1 Fil. d. diritto (Napoli, 1844), i. 20-21, 88-89, 94-97- 2 Saggio tear. d. dir. nat. (Palermo, 1857), in princ.
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no other reason than the great popularity that they enjoyed in the schools. Stahl divides the ethical action of man into two domains, differ ing in content and character. This dualism is founded upon the double relation of human exist ence, 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 there fore 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: the logical, the ethical, and the LAWS 557 physical (compulsion),1 of which none, as we see, is truly judicial.
For the reasons already indicated, it is not utilitarians. 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 the respect inspired, not by the law, but by the person of 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 pro found juridical knowledge and his lively intellect. He attempted to impart an original character to his utilitarian theory, by declaring that it was 558 PHILOSOPHY OF PRACTICAL FT.
objective in 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.1 Recent writers IV. Running rapidly through other recent of treatises, of treatises, 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 per sonality. 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 altogether LAWS 559 opposed 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 all 560 PHILOSOPHY OF PRACTICAL n.
the 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.1 As we see, if the names of the writers and sometimes their phraseology change, the thoughts that alternate or combine are always the same. Rumelin, 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 people 1 Lasson, op. cit.; Steinthal, Allg. Ethik (Berlin, 1885), pp. 135-8; Schuppe, Ethik u. Rcchtsphil. (Breslau, 1881), pp. 283-4; Wundt, Ethik* (Stuttgart, 1892), p. 565 sq.; Cohen, Ethik d. reinen Willens (Berlin, in LAWS 561 in LAWS 561 that 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 perfection- ment of the soul, the character and the thought are distinct from right behaviour. And adopt ing the turn of phrase of a famous proposition of the Critiqite 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 as political, but as limit of force; as consciousness of human solidarity, beneath whose rule we are all placed, State and individual, strong and weak, governors 562 PHILOSOPHY OF PRACTICAL PT.
and 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 Fouillee) 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 con science, 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 evolu tionism with this empirical reduction, affirming that rights are not originally distinct from morality, but that afterwards they were gradually differen tiated, 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 regulating LAWS 563 LAWS 563 what is most individual in life." And so on, though it seems that this is enough.1 Such are the contradictions in which the strident conrnilosopny ot 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 im possible 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 ab surdity of the aforesaid two rights and two justices. Riimelin 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.2 Others, seeking relations between those two concepts from a single fact and 1 Riimelin, Reden u. Aufsiitze, new series (Freiburg i. B., iSSi), p. 342; Jellinek, Allgemeine Staatslehre (Berlin, 1900), p. 302 sq.; Stammler, Lehre v. richtig. Rechte (Berlin, 1902); Duguit, D£tat> le droit objectif et la loi positive (Paris, 1901); Fouillee, L^Idt'e moderns 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.
2 Rumelin, op. cit. pp. 176-202. Cp. Lasson, p. 215 sq.
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failing to conquer the difficulty, force logic by dis tinguishing between concept and ideal of rights, or (as Vanni said) between logical concept and concept of the rational exigencies of 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 Rechf) or not; and right rights are effective, whose content of will possesses the property of being right. Hence, right rights stand to effective rights as species to genus." 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 and 1 Op. cit. p. 22. Cf. Bergbohm, Jurisprudent u. Rechtsphilosophie LAWS 565 difficult, owing to later disputes and inquiries, but never solved.
V. Less attention has been bestowed upon the concept of law, upon which it was impossible °J 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 precon ceptions as to the necessary social and political character of laws had been discarded.
But the difficulties contained in that concept /// antiquity. had several times been observed in antiquity. In a dialogue between Alcibiades and Pericles, preserved in the Memorabilia, 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 observ ance.1 No true solution, however, was reached in this, as in many questions discussed at this period by Greek philosophy. The Crito is 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 agreed 566 PHILOSOPHY OF PRACTICAL FT.
to 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, TO eTTiei/ces, which Aristotle defined as the correc tion of the law where it sins through its character of generality (eiravopOwfjLa vopov y e'XAetW Sia TO /ca06\ov).1 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 his Entretien dun pere avec ses enfants sur le danger de se mettre au-dessus des lois. " Mon pere (remarks one of the sons at the end of the dialogue), cest qua la rigueur il riy a pas de lois pour le sage...Parlez plus has...Toutes giant sujettes a des exceptions, cest a lui quil appartient de juger des cas ou il faut sy soumettre ou sen affranchir. — Je ne serais pas trop fdche1 (concludes the father), quil y eut dans la ville un ou deux citoyens, comme toi; mats je riy habiterais pas, sils pensaient tons de meme"1 The attitude of rebellion to the laws showed romanticism. itself in German thought and literature in the preromanticism of the Sturm und Drang (for instance in the R'duber of 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 Frtedrich Schlegel. In the Lucinde is dis played great horror for bourgeois customs and for every sort of constraint, sexual relations being advocated with woman, family, love and fidelity, but without matrimony.
Jacobi represents this attitude in several of his writings, with great elevation of soul, and especially in the Woldemar (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 con science or the laws of our own people. Sides are taken against " the compulsion and violence exercised by usages, customs, habits, and against 1 (Ezivres, edit. Assezat et Tourneux, v. (Paris, Garnier, 1875), pp.
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those 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 mis understandings." "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 exacti tude; they are not so perplexed, they trust LAWS 569 LAWS 569 rather 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 else where, 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 the privilegium aggratiandi for 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." But it must be remarked upon reading these 1 Woldernar, passim.
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effusions (most sincere, as all that came from the pen of Jacobi), that they are rather mani festations 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 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 preferred magnanimous to honest, noble to moral action; and was much inclined to free itself of the law itself under the pretext of freeing itself from the letter of the law. Meeting empirical with empirical observations, Hegel also remarked that the in LAWS 57i in LAWS 57i examples 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 them selves. " 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 affir mation 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.1 But we must not fail to recognize that Hegel does not avail himself of this most exact distinc tion in his philosophy, for there the dominating motive is respect for the laws and the tendency 572 PHILOSOPHY OF PRACTICAL PT.
to 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.1 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.2 1 Phil. d. RechtS) sect. II. passim; cf. pp. 150, 153.
LAWS 573 In recent times there have been many and Recent 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 ques tions.1 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); 2 — 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).8 VI. If then there has not been a great gain 1 An ample exposition of such doctrines is to be found in E. Zoccoli, Z' Anarchia, Turin, 1907.
2 La Lotta pel diritto, It. tr., Milan, 1875.
3 La Lotta per la scienza del diritto (It. tr., Palermo, 1908); c£ Critica, 574 PHILOSOPHY OF PRACTICAL FT.
Natural rights in clearness of fundamental concepts, as regards and their dis solution. The this part of the subject, there has on the conhistorical school of rights. trary been an indubitable advance in conscious ness 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 the Metapkysic of Custom, when he wrote the proposition that liberty is the only original and innate rights, which belong to man through his very humanity,1 at the very moment when it was most energetically affirmed in a practical form in the Declaration of the Rights of Man. In the system of Hegel the constructions of natural rights began to lose their rigidity; becoming indeed historical cate gories of Ethicity or Sittlichkeit, 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 is LAWS 575 historical and empirical), Hegel connected him self 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 re appeared in those curious Catholics and anti- historians, the positivists (Spencer, Ardigo). But that natural rights are nothing but new historical rights in the struggle of their becoming, is a conviction that has penetrated the general consciousness.
We also owe to the historical school the The compari son between comparison between the life of rights and the life rights and language.