struggled for about two centuries. Rights do not seem to be identical
with Ethic, but they also do not seem to be simply different; they
seem to be at once identical and different, but yet it has been found
impossible to fix the element of difference with the concepts of
external, of compulsion and others such. The thought of a difference
between the two forms of activity has not been further eliminated;
but neither has it been transformed and absorbed. This is a morbid
condition, of which the gravest symptom is the logical absurdity of
the aforesaid two rights and two justices. Rümelin talks of the pure
ideal justice, which selects from the evidence and judges on the basis
of immediate impressions of feeling; and of a realistic, rational,
empirical, disciplined and developed justice: two justices that must
however act together.[26] Others, seeking relations between those two
concepts from a single fact and failing to conquer the difficulty,
force logic by distinguishing between _concept_ and _ideal_ of rights,
or (as Vanni said) between _logical_ concept and concept of the
_rational exigencies_ of rights: as though a concept could be truly
logical, if it do not derive from rational exigencies, and as if these
can be valid, if they be not the concept itself. Worse still, Stammler
affirms the identity of rights with moral rights, and of rights alone
with immoral rights, arriving at the already criticized division of
effective rights (_Gesetzes_) into two classes. It "is either right
rights (_richtiges Recht_) or not; and right rights are effective,
whose content of will possesses the property of being _right._ Hence,
right rights stand to effective rights as _species to genus._"[27]
To meditate upon this plan of division is more than sufficient to
produce the conviction of the failure of the Philosophy of rights, as
it has been developed and as it could be developed with the practical
presuppositions hitherto admitted. As the result of the direction of
studies, from Thomas to the most recent, there remains nothing but
the problem itself, as originated by the definitions of Thomas, and
become certainly more acute and difficult, owing to later disputes and
inquiries, but never solved.
[Sidenote: _The value of law._]
V. Less attention has been bestowed upon the concept of _law,_ upon
which it was impossible to obtain full light, on the one hand before
the theory of abstract concepts had been developed (representative of
class) in their difference from the universal, and on the other before
preconceptions as to the necessary social and political character of
laws had been discarded.
[Sidenote: _In antiquity._]
But the difficulties contained in that concept had several times been
observed in antiquity. In a dialogue between Alcibiades and Pericles,
preserved in the _Memorabilia,_ it is asked if all laws be laws, or
only those that are just; and it is shown that it does not suffice
that a law should be a law, in order to ensure its observance.[28]
No true solution, however, was reached in this, as in many questions
discussed at this period by Greek philosophy. The _Crito_ is rather a
stupendous work of art than a philosophical thesis, for it shows to
the life the state of soul of Socrates, and the importance that he
attributed to the laws and to the social order: the reason alleged for
obedience to them, being placed in the fact that we have tacitly or
explicitly agreed to remain within the boundaries of a given state,
has in it something of the sophistical. Even in antiquity was seen the
necessity of tempering the rigidity of laws by means of the equable,
το ἐπιεικέç, which Aristotle defined as the correction of the law
where it sins through its character of generality (ἐπανόρθωμα νόμου ᾗ
ἐλλείπει διὰ τὸ καθόλου).[29] But it was not possible to escape from
empiricism by means of the concept of equity. The law sins, not once,
but always, through abstractness, or better, it never sins at all,
because its function resides precisely in that abstractness.--In modern
times Diderot felt and expressed all the gravity of the conflicts that
arise, alike from the observance and from the inobservance of the law,
and he expresses this in his _Entretien d'un père avec ses enfants sur
le danger de se mettre au-dessus des lois. "Mon père_ (remarks one
of the sons at the end of the dialogue), _c'est qu'à la rigueur il
n'y a pas de lois pour le sage.... Parlez plus bas.... Toutes étant
sujettes à des exceptions, c'est à lui qu'il appartient de juger des
cas où il faut s'y soumettre ou s'en affranchir.--Je ne serais pas trop
fâché_ (concludes the father), _qu'il y eût dans la ville un ou deux
citoyens, comme toi; mais je n'y habiterais pas, s'ils pensaient tous
de même._"[30]
[Sidenote: _Romanticism._]
The attitude of rebellion to the laws showed itself in German thought
and literature in the preromanticism of the _Sturm und Drang_ (for
instance in the _Räuber_ of Schiller), and in Romanticism properly
so called, when among others appeared the theories that limited the
State, such as those of Wilhelm von Humboldt, and theories of sexual
relations, such as those of Friedrich Schlegel. In the _Lucinde_ is
displayed great horror for _bourgeois_ customs and for every sort of
constraint, sexual relations being advocated with woman, family, love
and fidelity, but without matrimony.
[Sidenote: _Jacobi._]
Jacobi represents this attitude in several of his writings, with great
elevation of soul, and especially in the _Woldemar_ (1779, 1794-96),
the most lively protest that has ever been made against law in the name
of the individual. Here the question treated is precisely whether we
should follow the inspirations of our own conscience or the laws of
our own people. Sides are taken against "the compulsion and violence
exercised by usages, customs, habits, and against those who do not
think, save by means of those laws, holding them sacred, with resolute
soul and mind inert"; and "that audacious heroic spirit is celebrated,
which raises itself above the laws and common morality that it may
produce a new order of things." "His heart alone tells man immediately
what is good; his heart alone, his instincts only, can tell him
immediately: to love it is his life. Reflection teaches him to know and
to practise what leads to good. Habit assures and makes his the wisdom
that he has acquired." "But this individual initiative," he observes,
"may be the cause of abuse and misunderstandings." "Without doubt,"
replied Jacobi, "but what cannot be misunderstood has little meaning,
and what cannot be abused has but little force in use." Men may be
divided into two classes; the one exaggerates fear, the other hope and
courage. The former are circumspect, always in doubt, they fear the
truth because it may be misunderstood, they fear great qualities, lofty
virtue, because of the aberrations to which it may give rise; and they
have evil always before their eyes. The latter are the bold (who could
be called the irreflective in the Platonic sense) and they behave with
less exactitude; they are not so perplexed, they trust rather to the
voice of their heart than to any word from without; they build rather
upon courage than upon virtue, which generally keeps them waiting too
long. They sometimes ask themselves with Young: Is virtue then alone
baptized and are the passions pagan? "If," says Jacobi, "I must keep
to one of these classes, I choose the second." "Yes," he exclaims
elsewhere, opposing the abstractness of Kant,--"yes, I am atheist and
impious, yes, I will to lie, in opposition to the will that wills
nothing, as Desdemona lied when dying, I will to lie and to deceive
like Pylades, when he slew himself for the sake of Orestes; I will to
slay like Timoleon; to break laws and oaths like Epaminondas and John
de Witt; to commit suicide like Otho; to despoil the temple like David;
to pluck ears of corn on the Sabbath day, if only because I am hungry
and the law is made for man, not man for the law. By the sacrosanct
conscience that I have within me, I know that the _privilegium
aggratiandi_ for such crimes against the pure letter of the law,
rational, absolute and universal, is the sovran right of man himself,
the seal of his dignity, of his divine nature."[31] But it must be
remarked upon reading these effusions (most sincere, as all that came
from the pen of Jacobi), that they are rather manifestations of states
of the soul than theories, and therefore, strictly speaking, not to be
theoretically censured, as is the case with all affirmations that place
in relief one side of reality, without denying the others by doing so.
[Sidenote: _Hegel._]
Hegel discovered this, observing in relation to our last extract:
"Neither of the two sides can be wanting to moral beauty, neither
its liveliness as individuality, by which it does not obey the
dead concept, nor the form of concept and of law, universality and
objectivity, which is the side exclusively considered by Kant, by means
of the absolute abstraction to which he submitted liveliness, thereby
suffocating it. The passage cited as to the liveliness and freedom
of the moral life does not exclude objectivity, but does not express
it either." Hence the danger of the romantic attitude, which had no
need of exhortations such as those of Jacobi, for it already too much
preferred _magnanimous_ to _honest, noble_ to _moral_ action; and was
much inclined to free itself of the law itself under the pretext of
freeing itself from the _letter_ of the law. Meeting empirical with
empirical observations, Hegel also remarked that the examples of the
violation of laws due to the divine majesty of man, adduced by Jacobi,
were conditioned by the natural temperament, by actual situations, and
especially by circumstances of supreme misfortune, of supreme and rare
necessity, in which few individuals find themselves. "It would be very
sad for liberty if it could only prove its majesty and become actual
in extraordinary cases of cruel laceration of the moral and natural
life and in extraordinary individuals. The ancients, on the other hand,
found the highest morality in the life of a well-ordered State." Hegel
admitted that the affirmation of Jacobi, "The law is made for man, not
man for the law," contained a great truth, when it was intended to
allude in this way to the positive or statutory law. But the opposite
was also true, when the allusion was to the moral law, taken as
universal, outside of which, when the individual was separated from it,
there was nothing but appetites and sensible impulses, which can only
be means for the law.[32]
But we must not fail to recognize that Hegel does not avail himself of
this most exact distinction in his philosophy, for there the dominating
motive is respect for the laws and the tendency to attack individual
initiative. Hegel repeats many times with complacency the saying of
the Pythagorean, that the best way of educating a young man is to
make him citizen of a State ruled by good laws; and he remarks that
Herculeses belong to primitive and barbarous times, and that individual
valour has but a small field in times of culture. He was most averse
to criticism of and rebellion against the authority of the State; for
these did not seem to him to correspond to the reality of the spirit.
That surface is not the reality; at bottom all desire order; and it is
necessary to distinguish apparent political sentiment from that which
men really will, for within them they will the thing, but hesitate as
to particulars, and enjoy the vanity of censuring.[33] Men believe
that the State exists and that in it alone are particular interests
realized; but habit makes invisible to them that upon which our entire
existence depends. There is in short in Hegel, besides the philosopher,
a politician and moralist regretful of the excesses of revolutionaries
and of unbridled romanticism; and there is also in him the desire for
an exact inquiry into the function and limits of positive law.[34]
[Sidenote: _Recent doctrines._]
In recent times there have been many and very various manifestations
connected with the concept of this function and of its limits, and
it would occupy much space to enumerate and to illustrate them all.
We shall mention three, very distant and different. The first, which
belongs to the political and social field, is the doctrine of anarchy
and is opposed to laws of all sorts; it is a not purely philosophical
doctrine, though it involves philosophical questions.[35] The other
two, which more properly belong to the juridical field, are, the
assertion of the importance of laws and of the duty of defending their
existence, even where their violation by others does not interfere
with our individual interests, or when their defence costs individual
sacrifices (this was the argument of a vigorous little book by
Jhering);[36]--and by way of contrast the demand for a free creation of
the law by the judge (_die freie Rechtsfindung,_) which has given rise
to discussions that are yet burning, more directly provoked by a little
book of Kantorowicz (Gnaeus Flavius).[37]
[Sidenote: _Natural rights and their dissolution. The historical school
of rights._]
VI. If then there has not been a great gain in clearness of
fundamental concepts, as regards this part of the subject, there has on
the contrary been an indubitable advance in consciousness acquired as
to the mutability of laws and as to the consequent contradictoriness of
the idea of natural Rights. This, with its complement, the catalogue
of innate natural and inalienable rights of man, had great success in
the seventeenth century for political and social reasons, attaining
its highest development in the century following. But it may be said
that the doctrine of innate rights was liquidated by Kant in the
_Metaphysic of Custom,_ when he wrote the proposition that liberty is
the only original and innate rights, which belong to man through his
very humanity,[38] at the very moment when it was most energetically
affirmed in a practical form in the _Declaration of the Rights of
Man._ In the system of Hegel the constructions of natural rights began
to lose their rigidity; becoming indeed historical categories of
Ethicity or _Sittlichkeit,_ determinations of the spirits of various
peoples (_Volksgeister,_) which are in their turn determinations of
the Absolute or of the Idea. Owing to this view (without taking into
account his error of wishing to philosophize and to make dialectical
what is historical and empirical), Hegel connected himself closely
with the historical school of rights (Hugo, Savigny, etc.). This,
notwithstanding the exaggeration by which he seemed to deny the value
of the ideal demands made of rights, had the merit of shaking the old
conception of natural rights. This has retained its place in treatises
from that time onward in a more or less worm-eaten and unstable
condition by the force of inertia; or it has been preserved by Catholic
writers (by Rosmini not less than by the Padre Taparelli), whose
conception is of necessity but little historical; or it has reappeared
in those curious Catholics and anti-historians, the positivists
(Spencer, Ardigò). But that natural rights are nothing but _new_
historical rights in the struggle of their becoming, is a conviction
that has penetrated the general consciousness.
[Sidenote: _The comparison between rights and language._]
We also owe to the historical school the comparison between the
life of rights and the life of language; this was prepared by the
discoveries of comparative linguistic, which although substantially
correct, yet had, as we have observed, the defect of limiting itself
to the _grammatical_ form of both facts, not to their genuine and
direct reality. Jacobi, in the already quoted effusions of _Woldemar,_
had recourse to the same comparison, for other reasons and with a
more exact understanding of its terms; speaking there of the moral
infraction of laws, he wrote: "For such exceptions, for such _licences
of lofty poetry,_ the grammar of virtue has no definite rules and
therefore does not mention them No grammar, least of all the general
and philosophical, could contain in itself all that appertains to a
living language, and teach how, in every epoch, every dialect must be
formed. But it would be unwise to affirm that every one may speak as
they feel inclined." And again, "Virtue is free art; and as artistic
genius gives laws to art by its creations, so moral genius gives laws
to human conduct: just, good, noble, excellent, is what the just, good,
noble, and excellent man practises, achieves and produces in conformity
with his character; he _invents virtue,_ procures and generates
adequate expression for human dignity."[39]
[Sidenote: _The concept of law, and the studies of comparative Rights
and of the general Doctrine of Rights._]
VII. The study of the concept of law is also progressing, and
henceforth is not confined to so-called juridical laws and to
legislations and codes. Researches into primitive rights and into
those of savage and barbarous peoples, known as juridical Ethnography
or comparative rights, have greatly contributed to destroy many
prejudices; as also the attention that has been directed to facts
called social, that is to say, not strictly political. A school that
has had independent yet partly similar manifestations in England
(Austin, Sumner Maine, etc.) and in Germany, where it has taken
the name of school of _the general Doctrine of Rights (allgemeine
Rechtslehre,_ according to the denomination given to it by Adolph
Merkel), studies in particular the concept of law in its various
classes and subclasses; and from it there cannot but issue a more
correct understanding of the concept of law, as from the refinement
of political Economy into pure Economy has come, first Psychology and
then the Philosophy of economy. Meanwhile (and as far as we know)
the literature of the school, dominated as it is by the needs of
jurisprudence, maintains an empirical or _intellectualistic_ character;
and jurists, rather than philosophers themselves, are those that most
cultivate it. The distinctions and sub-distinctions of the laws are
conducted with subtlety, but are without solid foundation, because the
concept posited as basis of law is uncertain and arbitrary. Limiting
ourselves to a single example, let us mention Bierling, perhaps the
most philosophical of those various writers. Bierling first of all
excludes from the concept of law the modes of man's conduct toward
God, toward himself, and toward animals; but he gives no serious
reason for this. He then arrives, by a mere arbitrary act, at the
limiting of the concept of law to the manner of men's conduct among
themselves, and defines rights in the juridical sense (as he calls it:
"in general, all that men living together in any sort of community
reciprocally recognize as a norm and rule of this living together"). He
then introduces into the concept thus defined, not by deduction, but
as the result of a second arbitrary act, the concept of exteriority,
adding that, "the object of law is a definite _external_ procedure
of man toward man."[40] In all this is evident the bad influence of
jurisprudence and of its empirical preoccupations.
[Sidenote: _legalism and moral casuistic._]
VIII. Ethical legalism became a bitter question for Christianity,
precisely because of the contest between lofty Christian morality and
its legalitarian form, chiefly inherited from Judaism. In the ancient
world there is almost no trace of the question, just because the
struggle was never acute.[41] Hence the difficulties debated among the
patristics and the scholastics as to derogability from divine laws
and the consequent distinctions between a perfect and an imperfect
moral life, between precepts and counsels; and as recourse is had to
precedents in judicial questions, so here with these ethical problems
concerning exceptions made by God to the moral law, to the precepts
of the Bible (where some were not beautiful).[42] The practical needs
of confession give origin to books on casuistic, of which collections
exist dating from the fourteenth and fifteenth centuries. The
Reformation manifested aversion to these treatises: Luther said that
moral theologians had first extinguished in men the fear of God and had
then placed soft cushions beneath their hands and feet; and Melanchthon
lamented that the Christian Republic was honoured _theologastrorum
sententiis de conscientiae casiobus, inestricabilibus, ubi nunquam
non ex quaestione quaestio nascitur,_ and called them _conscientiarum
cauteria._[43]
[Sidenote: _Probabilitism and Jesuitic morality._]
The inconclusiveness of legalism was converted into a most powerful
poison by the Jesuits, with their _probabilitism,_ of which precursors
were not wanting in the Middle Ages, but it received definite form
from the Dominican Bartolomeo Medina in 1577. From that time onward
probabilitism began to be surrounded with a copious literature, which
continually increased in the course of the seventeenth century, to
decline in the century following. The opposition originated by the
Jansenists, whose capital literary document, the _Provinciales_ of
Pascal also dates from the seventeenth century (1656), was the period
of the greatest vigour of the doctrine. But if the most perfect
and most Christian moral conscience dwelt in the Jansenists and in
Pascal and if the absurd consequences to which probabilitism led
became clearly evident in that polemic, yet it cannot be said that
philosophically the error was finally superseded. Ere this could have
happened, it would have been necessary, on the one hand to destroy
all possibility of theological utilitarianism (which was impossible
to carry out in a religious and transcendental Ethic, owing to its
mystical and irrationalistic character) and on the other to destroy
legalism. Pascal himself (and St. Augustine, to whom he appeals) was
always confined in the legislative conception of morality; hence
he speaks of the laws of "not slaying," which it was necessary to
obey strictly, save in the cases established by God or when he gives
particular orders to put certain persons to death. The Catholic
Church, always astutely political, condemned without hesitation the
extreme _rigorists,_ who wish that the law should always be followed
and the extreme _latitudinarians,_ who think that any sort of
reasons, however slight and improbable, suffice for not observing the
law; allowing intermediate sects to discuss among themselves until
they were out of breath, that is to say, _the moderate rigorists,
the probabiliorists or tutiorists, the equiprobabilitists and the
probabilitists._ Sant Alfonso dei Liguori adhered to these last, who
were of opinion that it is always permissible to do what we wish,
provided always that there be probable reasons, though less probable
than those that militate in favour of the law. In his _Dissertatio de
usu moderato opinionis probabilis,_[44] he thus exposed the principal
argument of his thesis: _Peto ab adversariis ut indicent (si possunt)
tibinam legem hanc esse scriptam invenerint, quod teneamur inter
opiniones probabiles probabiliores sequi? Haec lex quidem, prout
universalis, deberet omnibus esse nota et certa: at quomodo ista lex
certa dici potest, cum communis sententia doctorum, saltem longe major
illorum pars, post tantum discrimen absolute asserant, hanc legem non
adesse? Usque dum igitur de tali lege dubitatum, opinio quod adsit haec
lex sequendi probabiliora, quamvis alicui videatur probabilior, nunquam
tamen lex dici potest, sed appellanda erit mera opinio, utpote ex
fallibili motivo deducta, quae vim nequaquam habet, ut lex, obligandi._
This doctrine still retains in our day very firm supporters among the
Jesuits (Cathrein,[45] Lehmkuhl,[46] etc.).
[Sidenote: _Critique of the concept of the licit._]
But if the destruction of theological utilitarianism has been brought
about by the criticism of the transcendental and by idealistic Ethic,
that of legalism, with its expression as the licit, the permissible,
or morally indifferent, appears in Fichte and in Schleiermacher. Kant
did not treat the question explicitly and, as observed, we can deduce
from certain of his utterances that he did not altogether abandon the
concept of the licit.[47]
[Sidenote: _Fichte._]