Part 31

[Sidenote: _The failure to recognize the economic form and the meaning of the problem concerning the distinction between morality and law._]

But this failure of recognition has not prevented the appearance and persistence of the problem of the _combined unity and distinction of law and morality,_ which has been the most frequent though the most complicated mode of affirming the claim of a special Philosophy of economy. A serious beginning of meditation upon law had hardly begun, when something was observed in it that it was impossible to resolve into the concepts of Ethic. Hence the generally admitted recognition of the distinction between law and morality and the many attempts at determining of what the peculiar character of the former exactly consisted.

[Sidenote: _Theories of compulsion and exteriority, as distinctive characters: critique._]

This character was placed most frequently and with greater insistence in the two determinations of _compulsion_ and of _exteriority._ And it was said that law is distinguished from morality because it is possible to exercize compulsion in the juridical, but not in the moral field; or that law deals with the field of external relations, morality with the internal; or that one is the _psychical,_ the other the _physical_ side of action. But as to the first determination, we have already shown that it has no meaning at all when applied to the forms of the spiritual activity, where nothing is compulsory and everything is at once free and necessary: the juridical activity, if it be activity, must likewise always be determined by free agreement. The second, which is the determination of exteriority, is not less inconceivable; for it is not given to separate the external from the internal, since they are both one, nor the word from its meaning, nor the body from its spirit. Compulsion and exteriority, taken strictly as concepts, are therefore, in this case, void and contradictory formulæ. To fill them somehow with a thought, it would be necessary to understand as compulsion certain modes of action, as opposed to certain other modes; for instance, compulsion would be the action by which an accused person was conducted to prison by two policemen and non-compulsion that of him who should be induced to go and constitute himself a prisoner through the persuasion of others; and as exteriority, certain classes of actions opposed to certain others; so that, for example, the deportment of an individual as communal or provincial councillor would belong to external life, his relations with his confessor or with his Æsculapius to internal life. But compulsion and exteriority, reduced to these meanings, become gross and empirical concepts, of which no use can be made in philosophy and which therefore cannot be of the least value as qualifying and distinguishing law from morality.

In the same way, no value is to be attached to such a distinction, when determined from what is licit to what is commanded, from rights to duties, from what is permitted to what is obligatory; because licit and commanded, rights and duties, from what is permitted to what is obligatory, are correlative concepts constituting an indissoluble nexus and it is not possible to separate and to oppose them to one another.

[Sidenote: _Moralistic theories of rights: critique._]

The difficulty of conveniently fixing the distinction with the characters indicated, leads one to think of a different sort of tentative, according to which rights would certainly be distinguished from ethicity, not placed above or beside it, but rather in the very sphere of morality itself, as the species in respect to the genus or the part in respect of the whole. Juridical action would be moral, but it would belong to the inferior levels of morality; it would be occupied with the execution of simple _justice,_ with the establishment of order, proportion, equality; whereas morality would represent _more than justice,_ and would upset the equilibrium of rights with benevolence, generosity, sacrifice, heroism. Rights (it is also said) are limited to the _ethical minimum,_ while morality strives for the _maximum;_ rights are concerned with strict rights or _perfect_ duties, morality with meritorious and supererogatory actions, _imperfect_ duties. But these determinations also pretend to separate the inseparable, by drawing an arbitrary line of division between small and great actions, between least and greatest, and they employ concepts that are altogether empirical, as, for instance, that of justice as distinct from benevolence, of the strictly obligatory from the meritorious and supererogatory; and worse still than this, metaphors and symbols, such as equality, order, regularity; or they operate directly with the arithmetical and geometrical proportion of actions. And consciously or unconsciously a return is made to Ethic pure and simple, with the theories that make juridical activity to consist of the recognition of others as _persons,_ or with the search for _general utility_ (superindividual). When we act in view of the _person_ in other individuals (or in oneself), or of the useful, which is not the useful for the individual, but although it comprehends, yet transcends it:--the merely juridical conscience has already been surpassed, it has been filled with a moral content, that is to say, an ethical form has been given to the practical activity. The double sense of the terms "rights" and "morality" is in this way preserved in words but denied in fact.

[Sidenote: _Duality of positive and ideal, historical and natural rights, etc.; and absurd attempts at unification and co-ordination._]

The dual sense of the terms is also affirmed by the very ancient distinction between _positive and ideal, historical_ and _natural_ rights, _right_ and _justice,_ or, as it has also been formulated, between the _two different justices,_ realistic and idealistic, fruitful in conjunction. Natural rights, with their homonyms just stated, besides the generically practical significations that we have already examined, have also had the narrower one of ethical ideal or morality; and therefore it cannot cause astonishment that it should appear now conjoined with, now detached from positive rights. But how joined and disjoined? For us it is a question of degrees, whence the positivity of both forms is recognized: the second of these is included in the first: the ideal right or morality (if it be right, and not simply abstract excogitation willed by no one, or vague desire) is both positive and historical. But those who posited the distinction without being able to make it definite and so to dominate it were led to conceive one or the other term as negative; and therefore both as negative between themselves and existing only in a third: which meant to reannul the distinction by reducing it to abstract contradiction. If one of the two were conceived as negative, either the ideal justice (that is, the seriousness of moral strength) was denied and turned to ridicule, or positive justice, that is, the seriousness of volitional strength, was presented as something turbid and impure and at best as a human imperfection, to which it was advisable to resign oneself since it would disappear in a society of perfect men or in a future life of perfection. Juridical activity became something contingent and mortal. Matters were even worse, if it were found impossible to eliminate it with similar religious, apocalyptic, or millenary fancies. The negative was then conceived as positive or co-ordinated with the positive: hence incredible logical divisions of rights into forms or species of _moral_ and _immoral rights, of just_ and _unjust_ rights, in which the species has the function of _negation of the genus,_ almost as though the race of horses were to be divided into two kinds: _dead_ and _living_ horses! Unjust or immoral rights are not rights, but a contradiction of them, and if we sometimes describe in this way a real and effective juridical act (an economic act), it is necessary to observe that the denomination is given from the point of view of a superior form of activity. Rights in themselves as rights, understood positively, are never immoral, but only _amoral._

[Sidenote: _Value of all these theories as confused perception of the amoral character of justice._]

All these errors, all these sterile tentatives have their origin, as has been said, in the lively consciousness of a distinction existing between right and morality and at the same time of the impossibility of determining this correctly, owing to lack of clarity as to the purely economic form of the practical activity. When the juridical activity has been identified with the economic and when juridical (economic) activity has in consequence been conceived as at once united with and distinct from morality, we are able to recognize that these attempts have nevertheless fulfilled a very useful function; that is to say, they have more or less energetically asserted and defended the position that there existed a characteristic distinction between right and morality and that it was necessary to seek for it. They are therefore far superior, notwithstanding their errors, to that confused ethical conception, which receives rights and morality indistinctly into its bosom, or to the utilitaristic conception, which arrives by a different route at the same indistinction. This merit belongs to the theories of the moral minimum, of justice, of the two justices and of the contest between positive and ideal rights; but in a much greater degree to that of compulsion, of exteriority, of the licit. With these last was almost unconsciously set in relief the fact that right obeys a law different from that of Ethic, and may be called _compelled and not free by comparison with it,_ because not founded upon the necessity of the universal; that in respect to the supreme _interiority_ of Ethic it can be considered as something _exterior;_ that in respect to the ethical imperative, it appears as something indifferentiated or _licit._ These are without doubt symbols, tautologies, vague and imprecise phrases, but efficacious in keeping the attention alert and in promoting doubt and research.

[Sidenote: _Confirmations of this character in the ingenuous consciousness._]

But the impossibility of absorbing rights into Ethic altogether and without leaving residues is proclaimed or confessed, not only in the theories of philosophers, but by simple thought, and especially by the consciousness we have of the real world being governed, not by abstract morality, but, as is said, by _force,_ or by the will in action. "Disarmed prophets" will be efficacious in poetry, but ridiculous in practical reality: _la force prime le droit,_ precedes it and is always of greater value than an unreal and contradictory ethical right and aspiration, afterwards dissolved in the empty and arbitrary. We will not recall proverbs, maxims, historical examples, though this would be easy; that little story of Franco Sacchetti which preserves "a fair speech" of Messer Ridolfo da Camerino, will suffice for all. One of his nephews had been at Bologna studying law for a good twelve years, and when, having become an excellent lawyer, he returned to Camerino, he went to pay a visit to Messer Ridolfo. When he paid the visit, Messer Ridolfo said, "And what didst thou do at Bologna?" He replied, "My Lord, I have learned _reason._" Said Messer Ridolfo, "Thou hast spent thy time ill." The young man replied that the saying seemed to him to be very strange. "Why was it ill spent, my Lord?" And Messer Ridolfo said, "_Because thou shouldst have learned force, which is worth two of the other._" The youth began to smile, and thinking it over again and again, both he and the others that heard, perceived that what Messer Ridolfo had said, was true.[1]

[Sidenote: _Comparison between right and language. Grammars and codes._]

And here too we are at last able to establish a parallel between the practical and theoretic activity, between the problems of the Philosophy of right and those of Logic and Æsthetic. The comparison of right and language has been several times attempted, with very great correction of thought, although necessarily defective execution, since it was customary to conceive both language and right in an abstract and empirical manner. Whoever should wish to take up the inquiry again would do great service, were he to insist upon the fact that since it has been impossible to understand what language really is, so long as grammars and vocabularies were taken as its reality, so it is impossible to understand anything of rights, so long as the eye is fixed upon laws and codes, or what is even worse, upon the commentaries of jurists, or upon the abstract volitional fact, or altogether upon what is not a true and proper volitional fact, but the elaboration of formulæ and of general concepts.

[Sidenote: _Logic and language; morality and rights._]

Only when rights appear as individual and continually new work of individuals, only when the attention is directed to the spectacle of real life and not to the abstractions of legislators and dispenses with the dissertations of jurists, is it possible to state the problem: how does this juridical work coincide with, and how does it differ from moral work? And here too the comparison with language is fitting, although language be not logicity, yet logical thought cannot become concrete, save in speaking; so moral activity cannot live, save by translating itself into laws and institutes, and in the realization of laws and institutes, that is, in the juridical and economic activity.

Finally, just as the history of a language is always arbitrary and abstract, so long as it is considered alone, outside the works in which the language is incarnate and the true history of a language is its poetry and literature, so _the true history of the rights of a people_ (of the rights that have really been executed and not merely formulated in laws and codes, be often proved to be a dead letter) cannot but be altogether one with _the social and political history of that people:_ an altogether juridical or economic history; a history of _wants_ and of _labour._

[1] Novelle, xl.

VI

HISTORICAL ANNOTATIONS

[Sidenote: _Distinction between morality and rights, and its importance for the history of the economic principle._]

I. The history of the distinction between morality and rights is very important, precisely because, as has been said, it is the manifestation of the very strongly--felt desire to posit in some way a philosophy of the aethical or amoral practical form: a manifestation which is the most conspicuous of all those that we have had occasion to note on the subject (theory of politics, theory of the inferior appetitive faculty, theory of the passions, etc.).[1] And owing to the impossibility of satisfying that exigency with the intellectual data possessed, the problem of the relation between rights and morality has become anything but an amusing puzzle, a theme for true vain eloquence.

Emmanuel Kant in the _Critique of Pure Reason,_ wishing to give a characteristic example of the difficulty of definitions, found nothing better to record than that jurists were always seeking a definition of rights, but had never succeeded in finding one.[2] And a jurist philosopher of our times (Jhering) has called the definition of rights, in their difference from morality, the "Cape Horn," or the Cape of tempests (or shipwrecks?) of juridical science.

[Sidenote: _Indistinction up to the time of Thomas._]

The problem of that distinction is on the other hand relatively recent and therefore the history of the Philosophy of rights has rightly been placed not further back than the end of the seventeenth century, or not much beyond Christian Thomas.[3] Up to that time, it is not possible to speak strictly of a Philosophy of rights. Treatises of jurisprudence, of rights and of the State, in regard to what of philosophical they contained, were nothing but treatises of Ethic; not indeed because the two sciences were (as they were) materially united in the same books, but precisely because the two concepts were indistinct. The speculations of antiquity for this part also of the Philosophy of the practical have the character of ingenuousness already noted. It would be incorrect to reconstruct a moralistic philosophy from the rights of Plato, founding it, for example, upon the theory developed in the _Gorgias_ as to the eagerness to purge his punishment that should exist in the criminal, similar, in this respect, to the sick man, who knows that the medicine will free him from his disease.[4] The researches of Aristotle also as to justice (perhaps the best the classical world has left us on the subject), look upon justice in a narrow sense, as a virtue among virtues,[5] which should not intrinsically possess any greater reason for distinguishing itself from the other virtues than they for distinguishing among themselves. The pompous definitions of the Roman jurists, still the joy of schools of jurisprudence and of judges' rhetoric, have no philosophical weight and would in any case confirm the identity of rights with Ethicity, if not absolutely with the entire knowable and practical universe. There is hardly a ray of the distinction to be traced in the discussions as to whether rights exist by nature or by convention and in the concept of a _ἁπλῶς δίκαιον,_ opposed to that of _πολιτικὸν δίκαιον_ found in Plato, and more explicitly in Aristotle,[6] and rendered popular by Cicero when speaking of the _recta ratio, naturae congruens, diffusa in omnes, constans, sempiterna_; of rights not drawn from the Twelve Tables or from the pretorian Edict, but _ex intima philosophia_; and of rights that on the other hand are _varie et ad tempus descriptae populis,_ whence they have the name of laws _favore magis quam re._[7]

This rough distinction between natural and positive, absolute and relative rights; this concept of an ideal right placed face to face with real rights, or of which the real should be an imperfect and partial translation, also reappears in St. Thomas Aquinas and in other scholastics. And there is nothing more than this in those thinkers who founded what was called natural rights in the seventeenth century, such as Grotius and his followers. It is true that the boast of having distinguished rights from morality and religion has usually been attributed to that historical period. But it is hardly necessary to repeat that what was meant by these formulæ were the great social and political questions which took the form of wars of religion in the Europe of the sixteenth and seventeenth centuries; that so-called distinction, therefore, the result of long strife, though it have great practical value as a sign of social transformation, has no doctrinal value. The idea of autonomy, proper to the juridical activity, is absent even in the profound treatise of Vico on universal rights, for this contains only an altogether empirical distinction between _virtus_ and _justitia_; of these the first _cum cupiditate pugnai,_ and the second _utilitates dirigit et exaequat;_ and both derive their origin from the _vis veri_ or _ratio humana;_ and as all the virtues are connected and none of them can exist alone (_nulla virtus solitaria_), so _virtus_ and _justitia_ are at bottom one.[8] The work of Vico, which gives a new conception of the relation between ideal and history and most original applications of Roman history, turns out to be nothing but Ethic, when considered beneath the aspect of Philosophy of Rights. Nor on the other hand could the problem of the nature of rights truly form the object of enquiry on the part of utilitarians (Hobbes and others); with whom, if the absorption of rights in morality was not found, this did not arise because the one was distinguished from the other, but because morality itself was denied in what was proper to itself: the problem of the distinction disappeared, because its terms disappeared.

[Sidenote: _Thomas and his followers._]

II. Thomas provided the apple of discord, or as might also be said, cast the leaven of progress into the treatment of rights, when he distinguished three forms of the _rectum_: the _justum,_ the _honestum,_ the _decorum,_ placing the first in opposition to the other two, the _forum externum_ to the _internum,_ and attributing to rights and justice the character of coercibility.[9] The formula had a rapid and unsuspected fortune, and became current in the schools. Gundling, for instance, defined right as the "ordering of external relations."[10]

[Sidenote: _Kant and Fichte._]