Part 32

It was completely developed and reasoned out, with all the strictness that its erroneity permitted, in the doctrines of Kant and Fichte, who were the greatest of Thomas's scholars for this part of the study. Kant opposed _legality_ to morality; the juridical imperative is expressed with the formula, "act externally" (_handle äusserlich_); right is conjoined with the faculty of compulsion (_zwingen._) Hence his doctrines are often amoralistic or economic as regards individual juridical institutions, and this is especially the case when he deals with the State, with matrimony, and with punishment; these were followed by Fichte, who made some reservations for matrimony alone, considering it an institution not only juridical, but also natural and moral.[11] On the other hand rights were for Kant something that surpassed the individual will and utility; it was the sum of the conditions by means of which the will of the one can be united with the will of another, according to a universal law of liberty.[12] Fichte in like manner conceived of rights as altogether free of every admixture of morality; as an objective order, arising from the fact of the individual who coherently affirms himself and his own liberty, thus also affirming other individuals and their liberty.[13] Both philosophers thus preserve the moralistic concept of the legal and the _justum_; rights, although armed with compelling power, are never force alone, but the external ordering of freedom, namely, justice. For this reason, Kant explicitly excludes force, in so far as it is constitutive of rights and speaks of a "force without law"; and both he and Fichte make coercibility to flow, not from the nature of the volitional force itself, but from the violation of order. It is just, says Kant, to repel force with force, when it would interfere with liberty. The right of coercion (repeats Fichte) is founded solely upon the violation of the original right. But it remains obscure what this poor legality, justice, coexistence, and harmony of wills may be; what force may be and why and how it is connected with the preceding definition is not investigated. The distinction of the juridical from the moral sphere is announced and proclaimed more loudly than perhaps was ever done before or since; but to announce and to proclaim is not to carry out. If rights be changed into an ordinance more or less rational, to be identified with the concept of justice, one does not see how they can exist independently of morality. Kant and Fichte were prevented from conceiving the juridical function free from every element of morality or immorality, by the function which they assigned to compulsion (symbol of law), submitting it to ethical exigencies. In this uncertainty, there cannot be wanting and there is not wanting the thought that rights are not indeed an eternal category, but a historical and transitory fact; and as Spinoza had already said, _si cum humana natura ita comparatum esset ut homines id quod maxime utile est maxime cuperent, nulla esset opus arte ad concordiam et fidem_; Fichte thus looked upon the juridical State simply as a _State of necessity_ opposed to the _State of reason_: and when perfection has been attained and there is complete accord of all in the common end, "the State" (he said) "disappears as a legislative and compulsive force."[14]

In the ulterior phase of his thought, Fichte _Hegel_ afterwards took further steps toward a closer union between morality and rights. But the complete resolution of the first in the second is effected in the system of Hegel, though it is customary to blame this philosopher for the opposite fault, namely, that he resolves morality in right. Above all, Hegel would hear nothing of the concept of force in right: facts of force and of violence, as, for instance, the relation between a slave and his master, appertain, according to him, to a circle, which lies on this side of right, to the subjective spirit, to a world in which wrong can still be right. The fact that violence and tyranny are met with in positive rights is an accidental thing and does not affect its real nature. For Hegel, as for his predecessors, co-operation arises only as reaction from the violation of what is just, and is violence preservative of liberty, suppression of the previous violence. "To define abstract and rigorous rights as law which we can be compelled to obey, means" (writes Hegel) "to see them as a consequence of what takes place only by the cross road of wrong." But there is more: abstract rights, which form the first moment of the Philosophy of the practical in Hegel, are unreal; he opposes to them the second moment, morality, which also is abstract and unreal, consisting of the good intention, which has not yet been incorporated in action and life: thus concrete reality is realized only in the third moment, in the ethos, which synthetizes the abstract rights and the abstract morality of the intention in social life.[15] From this it is clear that the purely juridical moment does not possess effective spiritual autonomy for Hegel; _so_ much so, that it is placed by him upon the same plane as abstract and unreal morality. In consequence of his identification of rights with ethicity, Hegel is opposed to Kant and Fichte in his definitions of single rights; he rejects the compulsory and contractual theory of the State and (the Kantian) theory of matrimony as a strict contract made between individuals as to the reciprocal use of their bodies.[16] The compulsory theory of punishment seemed to him to reduce the latter to a mere economic fact, by means of which "the State as judging power, opens a business with goods called crimes exchangeable for other goods, and the code is _the list of prices._"[17]

[Sidenote: _Herbart and Schopenhauer._]

Herbart too denies the originality of the character of compulsion in the idea of rights, and this is one of his five practical ideas, or, "the agreement of many wills, thought as a rule that eliminates strife." But even in this superficial moralistic reduction, force reappears all of a sudden, one knows not how: society has need of an external bond, in order to subsist; force and power (_Macht_) are added to society and _the State_ arises.[18] The same contradictions are to be found in Schopenhauer: after he has posited the two virtues of justice and benevolence, he makes a chapter of morality out of the pure doctrine of law. The science of rights in the specific sense borrows this chapter in order to study its opposite: all the limits that morality looks upon as not to be passed without intention of wrong-doing, on the contrary are considered by the science of rights as limits, of which violation by others is not to be tolerated and from which one has the right to expel others. Thus the distinction between internal and external is in this way reproduced in all its unmaintainability under the denomination of _rights and their opposite._ But the bridge of asses is always the junction of rights with force, that is to say, with the element extraneous to Ethic; and in this connection Schopenhauer has nothing better to offer than a comparison. "As there are certain chemical substances never to be found pure and isolated, but always in some sort of combination with another element, which gives to them the necessary consistency; so rights, when they must set foot in the real world and dominate it, have need of a small adjunct of will and force, in order to be able (notwithstanding its nature, which is really ideal and therefore ethereal) to operate and persist in this real and material world, without evaporating and flying to heaven, as was the case with Hesiod."[19]

[Sidenote: _Rosmini and others._]

Rosmini presents the two elements not well harmonized, as the eudæmonological and the ethical. Rights for him are not mere eudæmonism, but a eudæmonistic fact, produced by moral right and receiving form from it; hence the science of rights "stands between Eudæmonology and Ethic, so that one of its ends extends to the one and the other to the other." It would not be easy to explain and to justify what he calls a mediate science, composed of Eudæmonology and Ethic; and it would be far less easy to explain how this science comes to be "completely distinct" as regards its components. If rights have a moral form, they are moral and not eudæmonological. Owing to this difficulty Rosmini was led to introduce the concept of the licit as criterion of differentiation, defining right as "a personal faculty and power of enjoying, acting and being able to act, a lawful good that must not be impeded by others."[20] Juridically understood this constitutes a tautology, ethically something worse. Other Catholic authors (Taparelli, for example) deplore the separation of _ethos_ from _jus,_ introduced (they say) by Protestant doctrines and the limitation of right to what a man can externally exact from others according to law; "whence it happens that in the enumeration of laws, actions are sometimes posited that are real moral faults in the agent"; maintaining on the contrary the necessity of treating morality and rights together, "for rights are part of morality in the same way that trigonometry and conic sections are a part of geometric theories."[21]

[Sidenote: _Stahl, Ahrens, Trendelenburg._]

III. If Catholic doctrines deserve mention for their conservativism, it is necessary to record the names of Stahl, Ahrens, and Trendelenburg, for no other reason than the great popularity that they enjoyed in the schools. Stahl divides the ethical action of man into two domains, differing in content and character. This dualism is founded upon the double relation of human existence, 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 therefore 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 _physical_ (compulsion),[22] of which none, as we see, is truly judicial.

[Sidenote: _Utilitarians._]

For the reasons already indicated, it is not 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 profound juridical knowledge and his lively intellect. He attempted to impart an original character to his utilitarian theory, by declaring that it was _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.[23]

[Sidenote: _Recent writers of treatises._]

IV. Running rapidly through other recent 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 personality. 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 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 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.[24]

As we see, if the names of the writers and sometimes their phraseology change, the thoughts that alternate or combine are always the same. Rümelin, 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 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 perfectionment of the soul, the character and the thought are distinct from right behaviour. And adopting the turn of phrase of a famous proposition of the _Critique 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 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 Fouillée) 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 conscience, 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 evolutionism with this empirical reduction, affirming that rights are not originally distinct from morality, but that afterwards they were gradually differentiated, 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 what is most individual in life." And so on, though it seems that this is enough.[25]

[Sidenote: _Strident contradictions. Stammler._]

Such are the contradictions in which the Philosophy of 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 impossible 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 absurdity of the aforesaid two rights and two justices. Rümelin 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.[26] Others, seeking relations between those two concepts from a single fact and failing to conquer the difficulty, force logic by distinguishing 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 Recht_) 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._"[27] 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 difficult, owing to later disputes and inquiries, but never solved.

[Sidenote: _The value of law._]

V. Less attention has been bestowed upon the concept of _law,_ upon which it was impossible 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 preconceptions as to the necessary social and political character of laws had been discarded.

[Sidenote: _In antiquity._]

But the difficulties contained in that concept 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 observance.[28] 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 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, το ἐπιεικέç, which Aristotle defined as the correction of the law where it sins through its character of generality (ἐπανόρθωμα νόμου ᾗ ἐλλείπει διὰ τὸ καθόλου).[29] 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 d'un père avec ses enfants sur le danger de se mettre au-dessus des lois. "Mon père_ (remarks one of the sons at the end of the dialogue), _c'est qu'à la rigueur il n'y a pas de lois pour le sage.... Parlez plus bas.... Toutes étant sujettes à des exceptions, c'est à lui qu'il appartient de juger des cas où il faut s'y soumettre ou s'en affranchir.--Je ne serais pas trop fâché_ (concludes the father), _qu'il y eût dans la ville un ou deux citoyens, comme toi; mais je n'y habiterais pas, s'ils pensaient tous de même._"[30]

[Sidenote: _Romanticism._]

The attitude of rebellion to the laws showed itself in German thought and literature in the preromanticism of the _Sturm und Drang_ (for instance in the _Räuber_ 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 Friedrich Schlegel. In the _Lucinde_ is displayed great horror for _bourgeois_ customs and for every sort of constraint, sexual relations being advocated with woman, family, love and fidelity, but without matrimony.

[Sidenote: _Jacobi._]