Chapter 19

Natural rights and their dissolution. The historical school of rights.

VI. If then there has not been a great gainin clearness of fundamental concepts, as regards this part of the subject, there has on the contrary been an indubitable advance in consciousness acquired as to the mutability of laws and as to the consequent contradictoriness of the idea of natural Rights. This, with its complement, the catalogue of innate natural and inalienable rights of man, had great success in the seventeenth century for political and social reasons, attaining its highest development in the century following. But it may be said that the doctrine of innate rights was liquidated by Kant in theMetaphysic of Custom,when he wrote the proposition that liberty is the only original and innate rights, which belong to man through his very humanity,[38]at the very moment when it was most energetically affirmed in a practical form in theDeclaration of the Rights of Man.In the system of Hegel the constructions of natural rights began to lose their rigidity; becoming indeed historical categories of Ethicity orSittlichkeit,determinations of the spirits of various peoples (Volksgeister,) which are in their turn determinations of the Absolute or of the Idea. Owing to this view (without taking into account his error of wishing to philosophize and to make dialectical what ishistorical and empirical), Hegel connected himself closely with the historical school of rights (Hugo, Savigny, etc.). This, notwithstanding the exaggeration by which he seemed to deny the value of the ideal demands made of rights, had the merit of shaking the old conception of natural rights. This has retained its place in treatises from that time onward in a more or less worm-eaten and unstable condition by the force of inertia; or it has been preserved by Catholic writers (by Rosmini not less than by the Padre Taparelli), whose conception is of necessity but little historical; or it has reappeared in those curious Catholics and anti-historians, the positivists (Spencer, Ardigò). But that natural rights are nothing butnewhistorical rights in the struggle of their becoming, is a conviction that has penetrated the general consciousness.

The comparison between rights and language.

We also owe to the historical school the comparison between the life of rights and the life of language; this was prepared by the discoveries of comparative linguistic, which although substantially correct, yet had, as we have observed, the defect of limiting itself to thegrammaticalform of both facts, not to their genuine and direct reality. Jacobi, in the already quotedeffusions ofWoldemar,had recourse to the same comparison, for other reasons and with a more exact understanding of its terms; speaking there of the moral infraction of laws, he wrote: "For such exceptions, for suchlicences of lofty poetry,the grammar of virtue has no definite rules and therefore does not mention them No grammar, least of all the general and philosophical, could contain in itself all that appertains to a living language, and teach how, in every epoch, every dialect must be formed. But it would be unwise to affirm that every one may speak as they feel inclined." And again, "Virtue is free art; and as artistic genius gives laws to art by its creations, so moral genius gives laws to human conduct: just, good, noble, excellent, is what the just, good, noble, and excellent man practises, achieves and produces in conformity with his character; heinvents virtue,procures and generates adequate expression for human dignity."[39]

The concept of law, and the studies of comparative Rights and of the general Doctrine of Rights.

VII. The study of the concept of law is also progressing, and henceforth is not confined to so-called juridical laws and to legislations and codes. Researches into primitive rights and into those of savage and barbarous peoples, known asjuridical Ethnography or comparative rights, have greatly contributed to destroy many prejudices; as also the attention that has been directed to facts called social, that is to say, not strictly political. A school that has had independent yet partly similar manifestations in England (Austin, Sumner Maine, etc.) and in Germany, where it has taken the name of school ofthe general Doctrine of Rights (allgemeine Rechtslehre,according to the denomination given to it by Adolph Merkel), studies in particular the concept of law in its various classes and subclasses; and from it there cannot but issue a more correct understanding of the concept of law, as from the refinement of political Economy into pure Economy has come, first Psychology and then the Philosophy of economy. Meanwhile (and as far as we know) the literature of the school, dominated as it is by the needs of jurisprudence, maintains an empirical orintellectualisticcharacter; and jurists, rather than philosophers themselves, are those that most cultivate it. The distinctions and sub-distinctions of the laws are conducted with subtlety, but are without solid foundation, because the concept posited as basis of law is uncertain and arbitrary. Limiting ourselves to a single example, let us mention Bierling,perhaps the most philosophical of those various writers. Bierling first of all excludes from the concept of law the modes of man's conduct toward God, toward himself, and toward animals; but he gives no serious reason for this. He then arrives, by a mere arbitrary act, at the limiting of the concept of law to the manner of men's conduct among themselves, and defines rights in the juridical sense (as he calls it: "in general, all that men living together in any sort of community reciprocally recognize as a norm and rule of this living together"). He then introduces into the concept thus defined, not by deduction, but as the result of a second arbitrary act, the concept of exteriority, adding that, "the object of law is a definiteexternalprocedure of man toward man."[40]In all this is evident the bad influence of jurisprudence and of its empirical preoccupations.

legalism and moral casuistic.

VIII. Ethical legalism became a bitter question for Christianity, precisely because of the contest between lofty Christian morality and its legalitarian form, chiefly inherited from Judaism. In the ancient world there is almost no trace of the question, just because the struggle was never acute.[41]Hence the difficulties debated among thepatristics and the scholastics as to derogability from divine laws and the consequent distinctions between a perfect and an imperfect moral life, between precepts and counsels; and as recourse is had to precedents in judicial questions, so here with these ethical problems concerning exceptions made by God to the moral law, to the precepts of the Bible (where some were not beautiful).[42]The practical needs of confession give origin to books on casuistic, of which collections exist dating from the fourteenth and fifteenth centuries. The Reformation manifested aversion to these treatises: Luther said that moral theologians had first extinguished in men the fear of God and had then placed soft cushions beneath their hands and feet; and Melanchthon lamented that the Christian Republic was honouredtheologastrorum sententiis de conscientiae casiobus, inestricabilibus, ubi nunquam non ex quaestione quaestio nascitur,and called themconscientiarum cauteria.[43]

Probabilitism and Jesuitic morality.

The inconclusiveness of legalism was converted into a most powerful poison by the Jesuits, with theirprobabilitism,of which precursors were not wanting in the Middle Ages, but it receiveddefinite form from the Dominican Bartolomeo Medina in 1577. From that time onward probabilitism began to be surrounded with a copious literature, which continually increased in the course of the seventeenth century, to decline in the century following. The opposition originated by the Jansenists, whose capital literary document, theProvincialesof Pascal also dates from the seventeenth century (1656), was the period of the greatest vigour of the doctrine. But if the most perfect and most Christian moral conscience dwelt in the Jansenists and in Pascal and if the absurd consequences to which probabilitism led became clearly evident in that polemic, yet it cannot be said that philosophically the error was finally superseded. Ere this could have happened, it would have been necessary, on the one hand to destroy all possibility of theological utilitarianism (which was impossible to carry out in a religious and transcendental Ethic, owing to its mystical and irrationalistic character) and on the other to destroy legalism. Pascal himself (and St. Augustine, to whom he appeals) was always confined in the legislative conception of morality; hence he speaks of the laws of "not slaying," which it was necessary to obey strictly, save in the cases established by God or when he gives particularorders to put certain persons to death. The Catholic Church, always astutely political, condemned without hesitation the extremerigorists,who wish that the law should always be followed and the extremelatitudinarians,who think that any sort of reasons, however slight and improbable, suffice for not observing the law; allowing intermediate sects to discuss among themselves until they were out of breath, that is to say,the moderate rigorists, the probabiliorists or tutiorists, the equiprobabilitists and the probabilitists.Sant Alfonso dei Liguori adhered to these last, who were of opinion that it is always permissible to do what we wish, provided always that there be probable reasons, though less probable than those that militate in favour of the law. In hisDissertatio de usu moderato opinionis probabilis,[44]he thus exposed the principal argument of his thesis:Peto ab adversariis ut indicent (si possunt) tibinam legem hanc esse scriptam invenerint, quod teneamur inter opiniones probabiles probabiliores sequi? Haec lex quidem, prout universalis, deberet omnibus esse nota et certa: at quomodo ista lex certa dici potest, cum communis sententia doctorum, saltem longe major illorum pars, post tantum discrimen absoluteasserant, hanc legem non adesse? Usque dum igitur de tali lege dubitatum, opinio quod adsit haec lex sequendi probabiliora, quamvis alicui videatur probabilior, nunquam tamen lex dici potest, sed appellanda erit mera opinio, utpote ex fallibili motivo deducta, quae vim nequaquam habet, ut lex, obligandi.This doctrine still retains in our day very firm supporters among the Jesuits (Cathrein,[45]Lehmkuhl,[46]etc.).

Critique of the concept of the licit.

But if the destruction of theological utilitarianism has been brought about by the criticism of the transcendental and by idealistic Ethic, that of legalism, with its expression as the licit, the permissible, or morally indifferent, appears in Fichte and in Schleiermacher. Kant did not treat the question explicitly and, as observed, we can deduce from certain of his utterances that he did not altogether abandon the concept of the licit.[47]

Fichte.

But Fichte, in a note to hisNatural Rights,wrote: "A right is evidently something of which a man can avail himself or not; and is therefore the result of a law that is merely permissive. ... The permission is not expressly given by the law and is deduced by interpretation from itslimitation. And the limitation of a law is shown by the fact of its being something conditioned. It is not absolutely apparent, therefore, that a permissive law which commands in an unconditioned manner and therefore extends to all, can be deduced from the moral law."[48]

Schleiermacher.

What was a mere mention in Fichte became an ample demonstration in the celebrated memoir of Schleiermacher,On the Concept of the Licit(1826), which resolutely drove the licit out of the field of Ethic, by demonstrating its altogether juridical nature: "The original seat of this concept cannot be the domain of Ethic, in which it is not admissible: it appertains to the domain of law and of positive law; and there is something originally licit in civil life, precisely in this sense that there is something half-way between what is commanded and what is forbidden, the proper object of law."[49]

Rosmini.

Rosmini, owing to having ignored this origin of the lawful, proceeded to divide human actions into four classes: the prohibited, the licit, the commanded, and the superogatory; the last three were all innocent, but the licit was simply innocent, while the commanded and thesuperogatory were also furnished with moral value. Hence arose grave errors in his Ethic and in his Philosophy of law and definitions that it is impossible to grasp, such as the following relating to superogatory actions: "The obligatory consists in preserving the moral order, but the superogatory consists in preserving the said order in a more excellent and perfect manner, with fuller, more frequent, and more ardent acts of the will. These second not only preserve the moral order, but augment it, almost creating a part of it themselves with their activity; they make themselves not only followers of the good, but authors of the good itself." Rosmini also considered that the posing of the question of probabilitism represented progress in Ethic; that is, upon "what man should do, if he found himself in doubt as to performing or omitting to perform an action." But the solution of the question that he gave on his account amounted (be it said to his honour) to the annihilation of legalism, since for him a doubtful law does not oblige when it is positive Rights, but it does oblige when it is moral law, that is, when there is a fear of offending against the supreme and necessary law, which wills absolutely to be always fulfilled.[50]In otherterms, the true practical law is never (even when it appears to be so) positive law; and the concept of law, which always has a positive meaning, is extraneous to Ethic and to the Philosophy of the practical: a result to which Rosmini does not attain, or at least is not conscious of attaining.

[1]See above, pp.286,287.

[2]Krit. d. rein. Vern.(ed. Kirchmann), p. 572.

[3]Lasson,System der Rechtsphilosophie(Berlin, 1882), p. 2.

[4]Gorgias,476-478.

[5]Eth. Nicom.3, v. c. 1-2.

[6]Ibid.v. c. 7, 9;Magna Moralia,i. c. 34.

[7]De repudi,iii. c. 22;De legibus,ii. c. 5.

[8]De imo univ. jur. princ.§§41, 43, 86.

[9]Fundamenta juris nat. et gentium(1705).

[10]Windelband,Geschichte d. Phil.p. 424.

[11]Gründl. d. Naturr.(1796), append., sect. I.

[12]Metaphys. d. Sitten,1797 (ed. Kirchmann), pp. 31-35.

[13]Gründl, d. Naturr.pt. i. sect. 1.

[14]Spinoza,Tract, pol.c. 6, § 3; Fichte,System d. Sittenlehre,§ 18in fine.

[15]Phil. d. Rechts,passim, concerning force and violence, §§ 3, 57, 94.

[16]Op. cit.§ 158,sqq.161, 258.

[17]Werke,I., p. 371.

[18]Allg. prakt. Phil.pp. 48, 126-128.

[19]Werke,i. 441-445; cf. v. 259-260.

[20]Fil. d. diritto(Napoli, 1844), i. 20-21, 88-89, 94-97.

[21]Saggio teor. d. dir. nat.(Palermo, 1857),in princ.

[22]Stahl,Rechts-u. Staatslehre2(Heidelberg, 1845), b. ii. ch. I; Ahrens,Naturr.(It. tr., Napoli, 1860), i. 219sq.; Trendelenburg,Naturrecht auf d. Grunde d. Ethik(Leipzig, 1860).

[23]Kirchmann,Begr. d. Rechtes u. d. Moral2(Berlin, 1873), pp. 107114; see Jhering,Der Zweck i. Reckt(i.2, 1883; ii.3, 1886).

[24]Lasson,op. cit.;Steinthal,Allg. Ethik(Berlin, 1885), pp. 135-8; Schuppe,Ethik u. Rechtsphil.(Breslau, 1881), pp. 283-4; Wundt,Ethik2(Stuttgart, 1892),.p. 565sq.; Cohen,Ethik d. reinen Willens(Berlin, 1904), p. 567.

[25]Rümelin,Reden u. Aufsätze,new series (Freiburg i. B., 1881), p. 342; Jellinek,Allgemeine Staatslehre(Berlin, 1900), p. 302sq.;Stammler,Lehre v. richtig. Rechte(Berlin, 1902); Duguit,L'État, le droit objectif et la loi positive(Paris, 1901); Fouillée,L'Idée moderne du droit en Allem., en Angl. et en France(Paris, 1876); Miraglia,Fil. d. dir.(Napoli, 1903), p. 80; Vanni,Lez. d. fil. d. dir.(Bologna, 1904), pp. 113-114.

[26]Rümelin,op. cit.pp. 176-202. Cp. Lasson, p. 215sq.

[27]Op. cit.p. 22. Cf. Bergbohm,Jurisprudenz u. Rechtsphilosophie(Leipzig, 1892), i. 141-147n.

[28]Mem.i. 2. 40sq.

[29]Eth. Nicom.Bk. v, c. II.

[30]Œuvres,edit. Assézat et Tourneux, v. (Paris, Gamier, 1875), pp. 307-8.

[31]Woldemar,passim.

[32]Werke,i. 52sq.;xvi. 21sq.

[33]Phil. d. Rechts,sect. II.passim;cf. pp. 150, 153.

[34]Op. cit.§ 268,Zus.

[35]An ample exposition of such doctrines is to be found in E. Zoccoli,De Anarchia,Turin, 1907.

[36]La Lotta pel diritto,It. tr., Milan, 1875.

[37]La Lotta per la scienza del diritto(It. tr., Palermo, 1908); cf.Critica,vi. pp. 199-201.

[38]Metaphys. d. Sitt.p. 40.

[39]Woldemar,pp. in, 416, andpassim.

[40]Bierling,Juristische Prinzipienlehre(Freiburg i. B., 1894-98, 2 vols.).

[41]Sidgwick,History of Ethics,London, 1892, p. IIIsq.

[42]A. Bonucci,La derogabilità del diritto naturale nella Scolastica,Perugia, 1906.

[43]Hist. remarks in dissert.,De casuisticae theologiae originibus, locis atque praestantia(together with De Ligorio,Theol. mor.,ed. cit., pp. xxiv-lxxvi).

[44]InTheol. mor.i. 10-24.

[45]Cathrein,Moralphilosophie,4i. 428-437.

[46]Probabilismus vindicatus(Freiburg, Bk. i., 1906).

[47]See above, p.405; cf. alsoKrit. d. rein. Vern.pp. 10-11n.

[48]Gründl. d. Naturr.introd. § iii.n.

[49]Werke,sect, iii., vol. ii., pp. 418-445; cf. G. Mayer,Die Lehre vom Erlaubten in der Gesch. d. Ethik seit Schleiermacher,Leipzig, 1899.

[50]Compendio di Etica,pp. 48, 96, 284-285.

The Philosophy of the Spirit as the whole of Philosophy.

With the Philosophy of the practical terminates the exposition that we had proposed to give of the Philosophy of the Spirit; and the exposition of the whole of Philosophy also terminates, because the Spirit is the whole of Reality.

Here at the end, this proposition has no need of such proof or verification as is customary in calculation. Because the proof of Philosophy is intrinsic to it and consists of the reciprocal confronting of the development of thought and its demands, between the System and Logic. And Logic, as we know, if it be in a certain sense the whole of Philosophy (philosophy in brief or in idea or in potentiality), is also a part among the parts of the philosophical system; so that the confrontation of the System and of Logic, of thought in act and thought in idea, between thought and the thought of thought, has been continuously present and active in the course of the exposition, and the coincidence of the two processes andtheir confluence into one has been clearly demonstrated.

Correspondence between Logic and System.

Logic affirms the thinkability of the real and the inconceivability of any limit that could be put to thought, of every excogitation of the unknowable. And Philosophy, examining every part of the real, has not found any place in which to lodge the unknowable in thought. Logic posits as the ideal of the concept, that it should be universal and not general, concrete and not abstract; that it should be pure of intuitions such as those of mathematics and differ from them in being necessary and not conventional; fruitful in intuitions like those of the empirical sciences, but differing from them by its infinite fecundity which dominates every possible manifestation of the real. And the system has effectively shown that this desideratum of Logic is not a chimæra and that the Spirit is indeed that concept which corresponds to the ideal of the concept: there is nothing that is not a manifestation of the Spirit (an effectual manifestation, not conventional or metaphorical). Logic, rejecting all dualism or pluralism, wills that the philosophical concept shall be a unique concept or of the One, and does not suffer heterogeneous concepts at its side. And the system has confirmed that the concept of the Spirit alone fulfils the logical condition of the concept; and that the concept of Nature, far from being a concept of something real, is the hypostasis of a manner of elaborating reality, not philosophical but practical; thus the concept itself of Nature, in so far as it is effectual, is nothing but the product of a function of the Spirit.

On the other hand, the Logic of the idea of the concept deduces that it must be a synthesis of itself and of its opposite. For its opposite, far from being heterogeneous and different, is flesh of the flesh and blood of the blood of the concept itself, as negation is of affirmation. And the system has led us before the Spirit or Reality as development, which is the true reality of the real and synthesis of opposites. Logic deduces that the concept is synthesis of itself and of the distinct from itself, of the universal and of the individual, and that therefore Philosophy must flow into History, and mediate its comprehension. And the system shows the capacity of its principles for interpreting the complex reality of History, and above all the history of philosophy itself, by solving its problems. Logic does not admit other distinctions of the concept than those that are the outcome of its own nature, such as therelations of subject-object and of individual-universal; and the system has confirmed these distinctions, duplicating itself as Philosophy of knowledge and Philosophy of action, of theory and of practice; subdividing itself as to the first, into Æsthetic and Logic; as to the second, into Economic and Ethic. And since the demand of the concept has been entirely satisfied, when these divisions have been exhausted, we have not found the possibility of new subdivisions, for example into various æsthetic or into various ethical categories among the particular sub-forms of the Spirit.

Dissatisfaction at the end of every system, and its irrational motive.

Some are seized as with a sense of dissatisfaction and delusion when they arrive at the end of the philosophical system and at the result that there is no reality save the Spirit and no other Philosophy save the Philosophy of the Spirit; and they do not wish to resign themselves to accepting that and nothing else as Reality, although obliged to do so by logical necessity. A world beyond which there is no other seems to them poor indeed; an immanent Spirit, trammelled and far inferior by comparison with a transcendental Spirit, an omnipotent God outside the world; a Reality penetrable by thought, less poetical than one surroundedwith mystery; the vague and indeterminate, more beautiful than the precise and determined. But we know that they are involved in a psychological illusion, similar to his who should dream of an art so sublime that every work of art really existing would by comparison appear contemptible; and the dreamer of this turbid dream, should not succeed in achieving a single verse. Impotent are those poets most refined; impotent those insatiable philosophers.

Rational motive: the inexhaustibility of Life and of Philosophy.

But precisely because we know the genesis of their psychological illusion, we know that there is in it (and there could not fail to be) an element of truth. The infinite, inexhaustible by the thought of the individual, is Reality itself, which ever creates new forms; Life is the true mystery, not because impenetrable by thought, but because thought penetrates it to the infinite with power equal to its own. And since every moment, however beautiful, would become ugly, were we to dwell in it, so would life become ugly, were it ever to linger in one of its contingent forms. And because Philosophy, not less than Art, is conditioned by Life, so no particular philosophical system can ever contain in itself all the philosophable; no philosophical system isdefinite,because Life itself is neverdefinite.A philosophical system solves a group of problems historically given and prepares the conditions for the posing of other problems, that is, of new systems. Thus it has always been and thus it will always be.

In such a sense, Truth is always surrounded with mystery, an ascending to ever higher heights, which are without a summit, as Life is without a summit. At the end of one of his researches every philosopher just perceives the uncertain outlines of another, which he himself, or he who comes after him, will achieve. And with thismodesty,which is of the nature of things themselves, not my personal sentiment; with this modesty, which is also confidence that I have not thought in vain, I bring my work to a conclusion, offering it to the well disposed as aninstrument of labour.

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