[1]SeeFilosofia della Pratica, part i, "L'attività pratica in generale," pp. 1-209.
[1]SeeFilosofia della Pratica, part i, "L'attività pratica in generale," pp. 1-209.
The distinctions of the practical activity—The autonomy of ethics: utilitarianism—The autonomy of the economic form: abstract moralism—Relations of the ethical to the economic form—Pleasure and duty, happiness and virtue—Importance of the economic principle—Philosophy and the science of economics—The ethical principle; material ethics—Ethical formalism; the universality of the principle—The object of the ethical will—Croce as a moralist.
The preceding chapter deals with the practical activity in general, with the general concept of will or action. We must now introduce in that concept a distinction analogous to that by which the theoretical activity has appeared to us first as the knowledge of die individual or intuition, then as the knowledge of the universal or concept. But here, again, we shall not employ the merely descriptive and psychological method, nor yet attempt to deduce this distinction from the analogy between the theoretical and the practical activity; we shall appeal once more to the immediate test of consciousness, which in fact reveals two distinct forms of the will, the economic and the ethic. Economic activity is the one that wills and realizes only that which relates to the conditions of fact in which theindividual finds himself; ethical activity, the one that wills and realizes that which, though related to those conditions, at the same time in some way transcends them. To one correspond individual, to the other, universal ends; on one is based the judgment on the coherence of the action in itself, on its adequacy to its individual end; on the other, the judgment on its adequacy to universal ends, which transcend the individual. If we recognise only the ethical form, we perceive very soon that it implies the other one, which we intended to exclude, since our action, though universal in its meaning, must always be something concrete and individually determined. We do not realize morality in the universal, but always a given moral volition, not the abstract virtues, but the concrete works. Although a moral action is not only our individual pleasure, yet it must be that, too, or we should never be able to realize it. On the other hand, the mere economic action, the satisfaction of our immediate pleasure, though it satisfies us in relation to our individual end, yet it leaves constantly unsatisfied that which we are beside and beyond our individual determinations, our deepest and truest being. And this dissatisfaction will last until we succeed in lifting ourselves above the infinite succession of individual ends, and in inserting in them a universal value. This passage or conversion from the purely economic to the ethic, from pleasure to duty, is designed by Croce as the conquest ofthat peace which is not of a fabulous future, but of the present and real; in every instant is eternity, to him who knows how to reach it. Our actions will be always new, because always new problems are put before us by the course of reality; but in them, if we accomplish them with a pure heart, seeking in them what lifts them above themselves, we shall each time possess the Whole. Such is the character of the moral action; which satisfies us not as individuals but as men, and as individuals only because the individual is a man, and as men only through the medium of individual satisfaction.
The denial of the autonomy of the ethical form, the attempt to reduce the ethic to the economic, the morally good to the individually useful, is the substance of the many theories that go under the name of utilitarianism. But this reduction of the practical activity to a single principle clashes in every instant of our life against the distinction between mere pleasure and duty, between the useful and the honest action, between the things that have a price and those that have none, between actions which have a moral motive and those that have only a utilitarian one. The utilitarians themselves, unable to pass over the distinction, have tried to explain it away as a purely quantitative one, defining morality as the utility of the greater number or as the interest or egotism of the race; but it is clear that these so-called quantitative distinctions are really qualitative ones: the utility of the greaternumber is no longer individual utility or immediate pleasure, the egotism of the race is no longer egotism, but a value which transcends the individual. A further attempt in the same direction consists in considering morality as born from the association between certain acts which are means to a pleasure, and that pleasure itself: a savage fights to defend his personal liberty or his life, a civilized man, forgetting that the tribe, or the city, or the state, are but means to preserve his life and his property, defends them for themselves, and allows himself to be deprived of both his property and his life for love of his country. But only through stupidity is it possible to mistake the means for the end, and, therefore, this theory actually reduces morality to what is practically irrational, a product of confusion and illusion; that is, to the contrary of the practical activity, which is, in its own sphere, rationality and wisdom. The mere enunciation of this theory, if true, ought to produce the dissolution of those false associations, and, therefore, the destruction of morality; if morality subsists, this is due to its rational character, which associationism has not succeeded in disproving. The last refuge of utilitarianism is in theology and mystery: the utility of moral actions is not of this world, but derived from the conception of another world in which God punishes or rewards us for our conduct on earth. But this kind of utilitarianism puts itself outside the field of philosophy, by emptying thesymbols of religion of their moral content, which is their only logical justification.
The converse form of error, which consists in eliminating the economic moment from the concept of practical activity, is criticised by Croce as abstract moralism. The economic moment has been regarded as purely technical, that is, as the theoretical moment that precedes action, action itself being always and only ethical; but some sort of knowledge precedes every action, and the distinction between the useful and the good cannot be reduced to that between knowledge and will; we can consider the useful as the means and the good as the end, only by forgetting that there is as much difference between knowing the useful and willing the useful, as between knowing the good and willing the good. The useful has also been identified with the egotistic and immoral; but the merely useful is amoral, and not immoral, in the same sense in which the pure intuition is alogical, and not either logical or illogical. The imagination of the poet cannot be submitted to the logical judgment, any more than the immediate pleasure of the child, or any action which precedes the awakening of the moral consciousness. And besides, the useful is so far from being immoral, that there is no moral action which is not also useful, as there is no logical truth which can express itself except through language. Finally, the useful has been defined as an inferior form of practical consciousness;but what this definition actually accomplishes is to recognise, though imperfectly, the true distinction, which is a relation of higher and lower only in the metaphorical sense in which these adjectives can be employed for the relation between the intuition and the concept.
Economics and ethics are the double grade of the practical activity: it is possible to conceive of actions having no moral value, and yet economically effective, but not of moral actions which should not at the same time be useful, or economic. Morality lives concretely in utility, as the universal in the individual, the eternal in the contingent. But we can never sufficiently emphasize the true character of the distinction, which, taken as a purely abstract and psychological one, might justify the persistence of morally indifferent actions within the moral consciousness. The moral consciousness, once it is awakened, invests the whole life of the practical mind, as the logical consciousness does for the theoretical mind, and it abolishes that condition of innocence, in which the purely economic is not yet subject to the moral judgment, in the same way as perception and reflection destroy our naïve belief in the reality of purely poetical imaginations. On the other hand, there are no actions which are economically ally indifferent, or, as they are generally called, disinterested; morality requires that the individual should transform a universal interest into his individual one, make of morality itself his personalutility, but it cannot ask for the abolition of all interests, which would mean the abolition of morality as well. The value of a moral action is in direct proportion with the passion and fervour with which we identify our individual ends with ends transcending our empirical individuality.
In the light of this distinction, the old oppositions of pleasure and duty, of happiness and virtue, lose a good deal of their rigour and sharpness. Pleasure as the positive economic activity or feeling can never be in real contrast with duty as the positive moral activity: a moral action brings with itself its own satisfaction or pleasure, and if it brings pain also, either the good action was not entirely good, not willed with all our heart, or it was accompanied by a new practical problem, which has yet to be solved. Similarly, happiness is not necessarily virtue, but there is no virtue which is not happiness; the sorrows of the virtuous are not intrinsic to morality, being but the limits of human activity, which the good share with the wicked. We all can transform our limits into sorrows, by our restlessness and unreasonableness; or, through resignation, our sorrows in limits and conditions of activity. Asceticism, which regards pleasure and happiness as essentially immoral, is the extreme form of moral abstractism; by destroying the economic category, it deprives morality of its reality and concreteness. It is, in fact, in the practical sphere, the counterpart of mysticism in thetheoretical, which makes thought impossible by dissociating it from expression.
The recognition of the autonomy of the economic moment as one of the fundamental forms of spiritual activity, and the study of its relations with morality, appears to me as Croce's most important contribution to modern thought. We have seen what light the problems of the ethical will receive, when they are seen in their unity and distinction with the facts of the economic, or individual, will. We shall see in the next chapter what a vast field of human activity, comprising the whole political life of mankind, reveals a new rationality, once it is regarded as a legitimate product of the human mind, to be judged according to its own standards and values, and not to standards and values belonging to a different order of facts. Croce's discovery of the will of the individual as the first grade, the elementary form of the practical spirit, is analogous to Vico's discovery of the purely intuitive activity as the first grade of knowledge; and it establishes between economics and ethics, between politics and morality, the same relation as between æsthetic and logical values. The æsthetically true is the adequately expressive, as the economically good is the useful; but in both cases, we can never repeat it sufficiently, once the logical and the moral consciousness are awakened, neither the æsthetic can be apprehended otherwise than as logically true or untrue, nor the economic otherwisethan as morally good or bad. The standards which are illegitimate when applied to art as art, to politics as politics, become rational again in the all pervading light of truth and morality. The predecessors of Croce in this line of his speculation are, on one side, the political writers who, from Aristotle to Machiavelli, attempted to define the relations between politics and morality; on the other side, the economists, who, by isolating a type of value, which was not an æsthetic, intellectual, or ethical value, and which could not be identified with the reverse of the ethical value, or egotism, had prepared the ground for the establishment of a philosophy of economics. As a matter of actual, historical derivation, it was from his study of Marxism, from his meditations on contemporary economic science, that Croce drew, as we saw in one of the first chapters of this book, his conception of economic value as one of the universal values.
After what has been said of the general relationship between philosophy and science, it will not be difficult to determine the place thateconomic scienceoccupies in Croce's thought, in relation to hisphilosophy of economics. Economics as a philosophical science is that branch of philosophy, the object of which is the economic activity in its universality, the determination of the concept of volition or action as the volition or action of the individual, that is, as the predicate of the economic judgment or judgment of utility. The economic judgment, in its turn, is but aform of historical judgment, and, therefore, the concrete form of the philosophy of economics is economic history, the history of the spirit of man as it realizes itself in the individual action or volition. Between that philosophy and that history, there is no place, as we know, for any intermediate form of knowledge, but only for the practical (empirical or abstract) elaboration, of the economic datum. This is what the science of economics actually is: an applied mathematical science, founded on empirical concepts. The postulates and types of economic science are among the most perfect examples of conscious fictions, beginning with the fundamental one of thehomo œconomicus: they are empirical concepts by which the economic reality is simplified to such an extent that it becomes possible to submit it to mathematical calculation, and thereby to recognise promptly its necessary aspects and consequences. Economic science partakes, therefore, of the rigour and absoluteness of mathematics, which is obtained, as we know, only by sacrificing the concreteness of its object. Its laws are arbitrary and tautological, consisting, like all scientific laws, in the definition of those characteristics of reality which have been abstracted to form its postulates or empirical concepts; but it is only through the acceptance of such definitions that it succeeds in dominating, ordering, describing, and classifying the mass and variety of economic facts and, most important of all, in treating them quantitively. It has, in fact, the same structureas another science with which it has been frequently compared, and which is here assumed as typical of the proceedings of applied mathematics—mechanics. I believe that very few economists would quarrel to-day with Croce's characterization of economic science, since its mathematical character is now universally recognised; but Croce proves conclusively that even in its non-mathematical phases, economics has always been a purely quantitative science. Volition and action are assumed in it in their indistinction; and moral facts being volitions and actions as well as the economic facts, they can also be included in the economic calculus, because from a merely abstract point of view there is no way of differentiating them from the latter.
Between the philosophy and the science of economics there is neither agreement nor disagreement, but a total heterogeneity, and, therefore, a reciprocal tolerance. It is only when one invades the field, or adopts the methods, of the other, that conflict and error arise. Economics as a science may then deny the legitimacy of the philosophical study of the economic moment; or it may attribute a universal value to its empirical concepts (as it has happened again and again in the disputes between free-traders and protectionists, or as it constantly happens when economic laws are referred to as endowed with a character of absolute necessity); or, finally it may transform its fictions into realities, attributing for instance to the concrete humanbeing, and to the exclusion of any other quality, the qualities it has abstracted for the creation of itshomo œconomicus. But, in all such cases, though we may meet these errors among the economists, they are not scientific errors but logical errors; or rather, they are poor science only because they are bad philosophy. The true function of the abstract economic schemes is that of an instrument in the hands of the historical and sociological observer, who needs many other similar instruments, if he wants to gain a concrete and direct knowledge of actual historical and social conditions.
It is now time for us to return, from this discussion of the two different elaborations of the economic datum, to a closer consideration of the second form of the practical activity, or of the ethical principle. In the same way as the empirical concepts of economic science are insufficient to exhaust the infinite wealth of the economic principle, no single action or group of single actions can define the ethical principle, which is universal, and therefore merely formal. By identifying the principle with a series, however vast, of particular determinations, that is, by substituting a material ethics for a formal one, we fall back inevitably into utilitarianism, since the volition of a single object or class of objects is not a volition of the universal but of the particular, not an ethical but an economic act. Even the highest forms of moral ideals, such as benevolence, love, altruism,humanitarianism, etc., once they are apprehended materially, and not as mere verbal approximations to the formal ethical principle, acquire a contingent and utilitarian character, and are apt to come in actual conflict with the truly moral will. The same criticism applies, and with greater force, to institutionalized ideals, such as the family, the state, the social organism, the interest of the race, etc.; none of them can be the object of the moral will without exceptions and restrictions, that is, without losing in the act of the will its institutional character, and appearing as one of the particular conditions under which the particular moral volition takes place. The religious principles themselves are subject to this reduction from the ethical to the economic, when, as in the case of theological utilitarianism, they are taken as empirical limitations, as particular objects, of the ethical will. The material ethical principles are in fact analogous to those material æsthetic principles which we have criticised as rhetorical; they constitute a rhetoric of the virtues not less deadly to the creative moral will than the rhetoric of the arts is to the creative intuition.
The ethical principle must be formal, but not formalistic, and therefore Croce is not satisfied with any of the so-called universal laws or categorical imperatives, or with any of the many formulas which attempt to define the moral actions through one constant determination which oughtto be present in each of them. Such formulas are mere symbols or metaphors, and can be used as the equivalents of the ethical principle, as some of the categories of material ethics can be used; but their danger consists in giving the illusion of possessing the true principle, while what we are given is an empty and tautological one, which will again give way to purely empirical determinations and therefore to utilitarianism. This empty formalism, or absolute indetermination, of the ethical principle, corresponds to two conceptions of philosophy, which Croce respectively calls partial and discontinuous. According to the first, man may know a portion of reality, but never reality as a whole; as regards morality, he may hear the voice of his own conscience, but never grasp with his intellect the content of the moral law. According to the second, he may know the reason of morality, but not within the sphere of ethics, whose task consists only in establishing the moral law and deducing the moral precepts; the problem of the essence of morality belongs to another science, metaphysics. The reader who has followed us to this point knows that Croce's philosophy is neither partial nor discontinuous; that he does not admit of any limits to human thought, nor of any division in the body of philosophy. The whole of philosophy is already included for him in the first philosophical proposition, and though it may didactically be useful to divide the problems of philosophy ingroups, or even to deal separately with the particular philosophical science on one hand, and with general philosophy or metaphysics on the other, yet truth does not belong to the distinctions outside their unity, to the parts outside the whole, to the segments outside the circle. It is this totality and continuity of Croce's philosophy that makes Croce's ethical principle a form, but not an empty one; a form which is full in a philosophical and universal sense, which is at the same time content, and universal as content not less than as form. He has defined the ethical principle, not, tautologically, as a universal form, but as the volition of the universal: a definition which is at the same time the distinction of the ethical from the economical form, or volition of the individual. We may here recall, to test once more the coherence of Croce's thought, and to make this definition clearer, his definition of the concept as knowledge of the universal; by it the concept is distinguished from the intuition, or knowledge of the individual, and the logical principle is seen as unidentifiable either with an abstract logical form or with any particular system of philosophy. The concept is real only in the infinite individual determinations of actual thought, as the ethical principle in the infinite concrete volitions of the human spirit sub specie universalis.
The universal which is the object of the ethical volition is not something that we shall need to define at this point of our exposition, since the wholeof Croce's philosophy is nothing but a definition of the universal. The universal is mind or the spirit; it is reality, as unity of will and thought; it is life grasped in its depth as that same unity; it is freedom, since a reality thus conceived is perpetual development, creation, progress. Man, in willing the universal, turns from his individuality to that which transcends it, to the spirit, or reality, or life, or freedom, not as abstract ideals, but as they realize themselves in his individual action. The volition of the individual, of one's individual existence, is necessarily the first step; there is no man, however deeply moral, who does not begin by affirming his own individual life; without this affirmation, he would never be able to transcend it and to deny it. But he who should limit himself to this affirmation, and accept as a place of rest what is only the beginning of his development, would find himself in contradiction with his real, intimate self. He must will not only his individual self, but that self also, which being the same in all selves is their common Father. It is thus that he promotes the realization of reality, lives the full life, and makes his heart beat with the heart of the universe:Cor cordium. The moral individual is conscious that he is working for the Whole. Every action which is in accord with the ethical duty is in accord with Life, and would be contrary to duty and immoral, if instead of promoting life, it should depress and mortify it. The most humblemoral action resolves itself into this volition of the spirit in its universality. The soul of a simple and ignorant man wholly devoted to his modest duty is in perfect unison with that of the philosopher whose mind receives within itself the universal spirit. What one does, the other thinks; and both reach by different roads their full satisfaction in an act of life, in a fecund embrace with reality.
It is in pages like the ones from which we have extracted this enthusiastic definition of morality, that the true quality of Croce's philosophy is best perceived. But what is here affirmed as a principle lives as an ever present spirit in innumerable able discussions of particular moral problems in hisFilosofia della Pratica, in his moral essays, in his literary criticism (there is no living literary critic who has a keener perception of moral values than this implacable enemy of moralism), in the whole of his work. It is this moral enthusiasm, together with his capacity to see clear and deep, his catholic tolerance for all forms of beauty and truth and goodness, however distant from his tastes and inclinations, and his courageous, outspoken intolerance for all hypocrisies, compromises, half-truths, wilful errors, that has given Croce, in the last twenty years, in Italy, a right to moral as well as intellectual leadership. He is the true heir of an infinitely complex moral tradition, and placed high enough to do justice to all its elements, though apparently contrasting with each other. But whenrecognizing the symbolical and practical value of the various positive ethical systems that appear to him as gradual approximations to the full concreteness and universality of the ethical principle, he emphasizes the connection of his own ethics with one of those elements in preference to every other, with the religious and Christian element, for which morality is already what it is for the philosopher, the love and will of the universal spirit. There is no truth of ethics which for him cannot be expressed in the words that we have learned as children from our traditional religion. Between the religious man and the philosopher, between religion and philosophy, there is no enmity, but continuity and development; in the affirmation of the ethical principle, which is the crucial test of every philosophy as of every religion, the substantial identity of religion and philosophy is finally established.
[1]See Filosofia della Pratica, part ii, "L'attività pratica nelle tue forme speciali," pp. 211-319.
[1]See Filosofia della Pratica, part ii, "L'attività pratica nelle tue forme speciali," pp. 211-319.
Economic society as an empirical concept—The philosophical concept of society—Sociology, philosophy of law and political science—The definition of law—Laws and customs—The laws, the natural laws and the practical principles—Mutability of the laws: thejus naturale—The function of the laws—Legalism: the Jesuit and the Puritan—The legislative activity as a generically economic activity—The juridical activity—Law and language.
One of the fundamental empirical concepts of the science of economics is that of economic society, which is formed by abstracting certain classes of economic relationships from the mass of relationships of all kinds among which the life of the individual realizes itself. Any treatise of economics can be considered as a definition of economic society; and we know how those definitions are apt to vary according to the choice of the groups of facts studied, and the method employed, by different schools of economists. The economic society of the Marxian is not the economic society of the classical economist; the Catholic economist, differing from both, will include in his treatment the consideration of certain ethical relations which give a greater complexity to his scheme. It would be possible to study the economics of the individual in perfectisolation from all other human beings, limiting the elements of this particular form of society to one man, and that portion of nature from which he draws his food, his clothing, his shelter; on the other hand, the whole of mankind and the whole of nature may enter into a single, all-including, economic body. We may even study animal species, in their relations within themselves, or with man, or with other animal species, or with nature at large, from an economic standpoint (symbiosis and parasitism are facts bearing a close resemblance with human economy)—and thus form an infinite number of new economic societies. Each of these empirical concepts can be variedad infinitum, by the mere inclusion or exclusion of certain classes of relationships.
The empirical, non-rigorous character of the concept of economic society is self-evident; and it can therefore be usefully employed to prove by analogy the similar character of the concept of society as manufactured by jurists, sociologists, and political scientists. It is against such fictions that philosophy reacts by building a concept of the isolated individual, that is, of the individual isolated from the particular classes of relationships which enter into the formation of particular empirical concepts of society; but it does this only to plunge the individual again in the midst of that infinite multiplicity, which is one aspect, and an essential one, of reality, Society as a philosophical concept cannot be identifiedwith any form of economic or political society; of such, as mere abstractions, no philosophical treatment is possible. Society is that real multiplicity, without which we should have neither knowledge nor action, neither art nor thought, neither utility nor morality; and from society in this sense, the individual cannot be isolated, without reducing him, in his turn, to a merely abstract concept.
The sociologist, the jurist, the political scientist use their concepts of society for their purposes, which are, in the sense which is now familiar to our reader, scientific purposes. But very often they lose sight of the character of these concepts, and treat these instruments of classification and description as substitutes for the actual reality which they are, by reason of their abstractness, utterly unable to reproduce. The sociologist talks of the collective mind, and of collective representations, as if they had a reality outside the thought and action of the individual; the jurist builds a philosophy of law, in which society is opposed to the individual as a being to another being, and law, as a product of society, at every point transcends the individual will. The political scientist deals with the community, or the association, or the State, as with concepts of which it were possible to give a philosophical definition, valid for all times, and from which the rules of perfect government could be rigorously deduced. Of these types ofphilosophical degenerations of legitimate scientific thought, it can be roughly said that, because of the peculiar cultural development of the various nations of Europe, the first belongs more particularly to England and France, the second to Italy and Germany; though they are all more or less common in European culture as a whole. As an Italian, Croce was particularly interested in the second, the philosophical degeneration of juridical thought, and therefore his particular treatment of the economic facts underlying the problems of political society naturally took the shape of an inquiry into the nature of law. But it ought not to be difficult for the English or American reader, for whom these problems are not part of a practically inexistent philosophy of law, but of a long tradition of political science and theory of government, to translate Croce's thought into terms of his own cultural experience.
A law is an act of will, whose content is a series or class of actions. This definition excludes from the concept of law any empirical social determination; it includes within it all laws which are merely individual, the laws that the individual lays down to and for himself, the rules of conduct and programs of life and action, which the individual follows of his own accord. It may be objected that individual laws differ from social and political laws, because the latter are coercive and constrictive, while the former are not. There is no law, however, that is trulycoercive; the individual is always free either to observe or not to observe the law. What a law does is to offer a choice or alternative, and this is as true of individual as of social laws. We may disregard our own rules of conduct or programs of action, and suffer from doing so, and inflict a punishment on ourselves for having done so; or we may alter our individual laws as social laws are altered when they no longer respond to the need of a community, and are either violently overthrown by rebellion or quietly allowed to fall into desuetude through non-observance, or modified by the proper organs of legislation. But the importance of the concept of individual laws lies in the fact that the so-called social laws have no reality outside the individual: in order to observe a law it is necessary to make it one's own, and to rebel against a law is to expel it from one's personality, of which it was, or tried to become, a part. The only real laws are, therefore, individual laws.
If the criterion of sanction or coercion is insufficient to draw a distinction between individual and social laws, we can still less use it to divide the social laws into customs or unwritten laws, and political and juridical laws. Both customs and laws carry with them sanctions, though of a different order, or, to put it in more precise terms, both offer a choice between probable consequences to the free individual will. This distinction, like every other subdivision of the laws (civil, penal, national, international, lawsand by-laws, etc.), is a purely empirical one. But the concept of law comprehends these and many more in which the jurists have no interest, such as the literary or artistic laws (that a tragedy should have five acts, or, as at one time in England, that a novel should fill three volumes), or the rules of religious life, or the precepts of chivalry, down to the statutes of a criminal gang and to Balzac'sdroit parisien. In fact, the empirical distinctions of the laws are coextensive with the empirical concepts of society, and partake of the same characteristics: to the preceding examples of laws correspond respectively the republic of letters, a monastery, the order of knighthood, a band of robbers, andle beau monde. But the only reality, both of the society and of the law, is the individual assent.
The laws have one point in common with the so-called natural laws; both are concerned with empirical concepts, or classes. But while the natural laws are mere indicative statements of fact, the laws can always be translated from the indicative to the imperative; that is, they contain a volitive element which is absent from the natural laws. The volitive element is present, on the other hand, in the practical principles which have some time received the names of moral or economic laws, and which can be converted into such imperatives as Will the universal, or, in particular, Will the good, the useful, the true, the beautiful. But these principles are concerned with the universal, that is, with the spirit of man in thenecessary forms of its activity, not with a particular product of the spirit, a class or type of actions, as do laws in the strict meaning of the word. This distinction between the practical principles and the laws opens the way to the recognition of a very important character of the laws: while the practical principles, because of their universality, have no limits and no exceptions (and we have already seen that a morally indifferent action is a contradiction in terms), the laws can never exhaust the universal, and therefore will always leave outside themselves a margin of actions, not included in any of the classes to which they refer, and therefore legally indifferent. In more technical language, we may express the same idea by saying that all laws, whether imperative or prohibitive or permissive (a law, according to the ancient formula,aut iubet aut vetat aut permittit), can be reduced to permissive laws: an order is always at the same time a prohibition, and both orders and prohibitions implicitly permit all actions which are not contemplated by the law.
Moreover, while the practical principles are immutable, always capable of giving form to the most varied historical material, the laws are in perpetual flux and change. The particular modes of change, whether by evolution or revolution, do not concern the philosopher, for whom all can be reduced to a angle one: the free will producing a new law under new conditions. Against the perpetual mutability of the laws, due to the contingent and historical characterof their content, clashes the concept of an Eternal Code, or Law of Nature (jus naturale), which presumes to determine the content and form of the laws, according to abstract reason, once and forever. This conception is due to an error with which we are now familiar, consisting in the transformation of empirical concepts into principals of universal validity. But from this particular error, as from all errors, we must distinguish certain elements of actual and concrete thought which have been historically associated with it. In the attempts to establish a Law of Nature, we shall then recognise either new concrete legislative programs, the new laws appearing as natural and rational by contrast with the old ones, or an attempt to deduce from, and through, juridical concepts, the principles of a philosophy of the practical. The principle of nationality, fighting for realization against the old dynastic law, appears to its defenders as a typical natural right; and Rousseau, when deducing the principles of thejus naturale, warns us that he is not dealing with historical truths, but with hypothetical and conventional reasonings, that is, with principles which transcend every particular determination and have not a positive, but an ideal value. We no longer speak of a Law of Nature, but the error which gave rise to that conception is still vigorous in current social and political discussions; every attempt to change legal conditions is always advocated or resisted by an appeal either to natural rights, which are but arbitrary rationalizations of historicalcontingencies, or to abstract reasons, principles, or ideas, of which the particular laws or institutions are assumed to be the final and necessary expression. But rationality, morality, and naturality, in the sense in which these qualities are predicated of one or another type of laws and institutions, do not belong to any particular historical determination more than to another; they belong only to the spirit of man and to the concrete values that it realizes among the ever-changing conditions of history.
A law, being a volition of a class of actions, and therefore of an abstraction, is in itself an abstract or unreal volition. What we actually will is not the law, but the single, individual action under the law: the reality of the law is only in its execution. In the individual execution, however, what realizes itself is not the law, but the practical principle, economic or ethic, of which both the observance and the non-observance of the law are particular determinations; the individual practical problems can never be foreseen seen by the law, which is by its nature general and abstract. What is then, it may be asked, the use of the laws? Croce's answer is that the laws are helps to the real volition, in the same way as the empirical and abstract concepts, though not real knowledge themselves, are helps to knowledge. In order to determine ourselves to the single action, it is useful to begin by fixing our attention to the class of which that single is an element; in order to know either the individual, or the universal, it is useful to create, between theuniversal and the individual, classes and types, general concepts, or, as Croce calls them, relatively constant variables, through which the process of actual knowledge is made easier and quicker. We cannot think the pseudo-concepts, but they help us to think; we cannot will the laws, but they help us to will. The concept of law is akin to that of plan or design; in practice, a plan or design, and its execution, are one and the same thing, as we act by constantly changing our design, because reality, which is the foundation of our action, is in perpetual change. But this unreality of the plan, as distinct from the concrete individual action, does not deprive the plan itself of its practical uses, which are universally recognized, and which are identical with the uses of law.
When we identify the empirical laws with the universal practical principles, economic or ethic, we fall into "legalism," which can be defined as the belief that universal principles can be definitely embodied in a limited number of laws, and that, on the other hand, these laws partake of the character of absoluteness which belongs to those principles. It is especially in the treatment of ethics that this confusion has caused its worst effects. The two outstanding types of legalists are the Jesuit, who admits of the morally indifferent, the justification through the intention, the pious fraud, and other practical means for the purely literal observance of the law, supposed to be a sufficient satisfaction of the moralobligation, and the Puritan, who maintains that the unchangeable letter of the law is the only, and always certain, guide of the moral consciousness. Both Jesuit and Puritan, or to give them the names they assumed in a historical controversy, both Molinist and Jansenist, have often been in practice much better than their theories; but we are here interested only in their theoretical pronouncements, which, though apparently contrasting, yet combine in substituting the letter for the spirit, and in drying up, in the name of morality, the living springs of moral activity. And in both cases, moral legalism is associated with theological utilitarianism; it is, in fact, but another aspect of the same error.
The will that wills classes of actions, the legislative activity, is either moral or merely economic, and can therefore be judged as either moral or immoral, economic or anti-economic. But as the laws are will in the abstract, our judgment of the laws will also be an abstract judgment. To pronounce a concrete judgment, we must turn to the moment of the execution of the law, to the individual practical action, in which the law realizes itself. In this sphere, it is vain to dispute whether a law is essentially economic or moral: the economic or moral character of the law is not determined by the abstract intention of the legislator, but by the manner of its execution, by the quality of the individual executor. The punishment which a law assigns for a category of crimes may be intended by the legislator either to deter or to emendthe criminal; but in the man who abstains from that particular kind of crime, the law is an economic one if the abstention is entirely due to the fear of the punishment, it is a moral one if it coincides with a sincere abhorrence of the crime. No law, therefore, can be said to be intrinsically moral, and if we want to define the legislative activity in its full extension, we must define it as generically practical or merely economic.
The same definition obviously applies to the will that executes the law, as distinct from the will that formulates it: the juridical activity, as Croce names it, is also generically practical or merely economic, and as such united to and distinct from the moral activity. As the juridical activity, however, does not partake of the abstractness of the legislative, but is as concrete and determined as the economic activity, there is actually no possibility of distinguishing the one from the other; the juridical activity is therefore identical with the economic activity. This is Croce's original solution of the fundamental problem of the philosophy of law; a solution which is closely connected with his recognition of a utilitarian practical category, distinct from but not opposed to the moral category, and with his reduction of all laws to individual laws. The reader must recall what has been said elsewhere of the relations between economic and moral values; and he will then understand in what sense it can be said that Croce's theory of law is an answer to the secular disputes on the relationsbetween law and morality, between positive and ideal law, historical law and the Law of Nature. And he will also be able to perceive the difference between the reduction of the juridical to the mere economic activity, which, as we know, is also the form through which only morality realizes itself, and the theories of law as the pure embodiment of force and of the positive, established right as the only conceivable right, which are nothing but the counterpart of moral utilitarianism in the field of law. Croce's theory of law is, as all the rest of his philosophy is, a purely formal doctrine; not intended to defend one type of laws and institutions against any other, but attempting to furnish a conception of law, as an individual, perpetually new activity of the spirit of man, of which all laws and institutions, all phases and tendencies of political history, appear as concrete historical manifestations.
The philosophy of law has often had recourse to the philosophy of language for analogies by which its own problems could be clarified. A doctrinaire view of the juridical and political problem, for which the origin of law and society is to be found in an abstract convention, and which therefore tends to build up, by new conventions, a model legislation, or an Eternal Code, shows its real nature when related to the corresponding conception of language as a collection of signs, a purely symbolical organism, which can be so perfected by reason as to become an absolute, universal language, embodying in its signs everyconceivable type of logical operations: a universal language, which should also be a universal symbolic logic. Sharply opposed to the doctrinaire, the traditionalist views certain types of positive laws and institutions as endowed with a character of necessity which puts them above the reach of the individual judgment of man; and as he fails to discover the ever present creative activity, by which man constructs his juridical and political world, he also withdraws from the human spirit the power to create its own language, and makes of words a divine institution. Equally remote from the sociological as from the theological concept, which are the extreme theoretical forms of popular errors, Croce establishes between law and language an analogy by which both manifest their intrinsic creative and human character. The reality of law is the individual juridical or economic activity, as the reality of language is the concrete intuitive activity. Law is the will of the individual, as language is the knowledge of the individual. Grammars and dictionaries are the codes of language, mere abstractions from the actual living flux of the creative expression, as the written laws and codes are but the grammars of law, mere abstractions from the actual living flux of political history. Language is not logic, and yet the logical thought cannot realize itself except through language; law is not morality, and yet the ethical activity cannot live except by incorporating itself in laws and institutions, and in the execution of laws,the concrete, individual life of institutions, that is, in the juridical and economic activity.
Thus, the end of this exposition of Croce's system, the doctrine of language with which the system opens links itself intimately with this doctrine of law, with which it closes. And both as regards language and as regards law, the last word is, of necessity, a new implicit affirmation of the identity of the philosophical with the historical method. The true history of a language is not a history of abstract grammatical schemes, but the history of the poetry and literature in which that language has realized itself, a history of individual expressions; the true history of law is one with the social and political history of a people, which is, and cannot be but the history of its practical activity in its effective, individual realization, that is, juridical and economic history.