Part 27

In this too, his predecessors are to be found in traditional philosophy of Christian origin, or, if it be preferred, Platonic (opposition of material to formal Ethic can already be observed in the attitude of Aristotle to Plato). If the fathers and the scholastics had been divided as to the question of the relation between moral laws and the divine will, and many of them, especially the mystics, had made that law to depend upon the divine will and upon nothing else, yet views had not been wanting, according to which the power of changing at will the moral laws, that is to say, of changing his own essence, was denied to God, since he could not be _supra se._ Religious Ethic was cleansed of every admixture of arbitrarism and utilitarianism by this solution, accepted by nearly all religious thinkers of the seventeenth and eighteenth centuries (by Cudworth, by Malebranche, and finally by Leibnitz). On the other hand, we cannot but recognize that many other material formulæ used to be understood in an ideal, or, as we have said, in a symbolical manner; and certainly that very eudæmonism of Aristotle, toward which Kant showed himself too severe, was not the pleasure and happiness of the hedonists and utilitarians, and the mediety (μεσότης) proposed as the distinctive character of virtue, although without doubt empty and often incoherent, was already almost a formal principle. The same is to be said of the Stoic principle of _following nature_; and coming to the immediate predecessors of Kant, of that _perfectio_ already mentioned, which Kant, after wavering a little, reduced to happiness, not, however, without stating that it is a more indeterminate concept than any other. With Kant, however, the point was admitted, that the moral law is not to be expressed in any formula, which contains representative and contingent elements.

[Sidenote: _Defect of that Ethic: agnosticism._]

The defect of the Kantian Ethic is the defect of his whole philosophy: agnosticism, which prevents his truly surpassing either the phenomenon or the thing in itself, leading him, on the one hand, toward empiricism, on the other toward that transcendental metaphysic, which no one had done more to discredit than himself. He combated the concept of the good or supreme good as the principle of Ethic, and he was right in so far as he understood it as object of any sort, of "a good," as of a "thing." But this did not exempt him from the duty of defining the supreme good as that which is not exhausted in any particular object, or of determining the universal. Now his philosophy was incapable of attaining to the universal.

[Sidenote: _Critique of Hegel and of others._]

Hence the involuntary return to utilitarianism, clearly stated by Hegel in his youthful essay upon natural Right. The practical principle of Kant (remarked Hegel) is not a true but a negative absolute; hence with him the principle of morality becomes converted into immorality: since every fact can be thought in the form of universality, it is never known what fact should be received into the law. In the famous example of the deposit, Kant had said that it is necessary to keep faith as regards the deposit, otherwise there would no longer be deposits.[1] But if there were no more deposits, how would this constitute a contradiction to the form of the law? There would perhaps be contradiction and absurdity for material reasons, but it is already agreed that this is not to be brought up in the argument. Kant wishes to justify property, but he does not attain to more than the tautology, that property, if it be property, must be property, opening the way to the free choice of conceiving at will as duties these or those contingent definitions of property. The moral maxims of Kant, owing to the empirical determinations that they assume, are contradictory, not only of one another, but of themselves. This inevitable degeneration of the Kantian Ethic was called by Hegel _tautology and formalism_.[2] Other thinkers were also affected by the utilitarianism of the Kantian Ethic: Schopenhauer even declared that his doctrine has no other foundation than egoism, since it can be reduced to the concept of reciprocity, and he protested against the Kantian theory that we should be compassionate to animals, in order to exercize ourselves in the virtue of compassion, judging it to be the effect of the Judæo-Christian views of Kant.[3] Schopenhauer was in some respect right in these observations, although as regards animals we must note that the same attitude is found in Spinoza and in other thinkers and that it derives from material and utilitarian Ethic; and for the rest that it would be very unjust to see nothing but egoism in the categoric imperative of Kant, for this, we repeat, though it constitute its danger, does not constitute its essential character.

[Sidenote: _Kant and the concept of freedom._]

Nevertheless, in Kant himself, in this thinker, so rich in contradictions and suggestions, was indicated the concept which, when elaborated, was to constitute the principle, not merely of tautological and formalistic, but of concrete and formal Ethic, the concept of _freedom._ By means of this concept Kant enters into the heart of the real and reaches that region of which mysticism and religion had from time to time caught a glimpse and had here and there attained. As the origin of the rigid Kantian ethical conception and of his abhorrence for the material and mundane is to be found in Christianity (and in Paganism), so the origin of the concrete moral idea is to be sought in St. Augustine, and also in St. Paul, in the mystics and in the great French Christians of the seventeenth century; in that virtue of which Pascal wrote as _plus haute que celle des pharisiens et des plus sages du paganisme,_ and it operates with omnipotent hand, by means of which alone is it possible _dégager l'âme de l'amour du monde, la retirer de ce quelle a de plus cher, la faire mourir à soi-même, la porter et l'attacher uniquement et invariablement à Dieu._[4] The successors of Kant, especially Fichte and Hegel, closed the circle which he had left open, and altogether excluding transcendency, they made of God freedom and of freedom reality. Fichte, who expelled the phantom of the thing in itself from theoretical philosophy, removed from the categoric imperative the appearance of _qualitas occulta,_ which it had borne in the Philosophy of the practical, illuminating that tenebrous region, ready to receive any sort of phantasm or superstition, such as belief in a moral law arbitrarily imposed by the divinity.[5] Hegel does not recognize duty and the categoric imperative, but freedom only, and as he says, the free spirit is that in which subject and object coincide and freedom is freely willed.

[Sidenote: _Ethic in the nineteenth century._]

II. After the classical epoch of modern philosophy, in the general regression of Ethic, the concept of the concreteness and universality of the practical principle was also lost. Omitting the utilitarians, who no longer have a place here, it must suffice to record how there was a return either to the formalistic principles, which Hegel criticized in Kant (for instance the principle of the Ethic of Rosmini, the _respect for being,_ afterwards combated by Gioberti), or directly to those material principles which Kant had already excluded. Such are the _compassion_ of Schopenhauer, the _five practical ideas_ of Herbart, the love of Feuerbach, _benevolence_ as the supreme ethical idea of Lotze, the _theological_ morality of Baader, the _life_ of Nietzsche, and the like.

The principles of the first were completed with a religious conception (here too Rosmini may afford an example), and those of the second, when they did not reveal themselves as utilitarian or tautological, showed an obscure tendency toward the Ethic of Freedom. This must not be overlooked in the Ethic of Nietzsche, which despite the rocks and mud that the thought of Nietzsche drags with it, is yet anti-hedonistic and anti-utilitarian and quite full of the sense of Life as activity and power. Positivistic evolutionism is also often unconscious idealism; and the moral actions, united to evolution, can be interpreted as those which correspond to the Spirit in universal. The concepts of the pessimists alone are altogether incapable of idealistic interpretation (for example, Schopenhauer), and those of the semi-pessimist and semi-idealist Hartmann are strangely contradictory. He makes morality to consist of the promotion of civilization, whence so lofty a condition of the spirit can be attained that it will be possible to decree universal suicide by means of the vote of all the world.

The question asked after Kant, whether Ethic should be formal or material, is one that we have made more precise in the other form, whether Ethic should be abstract or concrete, full or empty, tautological or expressive--that is (with even greater precision), whether Ethic can be established before and without a philosophical system and even be reconciled with agnosticism, has no longer been understood, even by its pretended followers, the Neocriticists or Neokantians. These have either believed they had solved it by means of moderate utilitarianism, or by going outside it and denying the most secure result of the Kantian critique of Ethic; or they have discussed it tiresomely, without making a step in advance. Progress indeed was possible on one condition alone: that a philosophical system should be constructed not inferior to that of the postkantian idealists. But this would have been tantamount to demanding the death of neokantianism or neocriticism, which has not only not attempted to surpass the idealistic systems, but has even maintained that we should philosophize without a system, declaring that a system is altogether inconceivable. The Neokantians can thus be recognized as the descendants of Kant; but in the same way as the last descendant of the Hapsburgs in Spain, who was neither emperor, king, soldier, nor man, could be recognized as the descendant of Charles the Fifth, who was man, soldier, king, and emperor: because, like his great predecessor, he possessed the deformed, hanging lip of the Hapsburgs.

[1] _Krit. d. prakt. Vern._ pp. 30-31.

[2] _Ueb. d. wissensch. Behandlungsarten d. Naturrechts,_ in _Werke,_ i. 353; cf. _Gesch. d. Phil._ iii. 533 sqq.

[3] _Gründl, d. Moral,_ in _Werke,_ ed. cit., iii. 538, 542-543.

[4] _Lettres prov._ 1. 5.

[5] _System d. Sittenlehre,_ pp. 49-51.

THIRD PART

LAWS

I

LAWS AS PRODUCTS OF THE INDIVIDUAL

[Sidenote: _Definition of law._]

_Law_ is a volitional act, which has for content a _series_ or _class_ of actions.

[Sidenote: _Philosophical and empirical concepts of society._]

This definition excludes above all from the concept of law a determination that is generally considered essential to it, the determination of _society_; this amounts to saying that it also extends the concept of law to the case of the _isolated individual._ But in order that there may be no misunderstanding in relation to a point like this of the highest importance, it will be well to show that the word "society" has a double meaning, philosophical and empirical, and if we exclude its empirical sense from the concept of law, it would neither be possible nor our wish, to exclude its philosophical sense. Reality is unity and multiplicity together, and an individual is conceivable, in so far as he is compared with other individuals, and the process of reality is effective, in so far as individuals enter into relations with one another. Without multiplicity there would not be knowledge, action, art or thought, utility or morality; therefore the isolated individual, torn from the reality that constitutes him and that he constitutes, is something abstract and absurd. But he is no longer absurd, when understood in another way, with polemical intention against a false concept; as an individual not absolutely, but relatively isolated, in respect to certain contingent conditions which had wrongly been held essential: in which case the concept of society is conversely itself abstract and unreal. "Society," indeed, is also used to mean a multiplicity of beings of the same species, and it is evident that here an arbitrary element enters into the problem, for the naturalistic concept of sameness of species is arbitrary and approximative; hence the pretended sameness might fail and the society yet exist all the same. A man may not be able to find those who resemble him among a multitude of men and conduct himself as if they did not exist; but this does not prevent his living in the society of beings that are called natural, with his dog, his horse, with plants, with the earth, with the dead and with God. When he is placed in solitude or isolated from the other beings, said to belong to the same species as himself, that other society, or the communion with what remains to him of reality, will always continue, thus enabling him to continue his life of contemplation, of thought, of action and of morality. In order to understand the Spirit in its universality, we must separate it from contingencies, and society in the empirical sense is contingency, which the concept of the isolated individual (isolated from it and not from reality, from the _societas hominum,_ not from the _societas entium_), enables us to surpass. The great services which this concept has rendered to Logic, to Æsthetic and especially to Economy, are known, for the latter only began to develop the philosophical spirit in itself, when it conceived economic facts as they take place in the individual, prior to what is called society, thus positing the concept of an isolated economy. Conversely, Economic, Æsthetic, Ethic and all philosophical problems and sciences lost their true nature and became bastardized, when gross _sociologism_ replaced among social contingencies those universals, which philosophers had with great labour removed from them and thought in their purity. Defining laws, then, as facts that occur, not only in society, but also in the isolated individual, our intention is simply to concentrate attention upon the concept of _true society,_ which is _all reality,_ and not allow it to be diverted and confused with accidental determinations, of the kind that may and may not be.

[Sidenote: _Laws as individual product: programmes of individual life._]

No great art is required to find instances of individuals who make laws for themselves, carry them out and change them, grant rewards to themselves and inflict upon themselves punishments; nor is there any need to incommode the worthy Robinson of the economists to this end. Without being obliged to make the effort of imagining ourselves cast upon a desert island and provided only with a sack of corn and the Bible, it suffices to have eyes and to observe our daily life, for numbers of examples of internal legislation to present themselves. Those laws, made for our use and consumption, are called _programmes of life._ Who can live without programmes? Who does not decide that he will desire certain actions and avoid certain others? From youth onward we begin to legislate in this way and this production of internal laws is interrupted only by death. We say, for instance:--"I shall devote my life to agriculture: I shall live in the country every year from June to November; from December to February I shall come to town, that I may not lose touch with political or social life; from March to May I shall travel, for pleasure and instruction." This programme is subdivided and completed with other programmes, according to the various conditions and possibilities taken into consideration; and laws are established as to the way one should conduct oneself in respect to religion, family, friends, the State, the Church and also in respect to this or that individual; for (as is observed by Logic) the individual conceived as a fixed being, also becomes a concept, abstraction, group, series, or class. He who wished it, would be able to establish a parallel between programmes or individual laws and laws that are called social: in the individual would be found fundamental statutes, laws, rules, ordinances, temporary arrangements, contracts, single laws and all the other legal forms found in societies. Now in what conceivable way do the programmes of the individual differ from those of society? Are not those laws _programmes,_ and are not those programmes _laws?_

[Sidenote: _Exclusion of the character of compulsion and critique of this concept._]

To this interrogation of ours, which does not express a doubt within us, but states what seems to be an undeniable fact, defying any sort of contradiction, may be objected (and it is a common objection) that there is a great difference between individual laws and those of society or of the State: these are compulsory, those are not; and for this reason these are true laws, while the others are mere programmes. But we cannot attach any importance to this objection, at least as thus formulated; because, having now traversed the whole of the Philosophy of the practical, general, and special, we have never met with what is called compulsion in the circle of willing and doing, save in the negative sense of deficiency of will and action. No action can ever be compulsory; every action is free, because the Spirit is freedom; there may not be action in a certain case, but a compulsory action is inconceivable, since it is a question of terms that exclude one another. Does the fact give the lie to our assertion? Let us examine the fact for a little, face to face and without preconceptions. Let us for this purpose take an extreme case: for instance, that of the law of a most powerful despot, who, being in command of police, should order a group of men to bring their first-born to sacrifice to the god in whom he believes, but they do not. Are the men who hear this manifestation of will constrained by it? What menace can make him who wishes to say no, say yes? That group of men will rebel, will take up arms, will rout the troops of the despot, will put him to death, or render him incapable of harming; and in this hypothesis the law will not reveal any character, of compulsion. But in the other hypothesis also, where they do not rebel and in the meantime bow to the will of the despot, either that they may not risk their own lives, or because they defer their rebellion to a more propitious moment and consign their sons to death; they will not have suffered any compulsion, but will have freely willed: they will have willed to preserve their own lives at the expense of their sons'; or to sacrifice some of them in order to have the time to put themselves into such a position that they may be able to rebel with the hope of victory. Thus we find in social laws, now observance, now inobservance of the law; but both occur in freedom. Inobservance may be followed by what is called punishment (that is to say, the legislator who has imposed a given class of actions, will adopt certain definite measures against those who do not obey them; to wit: he will will another class of actions, destined to render possible the first, because the punishment is a new condition of things set before the individual, according to which he must alter his previous mode of action); but the punishment always finds itself face to face with the freedom of the individual. He will be able freely to observe the law in order to avoid the punishment or its recurrence; but he will also be able freely to rebel against it, as in the instance adduced.

[Sidenote: _Identical characteristics of individual and social laws._]

If compulsion be wanting to individual laws, this is because it is also always wanting to social laws: while, on the contrary, what is really present in social laws is equally present in the observances and rebellions, rewards and punishments of individual laws.

To return to the former example: the individual who has decided to devote himself to agriculture as programme of life, may be seized all of a sudden with a great desire to devote himself to painting or to music; and what had previously pleased may henceforward displease him: that intimacy with mother earth, with harvests and vintages, which seemed to be the very life for him, his true ideal, may come to seem to him tiresome and repugnant. But if he be a serious person, if he do not will and not will at every moment, if he do not present in his own individuality a complete resemblance to those peoples who change in mid-November the laws made in October and proceed from revolution to revolution, he will examine his situation and will recognize, for instance, that the desire arisen in his soul is a velleity that does not answer to his true vocation and that the first programme must remain intact; hence will take place in him a struggle between that programme and the new rebellious volition. It may happen that in this case the individual will sometimes neglect the programme traced, in order to abandon himself to the temptations of his pictorial or musical dilettanteism; but since this will happen against his individual law, and since force must remain on the side of law, this breach of observance will be followed by special measures, such as the throwing away of brushes and violin, or by his forbidding to himself those moments of recreation in such amusements, which he used to allow himself and which have now become dangerous. In other words, the individual inflicts punishments on himself in case of the non-observance of his law, and these punishments must be held to be such in the strictest sense of the term. And if we accept the other hypothesis, analogous to that made in the case of social laws, should the individual find himself possessed with so vehement a desire of becoming a painter or a musician, as to be compelled to believe that the original programme, the original law of his individuality, did not correspond, or no longer corresponded with his true temperament, he will rebel against the law and destroy it in himself, in the same manner as in the other example the people destroyed the law of the despot, by fighting with him, imprisoning, or slaying him.

[Sidenote: _Individual laws as in ultimate analysis alone real._]

Individual programmes or laws then are laws, and this concept includes the isolated individual as well as society; and therefore the character of sociality is not essential to the concept of law. Thus, to be more precise, the only laws that really exist are individual laws and it is not possible to conceive of social and individual laws as two forms of the general concept of laws; unless individual and society be both understood in the empirical sense, thus abandoning philosophical consideration. If the individual be understood in the philosophical sense, in which he is the Spirit concrete and individualized, it is clear that what are called social laws can also be reduced to individual laws; because, in order to observe a law, we must make it our own, that is to say, individualize it, and in order to rebel against it, we must expel it from our own personality, in which it wished unduly to remain or to introduce itself.

[Sidenote: _Critique of the division of laws into judicial and social and into their sub-classes. Empiricity of every division of laws._]