Analogy between the practical and the theoretical spirit: practical laws and empirical concepts.
Here the analogy between the constitution of the practical and of the theoretical spirit is againshown to be most exact. We meet with theoretical forms in the latter also, which are not really so and are contradictory in themselves, positing representations that function as universals and universals that are representative: arbitrary forms, in which the will undertakes to command what it is not possible to command, that is to say, representations and concepts, things which precede and do not follow the volitional and practical form. But we know that those fictitious concepts, those formulæ, those laws that are not laws, those admitted falsities, which, therefore, are not falsities, serve as a help to memory, and assist thought in finding its way amid the multiform spectacle of the world, which it must penetrate for itself. We do not think them, but they help us to think; we do not imagine them, but they help us to imagine. Thus the philosopher generally fixes his mind upon the pseudo-concepts, that he may afterwards rise to the universals; and the artist also turns his attention to them that he may find beneath them the individual, the lively and ingenuous intuition that he seeks. The same pseudo-concepts, made the object of volition and changed from formulæ to laws, fulfil an analogous office in the practical spirit, making it possible for thewill to will in a certain direction, where it afterwards meets the useful action, which is always individuated.
The promotion of order in reality and representation.
Another aspect of the analogy is not less important. The pseudo-concepts would not be possible, if reality did not offer the like side by side with the unlike; which is not the universal and necessary, but the general, a contingent (so to speak) less contingent than others, a relatively constant variable. Pseudo-concepts are arbitrary, not because they posit the like where is the unlike, but because they make that variable rigid, which is only relatively constant, making of it something absolutely constant and changing the like into the identical. Now the practical spirit, which creates reality, has need to create not only the unlike, but also the like; not only that which lasts an instant, but also that which endures almost unchanged for a year, a century, a millennium, or a millennium of millenniums; not only the individual, but also the species, not only the great man, but also the people, not only the actions that do not occur again, but also those that return periodically, similar, though not identical. Laws fulfil this function, for they constitute what is called thesocial,orcosmic order.This order,however, is always relative and includes instability in itself; it is a rectilinear figure, which, on being closely examined, reveals itself as also curvilinear. For this reason it is necessary to make laws, and it is necessary to violate, though obeying them in their execution.
Origin of the concept of plan or design.
This function of law as an unreal volition, aiding nevertheless and preparing the real, throws light upon a concept that we have had to reject when exposing the nature and method of functioning of the volitional act; that is to say, on the concept ofplan or design or model,as proper to the practical activity, which is said to act by carrying out a pre-establisheddesign.We have already demonstrated that design and the execution of the design are in reality all one, and that man acts by changing his design at every instant, because reality, which is the basis of his action, changes. And as in the Philosophy of the practical in general, so in particular in Ethic, the concept of pre-established design has no place; because, if it be true than in ethicity the universal is distinguished from the merely individual action, it is also true that the universal does not exist in concrete, save incorporated and individualized as this or that good action. The universal of ethicity is not a design and cannot be willed foritself outside all individuation, in the same way as to fall in love is to fall in love with an individual and not with love. But that concept of design, proposed for action and carried out by its means, though erroneously adopted in Economy and in Ethic, must nevertheless have its legitimate meaning in some special order of facts; otherwise it would not be possible to make even erroneous use of it. This meaning is to be found, as has been seen, in the fact of laws.
Transformation of principles into practical laws: legalism.
Nothing perhaps better makes clear the true nature of laws than the examination of the very grave errors introduced by their means into the Philosophy of the practical: for, owing to the failure to perceive the character of mereaidproper to their function, laws have been confused with practical principles, these being looked upon as laws and those as principles.
Genesis of the concept of the practically licit and indifferent.
We always live surrounded by innumerable laws, although these are always finite in number. The Decalogue also admonishes: "Take not the name of God in vain"; "Honour thy father and thy, mother"; "Thou shalt not steal"; "Thou shalt commit no murder"; "Thou shalt not covet thy neighbour's house, nor his wife, nor his man-servant, nor his maid-servant, nor his ox, nor his ass, nor anything that is his"; etc.The decalogue or hectalogue of prudence admonishes us: "Raise not up against thee too many enemies "; "Mind your own business"; "Conciliate him who is more powerful than thou"; "Hurt him who hurts thee"; etc. Those laws that are so many and so minute easily lead to the false belief that they suffice together to regulate our economic action and our moral life, and that practical principles can be substituted for and be fully represented by a Decalogue or code, which should be the true and proper regulator of human life.
But the Decalogue, the code, theCorpus juris,ample and minute though they be, are not, as we know, capable of exhausting the infinity of actions conditioned by the infinite variety of facts. Every law brings with it, as its necessary correlative, as the shadow of its light, actions that are indifferent and indifferentiable, the legally indifferent, the licit, the permissible, the right, the faculty of doing or of not doing. As an inevitable consequence of this, practical principles having been conceived as a series or complex of laws, the concept of thepractically indifferentmust also be posited and thelicitchanged fromlegaltopractical.
Consequence of this: the arbitrary.
And this is what happens. At every momentof life we find ourselves face to face with actual situations, to which the laws that we possess either do not apply at all, or apply only in the approximative way that we have seen; at every moment of life, we find ourselves without the guidance of the law, face to face with the indifferent and the indifferentiated. The practical man knows well that the laws were a mere help, merely a preparatory stage to action, and that he must in each case face the actual situation as it arises, intuite and perceive it in its originality, and perform his own action with originality. But he who has accepted thelegalitarianconception of the practical activity and has abandoned practical principles as useless or looked upon them as non-existent, now that he finds himself abandoned also by the laws, in which he had put too much trust, has no other guide on which to fall back save his ownwill.
And will is not a guide butthe lack of a guide; it is not action but inaction, that is to say, contradictory action; not activity, but passivity, not prudence and good, but imprudence and evil.
Thus the legalitarian conception of practical principles produces neither more nor less than the death of the practical, installing passivity in the place of activity, evil in the place of good.
The legalitarian theory, which proposes to fix and to determine with precision the true concept of freedom, arrives at just the opposite result: the will.
Ethical legalism as simply a particular case of practical legalism.
It is opportune to remark here that moral legalism, which has hitherto alone occupied the attention of critics, is nothing but a particular case of general practical legalism, and if the particular and not the general case has been observed, this has depended upon the failure to recognize the economic form in its autonomy, so common with philosophers. But from the examples that we have given, it has clearly resulted that legalism is an error which embraces alike Economy and Ethic, introducing into both the philosophic absurdity of thepractically indifferent.Even a man without moral conscience, or one deprived of it for a moment, if he conceive the guidance of his utilitarian action in the form of laws, loses the compass of his utilitarianism and falls into the arbitrary, which is the ruin of his own individuality. If (to resume the usual example) I impose upon myself the not drinking of wine as a hygienic law, and it happen to me to find myself at a certain moment in such physiological conditions that a glass of wine can acceleratethe beating of the heart and restore to me the strength of which I am in need; and if, through faith in the established law, I forget that the law is conditional and not absolute and that the only absolute law is to do at a given moment what is useful at that moment; it is evident that by so reasoning and acting, I am substituting superstition and therefore the arbitrary for prudence and that I am causing injury to myself.
Critique of the practically indifferent.
It is necessary to maintain against the morally and practically indifferent, that it is a concept altogether external to Ethic and Economic and devastates it terribly whenever it penetrates into it, or (what is worse) subtly corrupts it. In Economic as in Ethic, in the true and proper practical field, there is nofacultythat is not alsoobligation; there is norightthat is not at the same time aduty;there is nothinglicitthat is notforbidden;norpermittedthat is not turned into acommand.πάντα ἔξεστιν, ἀλλ' οὐ πάντα συμφέρει, said St. Paul,[1]in obscure but suggestive language that has been much discussed—all is allowed to us but we do not allow anything—we should say in explanation; everything can and should be spiritually elaborated by the will and receive the form of freedom. But in order todestroy that paradoxical concept at the roots, it is necessary to reach the point underground where the concept ofpractical legalismis to be found, and to show, as we have done, its origin, in the confusion betweenprinciples and laws.
Contests between rigorists and latitudinarians and their common error.
In vain have therigorists,becoming aware of the ruin that menaced the theory of Ethic, struggled against the theoreticians of the morally indifferent, orlatitudinarians.So long as neither party left the legalitarian field, one side was right against the other and both were equally wrong, Pharisees and Sadducees, Jansenists and Molinists. The rigorists clung desperately to the law, refusing to admit that it could bedoubtfuland give rise to the morally indifferent; the law wascertain.But the law is never really either doubtful or certain: revolving upon empirical concepts, it never limits anything with precision and therefore is not certain; having for its object, not concrete action, but only preparation for it, does not propose to limit the illimitable and so is neither uncertain nor doubtful: it stands on this side or the other of such categories. Thus the rigorists also found themselves face to face with the morally indifferent, and had no way of vanquishing it. They could advise the choice of the most painfuland repugnant action, self-denial, self-tormenting; but this too was a kind of wilfulness and evil. The latitudinarians, on the other hand, could enlarge the field of the morally indifferent at their pleasure, placing in evidence the dubiety of law and its consequent impotence as a practical principle; but since they did not recognize any practical principle outside the form of law, they were finally obliged to have recourse to it, that they might have some point of orientation in the guidance of their lives. And since they could not find it in the law itself, recognized as doubtful, they were obliged to place it in the authority of its interpreters; and when these authorities were at variance, in the adding up of authorities (just as is done for the Roman jurists in the law of citation made by Theodosius II.); and since, finally, two or three or four or a hundred authorities, when they are uncertain, are not of greater value than one who is equally uncertain, any sort of authority finally had to suffice them as justification for an action.Probabilitism,far from being merely an illegitimate degeneration of legalism, is its logical consequence. Reduced as they were to authority, why should one be of more account than another, when all are estimable people worthy of credence?Why should the precedence be given to Papinian over Paul or over Ulpian? If Villalobos be of opinion that a priest who has committed a moral sin cannot say mass the same day, Sanchez, on the other hand, Jopines that he can: why, then, should a priest who finds himself in that case follow Villalobos rather than Sanchez? It is true that if he make a blind choice between Villalobos and Sanchez, he becomes the prey of self-will; but self-will and legalism are indissoluble, and the more carefully he tries to free himself from the bond, the more tightly it winds itself around him.
Jesuitic morality as doctrine of fraud against the moral law.
Practical legalism can also give rise to a monstrously absurd theory, which we shall callJesuitic morality,not because it is peculiar to the Jesuits or to Catholicism, but as dutiful homage to the most conspicuous and likewise the most celebrated in literature of its historical incarnations. The theory of Jesuitic morality admits that we can rationallydefraudethical law.
Concept of legal fraud.
That the law isdefrauded or eludedevery day, taken in itself, is neither moral nor immoral, since it is an expedient of social strife like another, and in certain cases may be a legitimate act of war and a fraud only in name. A law held to be iniquitous should be combated openly;but if the imposer of the iniquitous law, or he who wishes to profit by it, have committed a mistake in drafting it, so that it can be interpreted in such a way as to become good, or at least better, it is very natural that the adversary should profit by the mistake, if for no other reason than that he may discredit the law as equivocal and lacking in precision and compel society to discuss it again. Who does not applaud the fraud of Portia, when it is a question of saving the life of the noble Antonio from a Shylock? And if even theferox animusof Shylock has found defenders, as symbol of the tenacity with which we must make our own rights respected, yet Portia also will always find her supporters, as symbol of ingenious rebellion against an unjust law.
Absurdity of the fraud against ones self and against the moral law.
But what is altogether irrational and yet seems to be admitted by Jesuitic morality, isthe fraud against oneself,and so against one's own moral conscience. To defraud one's own conscience, to rebel against it with violence or with artifice, is contradiction, wilfulness, evil. It sometimes happens that we exert ourselves to still what is called the internal voice of admonition, the Socratic demon, or the guardian angel. This happens in the utilitarian, not lessthan in the moral field; when, for instance, we yield to a pleasure which we know to be harmful and had intended to avoid for that reason, and when by dint of subtleties we try to persuade ourselves that it differs from that which we had recognized as harmful. We attempt, but we never really succeed; we may be able to obscure our conscience for an instant, but we can never permanently and altogether darken it; the effort itself calls for the light that we would avoid.
Jesuitic morality not explainable as mere legalism.
But that pretension of Jesuitic morality cannot on the other hand derive from mere ethical legalism, because legalism produces the contradictions that we have already placed in relief; it generates the morally indifferent and at the same time suppresses it; and when it has suppressed again generates, in order again to suppress it; and so on to infinity, an anxious and sterile doing and undoing. But it never authorizes fraud. Simple legalism will never justify our pretending to ourselves when a definite action is willed or when we have a definite intention, that we will another action and have a different intention; or, as they say,direction of the intention: the intention is that which it is and it does not allow itself to bedirected at will. To obey the letter of the law with the clear intention of breaking it in spirit will never be justified.
Jesuitic morality as alliance between legalism and theological utilitarianism.
The pretension of Jesuitic morality becomes illuminated and transparent to the intellect, only when we make the hypothesis of an alliance betweenpractical legalism and theological utilitarianism; that is to say, when not only do we conceive morality as a series or complex of legislative decisions, but when we likewise consider these to be nothing less than the product of the will of God. They are not in themselves moral as such, and to observe them does not arise of intrinsic necessity; but they are obeyed as the lesser evil, through fear of worse or in hope of future advantage. In this case there is a silent struggle between God the legislator and man, a struggle between the weak and the overbearing, in which the strength of the weak lies in ingenuity, their tactic in fraud. Hence the dominant concept of Jesuit morality: to get the better of the divine laws as far as possible, to do the least possible of what they command; and when called upon to give an account of one's own actions before the tribunal of confession, or before the universal judgment, so to subtilize upon the law, that from theinterpretation thus put upon it, what has been done seems to belong to the licit and permissive. God forbids man to kill man; but does he intend to forbid this, when the motive for this killing is the glory of God himself? When the slayer acts as though he were the hand of God himself and is all one with him? Without doubt, no: so that it will be lawful for the Jesuit to kill or cause to be killed his Jansenist adversary, who injures divine interests by disclosing the defects of the holy Company, which is the image of God upon earth: that killing, then, is not only lawful, but ordained. But if he want to kill his adversary, not through zeal for the divine glory, but because of the injury that he causes to the personal and immoral interests of the Jesuit? This too is permitted, provided that when killing him, though animated with personal hate, he withdraw his regard from the real motive, anddirectinghis intention to the divine glory, thus justify themeansby theend.
Distinction between the doctrine and the practice of the Jesuits.
Such is the monstrous logical product, born of the union betweenlegalismand the theory oftheological utilitarianism; such is the essence of Jesuitic morality, which has justly aroused horror and disgust. And we call itlogical(orillogical) product, because we wish to make it clear that here as elsewhere we are occupied with theories only and are criticizing them alone. In practical action Jesuitic morality was often better than the theory would imply; even the Padre Caramuel, who put the question as to the right possessed by the Jesuits of slaying the Jansenists, must have been at bottom a good man; because, having almost arrived at an affirmative conclusion to his inquiry by dint of perverting the moral law, he was seized by pity and defrauded his own fraud, concluding negatively that the Jansenistsoccidi non possunt quia nocere non potuerunt,because (said he) they are poor devils, unable to obscure the glorious brilliance of the Company, as the owl does not conceal the light of the sun.[2]And Saint Alphonso dei Liguori, who is usually looked upon as an example of that lurid morality in our day, when he set to work to stir up afresh the ugliness of casuistic in connection with the sixth and ninth commandments, experienced all the repugnance of the gallant gentleman that he was, at such a task, imposed upon him by the traditional mode of treating Ethic, as is to be seen by his declarations,exclamations, and exhortations:Nunc aegre materiam illam tractandam aggredimur, cujus vel solum nomen hominum mentes infidi. Det mihi veniam, quaeso, castus lector!... Ora studiosos ... ut ... eo tempore saepius mentem ad Deum elevent et Virgini immaculatae se commendent, ne dum aliorum animos Deo student acquirere, ipsi suarum detrimentum patiantur.[3]If Jesuitism were also moral corruption, this was not due to its abstract theories, but to the education that it practised, which was depressing, servile, and directed to mortify the strength of the will and of the intelligence, to reduce a man to be likesenis baculus,a docile and passive instrument in the hands of others; and to the confusion in consciences as to the real motives of actions, which it not only preserved but increased, lulling souls to sleep with sophisms and allurements of devotionaisées à pratiquer,by means of which the gates of Paradise could be unlocked, and withchemins de velourson which one could mount to the sky with every indulgence. The rigorists and latitudinarians are philosophically equivalent; but it is a fact that in practice the rigorists were generally energetic and austere souls; which should not cause usto forget that the latitudinarians also, amid their distorted theories, sometimes had a lucid vision of thecomplicationsof reality and felt the necessity of a morality less abstract and less disharmonic in relation to life, however incorrectly they may nevertheless have developed its theory.
[1]1 Cor. x. 23.
[1]1 Cor. x. 23.
[2]Pascal,Prov.1. 7.
[2]Pascal,Prov.1. 7.
[3]Theol. moralis7, Bassano, 1773, i. 168.
[3]Theol. moralis7, Bassano, 1773, i. 168.
Legislative activity, as generically practical.
The will that wills classes of actions, or the activity that makes laws and that we can henceforward termlegislative activitywithout fear of misunderstanding, is either moral or merely economic; and therefore, when dialecticized, is either moral or immoral, economic or anti-economic. It is true that this will is abstract and indeterminate; but that does not prevent it from being, and from being obliged to be, either moral or merely economic; and, therefore, abstractly moral and abstractly economic, and so also abstractly immoral and anti-economic. A programme of action will be conceived, as they say, wisely or foolishly, to a good or to a bad end, for mere reasons of utility, or with a lively desire for good. The legislator is a volitional man, and as such to be judged both utilitarianly and morally. The laws that arehis volitional product are useful or injurious, good or bad. This judgment is also without doubt abstract, for it is necessary first to see the legislator engaged in the practical act of the application of his law, in order to recognize what he can do and who he is. We know many (others or ourselves?) who make plans for the most beautiful lives, legislating admirably for themselves and for others; yet these show themselves mean and bad in action: and we not infrequently find the opposite case of men who calumniate themselves and who, after they have declared the most dishonest, or at least the most amoralistic, of intentions, when they find themselves face to face with the bad action, ugly with the ugliness of sin, say, as the old man in the fable said to Death: "I have not called thee!"
Vanity of disputes as to the character of institutions, economic or ethic: punishment, matrimony, the State, etc.
From these considerations, which seem to be most obvious, a not obvious consequence is to be drawn; namely, that it is perfectly vain to descant upon the utilitarian or moral character of laws, or of these or those laws; to ask oneself, for instance, whether the object ofpunishmentbedeterritiooremendatio; ifmatrimonybe an exchange of services or a sacrament, a union of interests or a societywith moral ends; if theStatebe the result of a contract or of a moral idea, and so on. These questions have an immense literature devoted to them, which has been accumulated for centuries, and although they be vain for us, yet they cannot be so for one who has not yet become clear as to the special forms of the practical activity and as to the nature of law. For him they are not vain, since they represent as it were in a concentrated form, the complete philosophical problem concerning the practical; although they must of necessity turn out to be insoluble. Punishment can be conceived and willed as a mere utilitarian menace, to prevent others from performing certain classes of actions, even if they be ethically of the highest value; or as moral solicitude for the amelioration of society and the individual himself who has erred, by obliging him to re-enter himself and change his mind. Even the pain of death can be directed to this end and death that has given or restored to the guilty a day, an hour, an instant of that human life, of that contact with the infinite, which he had lost, may be held not to have been in vain. Matrimony may be instituted for the more regular satisfaction of the sexual instinct and for othersimilar interests of utilitarian life; and also to secure, that interpénétration of souls, which is the great mover of the moral life. The State may arise from a mere contract which draws together isolated individuals and groups and unites them for defence and offence; and also form the profound moral aspiration of the individuals, who recognize the universal in themselves and are attentive to realize it in modes ever more rich and more lofty. All institutions, all laws may receive this double form; and although there be laws that are merely utilitarian, those that are moral are also, as is clear, utilitarian or economic, and therefore not useless but useful. An amoral man will make for himself amoral laws; and between an amoral man and an amoral woman no other marriage but that of interest is possible; and between a hundred amoral individuals, no other State is possible but that established by contract; and no other punishment will be applicable in such a State save that of meredeterritio.It will be objected that amoral individuals and multitudes do not exist, and it may be true that they do not exist in a continuous manner: but they do exist at certain moments; and this as we know, suffices to justify, indeed to prove necessary, our theory.
Legislative activity as economic.
Thus no other answer is possible to the question asked as to whether the legislative activity be moral or merely economic, save that it may be the one or the other, and therefore, that it is not of necessity moral; thus, defining it in its full extension, it must be calledgenerically practical,or taken in itself,merely economic.
Juridical activity: its economic character.
Passing now from the legislative activity to that of him who realizes and executes the law (an activity that we may calljuridical,in order not to confound it with the other), and asking whether juridical activity be moral or distinct from morality and if distinct, what is its distinctive characteristic, the answer cannot but be most simple for us who have attained to our present position. So simple indeed, that to give it would seem to be almost superfluous. Not only must the activity of carrying out the law not be intrinsically diverse from the activity of legislating, but as has been seen, it obeys exclusively practical principles, economic and ethic. Hence the 'juridical activity can be merely economic and it can be moral; and seeing that economicity is the general form that of itself involves the other, the juridical activity is generically practical, oreconomic.As such and in so far as it is such,it is at once distinct from and united with the moral form.
Its consequent identity with the economic activity.
But juridical activity does not merely enter the economic activity; it is exactly identical with it: juridical activity and economic activity aresynonyms.Legislative activity enters economy and nevertheless distinguishes itself from it, as volition of the abstract, indeterminate volition. The juridical activity is on the other hand concrete and determined, like the other, nor is it distinguished from it by any secondary character. It might be attempted to subdistinguish the economic and juridical activity, while admitting the generic identification, and to look upon the latter as such that although obeying the economic principle, it is yet developedunder the laws;whereas the former would exist even wherelaws were wanting.But the distinction would be empirical, of undulating boundaries. Strictly speaking, man is surrounded with laws in all his actions, and he always acts under all the laws, and at the same time he effectually acts under none of them, save that of his own practical conscience.
If the identity and synonymity of law, understood as juridical activity with economy, has not been discovered, that too is connectedwith the lack of recognition of the practical utilitarian category on the part of philosophers and with their considering it, as they erroneously did, either as egotism and immorality, or as an altogether empirical division, to which was added a concept, also empirical, of the juridical activity itself, which should be limited to what are called laws emanating from the State, sometimes graciously including in them social laws, and always altogether ignoring the fundamental form, individual laws.
The failure to recognize the economic form and the meaning of the problem concerning the distinction between morality and law.
But this failure of recognition has not prevented the appearance and persistence of the problem of thecombined unity and distinction of law and morality,which has been the most frequent though the most complicated mode of affirming the claim of a special Philosophy of economy. A serious beginning of meditation upon law had hardly begun, when something was observed in it that it was impossible to resolve into the concepts of Ethic. Hence the generally admitted recognition of the distinction between law and morality and the many attempts at determining of what the peculiar character of the former exactly consisted.
Theories of compulsion and exteriority, as distinctive characters: critique.
This character was placed most frequently and with greater insistence in the twodeterminations ofcompulsionand ofexteriority.And it was said that law is distinguished from morality because it is possible to exercize compulsion in the juridical, but not in the moral field; or that law deals with the field of external relations, morality with the internal; or that one is thepsychical,the other thephysicalside of action. But as to the first determination, we have already shown that it has no meaning at all when applied to the forms of the spiritual activity, where nothing is compulsory and everything is at once free and necessary: the juridical activity, if it be activity, must likewise always be determined by free agreement. The second, which is the determination of exteriority, is not less inconceivable; for it is not given to separate the external from the internal, since they are both one, nor the word from its meaning, nor the body from its spirit. Compulsion and exteriority, taken strictly as concepts, are therefore, in this case, void and contradictory formulæ. To fill them somehow with a thought, it would be necessary to understand as compulsion certain modes of action, as opposed to certain other modes; for instance, compulsion would be the action by which an accused person was conducted to prison by two policemen and non-compulsionthat of him who should be induced to go and constitute himself a prisoner through the persuasion of others; and as exteriority, certain classes of actions opposed to certain others; so that, for example, the deportment of an individual as communal or provincial councillor would belong to external life, his relations with his confessor or with his Æsculapius to internal life. But compulsion and exteriority, reduced to these meanings, become gross and empirical concepts, of which no use can be made in philosophy and which therefore cannot be of the least value as qualifying and distinguishing law from morality.
In the same way, no value is to be attached to such a distinction, when determined from what is licit to what is commanded, from rights to duties, from what is permitted to what is obligatory; because licit and commanded, rights and duties, from what is permitted to what is obligatory, are correlative concepts constituting an indissoluble nexus and it is not possible to separate and to oppose them to one another.
Moralistic theories of rights: critique.
The difficulty of conveniently fixing the distinction with the characters indicated, leads one to think of a different sort of tentative, according to which rights would certainly be distinguished from ethicity, not placed above or beside it,but rather in the very sphere of morality itself, as the species in respect to the genus or the part in respect of the whole. Juridical action would be moral, but it would belong to the inferior levels of morality; it would be occupied with the execution of simplejustice,with the establishment of order, proportion, equality; whereas morality would representmore than justice,and would upset the equilibrium of rights with benevolence, generosity, sacrifice, heroism. Rights (it is also said) are limited to theethical minimum,while morality strives for themaximum;rights are concerned with strict rights orperfectduties, morality with meritorious and supererogatory actions,imperfectduties. But these determinations also pretend to separate the inseparable, by drawing an arbitrary line of division between small and great actions, between least and greatest, and they employ concepts that are altogether empirical, as, for instance, that of justice as distinct from benevolence, of the strictly obligatory from the meritorious and supererogatory; and worse still than this, metaphors and symbols, such as equality, order, regularity; or they operate directly with the arithmetical and geometrical proportion of actions. And consciously or unconsciously a return is made toEthic pure and simple, with the theories that make juridical activity to consist of the recognition of others aspersons,or with the search forgeneral utility(superindividual). When we act in view of thepersonin other individuals (or in oneself), or of the useful, which is not the useful for the individual, but although it comprehends, yet transcends it:—the merely juridical conscience has already been surpassed, it has been filled with a moral content, that is to say, an ethical form has been given to the practical activity. The double sense of the terms "rights" and "morality" is in this way preserved in words but denied in fact.
Duality of positive and ideal, historical and natural rights, etc.; and absurd attempts at unification and co-ordination.
The dual sense of the terms is also affirmed by the very ancient distinction betweenpositive and ideal, historicalandnaturalrights,rightandjustice,or, as it has also been formulated, between thetwo different justices,realistic and idealistic, fruitful in conjunction. Natural rights, with their homonyms just stated, besides the generically practical significations that we have already examined, have also had the narrower one of ethical ideal or morality; and therefore it cannot cause astonishment that it should appear now conjoined with, now detached from positive rights. But how joined and disjoined? For us it isa question of degrees, whence the positivity of both forms is recognized: the second of these is included in the first: the ideal right or morality (if it be right, and not simply abstract excogitation willed by no one, or vague desire) is both positive and historical. But those who posited the distinction without being able to make it definite and so to dominate it were led to conceive one or the other term as negative; and therefore both as negative between themselves and existing only in a third: which meant to reannul the distinction by reducing it to abstract contradiction. If one of the two were conceived as negative, either the ideal justice (that is, the seriousness of moral strength) was denied and turned to ridicule, or positive justice, that is, the seriousness of volitional strength, was presented as something turbid and impure and at best as a human imperfection, to which it was advisable to resign oneself since it would disappear in a society of perfect men or in a future life of perfection. Juridical activity became something contingent and mortal. Matters were even worse, if it were found impossible to eliminate it with similar religious, apocalyptic, or millenary fancies. The negative was then conceived as positive or co-ordinated with the positive: hence incrediblelogical divisions of rights into forms or species ofmoralandimmoral rights, of justandunjustrights, in which the species has the function ofnegation of the genus,almost as though the race of horses were to be divided into two kinds:deadandlivinghorses! Unjust or immoral rights are not rights, but a contradiction of them, and if we sometimes describe in this way a real and effective juridical act (an economic act), it is necessary to observe that the denomination is given from the point of view of a superior form of activity. Rights in themselves as rights, understood positively, are never immoral, but onlyamoral.
Value of all these theories as confused perception of the amoral character of justice.
All these errors, all these sterile tentatives have their origin, as has been said, in the lively consciousness of a distinction existing between right and morality and at the same time of the impossibility of determining this correctly, owing to lack of clarity as to the purely economic form of the practical activity. When the juridical activity has been identified with the economic and when juridical (economic) activity has in consequence been conceived as at once united with and distinct from morality, we are able to recognize that these attempts have nevertheless fulfilled a very useful function; that is to say, they have more or less energetically asserted anddefended the position that there existed a characteristic distinction between right and morality and that it was necessary to seek for it. They are therefore far superior, notwithstanding their errors, to that confused ethical conception, which receives rights and morality indistinctly into its bosom, or to the utilitaristic conception, which arrives by a different route at the same indistinction. This merit belongs to the theories of the moral minimum, of justice, of the two justices and of the contest between positive and ideal rights; but in a much greater degree to that of compulsion, of exteriority, of the licit. With these last was almost unconsciously set in relief the fact that right obeys a law different from that of Ethic, and may be calledcompelled and not free by comparison with it,because not founded upon the necessity of the universal; that in respect to the supremeinteriorityof Ethic it can be considered as somethingexterior;that in respect to the ethical imperative, it appears as something indifferentiated orlicit.These are without doubt symbols, tautologies, vague and imprecise phrases, but efficacious in keeping the attention alert and in promoting doubt and research.
Confirmations of this character in the ingenuous consciousness.
But the impossibility of absorbing rights intoEthic altogether and without leaving residues is proclaimed or confessed, not only in the theories of philosophers, but by simple thought, and especially by the consciousness we have of the real world being governed, not by abstract morality, but, as is said, byforce,or by the will in action. "Disarmed prophets" will be efficacious in poetry, but ridiculous in practical reality:la force prime le droit,precedes it and is always of greater value than an unreal and contradictory ethical right and aspiration, afterwards dissolved in the empty and arbitrary. We will not recall proverbs, maxims, historical examples, though this would be easy; that little story of Franco Sacchetti which preserves "a fair speech" of Messer Ridolfo da Camerino, will suffice for all. One of his nephews had been at Bologna studying law for a good twelve years, and when, having become an excellent lawyer, he returned to Camerino, he went to pay a visit to Messer Ridolfo. When he paid the visit, Messer Ridolfo said, "And what didst thou do at Bologna?" He replied, "My Lord, I have learnedreason." Said Messer Ridolfo, "Thou hast spent thy time ill." The young man replied that the saying seemed to him to be very strange. "Why was it ill spent, my Lord?" And Messer Ridolfo said,"Because thou shouldst have learned force, which is worth two of the other." The youth began to smile, and thinking it over again and again, both he and the others that heard, perceived that what Messer Ridolfo had said, was true.[1]