More prosaic and less imaginative scientists do not see evidences of psychology in the signs of life in the protista, or ethics in the movements of a cell, but merely the effects of universal chemical and physical laws which also control lifeless inorganic matter. To these laws they trace the tropisms of simple organisms which tempt the imagination, prone as it is to anthropomorphism, into errors; such tropisms, that is to say, as their tendency to seek moderate warmth, certain rays of light and weak alkaline solutions, or to avoid acids, heat and ultra-violet rays. The little organisms probably do not obey these impulses for reasons of pleasure or pain any more than the iron filings obey the attraction of a magnet for such reasons. They do not fly to it because it gives them pleasure; the little metal leaves of an electroscope do not move apart because contact with each other displeases them. All forms of tropism, chemicotropic, thermotropic, phototropic manifestations, active and passive tropisms clearly show that minute organisms involuntarily and unresistingly respond tothe influence of natural forces, just as if they were inanimate particles.
Microscopic investigations reveal many phenomena which one is tempted to consider signs of life, but which cannot be such, as they occur in connexion with inanimate matter. The Brownian movements are rhythmical molecular changes of position, not due to any mechanical impulse emanating from the surroundings, nor to a current in the fluid in which the object of investigation is immersed, but arising from the object itself, mostly very finely divided, tiny balls of mercury. A very small drop of chloroform introduced into a fluid of different density behaves exactly like a unicellular organism. It sends out pseudopods, wriggles and draws them in again. The pseudopods seem to feel and examine particles of matter with which they come in contact, and then either to withdraw quickly from them or to surround and incorporate them in the drop. This is deceptively similar to the behaviour of a living cell absorbing food, though there can be no question of this in the case of the drop of chloroform. In the latter it is merely a question of the effects of surface tension, that is, of the normal behaviour of matter in accordance with the laws governing the forces of nature, the investigation of which lies in the domain of chemistry and physics.
Impartial thought comes to a conclusion about these phenomena different from that derived from anthropomorphic delusions. It does not try to smuggle dim, dark life into the collections of mercury molecules apparently obeying some inner impulse, orinto the seeking or feeling about of a pseudopod of chloroform. On the contrary, it understands life as the play of natural forces under the conditions supplied by a living organism, as the automatic working of a machine-like apparatus to which natural forces supply the motive power. Similar manifestations in inanimate matter and in elementary organisms seem to justify the conclusion that the distinction between living and non-living matter is arbitrary, that there are only forces, or perhaps one single force, that is to say, one movement, in the universe, whose activity is manifested in the most manifold forms, of which life is one. Modern Monism has come to this conclusion, but it is not alone in so doing. Long before Monism there was a philosophy which conceived all cosmic energies to form a unity; and really it is only an obstinate quarrel about words, for the Hylozoists regard the universe as something living and ascribe life to all matter and all atoms of which matter is made up, while the Materialists regard life as a play of forces in matter. Fundamentally the Hylozoists and Materialists hold the same views, only that the former call force life and the latter call life force; just as the only point of difference between them and the Pantheists is that these have given the majestic title of God to the universal life they assume—as Spinoza has it, "Omnia quamvis diversis gradibus animata sunt."
The question, what is life? is the greatest that the human understanding can ask of itself. For thousands of years man has cudgelled his brain over this, and is as far from finding an answer to-dayas he was on the first day. The definition most often repeated runs thus: Life is the ability possessed by certain bodies to react to stimuli, to absorb nourishment and to reproduce themselves. That is a statement of observed facts, but it is no explanation. It informs us that we are familiar with bodies which behave in a way distinguishing them from other bodies; but why they conduct themselves differently from others, what the particular thing is which is present in certain combinations of matter and absent in others—that is an impenetrable secret.
Science has tried by the most varied methods to solve the problem. It seemed a triumph of research that Woehler produced urea, that chemists later on manufactured carbohydrates, that Fischer is on the high road to the production of synthetic albumen. What is gained by these discoveries? We bring about the same combinations as the living cell does. That is, no doubt, an interesting achievement, but its value as an addition to our knowledge on this point is infinitesimal. For we accomplish the production of sugar, urea and amine in a manner very different to that of the living cell, and he who copies the things turned out in a workshop has contributed nothing to our knowledge of the workman who plies his trade in the workshop. The dividing line between life and lifelessness was supposed to have been obliterated when elementary manifestations of life were proved to exist in inanimate matter; the Brownian movements in the smallest particles; the growth of crystals immersed in a solution of the same chemical composition as themselves; crystallization itself whichrepresents a kind of very simple organization of matter, and at any rate proves the sway of a regulating and directive force; the tendency of certain elements to combine, which has been called their affinity. But this name is only a poetical metaphor which no one will take literally. The growth of crystals in their mother liquor is merely mechanical precipitation on their surface, an external addition of layers of the same material; but not growth by the incorporation of such matter, that is, through the absorption of nourishment.
These and similar results of observation do not suffice absolutely to justify the assumption, seductive though it be, that life is a fundamental attribute of matter, that it is present everywhere though graduated in intensity, that therefore apparently inanimate matter differs not qualitatively, but only quantitatively from living beings, that life stretches in an unbroken line from the block of metal or rock, in which it is completely obscured, to man, the most highly developed organism we know of; and that at a certain point in its range it reveals itself in a form which permits no distinction between organic and inorganic matter.
The origin of life is as completely unknown to us as its essence. For thousands of years the assumption was lightheartedly made that under certain, somewhat vague circumstances, life originated of its own accord. Pasteur showed that ageneratio spontaneacannot be proved to exist, that every living thing comes from another living thing, a parent organism, and that the old philosophers were right inpropounding "omne vivum ex ovo" as a law, although they only guessed it and had not proved it experimentally. A very few critics, who are hard to convince, still dare to assert in a small voice that Pasteur's work and all the facts established by microbiology do not prove conclusively that life does not nevertheless originate from inorganic matter under conditions which we cannot nowadays reproduce in our laboratories. No answer can be made to this objection. An experiment is only conclusive for the conditions in which it is made, and not for others. All that we can positively assert is that on earth the genesis of life without a demonstrable parent organism has never been observed. To go farther, and to assert that ageneratio spontaneais absolutely impossible under any conditions, on earth or elsewhere, is arbitrary, just as it is to assert the contrary.
Those who are supporters of the theory that life can be developed from non-living matter for a long time thought they had conclusively proved their case; they argued as follows: At the present time life exists on our planet; according to the Kant-Laplace hypothesis our planet was formed from a cosmic nebula and passed through a state of fluid incandescence; in this state life is impossible; therefore life must have originated spontaneously one day after the Earth had cooled down; consequently either the Kant-Laplace hypothesis is wrong or the assertion that life can only be generated by life is erroneous; the two assumptions are incompatible. This conclusion no longer presents any insuperable difficulties. It has been observed that spores which have been kept for months at the temperature of frozen hydrogen, that is, very nearly at absolute zero, have retained their germinative power and have developed when they were brought back to a favourable temperature. Therefore they would not be killed by the cold of interstellar space on their way from one heavenly body to another, and could become the seeds of life on another hitherto inanimate star. That large numbers of tiny particles of matter exist in interstellar space and are precipitated on the heavenly bodies is proved by the cosmic dust that arctic explorers have collected from the surface of snow and ice. Therefore the Earth may well have been in an incandescent state, and may yet have received from interstellar space the germs of life which developed and multiplied when the Earth's crust had cooled sufficiently to provide the conditions favourable to their existence; and these germs may have been the ancestors of all the life that exists on earth to-day after a period of evolution lasting hundreds of millions of years.
This would account for the origin of life upon the Earth, but not of life in general. The germs, which travel as carriers of life from an older heavenly body to a younger one, must have sprung from parents, and however far back we trace their genealogical tree we are always finally faced by this dilemma: either life did, after all, originate at one time from something lifeless, and what has happened once must be able to happen again, now and always; or life never originated at all, but has always existed; it is eternal like matter, in forms whose variety we cannot even dimly grasp, its threads, having neither beginning nor end,wind through eternity. Of these two assumptions the latter is incomparably more in harmony with our present-day views on the universe. We believe the matter of which the universe is built up to be everlasting. It costs no great effort to believe life to be eternal too. True, the idea of eternity is inconceivable to us; it is a dim conception which has given rise to a word, a tone picture which portrays something indefinite, but within the bounds of the inconceivable there is room for both semi-obscurities, the everlastingness of matter and the everlastingness of life.
But the most enigmatical point in the riddle of life is not life itself, which is a form of being, and is neither more nor less comprehensible than the existence of an inanimate object, of a stone, of water, of the air; it is consciousness. Descartes proves his own existence to himself by the fact that he thinks. Life must be accompanied by consciousness in order to convince the living being that it exists. The formula: "cogito ergo sum" has been admired for hundreds of years. It certainly is specious. But how many questions it leaves unanswered! Has it the right to deny life to an entity that does not conceive itself? Must it not be completed by the proof that life without thought, that is, without consciousness, does not exist, that consciousness is the necessary complement of life? And, above all, ought not Descartes to have given us an explanation of what thought and consciousness are?
I will attempt to answer the questions left unanswered by Descartes. But I must premise onething. Every definition of consciousness implies a postulate: life. Though at a pinch we can picture life without consciousness, consciousness without life is absolutely inconceivable. I do not undertake to explain what life is, any more than I attempted it above. We must take it as something given. Consciousness, then, is the subjective realization of something objective, the inward realization of something outside. If in a living being a picture of its surroundings is developed, then it absorbs something which is not a necessary part of itself. Of course, this inner image must not be understood to imply an absorption of matter. It is a process in the matter of which the living being is built up. But, all the same, the image of the outer world in the inner being does signify a penetration of the latter by the former. This image, which follows the changes of the outer world and repeats them in the inner being, is consciousness. It may be shadowy and blurred, or clear and distinct; it may in rapid succession be formed and pass away, and it can be preserved as a memory; it may reflect a greater or a lesser portion of the outer world; consciousness is accordingly duller or sharper; its contents are scant or plentiful, it retains the images of a shorter or longer series of conditions in the surrounding world. Between nutrition, which is recognized as an essential phenomenon of life, and consciousness a surprising parallelism subsists. Both consist in an absorption of the outer world by the organism; nutrition is the assimilation of matter, consciousness that of stimuli. In the process of nutrition the organism digests small quantities of the outsideworld; in consciousness it digests the world as a whole.
This parallelism is no mere play of the intellect. If it is followed out it leads to significant ideas if not to actual knowledge. What penetrates from the outer world into the inner being of the organism is vibration, movement, force. Is the matter which is absorbed as nourishment ultimately anything different? Here we come up against the ultimate problems of physics, the various hypotheses regarding the nature of force and matter, the theories that in addition to matter there is an ether, or that the ether is a different, more subtle, form of matter, or that neither matter nor ether exist, but atoms out of which everything is built up, which themselves consist of electrons which are centres of force, motions without material consistency. All these theories, of which the last cannot be grasped by the human understanding, we can leave severely alone. This is not the place to investigate them. But the attitude of the living organism towards the outer world from which it absorbs nourishment and impressions, converting them into power to drive the life machine and transmuting them into consciousness, lends peculiar support to the supposition that force and matter are not only inseparable but identical, that in them we must seek a principle, or perhaps regard them themselves as a principle, which must be of the same nature as consciousness, for otherwise it could not be transmuted into the latter.
The senses are the means by which the outer world penetrates as an image into the inner being. Beforethe senses are differentiated the living organism possesses a general sensitiveness; that is to say, that under the influence of the outer world its cell protoplasm undergoes a process of regrouping, resulting in chemical and dynamic changes. The chemical results of stimulus are anabolism and katabolism, a building up and breaking down of the cell content; the dynamic results are movements which in the lowest forms of life are purely mechanical, but in the higher forms adapt the organism to the external influence in so far as they place it either so as to be affected by the latter as long and as powerfully as possible, or else so as to evade it. The living organism can experience no stimulus and respond to it without absorbing and transmuting it, converting it into a chemical process or a movement. This inner process is a subjective realization of something objective, a penetration by the outer world, therefore an elementary consciousness. In proportion as the general sensitiveness becomes differentiated into specific ones, as the image of the outer world filters through the different coloured glass panes of the various senses into the inner being of the organism, this image becomes multicoloured and varied.
It lies in the nature of this mechanism that the subjective image is not identical with the objective original, but is modified and even distorted by the panes through which it penetrates to the inner being of the organism. What the subject perceives is never anything but a symbol of the object, never the object itself; but this symbol suffices to enable the consciousness to form an ideaof the object, just as letters enable the reader to take in words and thoughts. We must conceive the development of consciousness to go hand in hand with that of the senses. The more windows the organism can open to the outer world the more easily and the more clearly does its image penetrate. The number of objects which the subject can take in is the measure of the perfection of its consciousness. The protista, lacking specific sense organs and possessing only the general sensitiveness of protoplasm, can form only to a very limited extent and with very little variety an inner realization of the stimuli of the outer world. Its consciousness is necessarily very restricted and exceedingly dim. Consciousness is enlarged and grows clearer as the organism develops and its general sensitiveness is differentiated into specific senses, until we reach the level of man whose consciousness embraces far more of the outer world than does that of any other living creature; because, lacking new senses, he has succeeded in amplifying and enlarging those he possesses, and has by artificial means made himself capable of perceiving stimuli to which he is not directly susceptible and which therefore would have remained unknown to him; to a certain extent he has translated them into a form which his senses can perceive.
I do not overlook any of the difficulties which my attempt to explain consciousness leaves untouched. On all sides the most urgent and disquieting questions arise. Above all, the fundamental question, the most enigmatic of all: how is an external stimulus, that is a movement, a vibration, converted into a sensation, a perception? Further: must we in the consciousnessdistinguish between the frame and its contents, the conceptual mechanism and the concept? Or do the two coincide? Is there no consciousness without a conceptual content? And is it the movement entering into the organism, the inner realization of the outer world which, transmuting itself in an incomprehensible manner into a concept, creates consciousness, becomes consciousness? Is the consciousness of the man standing upon the highest plane of intellectuality the greatest consciousness possible? Does there exist anywhere in the universe a more abundant, perhaps an infinitely more abundant consciousness than that of human beings on the Earth, and will the latter ever rise to this height? It is obvious that a development is in progress. There was a time when the most comprehensive, the clearest consciousness on earth was that of the trilobite or the cephalopod. Evolution has gone as far as man. Does it stop at that or will it continue?
According to Herbert Spencer evolution is progress from the simple to the complicated. Let us accept this definition. Have we the right to set up a scale of values and place the complicated above the simple? Is the latter not the more perfect because it has more power of resistance, greater durability, and can hold its own triumphantly against all destructive influences? Is not evolution, then, a retrogression from the perfect, because simple, to the more complicated, and therefore more fragile, more easily upset and less capable of resistance to harm? Is it not sheer egocentrism if we appraise the value of living beings according totheir greater or less resemblance to ourselves, and judge them to be less or more worthy in proportion to their disparity with us? Are the fish which, living in the sea wherein we cannot exist, can inhabit the greater part of the globe, are wild duck which fly, swim and walk, not more perfect than we, who have had to conquer the air and the water by artificial means? Is not the mouse's hearing sharper than ours? The eagle's sight keener? The dog's scent incomparably more delicate? Has not the carrier pigeon an infinitely better sense of locality than we have? Are not many beasts physically stronger, more nimble and agile than man? His only claim to superiority rests on the greater perfection of his consciousness. Why do not all living creatures participate equally in the evolution to which this superiority is due? Why does it not take place in every organism and lead the unicellular living being in an unbroken ascent to the level of Goethe or Napoleon, or to a still more lofty one, if such an one exist anywhere in the universe?
If one could believe in a Ruling Power and the plan of the universe as its work, would it not be terribly cruel and revoltingly unjust that this power, instead of treating all living beings alike, should make a kind of selection of grace and lead some up to a higher level while it condemned others to lasting lowliness, and that it should ordain that on the road from the unicellular organism to man, countless connecting links should be left hopelessly behind and not be permitted to continue their ascent? Or must we admit the humiliating conclusion that a greater amountof consciousness does not necessarily imply higher rank and greater dignity, and that a protista, with its almost unimaginably pale and narrow consciousness, can have just as great a feeling of well-being as man with his immeasurably superior intellectual life; that therefore the protista suffers no wrong if it never gets beyond its present stage of evolution; and finally that the amount of the outer world which man can absorb in his consciousness is as far removed from the entirety of the universe as the contents of the protista's consciousness are from that of the human mind? No answer can be found to these questions. Whatever purports to be an answer, be it introduced as theology or as philosophy, is visionary or nonsensical. We must resign ourselves to moving in a very small circle moderately illuminated by Reason, while all around, if we seek to penetrate beyond it, we perceive gruesome darkness.
Evolution, that is a progress from the comparatively simple to the more complicated, is a striking fact—I say comparatively simple advisedly, for even in the unicellular organism the processes are far removed from the absolutely simple. We do not know from what part of the organism the impulse to evolution comes. Here we meet with the same mystery which shrouds growth, its duration, its measure and its bounds. As the conception is lacking, a word has been found, viz., entelechy, which Driesch introduced into biology, the co-operation of all parts of the organism for the purpose not only of preserving it but also of making it more efficient in the matter of self-preservation and more perfect. A critical investigation of entelechy would involve the broaching of the whole question of life. It does not come within the scope of this work. I shall therefore content myself with a very few remarks. Entelechy works as if it were reasonable and acted with a set purpose. If you think it out exhaustively it forces you to the assumption that life is an intellectual principle, even in the protoplasm of the cell, long before there is any perceptible trace of consciousness; that this intellectual principle makes use of matter, builds it up, organizes it, moulds it into material and tools for construction, and sets up a mechanism in which and by which it develops itself. As far as we can see the purpose of life is life itself. Entelechy directs all the work of the organism in such a way that it becomes more and more capable of self-preservation, that its efficiency becomes greater, that it can absorb more of the outer world and can react more vigorously upon the outer world. In other words, life strives continuously to make its embodiments more permanent, securer, richer and more manifold.
However, if we do not know how the impulse to evolution originates, we can at least form an idea of the mechanism of evolution. Fundamentally life consists in the absorption of cosmic movements or vibrations, and their transformation into another form of movement. The living cell is a machine which makes use of cosmic energy for physio-chemical work. Metabolism, warmth, electric manifestations, movement, and as their concomitant a graduated consciousness, are the result of this work which is carried out by cosmic energy in the cell power machine.
To start with, this machine works in the very simplest fashion. It uses up its motive power as fast as it acquires it. Energy flows in and immediately flows out again in another form. The organism is like a pipe or a vessel without a bottom, so that its contents cannot be stored. The lower organisms which obey tropisms are such bottomless vessels. They are continually and inevitably subjected to the same attractions and repulsions and have no means to withstand them. But at a certain stage of evolution—how? why? Driesch replies: Entelechy!—a new part is developed in the machine, something like the cam on a cogwheel which forces it to come to rest. Or, to keep to the earlier simile, the bottomless vessel acquires a bottom with a tap that can be opened and closed. With this arrangement the organism is able to store the energy it has received and then to make use of it according to its needs, to do much more or much less work with it, to achieve much greater or much smaller effects, than it would be capable of doing with the amount of energy it receives from outside in a given unit of time. It is obvious how much more efficient the organism becomes if it can store up energy and can adapt to its needs the amount used up. This new part of the machine is Inhibition.
It appears early, and takes part in the general development of the organism; it is indeed the strongest factor in this development. Before Inhibition intervenes the organism has only one response to stimulus: reflex action. This is of the character of an electric discharge. It may be stronger or weaker, but is uniform in kind. It varies quantitatively but not qualitatively. In the lower organisms it is a contraction of the cell protoplasm, a movement. In the higher organisms, in which the life processes are carried out on the principle of the division of labour and which have developed various organs for this purpose, each organ performs the action of its specific function; the muscle contracts, the nerve sends out a nervous impulse, the gland forms a secretion, and so on. All reflex actions have this in common, that they serve no other purpose than that of relaxing tension in the organism. They do not imply any co-ordinated effort to promote the comfort and the welfare of the living being. They cannot fulfil any complicated task. They exhaust the organism which, after a series of reflex actions, becomes insensitive to stimuli and must rest for a time before it can react again.
Beginning from that stage of evolution where inhibition intervenes, reflex action loses the character of an automatic response to impulse and becomes disciplined. Inhibition tries to suppress reflex action. Its success is more or less complete according to the sensitiveness and life energy of the tissue receiving the stimulus and the degree to which the mechanism of inhibition is developed. The organism retains its tension, remains charged with energy, and is able to carry out work for definite purposes. In place of anarchistic reflex action which occurs regardless of the needs of the organism, we find economy of energy, co-ordination of effort, movement directed to a profitable end. It is only inhibition which can raise the organism from its state of passivity, its helpless dependence upon tropism, to a being in which a will is beginning to dawn and which by its will becomes self-determinative. Inhibition is a function of the will; it is the will's tool. Even Plato dimly perceived this, and he expresses it in the metaphorical language peculiar to himself, when, in the "Republic," he compares a human being to a creature made up of three animals: a hundred-headed sea-serpent which must at one and the same time be fed and tamed, a blind lion, and a man who tames the serpent by means of the lion. These three animals are desire (ἐπιθυμία), courage (θυμός), and mind (νοῦς). We say in biological language, reflex action, inhibition, and will or volitional reason.
All the concepts that are referred to here: purpose, co-ordination, inhibition and will, are every one of them dependent upon one fundamental concept, consciousness. Without it they are unthinkable. Schopenhauer's unconscious will is a word without meaning. I have postulated consciousness as the inseparable concomitant of life. It is probably the essence of life. In its lowest stage it is too dim, its contents too meagre and blurred, properly to distinguish the organism in which it dwells from the world around. In a higher state of development, when it gradually grows clearer and begins to be filled with more sharply defined ideas, it learns to keep its organism and the surrounding world apart, and tries to make the attitude of the former to the latter one of self-defence, self-preservation and self-development. From this stage of development onward, concepts begin to connect and group themselves in such a way thatconsciousness contains not only an image of the immediate present, but also memories of the past and a forecast of the future. The ability to prolong the present into the future, to understand the actual as a cause of the effects that follow and to foresee these effects, that is the starting point of logic and reason. It is the necessary antecedent of the will, which would have no meaning if it were not the effort to realize a conception of actions and their consequences, previously worked out by consciousness. Will is a function of consciousness which, in pursuance of the well-known biological law, creates an instrument for its purposes, and this instrument is inhibition. The higher an organism stands on the ladder of evolution the more energetically and surely does inhibition work, the nicer and the more masterly does its intervention in the original reflex actions grow.
Thanks to the piling up of reserves of energy, which is a result of inhibition, the organism can carry out its work of differentiation, can develop organs and organic systems, and obtain the power to perform more complicated functions; these render it ever more independent of the outer world and enable it to affect the outer world to an increasing extent. Inhibition plays an important part in differentiation. Its apparatus becomes organized. The nerve centres from which the inhibition proceeds form a ladder of which each rung is subordinate to the next. The peripheral nerves are controlled by the nerve centres in the spinal cord, these again by the centres in the medulla oblongata, and then in succession by the cerebellum and the cerebrum, and finally by the corticle. On theprinciple of least resistance, on which all life is based, the highest centres of inhibition unburden themselves by granting the lower ones a certain measure of independence. The reaction to the most ordinary and frequent stimuli is controlled and organized in its character and strength by the apparatus of inhibition, so that it ensues automatically, and no active inhibition, that is, no conscious effort of the will, is required. The simplest of these automatic reflex movements take place below the level of consciousness.
Those organized complexes of movement, however, which we call instincts, are carefully watched by the consciousness and subjected to severe check if they appear to run counter to the supposed interest of the organism. The hereditary complexes of movement constituting instinct are highly organized and oppose inhibition, only yielding to it when it is stronger than they are. This can be observed in animals which are capable of taming and training. All the artificial actions and omissions that man teaches them are triumphs of inhibition over automatism. Among human beings it is only the elect who can vigorously suppress their instincts by inhibition directed by Reason. The being that has attained the summit of organic evolution on earth is man, in whom only the lower, vegetative life processes are liable to the influence of tropism and primary reflex actions, while all the higher and highest functions are the work of Reason, which arms the will with inhibition and suppresses all impulses and actions that hinder its purposes. It is characteristic of these functions that theyare first worked out as concepts by the consciousness before they are realized as movements.
It was essential for Morality to find this whole organic structure ready to its hand before it could become a factor in human life. This structure had been developed and perfected by the organism for its own purposes, for the defence and enrichment of its life, to ward off painful and obtain pleasurable feelings. Morality took possession of it and used it for its own ends, which do not at the first glance coincide with the aims which the individual immediately perceives and imagines, and may indeed be diametrically opposed to these, preventing pleasurable emotions, causing him pain and even endangering his life.
But Morality, which is a creation of society, was only able to dominate the individual and gain control of the organic apparatus of his vital economy, because its purpose is directed towards the same goal as the tendencies of the individual organism, prolonging them beyond the individual's scope, aiming at his preservation, and thus coinciding with his instinct for self-preservation.
Morality limits the individual's vainglory and subordinates him to the community; it is the condition on which the community allows the individual to participate in the mightier and more varied means of protection and the enrichment of existence which it has to offer. But apart from this somewhat remote advantage of Morality, there is another immediate one for the individual: it consists in the continual exercise and consequent strengthening of inhibition; therefore, as we have learnt to see in inhibition themain factor in the development and differentiation of all living creatures, it offers a means of raising the individual to biological perfection. The faculty of inhibition, being in a continual state of strong tension, makes automatic reflexes subject to the will, makes blind impulses obedient to the somewhat less blind reason, and helps man along the path of evolution from the status of a creature of instinct to that of a thinking personality of strong character, capable of judgment and foresight, a personality which does not seek to attain the pleasurable emotions necessary to every living creature by pandering to his senses and satisfying the appetites of the flesh, but achieves them by gratification of a higher order, by the triumph of the intellect over vegetative life, by strengthening the will in relation to the stimuli of the outer world and the organs, by taking pleasure in the fact that the will is content with its sway. These are harsh but subtle pleasures which, when they continue to preponderate in the consciousness, bring about that state of subjective happiness which is in the highest degree beneficial to life.
Morality is an arrangement which has arisen from the needs of society; that is to say, it is not innate, but is an artificial institution of the race. However, it grafts itself upon the natural organs and attributes of man, and thus, from being a sociological phenomenon, it becomes a biological one. The idea that Morality is something absolute, a cosmic force, and that it would still exist and be valid if there were no human beings, and even if the earth had no existence, I have refuted with scorn. We must hold fast to the factthat Morality is a law of human conduct, that it is in force only among mankind, and that apart from mankind it is unthinkable. As, however, it becomes a differentiated function of the apparatus of inhibition, it participates in the general processes of life and leads us to that point where, indeed, we face the unnerving outlook upon the absolute and the question of eternity.
My arguments have led me to many phenomena that can be established and interpreted as facts of experience, but the explanation of which lies beyond the power of the human mind. We have examined the riddle of life, and we have distinguished therein a number of inexplicable things: the lack of a beginning, sensitiveness to stimuli, consciousness, the transformation of vibrations into sensations and concepts, the will, and inhibition. We are forced to the conclusion that the only discernible aim of life's activities is the preservation of life, or, more shortly, that life is its own aim and object. Morality, too, either openly or by implication, sets itself the one clearly demonstrable task of ensuring to the individual the preservation and security of his existence in a higher sphere than that of individual vegetative life processes. Thereby it fits into the scheme of existence, its mysteries and aims, and becomes an integral part of the cycle of life which emerges from eternity and returns to it.
The coercion which the community exercises upon its members, by means of which it forces them to adapt their actions and abstention from action to the standard it has set up, has two forms: Custom and Law. Are the two really different? What is their relation, one to the other? These are questions worth investigating.
Ever since the earliest times, grave men have meditated on the relation between Custom and Law. They were forced by evidence and practical experience to note a difference between the two institutions, but at the same time they had the definite impression that they trace their origin to the same source. Socrates distinguishes between the written laws of his country and the unwritten ones which express the will of the gods. The former constitute positive Law which the citizen must observe and to which he must submit; the latter, however, are higher, for they emanate from the gods themselves. The immutability of the unwritten laws is a proof that they are superior to the written ones. Written laws vary from state to state. They are the work of individual law-givers who were sometimes wise men and sometimes unreasonable tyrants. But all contain certain precepts which are everywhere alike, which everywhere imposethe same rules upon man. It is almost as if one and the same law-giver had co-operated in the making of all the laws that obtain in the different towns and countries, and are so unlike one another in many points. This common law-giver, whose will is manifest in all laws, however far removed they be from one another, is the Deity. That is essentially Socrates' train of thought as given by Xenophon in hisMemorabilia. The Attic sage speaks the language of his time, which, by the way, is still that of many present-day people. The Deity, whose will permeates all written laws and to whom they may be traced, is the principle of Morality. Hugo Grotius, in a manner more appropriate to modern thought, expresses it thus: "Law and Morality spring from the same source, namely, the strong social instinct natural to man. They bear witness to reasonable solicitude for the welfare of the community." This placing on an equality of Law and Custom, ofjusandmos, is very remarkable in such a strictly professional thinker, such a positive jurist as Grotius. Kant discriminates between the doctrine of Virtue and the doctrine of Law; he keeps them apart, but he emphasizes their connexion, and the two together make up his doctrine of Ethics.
As a matter of fact, no fundamental difference between Law and Custom exists; only Law is enforced differently to Custom. It would be going too far to say: Law has sanctions and Custom has none. The latter has sanctions too, but they are of a different kind to those of the Law. He who transgresses Custom will suffer the contempt of his fellow men, and this may become so penetratingly severe that themost hardened and shameless rascal must feel it. In an old, loose form of society where individualism is highly developed, and each one goes his own way, paying little regard to the others, there an unscrupulous, conscienceless rogue may sin against Socrates' unwritten law without being penalized. In a young, closely-knit community, however, in which the feeling of intimate connexion between the members is lively and vivid, he would be proscribed, as soon as he was found out, and it would be impossible for him to remain, say, for example, in a small town of the United States. Public opinion would make it so hot for him that he would be glad to escape with a whole skin. But this punishment is exceptional for transgressions of Custom, whereas it is the rule for those of the Law.
The sanction of the Law is stricter than that of Custom, just as the Law itself is stricter than is Custom. The Law concerns itself with concrete cases in which consideration for one's fellow men must be practised, duties to him fulfilled, and his claims respected. These cases are defined by Law as clearly as possible, whereas Custom confines itself to generalities and determines the whole attitude of the individual to his neighbour. Custom embraces the outer and inner life of man and supervises his opinions, which are the parents of his deeds, and also his deeds themselves; Law is only concerned with actions, and refrains from penetrating to the intimacy of thoughts, unless the latter alter the essential character of the action, as premeditation in an act of revenge and temporary or permanent irresponsibility alter thejudgment of offences and crimes. Law is a miserly extract of custom, a meagre selection from its variety, a concentration and embodiment of its surging vagueness. It may be compared with crystals, which in their geometrically accurate forms are crystallized clearly and definitely out of a liquid, the mother liquor; or with the heavenly bodies which agglomerate out of surging primal nebulæ. Custom is the primitive thing, Law is derived from it. It appeals to its descent from Custom, and founds, at any rate tacitly, its claim to respect on these grounds. A law which ran counter to Custom, which was confessedly in opposition to Custom, could never be maintained or prevail, though it bristled with the menace of the most dreadful punishments.
The relationship of mother to child between Custom and Law may be obscure to the majority; it is clear to the analytical mind. Recognition of the essential unity of both phenomena explains an assumption which was widespread among the best intellects from the Middle Ages until well into the eighteenth century, but which has now been abandoned as erroneous by more positive, though indeed narrower, legal minds. This assumption is that there is a natural Law antecedent to historical Law, which exists and acts beside and above the latter, and which forms the basis and the measure of every positive law, of every concrete legal judgment. It is comprehensible that the nineteenth century swept away the idea of natural Law and freely made fun of it. To a sternly disciplined legal mind it must indeed seem grotesque if a judge, in order to arrive at a verdictin some concrete dispute, cites the rights to which man is born instead of a certain text of the law, or even, following Schiller's advice, reaches up to the stars and brings down thence the eternal Law. Even this procedure is not so farcical as it seems to stupid article-mongers and hair-splitting paragraphists, for the procedure of equity of the English judges, who are not prone to clowning, is at bottom nothing but this reaching up to the stars and this judging by the rights to which man is born. The feud between natural Law and historical Law was really a quarrel about a word. Jean Jacques Rousseau, his contemporaries and disciples, simply made a mistake in their choice of an expression. They were guilty of an inaccuracy when they spoke of natural Law. They should have said: "the innate claim of man that his person should be respected," or, "natural consideration for one's fellow man," or, most shortly and simply, "Morality." To the latter legal lights would have raised none of the objections with which they victoriously opposed natural Law.
The beginnings of Morality coincide with the beginnings of society, as the latter could not have existed for a single day without the former. Since men, forced by the struggle for existence, emerged from their original, natural solitude and united in a community, they have had to watch over their impulses, suppress their desires, do things they disliked, and in all their actions and abstentions from action consider their neighbours' feelings, as they demanded that their feelings, too, should be considered. That was Morality which limited the vainglory and arbitraryconduct of unfettered man. It included all rules that determine the attitude of man to man. There was no distinction between Custom and Law. Men were ruled by custom which was traditional in their community and observed by all; and their Custom had the force of Law.
Formulated laws, and more especially written laws, appear comparatively late. True, Asia has old examples of such; the Manava Dharma Shastra, the book of laws of the Indian Manu, the Chinese Chings, the law of Hammu Rabi, and that other law, akin to this, though not derived from it, but probably drawn from a similar older source, the law of the Pentateuch. The laws of Draco, Solon and Lycurgus and the Roman Twelve table law are appreciably younger; much later still theleges barbarorumwere written down, some of them, like the prescriptive Law of the Germans set down in the "Sachsenspiegel," not till the end of the Middle Ages. It is peculiar to most of the old Asiatic laws that they contain both rules of conduct and legal regulations, and that they do not differentiate between these two kinds of precepts.
Let us take one example: the Ten Commandments. Beside such positive orders as "Thou shalt not steal"; "Thou shalt not kill"; "Honour thy father and thy mother"; we find such as give rules for the character and course of spiritual happenings, regarding which others cannot observe whether they are obeyed or not, like the commandments respecting man's relationship to God, or admonishing man not to covet his neighbour's wife or goods. Those are subjective impulses, spiritual moods which are revealed only to the eye of conscience as long as they do not betray themselves in action, and which by their very nature cannot be the subject of Law which deals only with outward manifestations of thought and will, and is concerned only with things done.
In constitutional Law, too, no less than in criminal and civil Law, the eighteenth century tends to preface certain laws with universal moral principles, and to establish by formal law that the former are derived from the latter. The Declaration of Independence of the United States in July, 1774, says: We consider the following truths self-evident: that all men are born equal; that the Creator has bestowed upon them inalienable rights, amongst which are the right to life, to freedom, to the pursuit of happiness, etc. So before these rights are guaranteed by the Law, they are announced to belong by birth and nature to man, to be independent of any particular and express bestowal by the law-giver, and beyond all dispute or even argument. Of the thirteen States which formed the original Union, ten accompanied their constitution by a Bill of Rights which repeated the essential contents of the Declaration of Independence of July, 1774; seven of them placed them as an introduction before their fundamental law, and three of them incorporated them in the latter. Two others, New York and Georgia, distributed them among various articles of their constitution. Rhode Island alone refrained from a general declaration. The States which joined the Union later, with few exceptions followed the example of their predecessors and built up their constitution on the foundation of an explicit statementof the natural rights of man. The French Revolution followed the course which the United States had indicated, and began its constitution of 1791 with the "Declaration of the rights of men and citizens," which is not a law in the technical sense of the word, but is superior to all positive Law, constitutes the latter's standard and touchstone, and straightway makes all laws invalid which are not animated by its spirit or which contradict it.
In the beginning, therefore, there was Morality, and the first laws, which formulated its precepts either in oral tradition or in writing, recommended without distinction what was good and desirable, and what was necessary and expedient. The differentiation of the Morality, which the commonwealth felt to be its code of right and wrong, into Custom and Law took place in late times. It was most definite in Rome, where for the first time a clear distinction was made between men's relation to their gods and their relation to one another; the former was left to the individual's conscience, the latter subjected to the power of the State; the elements of feeling and of dim perception were banished from the Law which confined its attention to deeds which it regulated in a high-handed manner. Law chose from out the all-embracing sphere of Morality one narrow area, that of mankind's immediate, material interests, and took this as its sole theme. The object of all Morality is to enable men to live together in a community peacefully and prosperously; within the bounds of this more general purpose, the task of the Law is to suppress by force the grosser hindrances to this harmony among individuals, and by material means of coercion emphatically oblige everyone to respect the interests of his neighbour. What every responsible man of sound mind demands first and foremost is a proper respect for the possessions that are his by birth and acquisition, that is for his life, for his bodily welfare, for all the goods he owns that minister to his needs, his comfort and his pleasure. He who lays violent hands on these possessions, or threatens to endanger them, is recognized to be an enemy; man arms himself against such an one, fights against him, tries, if he have a strong character, to destroy him, or flees from him if he is too weak to triumph over him; man only yields to such an one if he simply cannot help himself, but he does so with hatred and revenge in his heart, and in a state of mind which, if it becomes fairly widespread, sets every man's hand against his fellow-men and leads to the ruin and even to the dissolution of the community. Hence the task of Law is effectively to protect the individual from the infringement of his rights by others. It places the organized forces of the community at the service of the individual whose interests are threatened, for the criminal law penalizes more or less severely attempts against life and health, unlawful seizure of property whether by force or cunning, malicious molestation and offence; the laws of commerce keep watch over the faithful fulfilment of contracts dealing with the fair exchange of goods or the execution of work, and in case of need enforce it.
A select few, everywhere only a small minority, has a different scale of values to that of the masses.For them "life is not the supreme thing." There are things they value more highly. The masses have no understanding for these people's needs and fine feelings. Their self-respect and their dignity are dear to them as wealth, their honour more sacred than life itself. Unhesitatingly they sacrifice their property to freedom, and more unbearable than anxiety for their material interests is life in surroundings in which brutality, vulgar sentiments, harsh egotism, malice, hypocrisy and treachery preponderate. The Law does not consider this minority. It is the creation and the servant of the great majority. It clings to earth and is incapable of lofty flights. It is of no service to the elect in the preservation of their noblest spiritual possessions or the defence of their ideals against clumsy maltreatment. It declares itself to be incompetent to deal with any but material affairs.
Therein lies at one and the same time the strength and the weakness of the Law. Its strength lies in the fact that it definitely limits its sphere of action and strives to achieve positive results by positive means, results intelligible even to a mean understanding. Its weakness lies in the fact that it ignores man's highest and noblest interests. And these interests are there, they too deserve consideration and protection, they have a right to demand that the guarantee of the community should embrace them as well. The well-being of the community, which is the object of Morality and of Law too, demands that such conditions should be created and maintained, as should enable the elect also to enjoy life or at least findexistence bearable. But Law does not suffice for that. No law enjoins upon the careless throng of pachyderms to spare the tenderest and noblest sensibilities of lofty natures; no judge punishes thoughtless or purposely malicious injury to them. To remedy this evil we must rise from the lowly plain of Law, the natural dwelling-place of the masses, to the heights of Morality, the habitual abode of superior minds. At the theological stage of civilization refuge is sought with the gods in whose hands the protection of essential, spiritual possessions is placed. They are expected to punish the wicked whose evil deeds are beyond the reach of any penal code, they are expected to soothe and comfort when life is hard or even unendurable. That is the compromise that the elect made with life in the hard times of European barbarism. They escaped from the world and thus avoided contact with the repugnant masses. They shut themselves up in cloistered cells away from mankind and held mystic intercourse with God. Among the people, cruel authorities with difficulty maintained discipline and scanty law and order by means of flogging and the pillory, torture, the gallows and the wheel. The minority of the elect disciplined themselves, suppressed their lower impulses by self-imposed mortification, and with the help of prayer and belief in God's promised millennium managed to keep their heads above water despite the crushing spectacle of the life of those times.
Long before the Christian era, the Greeks of noble disposition felt the need of living in an atmosphere of higher intellectuality and morality than that of themarket-place, and they hid themselves behind the cloud-curtain of the Eleusinian Mysteries, where they kept to themselves, escaped the rule of the rude Law, and followed the nobler precepts of Morality. Whenever the measure of Morality contained in positive law did not suffice for the minority with higher aspirations, this minority adopted the same expedient, a form of esotericism; small circles were formed outside the community in which there was added to the current legal code a superstructure of stricter rules, more finely shaded duties, more courteous consideration. Present-day life also offers examples of this tendency which is met with in all ages. There are select circles and professions in which the standard of irreproachableness is far higher than among the mass of the people. There a man is not held blameless, simply because he has never transgressed a positive law, never come into conflict with the powers of justice. He must be as unspotted in the eye of moral justice as he is in that of the Law. A club or association that is self-respecting will not admit to membership a candidate reputed to lie, to have an evil tongue, to break his word, to be a toady and a snob, though none of these offences are punishable by law. It has happened that a corps of German officers has forced one of their number to send in his papers because he has seduced and deserted a respectable girl, an adventure flattering to the vanity of puppies who, as like as not, boast of it, and with which a judge can only deal if the injured girl appeals to him—and even then he cannot punish the offender, but merely sentence him to pay damages.
Almost the whole world is agreed on the point that the Law does not sufficiently protect honour. Positive Law evidently does not consider it of such value as material possessions, for the defence of which it knows itself to be qualified. But there are numbers of people whose honour is dearer to them than their fortune, even than their life, and trembling with indignation they see that a thief who steals their purse with a few shillings is haled off to prison, while a slanderer who sullies their honour either goes unpunished, or at most gets off with a fine, which merely adds official insult to the injury. In this case the Law has lagged so far behind Morality that individuals try of their own accord to bridge the gulf without counting on the intervention of the community. For aspersions of their honour the masses take revenge with fists and cudgels, often with bloody results; and among the elect they resort to duels with lethal weapons, a preposterous proceeding due to desperation, and a bitter indictment of the prevailing laws. It is a deed of self-help, like the formation of a vigilance committee among the anarchical throng of a lawless rabble. Hardly to be justified on reasonable grounds, it is intelligible from the point of view of historical tradition, and as a survival of dim and primitive ideas. In early days a properly regulated duel was an ordeal showing the judgment of heaven. It was the general conviction that God would give victory to the right and crush the wrong. When human Law failed, the injured party appealed to the source of all Law and placed his cause in the hands of the Almighty. From this point of view the duelis no unsuitable means of preventing plots to evade the law. Even if the injured party is inexperienced in the use of the weapon, even if his opponent is skilled and vastly his superior, he need not worry, for God fights on his side. Therefore he is more sure of success than if he entrusted his cause to fallible human judges. But from the moment that the duel ceases to be regarded as a means of arriving at the verdict of God, nothing can be urged in its defence, and that it nevertheless persists is a fact that can only be accounted for by the inadequacy of the current laws.
It really is astonishing that the Law does not yet appraise honour at its true value. Educated people almost unanimously regret and condemn the backwardness of the Law in this respect, all the more so because the tremendous development of the respectable, as well as of the disreputable, Press facilitates and aggravates libel to a hitherto undreamed-of extent, and no defence can overtake the slander which is quickly spread broadcast. Doubtless public opinion will urge that measures be taken to bring the Law into line with the views now held on all sides on the significance of honour, its defencelessness and its need for protection. That this has not yet been done is due to the slowness with which the Law adapts itself to the demands of a Morality which grows ever more profound and more refined. Law, which originally devoted itself only to the crudest material interests, very slowly extends the range of its protection, but it does so continually, with an ever-widening embrace, including more and more delicate,more and more noble, possessions, taking into consideration ever higher and ever finer needs. What early legislator would have thought of man's needing protection not only against murder, grievous bodily harm and maltreatment, but also against the dangers due to ignorance and carelessness in light-heartedly spreading infectious diseases, and contaminating water and the air? Who would have dreamed in former times that positive Law would consider the sensitiveness of nerves, desire for beauty, dislike of ugliness and forbid disturbing street noises, protect the countryside from wicked disfigurement, and prevent the construction of buildings which would spoil the artistic architectural plan of a city?
These little traits, these concessions to personal demands, which to a coarse mind do not seem obviously justified, go to prove that positive Law continues to grow beyond the bounds of its unavoidably crude materialism, and strives to rise into the regions of the unwritten law of the Peripatetics, where ideal possessions are of more importance than those which have traditionally come within the scope of criminal and civil Law. Law and Custom have a natural tendency to approach more and more nearly to one another, to become merged in one another where the line that divides them is but faintly indicated. The closer the union between them, the more perfect is the Morality of a society. Absolute perfection would be reached if Law, which has been derived by differentiation from Morality, should, after a protracted period of development, return to its source and be completely merged again in Morality. But that is adream which can never be realized as long as man is constituted as he is at the present time. Enthusiasts have dreamed of it, and in their imagination have seen an anarchical and lawless society in which no positive Law, no sanctions of force were needed, and in which the understanding and conscience of individuals would suffice to ensure the rule of good faith and goodness, and the curbing of selfishness. As far as man can tell we shall never attain this Utopia. We shall never be able to do without positive Law, not only on account of undeveloped and perverse natures, in which animalism has the upper hand of humanity, and which must be kept under strict discipline, but because a sure guide is needed in cases of doubt and irresolution which confuse even the good, nay, the best, men when passion and violent desire, with their heavy thunderclouds, darken the outlook of Reason, and judgment wavers amid the hurly-burly of a spiritual tempest. All that we may hope for and should desire is that Law should be filled with the spirit of Morality and embrace as many moral ideas as possible.
It lies in the nature of the thing that Morality was never clearly and definitely formulated, for as soon as this was done it assumed the character of Law. It remained general and slightly vague, it spoke to men in such indefinite terms as "good," "virtue," "duty," "love of one's neighbour," "unselfishness," "patience"—terms into which everyone can read the meaning which suits his thoughts and feelings. Mankind has never lacked moral teachers. The Indian Shastras and the Chings, Confucius andMeng Tse, the prophets of Israel and Ben Sirach, Plato and the wise men of the Stoics, the Zend Avesta, Jesus and Paul, the platonic ethics of Nicomachus, those of Epictetus and Marcus Aurelius, thousands of years ago preached the principles which exhaust the whole field of Morality, and beyond the essentials of which none of the later moralists have gone; neither the "Imitation of Christ" nor Ibn Bachia, Spinoza, the Scotch school and Kant, up to Wundt and Guyau.
But what about the effect of the doctrines which they advocated gently or passionately, adducing proofs or uttering threats? To lend weight to them they either appealed to God, threatening mankind with His wrath and vengeance, or to Reason, which, according to them, could advise man only for his good. Perhaps they could intimidate those who had blind faith and convince the reasonable. But there are many of little faith, and more still who are unreasonable, and on these the persuasion, warnings and conclusions of the Moralists had no effect. For these it was imperative to clothe the minimum of Morality, the minimum without which no society can exist, in the definite form of laws, and so create the Law to which the weapons of the community lend compelling force. Thus the whole material of Ethics is divided into Morality and Law. The Theologians and Scholiasts who trace all binding rules of human conduct back to revelations of the Divine Will recognized on principle only one single law: but the aspect of practical life made even them distinguish between the "lex indicativa" and the "lex præceptiva,"between an indication or counsel and precept or command. The "lex indicativa" is Morality, the "lex præceptiva" is the Law.
Codes are the normal expression of the Law. Not all Law is formulated in this way, for there is a recognized Law of custom, but all laws, codified or not, become a part of the prevailing Law. Naturally, and as is only reasonable, all Law is pre-existent in the consciousness of the majority, and the law-giver's rôle is limited to setting down in paragraphs universally acknowledged principles dictated by public opinion. However, there are an appreciable number of historical instances in which this procedure is reversed; the law-giver, without inquiring whether his ideas were in accord with the general conscience, arbitrarily clothed his dictates to the community in paragraphs which it had to accept as Law. It is clear that this procedure is extremely risky. Even if the law-giver possesses superior wisdom, even if he is far in advance of his people and his age, even if his intentions are of the best, there is grave danger that the moral feeling of the people will revolt against the laws thus forced on them. Outwardly they yield to the pressure of public authority, but they obey the Law with a keen inner sense of opposition; a chasm yawns between conscience and the practice of the Law, ideas of Morality and Law become confused, the moral foundation of all laws totters, and the public gets into the habit of regarding the Law as something alien and hostile, which cannot be disregarded with impunity, but which it is not only not culpable, but even meritorious to evade.
An enormous amount has been written on the subject of what a law is, and all this literature expresses in endless words very few and, almost without exception, very mediocre thoughts. I should consider it an unpardonable waste of time to devote any considerable space to this rubbish, either in order merely to quote opinions or to investigate and confute them. Perhaps the best thing said of the laws is Hobbes's description: Civil Law (the law of the country) is nothing but a guarantee of natural Law. It is true that this definition implies a supposition: the existence of natural Law which, however, is not binding in itself but requires the sanctions of the law of the country. Moreover, it is only correct if we add the limitation that it does not guarantee all natural Law, but only a part of it. Hobbes is also forced by his definition of the law of a country to explain what he means by natural Law, and he does not evade this duty. "Natural Law," he says, "is the decree of true Reason (ratiocinatio recta) with regard to what we must do and what avoid for our self-preservation.... Transgression of natural Laws is due to false Reason (ratiocinatio falsa)."
In spite of its vagueness this explanation of Hobbes's shows that what he really means by natural Law is Morality, and in this respect his views on the relation of natural Law to civil Law, that is, of Morality to Law, practically coincide with mine. Nevertheless, he ignobly denies the moral decency of his doctrine of Law when later on he coldly and dryly remarks: All that the state commands is just, all that it forbids is unjust. Saying this he stupidly and obsequiously makes the civil code the source of Law, whereas by his own definition Law (he says "Natural Law") is the source of the civil code. It is more pardonable for Pusendorf, a formal jurist, to say: "Law is the decree (decretum) with which a superior binds his subject (sibi subjectum)." That interpretation of Law is possible if it is considered from outside; it is a means of coercion in the hands of the mighty to subjugate the dependant; this point of view ignores the essential; but Pusendorf has no concern with this, for he makes no claim to be a philosopher, he keeps within the bounds of juridical practice.
The Bishop of Seville, Saint Isidor, the most respected theologian of the time between the last patristic writers and St. Thomas Aquinas, gives the following definition of Law: "Law is an institution (constitutio) made by the people, by which the nobles (majores natu), together with the common folk, have given a sanction to some ordinance." This says little about the essence of Law, but it leads to the question of the origin of laws. On this subject, too, whole libraries full of books have been written since the time of Plato and Aristotle; luckily, for the most part, they now only serve as food for moths and worms.
From this tangle of hair-splitting and sophistry, from this muddle of syllogisms, dogmatism and deep-sounding phrases which mean nothing at all, one thought emerges pretty clearly, to wit, that only the highest authority in the State has the right to make laws. On this point there is perfect unanimity; andthat is natural, for it is so obvious that it has no need to be circumstantially investigated and proved in the fifty thousand books that have been written on the subject. It is perfectly clear that one cannot possibly force all the members of a state to obey certain commands and prohibitions which the Law contains, unless one is stronger than each one of them, and therefore the Law must necessarily emanate from the highest power in the state. It is beside the point to obscure this simplest and most transparent fact by questions as to the right of the law-giver. He needs no theoretical right since he has the might. To use Kant's expression, positive Law is not a creation of the mind (νουμενον), it is a phenomenon; its existence is a matter of empiricism, not of reason; it is a matter of fact and is under no obligation to justify itself intellectually to the intellect. No law-giver has ever troubled to tack on a preamble or an addition to the law he promulgates proving that he has the right to enact it.
But in the literature dealing with this matter opinions differ widely as to who embodies or possesses the highest power in the state. According to some it is the king, because he wields the sword and therefore can enforce unconditional obedience; according to others it is the Church, because the Law, to be binding, must be moral, and Morality is established by God since the Church is the representative of God on earth. Others again regard the people as a whole as the highest power, because without their assent no law can prevail, and because even the king only has the power of which the people divests itself totransfer it to him. History has advanced beyond this quarrel.
To-day no one dares to dispute the fact that the nation alone is qualified to enact laws for itself through the agency of its chosen representatives, and that no law can be binding for the people without their explicit or tacit consent. In Switzerland, where they have instituted the referendum, the people by their vote can repudiate a law, made by their representatives in their name, before it comes into force; and in the other constitutional states they have recourse to the following expedient: whenever a law is promulgated which seems inacceptable to them, at the next Parliamentary election they vote for men who are pledged to do away with it. The people have the power to make laws, therefore they also have the right to do so, and they do not hesitate to revolt if this right is tampered with. In recent times no nation outside Russia has submitted to having laws forced on it, in framing which it has not co-operated, and which it has not expressly accepted. The United States tore themselves away from the Mother Country with the cry: "No taxation without representation!" and more than a hundred years before that the English people had irrefutably proved to the Stuart king, Charles I, that he had no right to make and unmake laws, by condemning him in a court of law with legal formalities and then having his head cut off by a masked executioner.
The legal code is the concrete form of the Law, and the Law is the crystallization of the most material part of Morality. And as Morality binds every member of the community, as man is only tolerated in the community on condition that he respects Morality, it is a matter of logic that he should also respect the Law; that is to say, that he must not only submit to it because he fears punishment if he fails to do so, but that he must feel obedience to the Law to be part of his Morality, that he must act lawfully at the dictate of his own conscience, and not because of the threat of the power of the state. This might be enunciated as a principle without reservation and without limitation, if in practice the laws always were, as in theory they should be, moral. But this is not necessarily the case. The law is a form, and every form can be abused by filling it with unlawful contents. If an unscrupulous adulterator of wine fills a champagne bottle of the usual shape, complete with metalled and wired cork and a label recommending it, with some disgusting mixture and puts it on the market, he is severely punished for adulteration of food and infringement of the law protecting trade marks. But if the government publish in theGazettefoolish, risky, and perhaps absolutely immoral orders in the form of a law, duly arranged in chapters, articles and paragraphs, as the people are accustomed to seeing their moral laws expressed, who impugns them for it?