and therefore the history of the Philosophy of rights has rightly been
placed not further back than the end of the seventeenth century, or not
much beyond Christian Thomas.[3] Up to that time, it is not possible to
speak strictly of a Philosophy of rights. Treatises of jurisprudence,
of rights and of the State, in regard to what of philosophical they
contained, were nothing but treatises of Ethic; not indeed because
the two sciences were (as they were) materially united in the same
books, but precisely because the two concepts were indistinct. The
speculations of antiquity for this part also of the Philosophy of the
practical have the character of ingenuousness already noted. It would
be incorrect to reconstruct a moralistic philosophy from the rights
of Plato, founding it, for example, upon the theory developed in the
_Gorgias_ as to the eagerness to purge his punishment that should exist
in the criminal, similar, in this respect, to the sick man, who knows
that the medicine will free him from his disease.[4] The researches
of Aristotle also as to justice (perhaps the best the classical world
has left us on the subject), look upon justice in a narrow sense, as
a virtue among virtues,[5] which should not intrinsically possess any
greater reason for distinguishing itself from the other virtues than
they for distinguishing among themselves. The pompous definitions
of the Roman jurists, still the joy of schools of jurisprudence and
of judges' rhetoric, have no philosophical weight and would in any
case confirm the identity of rights with Ethicity, if not absolutely
with the entire knowable and practical universe. There is hardly a
ray of the distinction to be traced in the discussions as to whether
rights exist by nature or by convention and in the concept of a _ἁπλῶς
δίκαιον,_ opposed to that of _πολιτικὸν δίκαιον_ found in Plato, and
more explicitly in Aristotle,[6] and rendered popular by Cicero when
speaking of the _recta ratio, naturae congruens, diffusa in omnes,
constans, sempiterna_; of rights not drawn from the Twelve Tables or
from the pretorian Edict, but _ex intima philosophia_; and of rights
that on the other hand are _varie et ad tempus descriptae populis,_
whence they have the name of laws _favore magis quam re._[7]
This rough distinction between natural and positive, absolute and
relative rights; this concept of an ideal right placed face to face
with real rights, or of which the real should be an imperfect and
partial translation, also reappears in St. Thomas Aquinas and in other
scholastics. And there is nothing more than this in those thinkers who
founded what was called natural rights in the seventeenth century,
such as Grotius and his followers. It is true that the boast of having
distinguished rights from morality and religion has usually been
attributed to that historical period. But it is hardly necessary to
repeat that what was meant by these formulæ were the great social and
political questions which took the form of wars of religion in the
Europe of the sixteenth and seventeenth centuries; that so-called
distinction, therefore, the result of long strife, though it have great
practical value as a sign of social transformation, has no doctrinal
value. The idea of autonomy, proper to the juridical activity, is
absent even in the profound treatise of Vico on universal rights, for
this contains only an altogether empirical distinction between _virtus_
and _justitia_; of these the first _cum cupiditate pugnai,_ and the
second _utilitates dirigit et exaequat;_ and both derive their origin
from the _vis veri_ or _ratio humana;_ and as all the virtues are
connected and none of them can exist alone (_nulla virtus solitaria_),
so _virtus_ and _justitia_ are at bottom one.[8] The work of Vico,
which gives a new conception of the relation between ideal and history
and most original applications of Roman history, turns out to be
nothing but Ethic, when considered beneath the aspect of Philosophy of
Rights. Nor on the other hand could the problem of the nature of rights
truly form the object of enquiry on the part of utilitarians (Hobbes
and others); with whom, if the absorption of rights in morality was not
found, this did not arise because the one was distinguished from the
other, but because morality itself was denied in what was proper to
itself: the problem of the distinction disappeared, because its terms
disappeared.
[Sidenote: _Thomas and his followers._]
II. Thomas provided the apple of discord, or as might also be said,
cast the leaven of progress into the treatment of rights, when
he distinguished three forms of the _rectum_: the _justum,_ the
_honestum,_ the _decorum,_ placing the first in opposition to the other
two, the _forum externum_ to the _internum,_ and attributing to rights
and justice the character of coercibility.[9] The formula had a rapid
and unsuspected fortune, and became current in the schools. Gundling,
for instance, defined right as the "ordering of external relations."[10]
[Sidenote: _Kant and Fichte._]
It was completely developed and reasoned out, with all the strictness
that its erroneity permitted, in the doctrines of Kant and Fichte, who
were the greatest of Thomas's scholars for this part of the study.
Kant opposed _legality_ to morality; the juridical imperative is
expressed with the formula, "act externally" (_handle äusserlich_);
right is conjoined with the faculty of compulsion (_zwingen._) Hence
his doctrines are often amoralistic or economic as regards individual
juridical institutions, and this is especially the case when he deals
with the State, with matrimony, and with punishment; these were
followed by Fichte, who made some reservations for matrimony alone,
considering it an institution not only juridical, but also natural
and moral.[11] On the other hand rights were for Kant something that
surpassed the individual will and utility; it was the sum of the
conditions by means of which the will of the one can be united with
the will of another, according to a universal law of liberty.[12]
Fichte in like manner conceived of rights as altogether free of every
admixture of morality; as an objective order, arising from the fact
of the individual who coherently affirms himself and his own liberty,
thus also affirming other individuals and their liberty.[13] Both
philosophers thus preserve the moralistic concept of the legal and
the _justum_; rights, although armed with compelling power, are never
force alone, but the external ordering of freedom, namely, justice.
For this reason, Kant explicitly excludes force, in so far as it is
constitutive of rights and speaks of a "force without law"; and both
he and Fichte make coercibility to flow, not from the nature of the
volitional force itself, but from the violation of order. It is just,
says Kant, to repel force with force, when it would interfere with
liberty. The right of coercion (repeats Fichte) is founded solely upon
the violation of the original right. But it remains obscure what this
poor legality, justice, coexistence, and harmony of wills may be;
what force may be and why and how it is connected with the preceding
definition is not investigated. The distinction of the juridical from
the moral sphere is announced and proclaimed more loudly than perhaps
was ever done before or since; but to announce and to proclaim is not
to carry out. If rights be changed into an ordinance more or less
rational, to be identified with the concept of justice, one does not
see how they can exist independently of morality. Kant and Fichte
were prevented from conceiving the juridical function free from every
element of morality or immorality, by the function which they assigned
to compulsion (symbol of law), submitting it to ethical exigencies.
In this uncertainty, there cannot be wanting and there is not wanting
the thought that rights are not indeed an eternal category, but a
historical and transitory fact; and as Spinoza had already said, _si
cum humana natura ita comparatum esset ut homines id quod maxime utile
est maxime cuperent, nulla esset opus arte ad concordiam et fidem_;
Fichte thus looked upon the juridical State simply as a _State of
necessity_ opposed to the _State of reason_: and when perfection has
been attained and there is complete accord of all in the common end,
"the State" (he said) "disappears as a legislative and compulsive
force."[14]
In the ulterior phase of his thought, Fichte _Hegel_ afterwards took
further steps toward a closer union between morality and rights. But
the complete resolution of the first in the second is effected in the
system of Hegel, though it is customary to blame this philosopher for
the opposite fault, namely, that he resolves morality in right. Above
all, Hegel would hear nothing of the concept of force in right: facts
of force and of violence, as, for instance, the relation between a
slave and his master, appertain, according to him, to a circle, which
lies on this side of right, to the subjective spirit, to a world in
which wrong can still be right. The fact that violence and tyranny are
met with in positive rights is an accidental thing and does not affect
its real nature. For Hegel, as for his predecessors, co-operation
arises only as reaction from the violation of what is just, and is
violence preservative of liberty, suppression of the previous violence.
"To define abstract and rigorous rights as law which we can be
compelled to obey, means" (writes Hegel) "to see them as a consequence
of what takes place only by the cross road of wrong." But there is
more: abstract rights, which form the first moment of the Philosophy
of the practical in Hegel, are unreal; he opposes to them the second
moment, morality, which also is abstract and unreal, consisting of the
good intention, which has not yet been incorporated in action and life:
thus concrete reality is realized only in the third moment, in the
ethos, which synthetizes the abstract rights and the abstract morality
of the intention in social life.[15] From this it is clear that the
purely juridical moment does not possess effective spiritual autonomy
for Hegel; _so_ much so, that it is placed by him upon the same plane
as abstract and unreal morality. In consequence of his identification
of rights with ethicity, Hegel is opposed to Kant and Fichte in his
definitions of single rights; he rejects the compulsory and contractual
theory of the State and (the Kantian) theory of matrimony as a strict
contract made between individuals as to the reciprocal use of their
bodies.[16] The compulsory theory of punishment seemed to him to reduce
the latter to a mere economic fact, by means of which "the State as
judging power, opens a business with goods called crimes exchangeable
for other goods, and the code is _the list of prices._"[17]
[Sidenote: _Herbart and Schopenhauer._]
Herbart too denies the originality of the character of compulsion
in the idea of rights, and this is one of his five practical ideas,
or, "the agreement of many wills, thought as a rule that eliminates
strife." But even in this superficial moralistic reduction, force
reappears all of a sudden, one knows not how: society has need of an
external bond, in order to subsist; force and power (_Macht_) are
added to society and _the State_ arises.[18] The same contradictions
are to be found in Schopenhauer: after he has posited the two virtues
of justice and benevolence, he makes a chapter of morality out of the
pure doctrine of law. The science of rights in the specific sense
borrows this chapter in order to study its opposite: all the limits
that morality looks upon as not to be passed without intention of
wrong-doing, on the contrary are considered by the science of rights
as limits, of which violation by others is not to be tolerated and
from which one has the right to expel others. Thus the distinction
between internal and external is in this way reproduced in all
its unmaintainability under the denomination of _rights and their
opposite._ But the bridge of asses is always the junction of rights
with force, that is to say, with the element extraneous to Ethic; and
in this connection Schopenhauer has nothing better to offer than a
comparison. "As there are certain chemical substances never to be found
pure and isolated, but always in some sort of combination with another
element, which gives to them the necessary consistency; so rights, when
they must set foot in the real world and dominate it, have need of a
small adjunct of will and force, in order to be able (notwithstanding
its nature, which is really ideal and therefore ethereal) to operate
and persist in this real and material world, without evaporating and
flying to heaven, as was the case with Hesiod."[19]
[Sidenote: _Rosmini and others._]
Rosmini presents the two elements not well harmonized, as the
eudæmonological and the ethical. Rights for him are not mere
eudæmonism, but a eudæmonistic fact, produced by moral right and
receiving form from it; hence the science of rights "stands between
Eudæmonology and Ethic, so that one of its ends extends to the one
and the other to the other." It would not be easy to explain and to
justify what he calls a mediate science, composed of Eudæmonology
and Ethic; and it would be far less easy to explain how this science
comes to be "completely distinct" as regards its components. If rights
have a moral form, they are moral and not eudæmonological. Owing to
this difficulty Rosmini was led to introduce the concept of the licit
as criterion of differentiation, defining right as "a personal faculty
and power of enjoying, acting and being able to act, a lawful good
that must not be impeded by others."[20] Juridically understood this
constitutes a tautology, ethically something worse. Other Catholic
authors (Taparelli, for example) deplore the separation of _ethos_ from
_jus,_ introduced (they say) by Protestant doctrines and the limitation
of right to what a man can externally exact from others according to
law; "whence it happens that in the enumeration of laws, actions are
sometimes posited that are real moral faults in the agent"; maintaining
on the contrary the necessity of treating morality and rights together,
"for rights are part of morality in the same way that trigonometry and
conic sections are a part of geometric theories."[21]
[Sidenote: _Stahl, Ahrens, Trendelenburg._]
III. If Catholic doctrines deserve mention for their conservativism, it
is necessary to record the names of Stahl, Ahrens, and Trendelenburg,
for no other reason than the great popularity that they enjoyed in
the schools. Stahl divides the ethical action of man into two domains,
differing in content and character. This dualism is founded upon the
double relation of human existence, individual and social, which gives
rise to two forms of imperatives: to the imperative of the individual
will, of religion, and of morality, and to that which aims at moulding
social life and is the imperative of rights. This theory, which has
a varied terminology, can be reduced to the theory of exteriority
(sociality, rights), and interiority (individuality, morality). In
a very similar way Ahrens includes law in the science of the good
or Ethic--the fundamental science. He remarks that good intention,
virtue, are not sufficient to secure to man that complex of material
and spiritual goods of which he has need, and therefore there must be
a second mode of effecting in the good, which what is of importance
would be, not the motives of the will, but the pursuit of the good and
its real existence in life. Trendelenburg (who regrets the classical
concept of the identity of Ethic and Law and looks upon the time
when they began to be distinguished as a beginning of degeneration)
discovers three sides to rights: the _logical,_ the _ethical,_ and
the _physical_ (compulsion),[22] of which none, as we see, is truly
judicial.
[Sidenote: _Utilitarians._]
For the reasons already indicated, it is not necessary to pause
over the juridical ideas of the utilitarians of the eighteenth and
nineteenth centuries, whose last celebrated representatives were,
in England, Bentham, Austin and Spencer. The German Kirchmann is to
be identified with the utilitarian tendency. He reduces morality to
the _respect_ inspired, not by the law, but by the _person_ of the
legislator, a respect afterwards converted into respect for the law
"owing to a peculiarity of human nature, as the result of long custom
and exercise." According to this view, rights are defined as "a union
of pleasure and morality, whether the first calls the second to its
aid or the second the first, in cases when the isolated efficacy of
either should prove insufficient." Thus rights are declared to be, not
an original principle, but the simple union of two different elements.
Jhering failed to surpass utilitarianism, notwithstanding his profound
juridical knowledge and his lively intellect. He attempted to impart
an original character to his utilitarian theory, by declaring that it
was _objective_ in respect to the usual utilitarian theories, but
he always remained under the obligation that he had undertaken, of
showing how the purest ideality of Ethic could be fortified with such,
a conception. The distinctions drawn by Jhering between recompense,
compulsion, duty, and love, since they lack a foundation, vacillate and
prove but little convincing.[23]
[Sidenote: _Recent writers of treatises._]
IV. Running rapidly through other recent philosophers of Rights, we
do not meet with original thoughts that compare with those of Kant,
of Fichte, and of Hegel. Lasson conceives of the philosophy of Rights
as a part of Ethic and co-ordinates with it three other parts--the
philosophy of custom, of morality or doctrine of the virtues and the
doctrine of the ethos or of the ethical personality. Rights are the
first of these three ethical moments and is concerned with the willing
of man as a willing still essentially natural; reason joins it as a
force essentially determining and limiting, at first only external; the
object of rights is to guarantee the conditions of the common life, in
so far as it is the condition for all human ends.--Steinthal recognizes
that rights undoubtedly "possess an exteriority altogether opposed to
the interiority of Ethic; hence, if they be not apprehended in their
profound nature, they may easily be repugnant to moral feeling": they
are "the system of modes of compulsion, by means of which are secured
social ethical ends." But (we repeat) since the external cannot be
separated from the internal, we do not see in what way ethical ends can
be distinguished from their modes of realization. Steinthal also says
that "Ethic is like a river and Rights like the bed of the river": a
comparison that can be variously interpreted, like all comparisons and
which for our part we should be disposed to find excellent, were it
admitted that as the bed of the river, when it runs dry, yet remains
always the bed of a possible river, so Rights can remain without Ethic
and yet be always Rights. But the signification in which Steinthal
employs that comparison is simply the same as the diad of external and
internal; that is to say, he in his turn wishes to distinguish the
indistinguishable, so that it would on the contrary be necessary to
reply that the bed of the river and the river are not two things but
one, because a river without a bed cannot exist and a bed without a
river is not the bed of a river.--Schuppe denies that Rights and the
State can claim what is immoral, but affirms that all the same they
are inferior to the exigencies of morality, because Rights and the
State concern individuals in their spatial-temporal concretion, but
do not attain to the profundity afforded by conscience in universal.
The ethical concept of rights preponderates in Wundt, for he does not
conceive of any other object of rights, subjective and objective, save
morality. Cohen, in like manner, does not admit other independence
to the science of rights save that, of writing in concepts, and of
organizing as a system of concepts the rights that is eternally
unwritten, the moral law.[24]
As we see, if the names of the writers and sometimes their phraseology
change, the thoughts that alternate or combine are always the same.
Rümelin, who undertook to criticize a series of definitions of rights,
from that of Kant onwards, reproved Kant for having drawn too great a
distinction between rights and morality, and others (Ahrens, Stahl,
Trendelenburg) for having drawn too little. Finally, he gives his
definition in a provisional and tentative manner: "juridical ordinance
has the task of assuring to a people that part of the good adapted
for realization by a social force, according to universal norms."
Jellinek distinguishes the norms of rights from those of religion, of
ethicity and of custom, by a triple character: _(a)_ because they are
norms for the external conduct of men among themselves; _(b)_ because
they derive from a recognized external authority; _(c)_ because their
obligatoriness is guaranteed by external powers.--Stammler attaches
secondary importance to the element of compulsion, and although he does
not explicitly identify justice and morality, assigns to them the same
territory, where they should act with different methods, since the
perfectionment of the soul, the character and the thought are distinct
from right behaviour. And adopting the turn of phrase of a famous
proposition of the _Critique of Pure Reason,_ he ends by formulating
the following statement: "Justice without love is empty; compassion
without a right rule is blind." The Frenchman Duguit transports with
greater frankness the centre of rights into morality: he conceives of
rights as altogether different from force; not as _political,_ but
as _limit_ of force; as consciousness of human solidarity, beneath
whose rule we are all placed, State and individual, strong and weak,
governors and governed. French philosophers of rights generally oppose
the German school, in which the character of force is prominent, so
that French juridical philosophy sometimes assumes (for example, in
Fouillée) an attitude analogous to that assumed, as we know, by the
"generous" French economic school toward the English economists. And
merely that some Italian name should not be absent from this review of
recent writers, we will record Miraglia, who repeats the old Kantian
division, making it yet more empirical: "Morality and rights are part
of Ethic, because the good can be chiefly developed in the intimate
relations of the conscience, or on the contrary can be developed
by preference in the external relations between man and man and
between man and thing";--and Vanni, who mixes a little positivistic
evolutionism with this empirical reduction, affirming that rights are
not originally distinct from morality, but that afterwards they were
gradually differentiated, and rights now have the special function of
guardianship and guarantee: "that is to say, the ethical minimum alone
has been guaranteed, that much of the ethical field as is most directly
necessary for the maintenance of life in common, leaving to other
forces the task of regulating what is most individual in life." And so
on, though it seems that this is enough.[25]
[Sidenote: _Strident contradictions. Stammler._]