CHAPTER IV

MORALITY AND LAW

The coercion which the community exercises upon its members, by means of which it forces them to adapt their actions and abstention from action to the standard it has set up, has two forms: Custom and Law. Are the two really different? What is their relation, one to the other? These are questions worth investigating.

Ever since the earliest times, grave men have meditated on the relation between Custom and Law. They were forced by evidence and practical experience to note a difference between the two institutions, but at the same time they had the definite impression that they trace their origin to the same source. Socrates distinguishes between the written laws of his country and the unwritten ones which express the will of the gods. The former constitute positive Law which the citizen must observe and to which he must submit; the latter, however, are higher, for they emanate from the gods themselves. The immutability of the unwritten laws is a proof that they are superior to the written ones. Written laws vary from state to state. They are the work of individual law-givers who were sometimes wise men and sometimes unreasonable tyrants. But all contain certain precepts which are everywhere alike, which everywhere impose the same rules upon man. It is almost as if one and the same law-giver had co-operated in the making of all the laws that obtain in the different towns and countries, and are so unlike one another in many points. This common law-giver, whose will is manifest in all laws, however far removed they be from one another, is the Deity. That is essentially Socrates' train of thought as given by Xenophon in his _Memorabilia_. The Attic sage speaks the language of his time, which, by the way, is still that of many present-day people. The Deity, whose will permeates all written laws and to whom they may be traced, is the principle of Morality. Hugo Grotius, in a manner more appropriate to modern thought, expresses it thus: "Law and Morality spring from the same source, namely, the strong social instinct natural to man. They bear witness to reasonable solicitude for the welfare of the community." This placing on an equality of Law and Custom, of _jus_ and _mos_, is very remarkable in such a strictly professional thinker, such a positive jurist as Grotius. Kant discriminates between the doctrine of Virtue and the doctrine of Law; he keeps them apart, but he emphasizes their connexion, and the two together make up his doctrine of Ethics.

As a matter of fact, no fundamental difference between Law and Custom exists; only Law is enforced differently to Custom. It would be going too far to say: Law has sanctions and Custom has none. The latter has sanctions too, but they are of a different kind to those of the Law. He who transgresses Custom will suffer the contempt of his fellow men, and this may become so penetratingly severe that the most hardened and shameless rascal must feel it. In an old, loose form of society where individualism is highly developed, and each one goes his own way, paying little regard to the others, there an unscrupulous, conscienceless rogue may sin against Socrates' unwritten law without being penalized. In a young, closely-knit community, however, in which the feeling of intimate connexion between the members is lively and vivid, he would be proscribed, as soon as he was found out, and it would be impossible for him to remain, say, for example, in a small town of the United States. Public opinion would make it so hot for him that he would be glad to escape with a whole skin. But this punishment is exceptional for transgressions of Custom, whereas it is the rule for those of the Law.

The sanction of the Law is stricter than that of Custom, just as the Law itself is stricter than is Custom. The Law concerns itself with concrete cases in which consideration for one's fellow men must be practised, duties to him fulfilled, and his claims respected. These cases are defined by Law as clearly as possible, whereas Custom confines itself to generalities and determines the whole attitude of the individual to his neighbour. Custom embraces the outer and inner life of man and supervises his opinions, which are the parents of his deeds, and also his deeds themselves; Law is only concerned with actions, and refrains from penetrating to the intimacy of thoughts, unless the latter alter the essential character of the action, as premeditation in an act of revenge and temporary or permanent irresponsibility alter the judgment of offences and crimes. Law is a miserly extract of custom, a meagre selection from its variety, a concentration and embodiment of its surging vagueness. It may be compared with crystals, which in their geometrically accurate forms are crystallized clearly and definitely out of a liquid, the mother liquor; or with the heavenly bodies which agglomerate out of surging primal nebulæ. Custom is the primitive thing, Law is derived from it. It appeals to its descent from Custom, and founds, at any rate tacitly, its claim to respect on these grounds. A law which ran counter to Custom, which was confessedly in opposition to Custom, could never be maintained or prevail, though it bristled with the menace of the most dreadful punishments.

The relationship of mother to child between Custom and Law may be obscure to the majority; it is clear to the analytical mind. Recognition of the essential unity of both phenomena explains an assumption which was widespread among the best intellects from the Middle Ages until well into the eighteenth century, but which has now been abandoned as erroneous by more positive, though indeed narrower, legal minds. This assumption is that there is a natural Law antecedent to historical Law, which exists and acts beside and above the latter, and which forms the basis and the measure of every positive law, of every concrete legal judgment. It is comprehensible that the nineteenth century swept away the idea of natural Law and freely made fun of it. To a sternly disciplined legal mind it must indeed seem grotesque if a judge, in order to arrive at a verdict in some concrete dispute, cites the rights to which man is born instead of a certain text of the law, or even, following Schiller's advice, reaches up to the stars and brings down thence the eternal Law. Even this procedure is not so farcical as it seems to stupid article-mongers and hair-splitting paragraphists, for the procedure of equity of the English judges, who are not prone to clowning, is at bottom nothing but this reaching up to the stars and this judging by the rights to which man is born. The feud between natural Law and historical Law was really a quarrel about a word. Jean Jacques Rousseau, his contemporaries and disciples, simply made a mistake in their choice of an expression. They were guilty of an inaccuracy when they spoke of natural Law. They should have said: "the innate claim of man that his person should be respected," or, "natural consideration for one's fellow man," or, most shortly and simply, "Morality." To the latter legal lights would have raised none of the objections with which they victoriously opposed natural Law.

The beginnings of Morality coincide with the beginnings of society, as the latter could not have existed for a single day without the former. Since men, forced by the struggle for existence, emerged from their original, natural solitude and united in a community, they have had to watch over their impulses, suppress their desires, do things they disliked, and in all their actions and abstentions from action consider their neighbours' feelings, as they demanded that their feelings, too, should be considered. That was Morality which limited the vainglory and arbitrary conduct of unfettered man. It included all rules that determine the attitude of man to man. There was no distinction between Custom and Law. Men were ruled by custom which was traditional in their community and observed by all; and their Custom had the force of Law.

Formulated laws, and more especially written laws, appear comparatively late. True, Asia has old examples of such; the Manava Dharma Shastra, the book of laws of the Indian Manu, the Chinese Chings, the law of Hammu Rabi, and that other law, akin to this, though not derived from it, but probably drawn from a similar older source, the law of the Pentateuch. The laws of Draco, Solon and Lycurgus and the Roman Twelve table law are appreciably younger; much later still the _leges barbarorum_ were written down, some of them, like the prescriptive Law of the Germans set down in the "_Sachsenspiegel_," not till the end of the Middle Ages. It is peculiar to most of the old Asiatic laws that they contain both rules of conduct and legal regulations, and that they do not differentiate between these two kinds of precepts.

Let us take one example: the Ten Commandments. Beside such positive orders as "Thou shalt not steal"; "Thou shalt not kill"; "Honour thy father and thy mother"; we find such as give rules for the character and course of spiritual happenings, regarding which others cannot observe whether they are obeyed or not, like the commandments respecting man's relationship to God, or admonishing man not to covet his neighbour's wife or goods. Those are subjective impulses, spiritual moods which are revealed only to the eye of conscience as long as they do not betray themselves in action, and which by their very nature cannot be the subject of Law which deals only with outward manifestations of thought and will, and is concerned only with things done.

In constitutional Law, too, no less than in criminal and civil Law, the eighteenth century tends to preface certain laws with universal moral principles, and to establish by formal law that the former are derived from the latter. The Declaration of Independence of the United States in July, 1774, says: We consider the following truths self-evident: that all men are born equal; that the Creator has bestowed upon them inalienable rights, amongst which are the right to life, to freedom, to the pursuit of happiness, etc. So before these rights are guaranteed by the Law, they are announced to belong by birth and nature to man, to be independent of any particular and express bestowal by the law-giver, and beyond all dispute or even argument. Of the thirteen States which formed the original Union, ten accompanied their constitution by a Bill of Rights which repeated the essential contents of the Declaration of Independence of July, 1774; seven of them placed them as an introduction before their fundamental law, and three of them incorporated them in the latter. Two others, New York and Georgia, distributed them among various articles of their constitution. Rhode Island alone refrained from a general declaration. The States which joined the Union later, with few exceptions followed the example of their predecessors and built up their constitution on the foundation of an explicit statement of the natural rights of man. The French Revolution followed the course which the United States had indicated, and began its constitution of 1791 with the "Declaration of the rights of men and citizens," which is not a law in the technical sense of the word, but is superior to all positive Law, constitutes the latter's standard and touchstone, and straightway makes all laws invalid which are not animated by its spirit or which contradict it.

In the beginning, therefore, there was Morality, and the first laws, which formulated its precepts either in oral tradition or in writing, recommended without distinction what was good and desirable, and what was necessary and expedient. The differentiation of the Morality, which the commonwealth felt to be its code of right and wrong, into Custom and Law took place in late times. It was most definite in Rome, where for the first time a clear distinction was made between men's relation to their gods and their relation to one another; the former was left to the individual's conscience, the latter subjected to the power of the State; the elements of feeling and of dim perception were banished from the Law which confined its attention to deeds which it regulated in a high-handed manner. Law chose from out the all-embracing sphere of Morality one narrow area, that of mankind's immediate, material interests, and took this as its sole theme. The object of all Morality is to enable men to live together in a community peacefully and prosperously; within the bounds of this more general purpose, the task of the Law is to suppress by force the grosser hindrances to this harmony among individuals, and by material means of coercion emphatically oblige everyone to respect the interests of his neighbour. What every responsible man of sound mind demands first and foremost is a proper respect for the possessions that are his by birth and acquisition, that is for his life, for his bodily welfare, for all the goods he owns that minister to his needs, his comfort and his pleasure. He who lays violent hands on these possessions, or threatens to endanger them, is recognized to be an enemy; man arms himself against such an one, fights against him, tries, if he have a strong character, to destroy him, or flees from him if he is too weak to triumph over him; man only yields to such an one if he simply cannot help himself, but he does so with hatred and revenge in his heart, and in a state of mind which, if it becomes fairly widespread, sets every man's hand against his fellow-men and leads to the ruin and even to the dissolution of the community. Hence the task of Law is effectively to protect the individual from the infringement of his rights by others. It places the organized forces of the community at the service of the individual whose interests are threatened, for the criminal law penalizes more or less severely attempts against life and health, unlawful seizure of property whether by force or cunning, malicious molestation and offence; the laws of commerce keep watch over the faithful fulfilment of contracts dealing with the fair exchange of goods or the execution of work, and in case of need enforce it.

A select few, everywhere only a small minority, has a different scale of values to that of the masses. For them "life is not the supreme thing." There are things they value more highly. The masses have no understanding for these people's needs and fine feelings. Their self-respect and their dignity are dear to them as wealth, their honour more sacred than life itself. Unhesitatingly they sacrifice their property to freedom, and more unbearable than anxiety for their material interests is life in surroundings in which brutality, vulgar sentiments, harsh egotism, malice, hypocrisy and treachery preponderate. The Law does not consider this minority. It is the creation and the servant of the great majority. It clings to earth and is incapable of lofty flights. It is of no service to the elect in the preservation of their noblest spiritual possessions or the defence of their ideals against clumsy maltreatment. It declares itself to be incompetent to deal with any but material affairs.

Therein lies at one and the same time the strength and the weakness of the Law. Its strength lies in the fact that it definitely limits its sphere of action and strives to achieve positive results by positive means, results intelligible even to a mean understanding. Its weakness lies in the fact that it ignores man's highest and noblest interests. And these interests are there, they too deserve consideration and protection, they have a right to demand that the guarantee of the community should embrace them as well. The well-being of the community, which is the object of Morality and of Law too, demands that such conditions should be created and maintained, as should enable the elect also to enjoy life or at least find existence bearable. But Law does not suffice for that. No law enjoins upon the careless throng of pachyderms to spare the tenderest and noblest sensibilities of lofty natures; no judge punishes thoughtless or purposely malicious injury to them. To remedy this evil we must rise from the lowly plain of Law, the natural dwelling-place of the masses, to the heights of Morality, the habitual abode of superior minds. At the theological stage of civilization refuge is sought with the gods in whose hands the protection of essential, spiritual possessions is placed. They are expected to punish the wicked whose evil deeds are beyond the reach of any penal code, they are expected to soothe and comfort when life is hard or even unendurable. That is the compromise that the elect made with life in the hard times of European barbarism. They escaped from the world and thus avoided contact with the repugnant masses. They shut themselves up in cloistered cells away from mankind and held mystic intercourse with God. Among the people, cruel authorities with difficulty maintained discipline and scanty law and order by means of flogging and the pillory, torture, the gallows and the wheel. The minority of the elect disciplined themselves, suppressed their lower impulses by self-imposed mortification, and with the help of prayer and belief in God's promised millennium managed to keep their heads above water despite the crushing spectacle of the life of those times.

Long before the Christian era, the Greeks of noble disposition felt the need of living in an atmosphere of higher intellectuality and morality than that of the market-place, and they hid themselves behind the cloud-curtain of the Eleusinian Mysteries, where they kept to themselves, escaped the rule of the rude Law, and followed the nobler precepts of Morality. Whenever the measure of Morality contained in positive law did not suffice for the minority with higher aspirations, this minority adopted the same expedient, a form of esotericism; small circles were formed outside the community in which there was added to the current legal code a superstructure of stricter rules, more finely shaded duties, more courteous consideration. Present-day life also offers examples of this tendency which is met with in all ages. There are select circles and professions in which the standard of irreproachableness is far higher than among the mass of the people. There a man is not held blameless, simply because he has never transgressed a positive law, never come into conflict with the powers of justice. He must be as unspotted in the eye of moral justice as he is in that of the Law. A club or association that is self-respecting will not admit to membership a candidate reputed to lie, to have an evil tongue, to break his word, to be a toady and a snob, though none of these offences are punishable by law. It has happened that a corps of German officers has forced one of their number to send in his papers because he has seduced and deserted a respectable girl, an adventure flattering to the vanity of puppies who, as like as not, boast of it, and with which a judge can only deal if the injured girl appeals to him--and even then he cannot punish the offender, but merely sentence him to pay damages.

Almost the whole world is agreed on the point that the Law does not sufficiently protect honour. Positive Law evidently does not consider it of such value as material possessions, for the defence of which it knows itself to be qualified. But there are numbers of people whose honour is dearer to them than their fortune, even than their life, and trembling with indignation they see that a thief who steals their purse with a few shillings is haled off to prison, while a slanderer who sullies their honour either goes unpunished, or at most gets off with a fine, which merely adds official insult to the injury. In this case the Law has lagged so far behind Morality that individuals try of their own accord to bridge the gulf without counting on the intervention of the community. For aspersions of their honour the masses take revenge with fists and cudgels, often with bloody results; and among the elect they resort to duels with lethal weapons, a preposterous proceeding due to desperation, and a bitter indictment of the prevailing laws. It is a deed of self-help, like the formation of a vigilance committee among the anarchical throng of a lawless rabble. Hardly to be justified on reasonable grounds, it is intelligible from the point of view of historical tradition, and as a survival of dim and primitive ideas. In early days a properly regulated duel was an ordeal showing the judgment of heaven. It was the general conviction that God would give victory to the right and crush the wrong. When human Law failed, the injured party appealed to the source of all Law and placed his cause in the hands of the Almighty. From this point of view the duel is no unsuitable means of preventing plots to evade the law. Even if the injured party is inexperienced in the use of the weapon, even if his opponent is skilled and vastly his superior, he need not worry, for God fights on his side. Therefore he is more sure of success than if he entrusted his cause to fallible human judges. But from the moment that the duel ceases to be regarded as a means of arriving at the verdict of God, nothing can be urged in its defence, and that it nevertheless persists is a fact that can only be accounted for by the inadequacy of the current laws.

It really is astonishing that the Law does not yet appraise honour at its true value. Educated people almost unanimously regret and condemn the backwardness of the Law in this respect, all the more so because the tremendous development of the respectable, as well as of the disreputable, Press facilitates and aggravates libel to a hitherto undreamed-of extent, and no defence can overtake the slander which is quickly spread broadcast. Doubtless public opinion will urge that measures be taken to bring the Law into line with the views now held on all sides on the significance of honour, its defencelessness and its need for protection. That this has not yet been done is due to the slowness with which the Law adapts itself to the demands of a Morality which grows ever more profound and more refined. Law, which originally devoted itself only to the crudest material interests, very slowly extends the range of its protection, but it does so continually, with an ever-widening embrace, including more and more delicate, more and more noble, possessions, taking into consideration ever higher and ever finer needs. What early legislator would have thought of man's needing protection not only against murder, grievous bodily harm and maltreatment, but also against the dangers due to ignorance and carelessness in light-heartedly spreading infectious diseases, and contaminating water and the air? Who would have dreamed in former times that positive Law would consider the sensitiveness of nerves, desire for beauty, dislike of ugliness and forbid disturbing street noises, protect the countryside from wicked disfigurement, and prevent the construction of buildings which would spoil the artistic architectural plan of a city?

These little traits, these concessions to personal demands, which to a coarse mind do not seem obviously justified, go to prove that positive Law continues to grow beyond the bounds of its unavoidably crude materialism, and strives to rise into the regions of the unwritten law of the Peripatetics, where ideal possessions are of more importance than those which have traditionally come within the scope of criminal and civil Law. Law and Custom have a natural tendency to approach more and more nearly to one another, to become merged in one another where the line that divides them is but faintly indicated. The closer the union between them, the more perfect is the Morality of a society. Absolute perfection would be reached if Law, which has been derived by differentiation from Morality, should, after a protracted period of development, return to its source and be completely merged again in Morality. But that is a dream which can never be realized as long as man is constituted as he is at the present time. Enthusiasts have dreamed of it, and in their imagination have seen an anarchical and lawless society in which no positive Law, no sanctions of force were needed, and in which the understanding and conscience of individuals would suffice to ensure the rule of good faith and goodness, and the curbing of selfishness. As far as man can tell we shall never attain this Utopia. We shall never be able to do without positive Law, not only on account of undeveloped and perverse natures, in which animalism has the upper hand of humanity, and which must be kept under strict discipline, but because a sure guide is needed in cases of doubt and irresolution which confuse even the good, nay, the best, men when passion and violent desire, with their heavy thunderclouds, darken the outlook of Reason, and judgment wavers amid the hurly-burly of a spiritual tempest. All that we may hope for and should desire is that Law should be filled with the spirit of Morality and embrace as many moral ideas as possible.

It lies in the nature of the thing that Morality was never clearly and definitely formulated, for as soon as this was done it assumed the character of Law. It remained general and slightly vague, it spoke to men in such indefinite terms as "good," "virtue," "duty," "love of one's neighbour," "unselfishness," "patience"--terms into which everyone can read the meaning which suits his thoughts and feelings. Mankind has never lacked moral teachers. The Indian Shastras and the Chings, Confucius and Meng Tse, the prophets of Israel and Ben Sirach, Plato and the wise men of the Stoics, the Zend Avesta, Jesus and Paul, the platonic ethics of Nicomachus, those of Epictetus and Marcus Aurelius, thousands of years ago preached the principles which exhaust the whole field of Morality, and beyond the essentials of which none of the later moralists have gone; neither the "Imitation of Christ" nor Ibn Bachia, Spinoza, the Scotch school and Kant, up to Wundt and Guyau.

But what about the effect of the doctrines which they advocated gently or passionately, adducing proofs or uttering threats? To lend weight to them they either appealed to God, threatening mankind with His wrath and vengeance, or to Reason, which, according to them, could advise man only for his good. Perhaps they could intimidate those who had blind faith and convince the reasonable. But there are many of little faith, and more still who are unreasonable, and on these the persuasion, warnings and conclusions of the Moralists had no effect. For these it was imperative to clothe the minimum of Morality, the minimum without which no society can exist, in the definite form of laws, and so create the Law to which the weapons of the community lend compelling force. Thus the whole material of Ethics is divided into Morality and Law. The Theologians and Scholiasts who trace all binding rules of human conduct back to revelations of the Divine Will recognized on principle only one single law: but the aspect of practical life made even them distinguish between the "_lex indicativa_" and the "_lex præceptiva_," between an indication or counsel and precept or command. The "_lex indicativa_" is Morality, the "_lex præceptiva_" is the Law.

Codes are the normal expression of the Law. Not all Law is formulated in this way, for there is a recognized Law of custom, but all laws, codified or not, become a part of the prevailing Law. Naturally, and as is only reasonable, all Law is pre-existent in the consciousness of the majority, and the law-giver's rôle is limited to setting down in paragraphs universally acknowledged principles dictated by public opinion. However, there are an appreciable number of historical instances in which this procedure is reversed; the law-giver, without inquiring whether his ideas were in accord with the general conscience, arbitrarily clothed his dictates to the community in paragraphs which it had to accept as Law. It is clear that this procedure is extremely risky. Even if the law-giver possesses superior wisdom, even if he is far in advance of his people and his age, even if his intentions are of the best, there is grave danger that the moral feeling of the people will revolt against the laws thus forced on them. Outwardly they yield to the pressure of public authority, but they obey the Law with a keen inner sense of opposition; a chasm yawns between conscience and the practice of the Law, ideas of Morality and Law become confused, the moral foundation of all laws totters, and the public gets into the habit of regarding the Law as something alien and hostile, which cannot be disregarded with impunity, but which it is not only not culpable, but even meritorious to evade.

An enormous amount has been written on the subject of what a law is, and all this literature expresses in endless words very few and, almost without exception, very mediocre thoughts. I should consider it an unpardonable waste of time to devote any considerable space to this rubbish, either in order merely to quote opinions or to investigate and confute them. Perhaps the best thing said of the laws is Hobbes's description: Civil Law (the law of the country) is nothing but a guarantee of natural Law. It is true that this definition implies a supposition: the existence of natural Law which, however, is not binding in itself but requires the sanctions of the law of the country. Moreover, it is only correct if we add the limitation that it does not guarantee all natural Law, but only a part of it. Hobbes is also forced by his definition of the law of a country to explain what he means by natural Law, and he does not evade this duty. "Natural Law," he says, "is the decree of true Reason (_ratiocinatio recta_) with regard to what we must do and what avoid for our self-preservation.... Transgression of natural Laws is due to false Reason (_ratiocinatio falsa_)."

In spite of its vagueness this explanation of Hobbes's shows that what he really means by natural Law is Morality, and in this respect his views on the relation of natural Law to civil Law, that is, of Morality to Law, practically coincide with mine. Nevertheless, he ignobly denies the moral decency of his doctrine of Law when later on he coldly and dryly remarks: All that the state commands is just, all that it forbids is unjust. Saying this he stupidly and obsequiously makes the civil code the source of Law, whereas by his own definition Law (he says "Natural Law") is the source of the civil code. It is more pardonable for Pusendorf, a formal jurist, to say: "Law is the decree (_decretum_) with which a superior binds his subject (_sibi subjectum_)." That interpretation of Law is possible if it is considered from outside; it is a means of coercion in the hands of the mighty to subjugate the dependant; this point of view ignores the essential; but Pusendorf has no concern with this, for he makes no claim to be a philosopher, he keeps within the bounds of juridical practice.

The Bishop of Seville, Saint Isidor, the most respected theologian of the time between the last patristic writers and St. Thomas Aquinas, gives the following definition of Law: "Law is an institution (_constitutio_) made by the people, by which the nobles (_majores natu_), together with the common folk, have given a sanction to some ordinance." This says little about the essence of Law, but it leads to the question of the origin of laws. On this subject, too, whole libraries full of books have been written since the time of Plato and Aristotle; luckily, for the most part, they now only serve as food for moths and worms.

From this tangle of hair-splitting and sophistry, from this muddle of syllogisms, dogmatism and deep-sounding phrases which mean nothing at all, one thought emerges pretty clearly, to wit, that only the highest authority in the State has the right to make laws. On this point there is perfect unanimity; and that is natural, for it is so obvious that it has no need to be circumstantially investigated and proved in the fifty thousand books that have been written on the subject. It is perfectly clear that one cannot possibly force all the members of a state to obey certain commands and prohibitions which the Law contains, unless one is stronger than each one of them, and therefore the Law must necessarily emanate from the highest power in the state. It is beside the point to obscure this simplest and most transparent fact by questions as to the right of the law-giver. He needs no theoretical right since he has the might. To use Kant's expression, positive Law is not a creation of the mind ([Greek: noumenon]), it is a phenomenon; its existence is a matter of empiricism, not of reason; it is a matter of fact and is under no obligation to justify itself intellectually to the intellect. No law-giver has ever troubled to tack on a preamble or an addition to the law he promulgates proving that he has the right to enact it.

But in the literature dealing with this matter opinions differ widely as to who embodies or possesses the highest power in the state. According to some it is the king, because he wields the sword and therefore can enforce unconditional obedience; according to others it is the Church, because the Law, to be binding, must be moral, and Morality is established by God since the Church is the representative of God on earth. Others again regard the people as a whole as the highest power, because without their assent no law can prevail, and because even the king only has the power of which the people divests itself to transfer it to him. History has advanced beyond this quarrel.

To-day no one dares to dispute the fact that the nation alone is qualified to enact laws for itself through the agency of its chosen representatives, and that no law can be binding for the people without their explicit or tacit consent. In Switzerland, where they have instituted the referendum, the people by their vote can repudiate a law, made by their representatives in their name, before it comes into force; and in the other constitutional states they have recourse to the following expedient: whenever a law is promulgated which seems inacceptable to them, at the next Parliamentary election they vote for men who are pledged to do away with it. The people have the power to make laws, therefore they also have the right to do so, and they do not hesitate to revolt if this right is tampered with. In recent times no nation outside Russia has submitted to having laws forced on it, in framing which it has not co-operated, and which it has not expressly accepted. The United States tore themselves away from the Mother Country with the cry: "No taxation without representation!" and more than a hundred years before that the English people had irrefutably proved to the Stuart king, Charles I, that he had no right to make and unmake laws, by condemning him in a court of law with legal formalities and then having his head cut off by a masked executioner.

The legal code is the concrete form of the Law, and the Law is the crystallization of the most material part of Morality. And as Morality binds every member of the community, as man is only tolerated in the community on condition that he respects Morality, it is a matter of logic that he should also respect the Law; that is to say, that he must not only submit to it because he fears punishment if he fails to do so, but that he must feel obedience to the Law to be part of his Morality, that he must act lawfully at the dictate of his own conscience, and not because of the threat of the power of the state. This might be enunciated as a principle without reservation and without limitation, if in practice the laws always were, as in theory they should be, moral. But this is not necessarily the case. The law is a form, and every form can be abused by filling it with unlawful contents. If an unscrupulous adulterator of wine fills a champagne bottle of the usual shape, complete with metalled and wired cork and a label recommending it, with some disgusting mixture and puts it on the market, he is severely punished for adulteration of food and infringement of the law protecting trade marks. But if the government publish in the _Gazette_ foolish, risky, and perhaps absolutely immoral orders in the form of a law, duly arranged in chapters, articles and paragraphs, as the people are accustomed to seeing their moral laws expressed, who impugns them for it?

The examples of this in history are only too numerous. To this category belong all laws seeking to maintain the validity of state authority at the expense of the natural rights of thinking and feeling men, e.g. all religious persecutions, the maltreatment of socialists, excise laws and duties which hamper freedom of work and movement, or are tantamount to robbing a particular man or all citizens. As a rule, laws of this kind can be imposed upon the people only in a despotically ruled state, since the people in this case has no share in legislation; but constitutional government is no guarantee against it, for parliamentary majorities can be forced to enact tyrannical laws, by fanning the flame of national or party fanaticism, by encouraging prejudices, or by intimidation; this is proved by Bismarck's May laws and Socialist laws, and also by the laws passed by the National Assembly at Versailles against the rebels of the Commune and against Paris. Obedience to such laws cannot reasonably be demanded. Only a Hobbes will dispute this, for whom "everything that the state commands is just, everything that it prohibits is unjust," or the Digest according to which "_quod principi placuit, legis habet vigorem_" (what pleases the ruler has the force of law). Legal enactments, though they be immoral, are yet formal Law; as a matter of fact, however, they are wrong, and even if their originator has the power by brute force to secure obedience to them, no man who tries to evade them and to get them abolished will be accused of immorality.

A trivial objection strikes one at once. Only a despotic megalomaniac will forbid his subjects to make representations in the proper quarters, and in the proper way, for the purpose of getting a bad law abrogated; but as long as it is in force it must be obeyed. For if every citizen were allowed to make a selection of the laws according to his choice, acquiescing in some and rejecting others, this would lead straight to anarchy. The reply to this is that anarchy, although a terrible evil, is notwithstanding a lesser one than an immoral law, that is, a law which sins against Morality. For the maintenance of law and order which the State guarantees is only preferable to anarchy because it enables individuals to live together in peace, and guarantees liberty of movement and respect for persons, life and property. But if the State acts wrongly, and interferes in the feelings and convictions of individuals, if it uses brute force to compel them to actions and abstentions against which all the good in them rebels, then its law and order is law and disorder, and it is the State itself which brings about a condition of anarchy by making force the ruling factor in the life of the individual. For the latter it is all one whether he has to yield to the force of the State or that of his neighbour. Nay, more, his position is worse in a condition of anarchy caused by the State, than in that which existed before the State was formed, because it is easier to meet force with force, when this emanates from an individual who is one's equal, than when it is exercised by the superior organization of the State. The State which enacts immoral laws denies its own principle and causes its own dissolution.

The intellectual constructions of the eighteenth century, of which the most famous is J. J. Rousseau's "Social Contract," are not taken literally by anyone nowadays. Nobody seriously believes that one day individuals living in a state of nature banded themselves together and made a contract, by virtue of which they renounced certain liberties and rights and transferred them to a superior authority which was to rule them so as to promote the general welfare, peace and happiness. But if the procedure was not quite so simple as this, at least it is certain that the State undertakes the task which Rousseau expressly prescribes as its aim. If, however, through its fault, the fault of its legislation, the welfare of the community suffers, and peace and happiness are not promoted but hindered, disturbed and destroyed, then every citizen has the moral right to revolt against the State and paralyse its pernicious might; not because it has broken a formal contract with its citizens, but because it has become inimical to the peaceful life of mankind, the purpose of every social community. If anyone is troubled at the thought that there is no reliable standard whereby to test the morality of a law and no place indicated where such a measure can be applied, he may take comfort by remembering that all Morality is surrendered to the feelings and judgment of the majority and has no other sanction than this. History teaches us that the majority does not acquit itself too badly of its duty. Public opinion suffices to maintain Morality at a certain level in a community. And if public opinion is capable of ensuring respect for the unwritten law of Morality without the sanctions of State Law, it may surely be recognized as a fit judge of the morality of a law. That is the theory of the right of citizens to defend themselves by all means, even by force, against immoral laws. Practically, it is of no importance, because nowadays, at least in all progressive and liberally governed States, the people have constitutional means at their disposal to prevent or quickly to rid themselves of laws that are obnoxious.

Morality includes the Law, whereas Law is only a part of Morality. Owing to its coercive nature, the Law is obliged to be concrete and material and to ignore all the imponderable, barely perceptible, spiritual and dream-like things which hover round Morality, surround it with an atmosphere and transport it beyond definite boundaries into the realm of the unconscious and visionary. The total exclusion of the element of feeling which Morality includes, constitutes the most profound difference between it and the Law. Law protects order but knows no love. The separation of Law from Morality is due to the pressure of selfishness which thinks it has made the greatest possible concession when it rises to the height of saying with Ulpian: "_Neminem laedere. Suum cuique reddere. Honeste vivere._" Injure no one; that is, refrain from the ruthless use of force; render to each his own; that is, do not retain in rascally fashion what belongs to another; live honourably; that is, give no offence to your neighbour by disorderly conduct and depravity.

Well and good. At a pinch one can live like that. But the words pity, kindness, love of one's neighbour do not occur in Ulpian's pithy statements, and the Law knows nothing of them.

The Law guards each man's well-earned possessions, but it bids no one make sacrifices. Morality can demand these. It can insist that the individual should freely, and urged by his own inner impulse, impose sacrifices upon himself, reduce his possessions in favour of another, disturb his personal comfort at any moment, perhaps even risk his life; that is to say, that of his own free will he should do just those things from which the Law carefully shields him. Where the Law says: injure no one! Morality says often enough: injure yourself to do good to your neighbour. Where the Law says: to each man his own! Morality not seldom says: to each man your own if he needs it more than you do. Morality counts on the existence of a quality of which the Law has no need: Sympathy. To be moral we must feel in our own being at the time, or retrospectively, the subjective experiences of our neighbour, with the same quality of emotion that he feels; his pain must be our pain, as his pleasure must be our pleasure. For the man who cannot do this--who realizes in his mind the circumstances of his neighbour only as an image, and without the concomitant note of feeling--it is impossible to rise to the height of Morality. It is not his fault, for the gift of sympathy is an organic disposition, which you either do or do not possess, which you can develop or suppress, but which you cannot create if it is lacking. Nevertheless, the lack of sympathy is a pitiable infirmity, for it prevents a man from scaling the heights of Morality.

To respect the Law is to practise a wise selfishness. To act morally is to divest oneself of selfishness and attain the privilege of unselfishness. To behave in strict accordance with the Law earns the merited praise of civic blamelessness. But to act morally is a virtue which is of incomparably higher quality than that of mere blamelessness. The law-abiding man, the honest man, is praised as having been "_Integer vitae sceleris purus_." That is an acceptable epitaph. But the man of active Morality, willingly suffering for others, provides an example which reconciles millions to the hardships of life. The former is a worthy man, but the latter is a saint.