Comparison between right and language. Grammars and codes.
And here too we are at last able to establish a parallel between the practical and theoretic activity, between the problems of the Philosophy of right and those of Logic and Æsthetic. The comparison of right and language has been several times attempted, with very great correction of thought, although necessarily defective execution, since it was customary to conceive both language and right in an abstract and empirical manner. Whoever should wish to take up the inquiry again would do great service, were he to insist upon the fact that since it has been impossible to understand what language really is, so long as grammars and vocabularies were taken as its reality, so it is impossible to understand anything of rights, so long as the eye is fixed upon laws and codes, or what is even worse, upon the commentaries of jurists, or upon the abstract volitional fact, or altogether upon what is not a true and proper volitional fact, but the elaboration of formulæ and of general concepts.
Logic and language; morality and rights.
Only when rights appear as individual and continually new work of individuals, only when the attention is directed to the spectacle of real life and not to the abstractions of legislators and dispenses with the dissertations of jurists, is it possible to state the problem: how does this juridical work coincide with, and how does it differ from moral work? And here too the comparison with language is fitting, although language be not logicity, yet logical thought cannot become concrete, save in speaking; so moral activity cannot live, save by translating itself into laws and institutes, and in the realization of laws and institutes, that is, in the juridical and economic activity.
Finally, just as the history of a language is always arbitrary and abstract, so long as it is considered alone, outside the works in which the language is incarnate and the true history of a language is its poetry and literature, sothe true history of the rights of a people(of the rights that have really been executed and not merely formulated in laws and codes, be often proved to be a dead letter) cannot but be altogether one withthe social and political history of that people:an altogether juridical or economic history; a history ofwantsand oflabour.
[1]Novelle, xl.
[1]Novelle, xl.
Distinction between morality and rights, and its importance for the history of the economic principle.
I. The history of the distinction between morality and rights is very important, precisely because, as has been said, it is the manifestation of the very strongly—felt desire to posit in some way a philosophy of the aethical or amoral practical form: a manifestation which is the most conspicuous of all those that we have had occasion to note on the subject (theory of politics, theory of the inferior appetitive faculty, theory of the passions, etc.).[1]And owing to the impossibility of satisfying that exigency with the intellectual data possessed, the problem of the relation between rights and morality has become anything but an amusing puzzle, a theme for true vain eloquence.
Emmanuel Kant in theCritique of Pure Reason,wishing to give a characteristic example of the difficulty of definitions, found nothingbetter to record than that jurists were always seeking a definition of rights, but had never succeeded in finding one.[2]And a jurist philosopher of our times (Jhering) has called the definition of rights, in their difference from morality, the "Cape Horn," or the Cape of tempests (or shipwrecks?) of juridical science.
Indistinction up to the time of Thomas.
The problem of that distinction is on the other hand relatively recent and therefore the history of the Philosophy of rights has rightly been placed not further back than the end of the seventeenth century, or not much beyond Christian Thomas.[3]Up to that time, it is not possible to speak strictly of a Philosophy of rights. Treatises of jurisprudence, of rights and of the State, in regard to what of philosophical they contained, were nothing but treatises of Ethic; not indeed because the two sciences were (as they were) materially united in the same books, but precisely because the two concepts were indistinct. The speculations of antiquity for this part also of the Philosophy of the practical have the character of ingenuousness already noted. It would be incorrect to reconstruct a moralistic philosophy from the rights of Plato, founding it,for example, upon the theory developed in theGorgiasas to the eagerness to purge his punishment that should exist in the criminal, similar, in this respect, to the sick man, who knows that the medicine will free him from his disease.[4]The researches of Aristotle also as to justice (perhaps the best the classical world has left us on the subject), look upon justice in a narrow sense, as a virtue among virtues,[5]which should not intrinsically possess any greater reason for distinguishing itself from the other virtues than they for distinguishing among themselves. The pompous definitions of the Roman jurists, still the joy of schools of jurisprudence and of judges' rhetoric, have no philosophical weight and would in any case confirm the identity of rights with Ethicity, if not absolutely with the entire knowable and practical universe. There is hardly a ray of the distinction to be traced in the discussions as to whether rights exist by nature or by convention and in the concept of aἁπλῶς δίκαιον,opposed to that ofπολιτικὸν δίκαιονfound in Plato, and more explicitly in Aristotle,[6]and rendered popular by Cicero when speaking of therecta ratio, naturae congruens, diffusa in omnes,constans, sempiterna; of rights not drawn from the Twelve Tables or from the pretorian Edict, butex intima philosophia; and of rights that on the other hand arevarie et ad tempus descriptae populis,whence they have the name of lawsfavore magis quam re.[7]
This rough distinction between natural and positive, absolute and relative rights; this concept of an ideal right placed face to face with real rights, or of which the real should be an imperfect and partial translation, also reappears in St. Thomas Aquinas and in other scholastics. And there is nothing more than this in those thinkers who founded what was called natural rights in the seventeenth century, such as Grotius and his followers. It is true that the boast of having distinguished rights from morality and religion has usually been attributed to that historical period. But it is hardly necessary to repeat that what was meant by these formulæ were the great social and political questions which took the form of wars of religion in the Europe of the sixteenth and seventeenth centuries; that so-called distinction, therefore, the result of long strife, though it have great practical value as a sign of social transformation, has no doctrinalvalue. The idea of autonomy, proper to the juridical activity, is absent even in the profound treatise of Vico on universal rights, for this contains only an altogether empirical distinction betweenvirtusandjustitia; of these the firstcum cupiditate pugnai,and the secondutilitates dirigit et exaequat;and both derive their origin from thevis veriorratio humana;and as all the virtues are connected and none of them can exist alone (nulla virtus solitaria), sovirtusandjustitiaare at bottom one.[8]The work of Vico, which gives a new conception of the relation between ideal and history and most original applications of Roman history, turns out to be nothing but Ethic, when considered beneath the aspect of Philosophy of Rights. Nor on the other hand could the problem of the nature of rights truly form the object of enquiry on the part of utilitarians (Hobbes and others); with whom, if the absorption of rights in morality was not found, this did not arise because the one was distinguished from the other, but because morality itself was denied in what was proper to itself: the problem of the distinction disappeared, because its terms disappeared.
Thomas and his followers.
II. Thomas provided the apple of discord, or as might also be said, cast the leaven of progressinto the treatment of rights, when he distinguished three forms of therectum: thejustum,thehonestum,thedecorum,placing the first in opposition to the other two, theforum externumto theinternum,and attributing to rights and justice the character of coercibility.[9]The formula had a rapid and unsuspected fortune, and became current in the schools. Gundling, for instance, defined right as the "ordering of external relations."[10]
Kant and Fichte.
It was completely developed and reasoned out, with all the strictness that its erroneity permitted, in the doctrines of Kant and Fichte, who were the greatest of Thomas's scholars for this part of the study. Kant opposedlegalityto morality; the juridical imperative is expressed with the formula, "act externally" (handle äusserlich); right is conjoined with the faculty of compulsion (zwingen.) Hence his doctrines are often amoralistic or economic as regards individual juridical institutions, and this is especially the case when he deals with the State, with matrimony, and with punishment; these were followed by Fichte, who made some reservations for matrimony alone, considering it an institution not only juridical, butalso natural and moral.[11]On the other hand rights were for Kant something that surpassed the individual will and utility; it was the sum of the conditions by means of which the will of the one can be united with the will of another, according to a universal law of liberty.[12]Fichte in like manner conceived of rights as altogether free of every admixture of morality; as an objective order, arising from the fact of the individual who coherently affirms himself and his own liberty, thus also affirming other individuals and their liberty.[13]Both philosophers thus preserve the moralistic concept of the legal and thejustum; rights, although armed with compelling power, are never force alone, but the external ordering of freedom, namely, justice. For this reason, Kant explicitly excludes force, in so far as it is constitutive of rights and speaks of a "force without law"; and both he and Fichte make coercibility to flow, not from the nature of the volitional force itself, but from the violation of order. It is just, says Kant, to repel force with force, when it would interfere with liberty. The right of coercion (repeats Fichte) is founded solely upon the violation of the original right. But it remains obscurewhat this poor legality, justice, coexistence, and harmony of wills may be; what force may be and why and how it is connected with the preceding definition is not investigated. The distinction of the juridical from the moral sphere is announced and proclaimed more loudly than perhaps was ever done before or since; but to announce and to proclaim is not to carry out. If rights be changed into an ordinance more or less rational, to be identified with the concept of justice, one does not see how they can exist independently of morality. Kant and Fichte were prevented from conceiving the juridical function free from every element of morality or immorality, by the function which they assigned to compulsion (symbol of law), submitting it to ethical exigencies. In this uncertainty, there cannot be wanting and there is not wanting the thought that rights are not indeed an eternal category, but a historical and transitory fact; and as Spinoza had already said,si cum humana natura ita comparatum esset ut homines id quod maxime utile est maxime cuperent, nulla esset opus arte ad concordiam et fidem; Fichte thus looked upon the juridical State simply as aState of necessityopposed to theState of reason: and when perfection has been attained and there is complete accord of all in the common end, "the State" (hesaid) "disappears as a legislative and compulsive force."[14]
In the ulterior phase of his thought, FichteHegelafterwards took further steps toward a closer union between morality and rights. But the complete resolution of the first in the second is effected in the system of Hegel, though it is customary to blame this philosopher for the opposite fault, namely, that he resolves morality in right. Above all, Hegel would hear nothing of the concept of force in right: facts of force and of violence, as, for instance, the relation between a slave and his master, appertain, according to him, to a circle, which lies on this side of right, to the subjective spirit, to a world in which wrong can still be right. The fact that violence and tyranny are met with in positive rights is an accidental thing and does not affect its real nature. For Hegel, as for his predecessors, co-operation arises only as reaction from the violation of what is just, and is violence preservative of liberty, suppression of the previous violence. "To define abstract and rigorous rights as law which we can be compelled to obey, means" (writes Hegel) "to see them as a consequence ofwhat takes place only by the cross road of wrong." But there is more: abstract rights, which form the first moment of the Philosophy of the practical in Hegel, are unreal; he opposes to them the second moment, morality, which also is abstract and unreal, consisting of the good intention, which has not yet been incorporated in action and life: thus concrete reality is realized only in the third moment, in the ethos, which synthetizes the abstract rights and the abstract morality of the intention in social life.[15]From this it is clear that the purely juridical moment does not possess effective spiritual autonomy for Hegel;somuch so, that it is placed by him upon the same plane as abstract and unreal morality. In consequence of his identification of rights with ethicity, Hegel is opposed to Kant and Fichte in his definitions of single rights; he rejects the compulsory and contractual theory of the State and (the Kantian) theory of matrimony as a strict contract made between individuals as to the reciprocal use of their bodies.[16]The compulsory theory of punishment seemed to him to reduce the latter to a mere economic fact, by means of which "the State as judging power, opens a business withgoods called crimes exchangeable for other goods, and the code isthe list of prices."[17]
Herbart and Schopenhauer.
Herbart too denies the originality of the character of compulsion in the idea of rights, and this is one of his five practical ideas, or, "the agreement of many wills, thought as a rule that eliminates strife." But even in this superficial moralistic reduction, force reappears all of a sudden, one knows not how: society has need of an external bond, in order to subsist; force and power (Macht) are added to society andthe Statearises.[18]The same contradictions are to be found in Schopenhauer: after he has posited the two virtues of justice and benevolence, he makes a chapter of morality out of the pure doctrine of law. The science of rights in the specific sense borrows this chapter in order to study its opposite: all the limits that morality looks upon as not to be passed without intention of wrong-doing, on the contrary are considered by the science of rights as limits, of which violation by others is not to be tolerated and from which one has the right to expel others. Thus the distinction between internal and external is in this way reproduced in all its unmaintainability under the denomination ofrights and their opposite.But the bridge of assesis always the junction of rights with force, that is to say, with the element extraneous to Ethic; and in this connection Schopenhauer has nothing better to offer than a comparison. "As there are certain chemical substances never to be found pure and isolated, but always in some sort of combination with another element, which gives to them the necessary consistency; so rights, when they must set foot in the real world and dominate it, have need of a small adjunct of will and force, in order to be able (notwithstanding its nature, which is really ideal and therefore ethereal) to operate and persist in this real and material world, without evaporating and flying to heaven, as was the case with Hesiod."[19]
Rosmini and others.
Rosmini presents the two elements not well harmonized, as the eudæmonological and the ethical. Rights for him are not mere eudæmonism, but a eudæmonistic fact, produced by moral right and receiving form from it; hence the science of rights "stands between Eudæmonology and Ethic, so that one of its ends extends to the one and the other to the other." It would not be easy to explain and to justify what he calls a mediate science, composed of Eudæmonology and Ethic; and it would be far less easy to explain how thisscience comes to be "completely distinct" as regards its components. If rights have a moral form, they are moral and not eudæmonological. Owing to this difficulty Rosmini was led to introduce the concept of the licit as criterion of differentiation, defining right as "a personal faculty and power of enjoying, acting and being able to act, a lawful good that must not be impeded by others."[20]Juridically understood this constitutes a tautology, ethically something worse. Other Catholic authors (Taparelli, for example) deplore the separation ofethosfromjus,introduced (they say) by Protestant doctrines and the limitation of right to what a man can externally exact from others according to law; "whence it happens that in the enumeration of laws, actions are sometimes posited that are real moral faults in the agent"; maintaining on the contrary the necessity of treating morality and rights together, "for rights are part of morality in the same way that trigonometry and conic sections are a part of geometric theories."[21]
Stahl, Ahrens, Trendelenburg.
III. If Catholic doctrines deserve mention for their conservativism, it is necessary to record the names of Stahl, Ahrens, and Trendelenburg, forno other reason than the great popularity that they enjoyed in the schools. Stahl divides the ethical action of man into two domains, differing in content and character. This dualism is founded upon the double relation of human existence, individual and social, which gives rise to two forms of imperatives: to the imperative of the individual will, of religion, and of morality, and to that which aims at moulding social life and is the imperative of rights. This theory, which has a varied terminology, can be reduced to the theory of exteriority (sociality, rights), and interiority (individuality, morality). In a very similar way Ahrens includes law in the science of the good or Ethic—the fundamental science. He remarks that good intention, virtue, are not sufficient to secure to man that complex of material and spiritual goods of which he has need, and therefore there must be a second mode of effecting in the good, which what is of importance would be, not the motives of the will, but the pursuit of the good and its real existence in life. Trendelenburg (who regrets the classical concept of the identity of Ethic and Law and looks upon the time when they began to be distinguished as a beginning of degeneration) discovers three sides to rights: thelogical,theethical,and thephysical(compulsion),[22]of which none, as we see, is truly judicial.
Utilitarians.
For the reasons already indicated, it is not necessary to pause over the juridical ideas of the utilitarians of the eighteenth and nineteenth centuries, whose last celebrated representatives were, in England, Bentham, Austin and Spencer. The German Kirchmann is to be identified with the utilitarian tendency. He reduces morality to therespectinspired, not by the law, but by thepersonof the legislator, a respect afterwards converted into respect for the law "owing to a peculiarity of human nature, as the result of long custom and exercise." According to this view, rights are defined as "a union of pleasure and morality, whether the first calls the second to its aid or the second the first, in cases when the isolated efficacy of either should prove insufficient." Thus rights are declared to be, not an original principle, but the simple union of two different elements. Jhering failed to surpass utilitarianism, notwithstanding his profound juridical knowledge and his lively intellect. He attempted to impart an original character to his utilitarian theory, by declaring that it wasobjectivein respect to the usual utilitarian theories, but he always remained under the obligation that he had undertaken, of showing how the purest ideality of Ethic could be fortified with such, a conception. The distinctions drawn by Jhering between recompense, compulsion, duty, and love, since they lack a foundation, vacillate and prove but little convincing.[23]
Recent writers of treatises.
IV. Running rapidly through other recent philosophers of Rights, we do not meet with original thoughts that compare with those of Kant, of Fichte, and of Hegel. Lasson conceives of the philosophy of Rights as a part of Ethic and co-ordinates with it three other parts—the philosophy of custom, of morality or doctrine of the virtues and the doctrine of the ethos or of the ethical personality. Rights are the first of these three ethical moments and is concerned with the willing of man as a willing still essentially natural; reason joins it as a force essentially determining and limiting, at first only external; the object of rights is to guarantee the conditions of the common life, in so far as it is the condition for all human ends.—Steinthal recognizes that rights undoubtedly "possess an exteriority altogetheropposed to the interiority of Ethic; hence, if they be not apprehended in their profound nature, they may easily be repugnant to moral feeling": they are "the system of modes of compulsion, by means of which are secured social ethical ends." But (we repeat) since the external cannot be separated from the internal, we do not see in what way ethical ends can be distinguished from their modes of realization. Steinthal also says that "Ethic is like a river and Rights like the bed of the river": a comparison that can be variously interpreted, like all comparisons and which for our part we should be disposed to find excellent, were it admitted that as the bed of the river, when it runs dry, yet remains always the bed of a possible river, so Rights can remain without Ethic and yet be always Rights. But the signification in which Steinthal employs that comparison is simply the same as the diad of external and internal; that is to say, he in his turn wishes to distinguish the indistinguishable, so that it would on the contrary be necessary to reply that the bed of the river and the river are not two things but one, because a river without a bed cannot exist and a bed without a river is not the bed of a river.—Schuppe denies that Rights and the State can claim what is immoral, but affirms that allthe same they are inferior to the exigencies of morality, because Rights and the State concern individuals in their spatial-temporal concretion, but do not attain to the profundity afforded by conscience in universal. The ethical concept of rights preponderates in Wundt, for he does not conceive of any other object of rights, subjective and objective, save morality. Cohen, in like manner, does not admit other independence to the science of rights save that, of writing in concepts, and of organizing as a system of concepts the rights that is eternally unwritten, the moral law.[24]
As we see, if the names of the writers and sometimes their phraseology change, the thoughts that alternate or combine are always the same. Rümelin, who undertook to criticize a series of definitions of rights, from that of Kant onwards, reproved Kant for having drawn too great a distinction between rights and morality, and others (Ahrens, Stahl, Trendelenburg) for having drawn too little. Finally, he gives his definition in a provisional and tentative manner: "juridical ordinance has the task of assuring to a peoplethat part of the good adapted for realization by a social force, according to universal norms." Jellinek distinguishes the norms of rights from those of religion, of ethicity and of custom, by a triple character:(a)because they are norms for the external conduct of men among themselves;(b)because they derive from a recognized external authority;(c)because their obligatoriness is guaranteed by external powers.—Stammler attaches secondary importance to the element of compulsion, and although he does not explicitly identify justice and morality, assigns to them the same territory, where they should act with different methods, since the perfectionment of the soul, the character and the thought are distinct from right behaviour. And adopting the turn of phrase of a famous proposition of theCritique of Pure Reason,he ends by formulating the following statement: "Justice without love is empty; compassion without a right rule is blind." The Frenchman Duguit transports with greater frankness the centre of rights into morality: he conceives of rights as altogether different from force; not aspolitical,but aslimitof force; as consciousness of human solidarity, beneath whose rule we are all placed, State and individual, strong and weak, governorsand governed. French philosophers of rights generally oppose the German school, in which the character of force is prominent, so that French juridical philosophy sometimes assumes (for example, in Fouillée) an attitude analogous to that assumed, as we know, by the "generous" French economic school toward the English economists. And merely that some Italian name should not be absent from this review of recent writers, we will record Miraglia, who repeats the old Kantian division, making it yet more empirical: "Morality and rights are part of Ethic, because the good can be chiefly developed in the intimate relations of the conscience, or on the contrary can be developed by preference in the external relations between man and man and between man and thing";—and Vanni, who mixes a little positivistic evolutionism with this empirical reduction, affirming that rights are not originally distinct from morality, but that afterwards they were gradually differentiated, and rights now have the special function of guardianship and guarantee: "that is to say, the ethical minimum alone has been guaranteed, that much of the ethical field as is most directly necessary for the maintenance of life in common, leaving to other forces the task of regulatingwhat is most individual in life." And so on, though it seems that this is enough.[25]
Strident contradictions. Stammler.
Such are the contradictions in which the Philosophy of rights has struggled for about two centuries. Rights do not seem to be identical with Ethic, but they also do not seem to be simply different; they seem to be at once identical and different, but yet it has been found impossible to fix the element of difference with the concepts of external, of compulsion and others such. The thought of a difference between the two forms of activity has not been further eliminated; but neither has it been transformed and absorbed. This is a morbid condition, of which the gravest symptom is the logical absurdity of the aforesaid two rights and two justices. Rümelin talks of the pure ideal justice, which selects from the evidence and judges on the basis of immediate impressions of feeling; and of a realistic, rational, empirical, disciplined and developed justice: two justices that must however act together.[26]Others, seeking relations between those two concepts from a single fact andfailing to conquer the difficulty, force logic by distinguishing betweenconceptandidealof rights, or (as Vanni said) betweenlogicalconcept and concept of therational exigenciesof rights: as though a concept could be truly logical, if it do not derive from rational exigencies, and as if these can be valid, if they be not the concept itself. Worse still, Stammler affirms the identity of rights with moral rights, and of rights alone with immoral rights, arriving at the already criticized division of effective rights (Gesetzes) into two classes. It "is either right rights (richtiges Recht) or not; and right rights are effective, whose content of will possesses the property of beingright.Hence, right rights stand to effective rights asspecies to genus."[27]To meditate upon this plan of division is more than sufficient to produce the conviction of the failure of the Philosophy of rights, as it has been developed and as it could be developed with the practical presuppositions hitherto admitted. As the result of the direction of studies, from Thomas to the most recent, there remains nothing but the problem itself, as originated by the definitions of Thomas, and become certainly more acute anddifficult, owing to later disputes and inquiries, but never solved.
The value of law.
V. Less attention has been bestowed upon the concept oflaw,upon which it was impossible to obtain full light, on the one hand before the theory of abstract concepts had been developed (representative of class) in their difference from the universal, and on the other before preconceptions as to the necessary social and political character of laws had been discarded.
In antiquity.
But the difficulties contained in that concept had several times been observed in antiquity. In a dialogue between Alcibiades and Pericles, preserved in theMemorabilia,it is asked if all laws be laws, or only those that are just; and it is shown that it does not suffice that a law should be a law, in order to ensure its observance.[28]No true solution, however, was reached in this, as in many questions discussed at this period by Greek philosophy. TheCritois rather a stupendous work of art than a philosophical thesis, for it shows to the life the state of soul of Socrates, and the importance that he attributed to the laws and to the social order: the reason alleged for obedience to them, being placed in the fact that we have tacitly or explicitly agreedto remain within the boundaries of a given state, has in it something of the sophistical. Even in antiquity was seen the necessity of tempering the rigidity of laws by means of the equable, το ἐπιεικέç, which Aristotle defined as the correction of the law where it sins through its character of generality (ἐπανόρθωμα νόμου ᾗ ἐλλείπει διὰ τὸ καθόλου).[29]But it was not possible to escape from empiricism by means of the concept of equity. The law sins, not once, but always, through abstractness, or better, it never sins at all, because its function resides precisely in that abstractness.—In modern times Diderot felt and expressed all the gravity of the conflicts that arise, alike from the observance and from the inobservance of the law, and he expresses this in hisEntretien d'un père avec ses enfants sur le danger de se mettre au-dessus des lois. "Mon père(remarks one of the sons at the end of the dialogue),c'est qu'à la rigueur il n'y a pas de lois pour le sage.... Parlez plus bas.... Toutes étant sujettes à des exceptions, c'est à lui qu'il appartient de juger des cas où il faut s'y soumettre ou s'en affranchir.—Je ne serais pas trop fâché(concludes the father),qu'il y eût dans la ville un ou deux citoyens, comme toi;mais je n'y habiterais pas, s'ils pensaient tous de même."[30]
Romanticism.
The attitude of rebellion to the laws showed itself in German thought and literature in the preromanticism of theSturm und Drang(for instance in theRäuberof Schiller), and in Romanticism properly so called, when among others appeared the theories that limited the State, such as those of Wilhelm von Humboldt, and theories of sexual relations, such as those of Friedrich Schlegel. In theLucindeis displayed great horror forbourgeoiscustoms and for every sort of constraint, sexual relations being advocated with woman, family, love and fidelity, but without matrimony.
Jacobi.
Jacobi represents this attitude in several of his writings, with great elevation of soul, and especially in theWoldemar(1779, 1794-96), the most lively protest that has ever been made against law in the name of the individual. Here the question treated is precisely whether we should follow the inspirations of our own conscience or the laws of our own people. Sides are taken against "the compulsion and violence exercised by usages, customs, habits, and againstthose who do not think, save by means of those laws, holding them sacred, with resolute soul and mind inert"; and "that audacious heroic spirit is celebrated, which raises itself above the laws and common morality that it may produce a new order of things." "His heart alone tells man immediately what is good; his heart alone, his instincts only, can tell him immediately: to love it is his life. Reflection teaches him to know and to practise what leads to good. Habit assures and makes his the wisdom that he has acquired." "But this individual initiative," he observes, "may be the cause of abuse and misunderstandings." "Without doubt," replied Jacobi, "but what cannot be misunderstood has little meaning, and what cannot be abused has but little force in use." Men may be divided into two classes; the one exaggerates fear, the other hope and courage. The former are circumspect, always in doubt, they fear the truth because it may be misunderstood, they fear great qualities, lofty virtue, because of the aberrations to which it may give rise; and they have evil always before their eyes. The latter are the bold (who could be called the irreflective in the Platonic sense) and they behave with less exactitude; they are not so perplexed, they trustrather to the voice of their heart than to any word from without; they build rather upon courage than upon virtue, which generally keeps them waiting too long. They sometimes ask themselves with Young: Is virtue then alone baptized and are the passions pagan? "If," says Jacobi, "I must keep to one of these classes, I choose the second." "Yes," he exclaims elsewhere, opposing the abstractness of Kant,—"yes, I am atheist and impious, yes, I will to lie, in opposition to the will that wills nothing, as Desdemona lied when dying, I will to lie and to deceive like Pylades, when he slew himself for the sake of Orestes; I will to slay like Timoleon; to break laws and oaths like Epaminondas and John de Witt; to commit suicide like Otho; to despoil the temple like David; to pluck ears of corn on the Sabbath day, if only because I am hungry and the law is made for man, not man for the law. By the sacrosanct conscience that I have within me, I know that theprivilegium aggratiandifor such crimes against the pure letter of the law, rational, absolute and universal, is the sovran right of man himself, the seal of his dignity, of his divine nature."[31]But it must be remarked upon reading theseeffusions (most sincere, as all that came from the pen of Jacobi), that they are rather manifestations of states of the soul than theories, and therefore, strictly speaking, not to be theoretically censured, as is the case with all affirmations that place in relief one side of reality, without denying the others by doing so.
Hegel.
Hegel discovered this, observing in relation to our last extract: "Neither of the two sides can be wanting to moral beauty, neither its liveliness as individuality, by which it does not obey the dead concept, nor the form of concept and of law, universality and objectivity, which is the side exclusively considered by Kant, by means of the absolute abstraction to which he submitted liveliness, thereby suffocating it. The passage cited as to the liveliness and freedom of the moral life does not exclude objectivity, but does not express it either." Hence the danger of the romantic attitude, which had no need of exhortations such as those of Jacobi, for it already too much preferredmagnanimoustohonest, nobletomoralaction; and was much inclined to free itself of the law itself under the pretext of freeing itself from theletterof the law. Meeting empirical with empirical observations, Hegel also remarked that theexamples of the violation of laws due to the divine majesty of man, adduced by Jacobi, were conditioned by the natural temperament, by actual situations, and especially by circumstances of supreme misfortune, of supreme and rare necessity, in which few individuals find themselves. "It would be very sad for liberty if it could only prove its majesty and become actual in extraordinary cases of cruel laceration of the moral and natural life and in extraordinary individuals. The ancients, on the other hand, found the highest morality in the life of a well-ordered State." Hegel admitted that the affirmation of Jacobi, "The law is made for man, not man for the law," contained a great truth, when it was intended to allude in this way to the positive or statutory law. But the opposite was also true, when the allusion was to the moral law, taken as universal, outside of which, when the individual was separated from it, there was nothing but appetites and sensible impulses, which can only be means for the law.[32]
But we must not fail to recognize that Hegel does not avail himself of this most exact distinction in his philosophy, for there the dominating motive is respect for the laws and the tendencyto attack individual initiative. Hegel repeats many times with complacency the saying of the Pythagorean, that the best way of educating a young man is to make him citizen of a State ruled by good laws; and he remarks that Herculeses belong to primitive and barbarous times, and that individual valour has but a small field in times of culture. He was most averse to criticism of and rebellion against the authority of the State; for these did not seem to him to correspond to the reality of the spirit. That surface is not the reality; at bottom all desire order; and it is necessary to distinguish apparent political sentiment from that which men really will, for within them they will the thing, but hesitate as to particulars, and enjoy the vanity of censuring.[33]Men believe that the State exists and that in it alone are particular interests realized; but habit makes invisible to them that upon which our entire existence depends. There is in short in Hegel, besides the philosopher, a politician and moralist regretful of the excesses of revolutionaries and of unbridled romanticism; and there is also in him the desire for an exact inquiry into the function and limits of positive law.[34]
Recent doctrines.
In recent times there have been many and very various manifestations connected with the concept of this function and of its limits, and it would occupy much space to enumerate and to illustrate them all. We shall mention three, very distant and different. The first, which belongs to the political and social field, is the doctrine of anarchy and is opposed to laws of all sorts; it is a not purely philosophical doctrine, though it involves philosophical questions.[35]The other two, which more properly belong to the juridical field, are, the assertion of the importance of laws and of the duty of defending their existence, even where their violation by others does not interfere with our individual interests, or when their defence costs individual sacrifices (this was the argument of a vigorous little book by Jhering);[36]—and by way of contrast the demand for a free creation of the law by the judge (die freie Rechtsfindung,) which has given rise to discussions that are yet burning, more directly provoked by a little book of Kantorowicz (Gnaeus Flavius).[37]