. 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 em braces alike Economy and Ethic, introducing into both the philosophic absurdity of the practically indifferent. Even a man without moral con science, 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 accelerate LAWS 515 LAWS 515 the 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 substitut ing superstition and therefore the arbitrary for prudence and that I am causing injury to myself.
It is necessary to maintain against the morally critique of the practically and practically indifferent, that it is a concept indifferent. 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 no faculty that is not also obligation; there is no right that is not at the same time a duty; there is nothing licit that is not forbidden; nor permitted that is not turned into a command. nravTa e^eanv, a\V ov Travra (rv/jL^epei, 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 to error.
5i6 PHILOSOPHY OF PRACTICAL PT.
destroy that paradoxical concept at the roots, it is necessary to reach the point underground where the concept of practical legalism is to be found, and to show, as we have done, its origin, in the confusion between principles and laws.
contests be- In vain have the rigorists, becoming aware of andiatitudi- the ruin that menaced the theory of Ethic, narians and...their common struggled against the theoreticians of the morally indifferent, or latitudinarians. 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 be doubtful and give rise to the morally indifferent; the law was certain. 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 in different, and had no way of vanquishing it. They could advise the choice of the most painful LAWS 517 and 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, recog nized 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 conse quence. Reduced as they were to authority, why should one be of more account than another, when all are estimable people worthy of credence?
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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,;opines 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 Practical legalism can also give rise to a morality as doctrine of ~_ monstrously absurd theory, which we shall call fraud against the moral law. Jesuitic 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 rationally defraud ethical law.
concept of That the law is defrauded or eluded every 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; in LAWS 519 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 the ferox animus of 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.
But what is altogether irrational and yet Absurdity of the fraud seems to be admitted by Jesuitic morality, is against ones the 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 ad monition, the Socratic demon, or the guardian angel. This happens in the utilitarian, not less 520 PHILOSOPHY OF PRACTICAL PT.
than 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 But that pretension of Jesuitic morality cannot morality not explainable as On the other hand derive from mere ethical mere legahsm.
legalism, because legalism produces the contra dictions that we have already placed in relief; it generates the morally indifferent and at the same time suppresses it; and when it has sup pressed again generates, in order again to sup press 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 be LAWS 521 directed at will. To obey the letter of the law with the clear intention of breaking it in spirit will never be justified.
The pretension of Jesuitic morality becomes Jesuitic morality as illuminated and transparent to the intellect, only alliance be tween legalism when we make the hypothesis of an alliance and theological utilitarianism.
between practical legalism and theological utili tarianism; that is to say, when not only do we conceive morality as a series or complex of legislative decisions, but when we likewise con sider 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 the 522 PHILOSOPHY OF PRACTICAL PT.
interpretation 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 dis closing 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 in terests 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, and directing his intention to the divine glory, thus justify the means by the end. Distinction Such is the monstrous logical product, born between the. 77- 111 doctrine and ot the union between legalism and the theory the practice of the Jesuits. of theological utilitarianism; such is the essence of Jesuitic morality, which has justly aroused horror and disgust. And we call it logical (or LAWS 523 LAWS 523 illogical) 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 Jansenists occidi 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.1 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, ex perienced 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, excla- 524 PHILOSOPHY OF PRACTICAL PT.
mations, and exhortations: Nunc aegre materiam illam tractandam aggredimur, cujus vel solum nomen hominum mentes inficit. Det mihi veniam, quaeso, castus lector!...Ora st^ld^osos...ut...eo tempore saepius mentem ad Deum elevent et Virgini immaculatae se commendent, ne dum alzorum animos Deo student acquirere, ipsi suarum detmmentum patiantur^ 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 like senis bacillus, 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 allure ments of devotion aise'es a pratiquer, by means of which the gates of Paradise could be unlocked, and with ckemins de velours on which one could mount to the sky with every indul gence. 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 us LAWS 525 to forget that the latitudinarians also, amid their distorted theories, sometimes had a lucid vision of the complications of 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.
JUDICIAL ACTIVITY AS AN ACTIVITY GENERICALLY PRACTICAL (ECONOMIC) Legislative THE will that wills classes of actions, or the activity, as 1111 1 genericaiiy activity that makes laws and that we can hencepractical.
forward term legislative activity without 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 are PT. in LAWS 527 his 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 them selves 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! " From these considerations, which seem to vanity of disputes as to be most obvious, a not obvious consequence the character of institutions, 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; 5 to ask oneself, for instance, whether the object of punishment be deterritio or emendatio; if matrimony be an exchange of services or a sacrament, a union of interests or a society 528 PHILOSOPHY OF PRACTICAL FT.
with moral ends; if the State be 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 him self 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. Matri mony may be instituted for the more regular satisfaction of the sexual instinct and for other in LAWS 529 similar interests of utilitarian life; and also to secure that interpenetration 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 mere deterritio. 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.
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Legislative Thus no other answer is possible to the activity as,...economic. 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, de fining it in its full extension, it must be called generically practical, or taken in itself, merely economic.
juridical Passing now from the legislative activity to activity: its economic that of him who realizes and executes the law character.
(an activity that we may call juridical, 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 legislat ing, 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, or economic. As such and in so far as it is such, LAWS 531 it is at once distinct from and united with the moral form.
But juridical activity does not merely enter its consequent...identity -with the economic activity; it is exactly identical with the economic activity.
it: juridical activity and economic activity are synonyms. 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 con crete 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 developed under the laws; whereas the former would exist even where laws 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, under stood as juridical activity with economy, has not been discovered, that too is connected 532 PHILOSOPHY OF PRACTICAL PT.
with 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 But this failure of recognition has not prere -cognize the.
economic form vented the appearance and persistence of the and the mean ing of the prob- problem of the combined unity and distinction of lem concerning the distinction iaw anci morality, which has been the most morality and 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.
This character was placed most frequently and with greater insistence in the two deterbetween mor> law.
III LAWS 533 minations of compulsion and of exteriority. And Theories of compulsion it was said that law is distinguished from and exterior ity, as distinctmorality because it is possible to exercize com- ive characters.- L critique.
pulsion 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 the psychical, the other the physical side 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 every thing 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 formulae. 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-compulsion 534 PHILOSOPHY OF PRACTICAL PT.
that 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 ^Esculapius 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.
^^e difficulty of conveniently fixing the dis- tinction 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, LAWS 535 LAWS 535 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 simple justice, with the establishment of order, proportion, equality; whereas morality would represent more than justice, and would upset the equilibrium of rights with benevolence, generosity, sacrifice, heroism. Rights (it is also said) are limited to the ethical minimum, while morality strives for the maximum; rights are concerned with strict rights or perfect duties, morality with meritorious and supererogatory actions, imperfect duties. But these determina tions 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 alto gether empirical, as, for instance, that of justice as distinct from benevolence, of the strictly obligatory from the meritorious and supereroga tory; 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 con sciously or unconsciously a return is made to 536 PHILOSOPHY OF PRACTICAL PT.
Ethic pure and simple, with the theories that make juridical activity to consist of the recognition of others as persons, or with the search for general utility (superindividual). When we act in view of the person in 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 The dual sense of the terms is also affirmed positive and idcai,kistoricai by the very ancient distinction between positive and natural rights, etc.; and ideal, historical and natural rights, right and and absurd attempts at justice, or, as it has also been formulated, between unification and J co-ordination. ^^ /zw 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 is LAWS 537