing only in a third: which meant
to reannul the distinction by reducing it to abstract contradiction.
If one of the two were conceived as negative, either the ideal justice
(that is, the seriousness of moral strength) was denied and turned to
ridicule, or positive justice, that is, the seriousness of volitional
strength, was presented as something turbid and impure and at best
as a human imperfection, to which it was advisable to resign oneself
since it would disappear in a society of perfect men or in a future
life of perfection. Juridical activity became something contingent
and mortal. Matters were even worse, if it were found impossible to
eliminate it with similar religious, apocalyptic, or millenary fancies.
The negative was then conceived as positive or co-ordinated with the
positive: hence incredible logical divisions of rights into forms or
species of _moral_ and _immoral rights, of just_ and _unjust_ rights,
in which the species has the function of _negation of the genus,_
almost as though the race of horses were to be divided into two kinds:
_dead_ and _living_ horses! Unjust or immoral rights are not rights,
but a contradiction of them, and if we sometimes describe in this way
a real and effective juridical act (an economic act), it is necessary
to observe that the denomination is given from the point of view of a
superior form of activity. Rights in themselves as rights, understood
positively, are never immoral, but only _amoral._
[Sidenote: _Value of all these theories as confused perception of the
amoral character of justice._]
All these errors, all these sterile tentatives have their origin, as
has been said, in the lively consciousness of a distinction existing
between right and morality and at the same time of the impossibility
of determining this correctly, owing to lack of clarity as to the
purely economic form of the practical activity. When the juridical
activity has been identified with the economic and when juridical
(economic) activity has in consequence been conceived as at once united
with and distinct from morality, we are able to recognize that these
attempts have nevertheless fulfilled a very useful function; that is
to say, they have more or less energetically asserted and defended
the position that there existed a characteristic distinction between
right and morality and that it was necessary to seek for it. They are
therefore far superior, notwithstanding their errors, to that confused
ethical conception, which receives rights and morality indistinctly
into its bosom, or to the utilitaristic conception, which arrives by a
different route at the same indistinction. This merit belongs to the
theories of the moral minimum, of justice, of the two justices and of
the contest between positive and ideal rights; but in a much greater
degree to that of compulsion, of exteriority, of the licit. With these
last was almost unconsciously set in relief the fact that right obeys
a law different from that of Ethic, and may be called _compelled and
not free by comparison with it,_ because not founded upon the necessity
of the universal; that in respect to the supreme _interiority_ of
Ethic it can be considered as something _exterior;_ that in respect
to the ethical imperative, it appears as something indifferentiated
or _licit._ These are without doubt symbols, tautologies, vague and
imprecise phrases, but efficacious in keeping the attention alert and
in promoting doubt and research.
[Sidenote: _Confirmations of this character in the ingenuous
consciousness._]
But the impossibility of absorbing rights into Ethic altogether and
without leaving residues is proclaimed or confessed, not only in the
theories of philosophers, but by simple thought, and especially by the
consciousness we have of the real world being governed, not by abstract
morality, but, as is said, by _force,_ or by the will in action.
"Disarmed prophets" will be efficacious in poetry, but ridiculous in
practical reality: _la force prime le droit,_ precedes it and is always
of greater value than an unreal and contradictory ethical right and
aspiration, afterwards dissolved in the empty and arbitrary. We will
not recall proverbs, maxims, historical examples, though this would be
easy; that little story of Franco Sacchetti which preserves "a fair
speech" of Messer Ridolfo da Camerino, will suffice for all. One of his
nephews had been at Bologna studying law for a good twelve years, and
when, having become an excellent lawyer, he returned to Camerino, he
went to pay a visit to Messer Ridolfo. When he paid the visit, Messer
Ridolfo said, "And what didst thou do at Bologna?" He replied, "My
Lord, I have learned _reason._" Said Messer Ridolfo, "Thou hast spent
thy time ill." The young man replied that the saying seemed to him to
be very strange. "Why was it ill spent, my Lord?" And Messer Ridolfo
said, "_Because thou shouldst have learned force, which is worth two
of the other._" The youth began to smile, and thinking it over again
and again, both he and the others that heard, perceived that what
Messer Ridolfo had said, was true.[1]
[Sidenote: _Comparison between right and language. Grammars and codes._]
And here too we are at last able to establish a parallel between
the practical and theoretic activity, between the problems of the
Philosophy of right and those of Logic and Æsthetic. The comparison of
right and language has been several times attempted, with very great
correction of thought, although necessarily defective execution, since
it was customary to conceive both language and right in an abstract
and empirical manner. Whoever should wish to take up the inquiry
again would do great service, were he to insist upon the fact that
since it has been impossible to understand what language really is,
so long as grammars and vocabularies were taken as its reality, so it
is impossible to understand anything of rights, so long as the eye is
fixed upon laws and codes, or what is even worse, upon the commentaries
of jurists, or upon the abstract volitional fact, or altogether upon
what is not a true and proper volitional fact, but the elaboration of
formulæ and of general concepts.
[Sidenote: _Logic and language; morality and rights._]
Only when rights appear as individual and continually new work of
individuals, only when the attention is directed to the spectacle of
real life and not to the abstractions of legislators and dispenses with
the dissertations of jurists, is it possible to state the problem:
how does this juridical work coincide with, and how does it differ
from moral work? And here too the comparison with language is fitting,
although language be not logicity, yet logical thought cannot become
concrete, save in speaking; so moral activity cannot live, save by
translating itself into laws and institutes, and in the realization of
laws and institutes, that is, in the juridical and economic activity.
Finally, just as the history of a language is always arbitrary and
abstract, so long as it is considered alone, outside the works in which
the language is incarnate and the true history of a language is its
poetry and literature, so _the true history of the rights of a people_
(of the rights that have really been executed and not merely formulated
in laws and codes, be often proved to be a dead letter) cannot but be
altogether one with _the social and political history of that people:_
an altogether juridical or economic history; a history of _wants_ and
of _labour._
[1] Novelle, xl.
VI
HISTORICAL ANNOTATIONS
[Sidenote: _Distinction between morality and rights, and its importance
for the history of the economic principle._]
I. The history of the distinction between morality and rights is very
important, precisely because, as has been said, it is the manifestation
of the very strongly--felt desire to posit in some way a philosophy of
the aethical or amoral practical form: a manifestation which is the
most conspicuous of all those that we have had occasion to note on the
subject (theory of politics, theory of the inferior appetitive faculty,
theory of the passions, etc.).[1] And owing to the impossibility of
satisfying that exigency with the intellectual data possessed, the
problem of the relation between rights and morality has become anything
but an amusing puzzle, a theme for true vain eloquence.
Emmanuel Kant in the _Critique of Pure Reason,_ wishing to give a
characteristic example of the difficulty of definitions, found nothing
better to record than that jurists were always seeking a definition
of rights, but had never succeeded in finding one.[2] And a jurist
philosopher of our times (Jhering) has called the definition of rights,
in their difference from morality, the "Cape Horn," or the Cape of
tempests (or shipwrecks?) of juridical science.
[Sidenote: _Indistinction up to the time of Thomas._]