Identical characteristics of individual and social laws.
If compulsion be wanting to individual laws, this is because it is also always wanting to social laws: while, on the contrary, what is really present in social laws is equally present in the observances and rebellions, rewards and punishments of individual laws.
To return to the former example: the individual who has decided to devote himself to agriculture as programme of life, may be seized all of a sudden with a great desire to devote himself to painting or to music; and what had previously pleased may henceforward displease him: that intimacy with mother earth, with harvests and vintages, which seemed to be the very life for him, his true ideal, may come to seem to him tiresome and repugnant. But if he be a serious person, if he do not will and not will at every moment, if he do not present in his own individuality a complete resemblance to those peoples who change in mid-Novemberthe laws made in October and proceed from revolution to revolution, he will examine his situation and will recognize, for instance, that the desire arisen in his soul is a velleity that does not answer to his true vocation and that the first programme must remain intact; hence will take place in him a struggle between that programme and the new rebellious volition. It may happen that in this case the individual will sometimes neglect the programme traced, in order to abandon himself to the temptations of his pictorial or musical dilettanteism; but since this will happen against his individual law, and since force must remain on the side of law, this breach of observance will be followed by special measures, such as the throwing away of brushes and violin, or by his forbidding to himself those moments of recreation in such amusements, which he used to allow himself and which have now become dangerous. In other words, the individual inflicts punishments on himself in case of the non-observance of his law, and these punishments must be held to be such in the strictest sense of the term. And if we accept the other hypothesis, analogous to that made in the case of social laws, should the individual find himself possessed with so vehement a desire of becoming a painter ora musician, as to be compelled to believe that the original programme, the original law of his individuality, did not correspond, or no longer corresponded with his true temperament, he will rebel against the law and destroy it in himself, in the same manner as in the other example the people destroyed the law of the despot, by fighting with him, imprisoning, or slaying him.
Individual laws as in ultimate analysis alone real.
Individual programmes or laws then are laws, and this concept includes the isolated individual as well as society; and therefore the character of sociality is not essential to the concept of law. Thus, to be more precise, the only laws that really exist are individual laws and it is not possible to conceive of social and individual laws as two forms of the general concept of laws; unless individual and society be both understood in the empirical sense, thus abandoning philosophical consideration. If the individual be understood in the philosophical sense, in which he is the Spirit concrete and individualized, it is clear that what are called social laws can also be reduced to individual laws; because, in order to observe a law, we must make it our own, that is to say, individualize it, and in order to rebel against it, we must expel it from our own personality, in which it wished unduly to remain or to introduce itself.
Critique of the division of laws into judicial and social and into their sub-classes. Empiricity of every division of laws.
The exclusion of the character of sociality from the concept of law frees philosophy from a series of problems, grafted upon that pretended character. The principal of these was that of the distinction of social laws into political and judicial, on the one hand and merely social on the other; and the further distinction of judicial law into public and private, civil and penal, national and international, into laws properly so called and regulations, and so on. If the concept itself of social law be empirical, then all the distinctions and sub-distinctions of it proposed must also be empirical, and altogether without philosophical value. So true is this that it is impossible to decide for one distinction or definition against another, or to correct those hitherto given by proposing new ones. Whoever undertakes to examine any one of these distinctions, at once realizes the aphilosophical character affirmed of thema priori.Thus judicial or political laws have been distinguished from the merely social, with the affirmation that those are compulsory, these conventional; whereas compulsion is impossible in both cases, for the reasons given, and if by compulsion be meant the threat of a penalty, this is to be found in merely social laws, not less than in judicial. The law againstthe falsification of public money is usually described as judicial: he who falsifies it runs the risk of undergoing some years' imprisonment. It is a law called social that we must answer a salutation with a salutation: he who does not do this runs the risk of being held ill-bred and excluded from the society of the well-bred. What essential difference is there between the two laws? An attempt has been made to differentiate them by saying that the former has emanated from and is sustained by asupreme power,vigilant as to its observance, the second from particular circles of individuals. But where is the seat of this supreme power? Certainly not in a superindividual, who dominates individuals, but in individuals themselves. And in this case its power and value correspond with the power of the individuals who compose it; that is to say, it is the law of a circle, empirically considered to be larger and stronger, but whose volitions are realized in so far as the individuals composing it spontaneously conform to them, because they recognize the convenience of doing so. Monarchs who believed themselves to be most powerful, have realized at certain moments that the power did not at all reside in their persons or title, but in a universal consensus ofopinion, failing which their power vanished, or was reduced to a gesture of solitary command, not far removed from the ridiculous. Laws that seem to be excellent remain unapplied, because they meet with tacit general resistance, or as is said, do not accord with custom: this should suffice to enlighten the mind as to the inseverable unity of what is called the State and what is called society. The State is not a being, but a mobile complex of varied relations between individuals. It may be convenient to limit this complex as well as possible, to make a being of it to oppose other complexes: of this there can be no doubt; and let us leave to jurists the excogitation of these and other similar distinctions, fictitious but opportune; nor let us consider that their work should be declared in the least absurd. We only say that it must not be forgotten that the fictitious is fictitious, as is the claim made to reason about it as rational and philosophical, and to fill volumes and volumes with tiresome disquisitions, which are necessarily vain, though the distinctions that form their object are not vain in their circle. We who are not jurists but philosophers, and to whom it is therefore not permitted to produce and adopt practical distinctions, must conceive as laws andinclude equally in the same category, alike the EnglishMagna Chartaand the statute of the SicilianMafia,or of the NeapolitanCamorra;theRegula monachorumof Saint Benedict and that of thebrigata spenderecciathat was sung in sonnets by Folgore di San Geminiano and Cene della Chitarra and is recorded by Dante in theInferno;the canon law and the military code, and thatdroit parisien,which a certain personage of Balzac had studied for three years in the blue boudoir of one lady and in the rosy drawing-room of another, and which, although no one ever speaks of it, yet constitutes (says the great novelist)une haute jurisprudence sociale, qui, bien apprise et bien pratiquée, mène à tout.[1]What more can be said? Even thoseliterary and artistic laws are lawswhich express the will to produce works, possessing this or that other kind of argument and arrangement, as would be the law that drama should be divided into five or three acts ordays,and that romances must not exceed four or five hundred pages, 16mo, and that a monumental statue must be nude or heroically clad. It is evident that if anybody violate these laws, he may be excluded (and he was indeed excluded) from the academies ofgood taste, which did not prevent his being received for that very reason into the anti-academies of the independents: in just the same way as to have incurred punishments announced by the penal code is a title of admission to certain criminal societies.
Extension of the concept of law.
These examples that we have selected among the most extraordinary and the most apt to scandalize, help to make it quite clear that the concept of law must be taken in its full logical extension, when we wish to philosophize about it. Among the many obstacles that philosophy meets with is a curious sort of false shame, which looks upon contact with certain arguments as injurious to the dignity of philosophy: a contact which is avoided by arbitrarily narrowing and therefore falsifying philosophical concepts. That of law especially has a tradition ofsolemnity,and brings with it associations that must be broken in pieces. Otherwise it is impossible even to understand what are thosefirm and unwritten lawsof the gods, which Antigone opposed to the decrees of men and how they exercise their efficiency; orthe sayings of Lacedaemon,in obedience to which fell the three hundred at Thermopylae; orthe laws of the fatherland,which, with their irresistible authority, caused Socrates to remain at themoment when others counselled and facilitated his flight. Life is composed of big and little actions, of least and greatest, or better, of a very dense web of very diverse actions; and it is not a too brilliant idea to cut that web in pieces and to throw away some of the pieces as less beautiful, in order afterwards to contemplate in those pieces only that have been thus selected, cut out and disconnected, the web that no longer exists.
[1]Balzac,Le Père Goriot(ed. Paris, Calman Lévy, 1891), p. 85.
[1]Balzac,Le Père Goriot(ed. Paris, Calman Lévy, 1891), p. 85.
The volitional character and the character of class.
The undue restrictions and empirical divisions of the concept of laws having been destroyed, if our attention be now directed to the character that has been determined as properly belonging to them, we have the means of distinguishing them from the other spiritual forms with which they are often confused, partly as the result of the metaphors and homonyms usual in ordinary speech. Laws, as has been said, arevolitional actsconcerningclassesof actions. Therefore, where the volitional element or the element of class is wanting, there cannot be law, save in name and by metaphor.
Distinction of laws from the so-called laws of nature.
So-calledlaws of natureornaturalistic lawsare not laws, owing to the absence of the volitional element: they consist of simple enunciations of relations between empirical concepts, that is, of rules. This is an instance of what is called anatural law: platinum melts at a temperature of 1780 degrees; or this other of a grammatical law: that in the Greek language masculine nouns of the second declension have the genitive inου(with exceptions, in this as in the other case). But they are laws in about the same way as the King of Cups is king; and indeed it is known historically that this denomination was transported by the Stoics from the domain of politics, where it had first appeared, to that of nature. Empirical concepts and rules may, as we know, assume an imperative literary form; hence it will be said: "If you wish to melt platinum, heat it to 1780 degrees"; "If you wish to speak Greek, decline masculine nouns of the second declension with anουin the genitive." But the literary form does not change anything of their true nature: those imperatives are hypothetical imperatives, that is, false imperatives, improper laws. Grammatical and chemical laws will remain mere formulæ, instruments of knowledge, and not at all of action, until some one obliges me or I oblige myself to talk Greek, or to open a chemical laboratory where platinum is melted. The jurist who elaborates cases and rules is not the legislator: the latter alone (with a sword in one hand) can endow the excogitations cf the other with the character of law.
Implication of the second in the first.
Certainly an act of will is necessary in order to construct empirical concepts, formulæ, and rules (as indeed we know), an act of will which is not that of the will implied in every act of thought, but is a special and explicit act which, by manipulating representations and concepts, makes aquid medium,which is neither representation nor concept, and although altogether irrational from the theoretical point of view, is of use in the economy of the spirit. But the law in its true meaning is a volitional act, whichassumesthat primary volitional act whence are formed the pseudo-concepts or concepts of classas already completed;precisely because it is the will which has for itsobjectaclassof objects. It is not possible to impose speaking according to the rule of the Greek language, or to melt platinum according to its chemical formula, before these rules have been laid down. And here appears very clearly the difference between those two kinds of spiritual products, which the imperative literary form, given to classes and rules, darkens and confuses. This difference can be recognized in concrete cases by means of a most simple expedient: if the rule (as we have already had occasion to prove) can be converted into a statement of class, then the law is inconvertible."If you wish to melt platinum, heat it to 1780 degrees" is a proposition that is exactly equal to "platinum melts at 1780 degrees." But the law, "Let there be opened in every city a chemical laboratory where platinum is to be melted," is not to be converted from the imperative to the indicative, whatever efforts we make.
Distinction of laws from practical principles.
If the volitional element be wanting to naturalistic laws, it is certainly present in other spiritual formations also denominated and considered as laws: but not that ofclass,therefore neither are these laws. Such is the case with economic and moral law, and through them, with logical and æsthetic laws. The moral law says, "Will the universal"; that is to say, "Will the good, the useful, the true, the beautiful." Therefore (considered in reality and not in scientific theory, where it appears as the concept of itself) it is a volitional act. But this volitional act has the spirit itself for object, which is and exists, in so far as it wills and affirms itself; it has for object a form or auniversal,whereas laws have for object something material and at the same time not instantaneous, something more or less fixed, somethinggeneral:aclass,not anidea.Universal laws (that would better be calledprinciples) are the Spirit or producer; true and proper lawsare the special product of the spirit; therefore the first can certainly be called laws, but for an altogether different reason to the second.
Laws and single acts.
Owing to the absence of the element of generality or of class, no one would describe a single individuated act as law. The resolution and action by which I do not rise from my seat at this moment and go eagerly to meet the friend whose coming at the wrong moment interrupts me at my work, is a volitional act, not a law; such as on the other hand would be the volitional act that I might form within myself, consisting in the intention or the programme of receiving my friends seated and in a lukewarm way, whenever they should come to visit me in the hours before noon, in order to make them understand by this act of mine that they disturb me at my work, and that they should abstain from their inopportune visits, unless they wish to submit to the penalty of meeting with anything but a cordial reception from their friend.
Identity of imperative, prohibitive, and permissive laws.
From the general but not universal character that we must recognize to the content of laws, we have the solution of certain controversies of the greatest importance which have been and are much discussed, hitherto without a satisfactoryor duly demonstrated conclusion. In the first place, we must mention the dispute as to whether or no there existpermissivelaws, and whether the formula that the lawaut jubet aut vetat aut permittitis to be accepted. It has generally been admitted that the lawaut jubet aut vetat,and that the permission is nothing but the removal of a previous inhibition, that is, the partial or total abrogation of a law. But in reality, the law, since it is a volitional act,jubetonly; to command is to will: to command that a chemical laboratory be opened in every city means to will that one should be opened. And since every willing is at the same time a not-willing, as every affirmation is at the same time a negation, every command is at the same time an inhibition, and everyjubeois aveto(whether the will be expressed in the literary form of positive or negative, of command or of inhibition, is here without importance).
Permissive character of every law, and impermissive character of every principle.
As to permissive laws, these are inconceivable side by side with the imperative or prohibitive, not indeed because no law ever permits, but because by the very fact that those are imperative or prohibitive, they are at the same time permissive: everyjubeoorvetois at the same time apermitto.Principles, as universal volitions, never permit, because nothing escapes their command;but a single volitional act, affirming itself, does not exclude for that reason the possibility that other volitional acts, indeed infinite acts, should be affirmed; for the singular never exhausts its universal. And laws are volitions of class, they impose groups of single acts—groups that are more or less rich, but always contingent: hence a law always leaves all the other actions and classes of action that can be the object of will unwilled (that is, neither commanded nor prohibited), and, therefore,permitted.And even if we take all the laws formulated up to a given moment, all together they do not exhaust the universal; and if new laws be accumulated, one upon the other, be divided and split up "with panting breath," to obtain complete exhaustion, aprogressus in infinitumwill certainly be attained, but never exhaustion, which is unattainable. This amounts to saying that outside law or laws, there is alwaysthe permitted, the lawful, the indifferent, the privilege, the right,or whatever be termed the concept correlative to that of command, veto, or duty, a duality of terms that expresses thefinitudeof law; hence, when a determined privilege, a determined legal right, a determined right, has been annulled by a new law, when something previously indifferent has been differentiated,privilege, the permitted, the indifferent, right, always arise from the bosom of the new law.
Mutability of laws.
Another contingent character of the content of laws is theirmutability.Laws are changeable, whereas principles, or laws of the universal content, are unchangeable, and ready to give form to all the most various historical material. Since actual conditions are constantly changing, it is necessary to add new laws to the old, to retouch and correct these, or to abolish them altogether. This is to be seen equally in the programmes of individual lives, as in the programmes of social and political laws.
Empirical concepts as to the modes of change.
The question as to the number of modes of changing that laws possess does not concern us, because, philosophically speaking, there is never but one mode: the free will that produces the new law in new conditions of fact. Involuntary changing can only be a formula for indicating certain changes, always voluntary, that occur in a less solemn way than others; but from these, can never be absent the solemnity of the human will that celebrates itself. Thus, in like manner, the question as to whether we should recognize conservation or revolution as the fundamental concept of practical life, does not concern us; for every conservative is at the same time arevolutionary, since he is always obliged to adapt the law that he wishes to preserve to the new facts; and every revolutionary is also a conservative, since he is obliged to start from certain laws that he preserves, at any rate provisionally, that he may change others and substitute for them new laws, which he in his turn intends to preserve. Revolution for revolution's sake, the cult of the Goddess Revolution, is an insane effort, which is so none the less because it has sometimes appeared in History and like all insane efforts it ends with suicide. Revolution revolutionizes itself and turns into reaction. Thus when revolutionaries and conservatives are distinguished and opposed to one another, an empirical distinction is made there also, the meaning of which is to be found in the historical circumstances among which it has arisen. Count Cavour was a conservative in respect to certain problems and revolutionary in respect to certain others, to such a degree that he seemed to the Mazzinians to be a conservative and to the clericals and legitimists a revolutionary. Robespierre, if he were a revolutionary for the Girondins and at last even for the neo-moderate Danton, yet to the eyes of Hébert and of Chaumette seemed to be a conservative,enemy of the free development of the rights of man.
Critique of the eternal Code or natural Right.
We should on the other hand be very careful as to the demand so often made and also so far as possible put into execution, foran eternal code, a limit-legislation or model, a universal, rational, or naturaljustice, as it has been variously termed. Natural justice, universal legislation, eternal code, claim to fix the transitory and are therefore a contradictory concept: contradictory precisely to the principle of the mutability of laws, which is the necessary consequence of their contingent and historical character. Were natural Right permitted to do what it announces, were God to permit that the affairs of Reality should be carried on according to the ill-assorted ideas of writers and professors, we should witness with the formation and application of the eternal Code, the cessationipso factoof Development, the end of History, the death of Life and the dissolution of Reality.
Natural justice as the new justice.
This world-ending does not take place, because, though it be possible to dwell in contradiction, it is impossible to make it concrete and actual: God, that is to say Reality, does not permit this. Thus it happens that under the name of natural justice, two sorts of products have existed in turn, orsometimes a mixture of those two different products, which have nothing to do with the programme announced. On the one hand, projects of new laws that seemed better than the old or good by comparison with these judged more or less bad, have been proposed as natural or rational justice, and precisely for this reason the old laws were called unnatural and irrational and the newrational and natural.Just as passionate and erotic temperaments, uninstructed by the experience of their past, swear with the utmost seriousness that their new love will beconstant, eternal and their last,so man, when he creates new laws, is often seized with the illusion that his laws will not change as did the old ones, forgetting that the old ones were once young and that they "satisfied divers" in their heyday, to express oneself in the words of the old carnavalesque song. Those natural laws are historical, those eternal laws are transitory, like all the others. All know how in certain times and places, religious tolerance, freedom of trade, private property, constitutional monarchy, have been proclaimed eternal; and in others, the extirpation of unbelievers, commercial protection, communism, the republic, and anarchy.
Natural justice as philosophy of the practical.
Universal concepts, which were nothing butthe Principles of the philosophy of the practical themselves, have on the other hand had a tendency to be classed as natural justice and to surpass the transitory and contingent. They are certainly eternal and unchangeable, but no longer laws, for they are formal and not material. Thus treatises of natural justice have sometimes become simply treatises (sometimes very valuable) of the Philosophy of the practical and especially of Ethic.—When (as to tell the truth has generally been the case) a practical description has accompanied a general treatment of Ethic, leading to a series of proposals for social, judicial or political reform, there has then occurred aminglingof two different productions, which we have mentioned, philosophy and casuistic. But a natural justice has always remained unachieved, because unachievable and contradictory.
Critique of natural justice.
In our times, owing to the increase of the historical sense, the constructions of natural justice and of the eternal Code have almost altogether lost the attraction they once exercized. But absurd problems having their origin in those contradictory concepts still persist and absurd methods of treating problems of similar origin legitimate when taken in their true terms. An example of the first of these two kinds ofdiseased residues is the treating of thenatural rightsof man and the attempt to establish what rights belong to man by nature and what by historical contingencies. Among the first are enumerated the right to life, to liberty, to work, to the family and so on; and among the second, those that have their origin in the Italian State or in special contracts that have been concluded. But no right of any sort belongs to man outside society (which in this case means outside history), that is to say, considered as spirit in universal, save that of existing as spirit, which indeed is not a right, but necessary reality. Catalogues of natural rights are either tautologies, which repeat that man as spirit has the right (and therefore at the same time the duty) of developing himself as spirit (and he does develop in this manner, if he be man and be alive); or they are arbitrary rationalizations of historical contingencies, such as the right to work, which is nothing but the formula of the workpeople of theateliers nationauxin forty-eight, or of the insurgents of Lyons; or the right to private property, which was the formula of the burghers against the bonds of feudalism and is again their formula against the modern proletariat movement.
Jusnaturalism persisting in judgments and juridical problems.
We must recognize examples of the secondkind of error in the discussions constantly held as to social or political institutions, when instead of combating them as irrational, or of defending them as rational in historical circumstances, they are defended and combated because they differ from or conform to the true idea of right or to the true idea of those particular institutions, recourse being thus had to abstract reasons, as has very well been said. A reformer will maintain the recognition of the right of women to the administrative or political vote, because women also form part of the State and have general and particular interests, which they wish to guarantee directly, without the inter-position of men, whose interests are sometimes at variance with theirs: an argument that a conservative will deny altogether, making appeal to the function of woman, enclosed by eternal law in the circle of the family. A reformer will propose divorce as the natural complement to matrimony, because, where spiritual agreement ends, there too should end every other tie, whereas a conservative will oppose the argument as contradictory to the very essence of matrimony, comparing such a proposal with concubinage, or with what is called free love. And so on.—When such arguments are heard, it isremarked that natural rights are not dead. But the question as to the political vote for women may be serious or ridiculous, according to place and time; as divorce is loftily moral or profoundly immoral, according to time and place, and it is only mental narrowness or ignorance that can place outside humanity, or believe to be living or persisting in immorality, peoples that practise divorce or indissoluble matrimony, or those of to-day, who refuse the vote to women or those of the future who will recognize their right to it, if they do recognize it. But even polygamy or free love is not immoral, irrational and unnatural, once it has been an institution considered legitimate in certain times and places; nor even, we insist upon saying it (however repugnant to our hearts and to our stomachs of civilized Europeans), anthropophagy, for even among the anthropophagi were men (we hope it will be admitted), who felt themselves to be most virtuous in their clearest consciousness of self, and who nevertheless ate their like with the same tranquillity that we eat a roast chicken, without hatred of the chicken, but being quite well aware, for the moment at any rate, that we are not able to do otherwise. The unconscious reasoners on the basis of natural law must have forgottenthat page of Cornelius Νepos, which, however, they must certainly have translated in their first years at the gymnasium:Expertes literarum Graecarum nihil rectum nisi quod ipsorum moribus conveniat putabunt. Hi, si didicerint non eadem omnibus esse honesta atque turpia,sed omnia majorum institutis judicari,non admirabuntur nos in Graiorum virtutibus exponendis mores eorum secutos. Neque enim Cimoni fuit turpe Atheniensium summo viro, sororem germanam habere in matrimonium: quippe quum ejus cives eodem uterentur instituto; at id quidem nostris moribus nefas habetur. Laudi in Graecia ducitur adolescentulis quam plurimos habere amatores. Nulla Lacedaemoni tam est nobilis vidua quae non ad scenam eat mercede conducta.... And he continues to give further examples.[1]So ancient are the unreasonable tendency to be scandalized and the reasonable defence of the variety of customs made by good sense.
[1]Vitae excell. imper.,pref.
[1]Vitae excell. imper.,pref.
Law as abstract and unreal volition.
Since law is the volition of a class of actions, it is the volition of anabstract.But as we already know, to will an abstract is tantamount to willing abstractly. And to will abstractly is not truly to will, for we will only in concrete, that is, in a determined situation and with a volitional synthesis corresponding to that situation, such that it is immediately translated into action, or better, is at the same time effective action. Consequently it seems that we should declare the volition that is law to be a pretended volition: contradictory, because lacking a single, unique and determined situation; ineffectual, because springing from the insecure ground of an abstract concept; a volition, in fact, that is not willed; a volitional act, not real, butunreal.
Ineffectuality of laws and effectuality of practical principles.
Such indeed it is. What is really wanted isnot the law, but the single act, doneunderthe law, as it is called, that is to say, theexecutionof the law. The single volition is the only one that is carried out: the execution of the law is the only thing really and truly willed and done. When the law has been formulated, life continues ceaselessly to propound its problems, and these either do not enter into the provisions of the law and are solved simply and solely with universal practical principles (economic and ethic), or they do enter into them and then it is necessaryto applythe law, unless it be held to be more convenient to change it, or (this would be a pathological case) action be not taken against it, although there be consciousness that this is ill done.
But even when we are in the situations foreseen by the law and act in accordance with it, or, as is said,apply or carry outthe law, we must not allow ourselves to be misled by all these metaphors; for we must consider that the single situations in which we will and act can never be foreseen by the law, nor is it possible to act in accordance with it, to follow it out and to apply it. Situations are not foreseen, because nothing is foreseen, and the real fact is always a surprise, something that happens once only and we canonly know it as it is after it has happened. For the new fact a new measure is necessary; for the new body a new suit of clothes. The measure of the law, on the other hand, since it is abstract, hesitates between the universal and the individual and is without the strength of either. To carry out the law? But it is only the pedant of life who proposes to do such a thing, as it is only the pedant of art who attempts to apply the rules of art. The true artist follows the impulse of his æsthetic conscience, the practical man the initiative of his practical genius. What is called the single act, observance and execution of the law, obeys, not the law, but the ethical or practical principle, and obeys it individually. The man who has his head full of laws that he has made for himself or has accepted from others, makes a deep reverence to the Ladies' Law when the time comes for action, and proceeds on his own initiative.
Exemplificatory clarification.
It is the law that at the age of twenty we must present ourselves in our district and do military service for a certain time. Let us for the moment set aside the case in which those called upon to serve rebel and, having seized the power of the government, abolish the law of conscription, and re-establish that of voluntaryenlistment. And let us likewise set aside the other case, in which the conscripts violate the law by deserting and going abroad, or hide in a cave, like a hero of Padre Bresciani, or (like a good Tolstoian who applies the principle of non-resistance to evil) allow themselves to be put in prison rather than touch arms. Let us select the case of the peaceful burgess who becomes a warrior that he may not go to prison; or of the good citizen who recognizes his duty of serving his country and for that reason obeys the law. In presenting himself in his district and in the regiment, he has obeyed, not the voice of the law (which is a voice), but his moral conscience, or simply his economic conscience. This has already been demonstrated and we need not insist upon it. But how can he ever obey the law, which directs him to do military service of precisely this or that nature? Each individual has his own temperament, his own talent, his own particular physical strength, and each one will lend his services entirely in his own way, different from that of another. And (be it noted) he will not do so only more or less well or observing the law more or less, but really in a different way, even when all observe the law with equal diligence and scrupulosity. It may seem as if allcarry out a military exercise at the same moment, but the fact is that each man moves in a different way to the others; or that in a parade march all walk in the same way, but, as a matter of fact, all (even in the Prussian army) walk in a different way. If we look at it as a whole and from a distance, there seems to be uniformity; if we look at it from near at hand we discover the difference. If we could make the experiment of comparing a regiment of fifty years before with one of fifty years after, leaving military regulations, arms, accoutrements, and everything else unaltered in the interval, the lack of uniformity of the apparent uniformity would leap to the eyes, a lack of uniformity that would have been rendered possible by the changes that had taken place in the surrounding life, in the culture, the moral education, the political conscience, the mode of nourishment, the dwellings, and so on. But the experiment is possible, if not in time, then in space, that is to say, by observing the application of the same military regulations upon two different populations. Thus one seems to have in hand one book written in two different languages; which is literally no longer the same book, but two different books. Giusti translated into Milanese and Porta translated intoFlorentine are no longer Porta or Giusti, but two new poets.
Doctrines against the utility of laws. Their unmaintainability.
This indubitable truth, as to the impossibility of applying the law and of incorporating it in facts, and as to the necessity of acting in each case, according to historical exigencies, is the true reason for the turning of so many people's heads at different times and in different places, causing them to proclaim nothing less than the inutility of laws and to ask for their abolition. If it be necessary to come eventually to the individual action, and if deliberation and execution must be remitted to the action of the individual, what is the object of binding ourselves with bonds, which it is afterwards necessary to tear off and to break, that we may act? What is the object of laboriously constructing instruments, which we are obliged to throw away when we come to practical action, that we may use our naked hands? Owing to such ingenuous reasonings as these, people have come to long for a society without laws, in which each will do his own share of work, on account of its attractiveness alone, as we find among the Harmonicists of Fourier and in many other anarchical Utopias. Or they have sighed for the absolute paternal government of the good old days, for the geniality of a good-heartedtyrant, untrammelled with laws, who will be able to follow the best dictates of his heart. Or, to descend to less strange and more actual examples, it has been proposed that the judge should on each occasion create the law, according to the case before him; that is to say, that he should cease to be a judge (not having a law to apply, and properly speaking not being able to give judgment) and be a free decider of litigation and corrector of customs; or at least that he should free himself fromlegal fictionsand judge according to the individual reality of each individual case.
Unsustainability of such confutations.
These theories are without doubt unsustainable, not excluding the last, which has the appearance of being moderate; because the so-called judicial fiction is intrinsic to the law and exists even when we think that it is not present, for it is always a fiction to place a concrete case in an abstract category. But defenders of the utility of law have met these erroneous doctrines with the bad argument that law does not admit of individual solutions, and demands strict obedience, because the moment of individuality, of inobservance, and of violation that may be called legitimate, does actually exist in the law and is intrinsic to its very nature. Both adversariesand defenders of law are therefore philosophically wrong, those who assert its inutility and those who claim for it an impossible utility.
Empirical meanings of those controversies.
And we say "philosophically," for it is well known that in this case, as in so many other disputes of philosophic appearance, are often concealed disputes of a practical and political nature, in which right and wrong are divided and connected in an altogether different manner. The adversaries of laws are often nothing but adversaries of too many laws, or legitimately demand a less pedantic and mechanical office for the judge than that which he often has at present; whereas the maintainers of laws are opposed to revolutionaries, who would wish to abrogate the definite laws, on which civil progress rests, or to discredit all laws, and cause society to enter upon a terrible crisis that would not promise good results. But all this is extraneous to the philosophic problem.
Necessity of laws.
If the defenders of the utility of laws had wished to make use of an argument of good sense against their adversaries, of the sort that imposes, even when it does not rigorously demonstrate their contention, they might have simply noted the demand for laws, for ordinances, for justice, for the State, which appears at all pointsof human history.—Better a bad government than no government at all; better laws that are mediocre, but stable, than the frantic pursuit for better and better laws, with the instability that is the inevitable consequence! And on the other hand, may God save us from genial despots, from inspired judges, from tribunals that dive into treasures of equity!—These are the utterances that we hear in history. Battles have been fought forlegality,and rivers of blood have been shed for it; for legality are faced the troubles of litigation, and energetic action is displayed, which only superficial intellects can consider a waste of time and trouble; for no trouble is superfluous when we are protecting our own rights, and none is more sacred, since it also guards the offended majesty of the law, the rights of all. Those who declaim against laws can well do so with a light heart, for the law surrounds, protects, and preserves their life for them. No sooner had all laws disappeared than they would lose the wish to declaim:
In such wise as when sometimes in the woodThe shepherd spies the wolf, and straight has lostSpirit and sense, and words die on his tongue;
and he would be obliged to have speedy recourse to the remedy and make laws of some sort again,whatever they be, that he may again resume his calm, his work and his gossip.
Laws as preparation for action.
Passing from considerationad oculosto the philosophical, it is to be said, on the other hand, that the utility of law does not at all reside in its effectuality, which is something impossible, since the single act of the individual is alone effectual; but in this, that in order to will and to carry out the single act, it is usually necessary to address oneself to the general, of which that individual is a single case; that is, to address oneself to the group, of which the individual is a component part, just as in aiming we generally begin by aiming at the region where is the point upon which the aim will be fixed. Law is not a real and effectual volition; it is without doubt an imperfect and contradictory volition, but for that very reason a preparation for the synthetic and perfect volition. Law, in short, since it is the volition of an abstract, is not a real volition, but anaidto real volition; as (to employ the usual comparison) wooden bridges and scaffoldings are aids to the construction of a house and have not been useless, because they must be pulled down when the house has been built.