a question of degrees, whence the positivity of both forms is recognized: the second of these is included in the first: the ideal right or morality (if it be right, and not simply abstract excogitation willed by no one, or vague desire) is both positive and historical. But those who posited the dis tinction without being able to make it definite and so to dominate it were led to conceive one or the other term as negative; and therefore both as negative between themselves and existing only in a third: which meant to reannul the distinction by reducing it to abstract contradiction. If one of the two were conceived as negative, either the ideal justice (that is, the seriousness of moral strength) was denied and turned to ridicule, or positive justice, that is, the seriousness of volitional strength, was presented as some thing turbid and impure and at best as a human imperfection, to which it was advisable to resign oneself since it would disappear in a society of perfect men or in a future life of perfection. Juridical activity became something contingent and mortal. Matters were even worse, if it were found impossible to eliminate it with similar religious, apocalyptic, or millenary fancies. The negative was then conceived as positive or co-ordinated with the positive: hence incredible Value of all these theories as confused perception of the amoral character of justice.
538 PHILOSOPHY OF PRACTICAL PT.
logical divisions of rights into forms or species of moral and immoral rights, ^i just and unjust rights, in which the species has the function of negation of the genus, almost as though the race of horses were to be divided into two kinds: dead and living horses! Unjust or immoral rights are not rights, but a contradiction of them, and if we sometimes describe in this way a real and effective juridical act (an economic act), it is necessary to observe that the denomination is given from the point of view of a superior form of activity. Rights in themselves as rights, understood positively, are never immoral, but only amoral.
All these errors, all these sterile tentatives have their origin, as has been said, in the lively consciousness of a distinction existing between right and morality and at the same time of the impossibility of determining this correctly, owing to lack of clarity as to the purely economic form of the practical activity. When the juridical activity has been identified with the economic and when juridical (economic) activity has in consequence been conceived as at once united with and distinct from morality, we are able to recognize that these attempts have nevertheless fulfilled a very useful function; that is to say, they have more or less energetically asserted and LAWS 539 LAWS 539 defended the position that there existed a char acteristic distinction between right and morality and that it was necessary to seek for it. They are therefore far superior, notwithstanding their errors, to that confused ethical conception, which receives rights and morality indistinctly into its bosom, or to the utilitaristic conception, which arrives by a different route at the same in- distinction. This merit belongs to the theories of the moral minimum, of justice, of the two justices and of the contest between positive and ideal rights; but in a much greater degree to that of compulsion, of exteriority, of the licit. With these last was almost unconsciously set in relief the fact that right obeys a law different from that of Ethic, and may be called compelled and not free by comparison with it, because not founded upon the necessity of the universal; that in respect to the supreme interiority of Ethic it can be considered as something exterior \ that in respect to the ethical imperative, it appears as something indifferentiated or licit. These are without doubt symbols, tautologies, vague and imprecise phrases, but efficacious in keeping the attention alert and in promoting doubt and research.
But the impossibility of absorbing rights into 540 PHILOSOPHY OF PRACTICAL PT.
Confirmations Ethic altogether and without leaving residues is of this char acter in the proclaimed or confessed, not only in the theories ingenuous conof philosophers, but by simple thought, and especially by the consciousness we have of the real world being governed, not by abstract morality, but, as is said, by force, or by the will in action. " Disarmed prophets " will be efficacious in poetry, but ridiculous in practical reality: la force prime le droit, precedes it and is always of greater value than an unreal and contra dictory ethical right and aspiration, afterwards dissolved in the empty and arbitrary. We will not recall proverbs, maxims, historical examples, though this would be easy; that little story of Franco Sacchetti which preserves " a fair speech " of Messer Ridolfo da Camerino, will suffice for all. One of his nephews had been at Bologna study ing law for a good twelve years, and when, having become an excellent lawyer, he returned to Camerino, he went to pay a visit to Messer Ridolfo. When he paid the visit, Messer Ridolfo said, "And what didst thou do at Bologna?" He replied, " My Lord, I have learned reason" Said Messer Ridolfo, " Thou hast spent thy time ill." The young man replied that the saying seemed to him to be very strange. " Why was it ill spent, my Lord? " And Messer Ridolfo said, LAWS 541 LAWS 541 "Because thou shouldst have learned force, which is worth two of the other." The youth began to smile, and thinking it over again and again, both he and the others that heard, perceived that what Messer Ridolfo had said, was true.1 And here too we are at last able to establish comparison I, «.. between right a parallel between the practical and theoretic andianguase.
Grammars activity, between the problems of the Philosophy of right and those of Logic and ^Esthetic. The comparison of right and language has been several times attempted, with very great correc tion of thought, although necessarily defective execution, since it was customary to conceive both language and right in an abstract and em pirical 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 formulae and of general concepts.
1 Novelle, xl.
542 PHILOSOPHY OF PRACTICAL Logic and Only when rights appear as individual and conlanguage; morality and tinuallv new work of individuals, only when the rights.
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 com parison 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 insti tutes, 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, so the trite 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 with the social and political history of that people: an altogether juridical or economic history; a history of wants and of labour.
VI HISTORICAL ANNOTATIONS I. THE history of the distinction between morality Distinction and rights is very important, precisely because, as ty and rights, and its imhas been said, it is the manifestation of the very portance for the J history of the strongly - felt desire to posit in some way a gnomic prin- philosophy of the aethical or amoral practical form: a manifestation which is the most con spicuous 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 the Critique of Pure Reason, wishing to give a characteristic example of the difficulty of definitions, found nothing 544 PHILOSOPHY OF PRACTICAL FT.
better to record than that jurists were always seeking a definition of rights, but had never succeeded in finding one.1 And a jurist philo sopher 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.
The problem of that distinction is on the of Thomas. 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.2 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, 1 Krit. d. rein. Vern. (ed. Kirchmann), p. 572.
2 Lasson, System der Rechtsphilosophie (Berlin, 1882), p. 2.
in LAWS 545 in LAWS 545 for example, upon the theory developed in the Gorgias as to the eagerness to purge his punish ment 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.1 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,2 which should not intrinsic ally 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 ol the distinction to be traced in the discussions as to whether rights exist by nature or by con vention and in the concept of a a-rrXw? SUaiov, opposed to that of TTO\LTIKOV Siicaiov found in Plato, and more explicitly in Aristotle,3 and rendered popular by Cicero when speaking of the recta ratio, naturae congruens, diffusa in omnes, 546 PHILOSOPHY OF PRACTICAL FT.
constant, sempiterna; of rights not drawn from the Twelve Tables or from the pretorian Edict, but ex intima philosophia; and of rights that on the other hand are varie et ad tempus descriptae populis, whence they have the name of laws favore magis qiiam re} This rough distinction between natural and positive, absolute and relative rights; this con cept of an ideal right placed face to face with real rights, or of which the real should be an imperfect and partial translation, also re appears 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 formulae 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 doctrinal 1 De republ. iii. c. 22; De legibus, ii. c. 5.
in LAWS 547 value. 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 between virtus w\& justitia; of these the first cum cupiditate pugnat, and the second utilitates dirigit et exaequat; and both derive their origin from the vis veri or ratio humana; and as all the virtues are connected and none of them can exist alone (nulla virtus solitaria), so virtus zn&justitia are at bottom one.1 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.
1 1 Thomas provided the apple of discord, or Thomas and r his followers.
as might also be said, cast the leaven of progress 1 Deimo univ. jur. princ. §§41. 43> 86- 548 PHILOSOPHY OF PRACTICAL FT.
into the treatment of rights, when he distinguished three forms of the rectiim: thejustum, the hones- turn, the decorum, placing the first in opposition to the other two, the forum externum to the internum, and attributing to rights and justice the character of coercibility.1 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." Kant and It was completely developed and reasoned out, Fichte.
Fichte.
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 opposed legality to morality; the juridical imperative is expressed with the formula, " act externally " (handle ausserlich); right is conjoined with the faculty of compulsion (zwingen). Hence his doctrines are often amoral- istic 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, but 1 Fundament a juris nat. et gentium (1705). 2 Windelband, Geschichte d. Phil? p. 424.
in LAWS 549 in LAWS 549 also natural and moral.1 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.2 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.8 Both philosophers thus preserve the moralistic concept of the legal and the justum; 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 obscure 1 Grttndl. d. Natitrr. (1796), append., sect. I.
2 Metaphys. d. Sitten, 1797 (eel. Kirchmann), pp. 31-35- 3 GrundL d. haturr. pt. i. sect. I.
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what 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 it a 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 a State of necessity opposed to the State of reason: and when perfection has been attained and there is complete accord of all in the common end, " the State " (he in LAWS 551 said) " disappears as a legislative and compulsive force."1 In the ulterior phase of his thought, Fichte afterwards 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 preserva tive 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 of 1 Spinoza, Tract. poL c. 6, § 3; Fichte, System d. Sittenlehre, § 18 in fine.
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what 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.1 From this it is clear that the purely juridical moment does not possess effective spiritual autonomy for Hegel; so much 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.2 The compulsory theory of punish ment seemed to him to reduce the latter to a mere economic fact, by means of which " the State as judging power, opens a business with 1 Phil. d. RechtS) passim, concerning force and violence, §§ 3, 57, 94.
LAWS goods called crimes exchangeable for other goods, and the code is the list of 'prices"1 Herbart too denies the originality of the character ot 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 (Mackt} are added to society and the State arises.2 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 of rights and their opposite. But the bridge of asses 554 PHILOSOPHY OF PRACTICAL PT.
is 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."1 Rosmini presents the two elements not well harmonized, as the eudaemonological and the ethical. Rights for him are not mere eudaemonism, but a eudaemonistic fact, produced by moral right and receiving form from it; hence the science of rights ''stands between Eudsemonology 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 Eudsemonology and Ethic; and it would be far less easy to explain how this LAWS 555 science comes to be " completely distinct " as re gards its components. I f rights have a moral form, they are moral and not eudaemonological. Owing to this difficulty Rosmini was led to introduce the concept of the licit as criterion of differentia tion, 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."1 Juridically understood this constitutes a tautology, ethically something worse. Other Catholic authors (Taparelli, for example) deplore the separation of ethos from jus, 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."
III. If Catholic doctrines deserve mention for stau, Trendelenberg.
their conservativism, it is necessary to record the names of Stahl, Ahrens, and Trendelenburg, for