Part 33

Jacobi represents this attitude in several of his writings, with great elevation of soul, and especially in the _Woldemar_ (1779, 1794-96), the most lively protest that has ever been made against law in the name of the individual. Here the question treated is precisely whether we should follow the inspirations of our own conscience or the laws of our own people. Sides are taken against "the compulsion and violence exercised by usages, customs, habits, and against those who do not think, save by means of those laws, holding them sacred, with resolute soul and mind inert"; and "that audacious heroic spirit is celebrated, which raises itself above the laws and common morality that it may produce a new order of things." "His heart alone tells man immediately what is good; his heart alone, his instincts only, can tell him immediately: to love it is his life. Reflection teaches him to know and to practise what leads to good. Habit assures and makes his the wisdom that he has acquired." "But this individual initiative," he observes, "may be the cause of abuse and misunderstandings." "Without doubt," replied Jacobi, "but what cannot be misunderstood has little meaning, and what cannot be abused has but little force in use." Men may be divided into two classes; the one exaggerates fear, the other hope and courage. The former are circumspect, always in doubt, they fear the truth because it may be misunderstood, they fear great qualities, lofty virtue, because of the aberrations to which it may give rise; and they have evil always before their eyes. The latter are the bold (who could be called the irreflective in the Platonic sense) and they behave with less exactitude; they are not so perplexed, they trust rather to the voice of their heart than to any word from without; they build rather upon courage than upon virtue, which generally keeps them waiting too long. They sometimes ask themselves with Young: Is virtue then alone baptized and are the passions pagan? "If," says Jacobi, "I must keep to one of these classes, I choose the second." "Yes," he exclaims elsewhere, opposing the abstractness of Kant,--"yes, I am atheist and impious, yes, I will to lie, in opposition to the will that wills nothing, as Desdemona lied when dying, I will to lie and to deceive like Pylades, when he slew himself for the sake of Orestes; I will to slay like Timoleon; to break laws and oaths like Epaminondas and John de Witt; to commit suicide like Otho; to despoil the temple like David; to pluck ears of corn on the Sabbath day, if only because I am hungry and the law is made for man, not man for the law. By the sacrosanct conscience that I have within me, I know that the _privilegium aggratiandi_ for such crimes against the pure letter of the law, rational, absolute and universal, is the sovran right of man himself, the seal of his dignity, of his divine nature."[31] But it must be remarked upon reading these effusions (most sincere, as all that came from the pen of Jacobi), that they are rather manifestations of states of the soul than theories, and therefore, strictly speaking, not to be theoretically censured, as is the case with all affirmations that place in relief one side of reality, without denying the others by doing so.

[Sidenote: _Hegel._]

Hegel discovered this, observing in relation to our last extract: "Neither of the two sides can be wanting to moral beauty, neither its liveliness as individuality, by which it does not obey the dead concept, nor the form of concept and of law, universality and objectivity, which is the side exclusively considered by Kant, by means of the absolute abstraction to which he submitted liveliness, thereby suffocating it. The passage cited as to the liveliness and freedom of the moral life does not exclude objectivity, but does not express it either." Hence the danger of the romantic attitude, which had no need of exhortations such as those of Jacobi, for it already too much preferred _magnanimous_ to _honest, noble_ to _moral_ action; and was much inclined to free itself of the law itself under the pretext of freeing itself from the _letter_ of the law. Meeting empirical with empirical observations, Hegel also remarked that the examples of the violation of laws due to the divine majesty of man, adduced by Jacobi, were conditioned by the natural temperament, by actual situations, and especially by circumstances of supreme misfortune, of supreme and rare necessity, in which few individuals find themselves. "It would be very sad for liberty if it could only prove its majesty and become actual in extraordinary cases of cruel laceration of the moral and natural life and in extraordinary individuals. The ancients, on the other hand, found the highest morality in the life of a well-ordered State." Hegel admitted that the affirmation of Jacobi, "The law is made for man, not man for the law," contained a great truth, when it was intended to allude in this way to the positive or statutory law. But the opposite was also true, when the allusion was to the moral law, taken as universal, outside of which, when the individual was separated from it, there was nothing but appetites and sensible impulses, which can only be means for the law.[32]

But we must not fail to recognize that Hegel does not avail himself of this most exact distinction in his philosophy, for there the dominating motive is respect for the laws and the tendency to attack individual initiative. Hegel repeats many times with complacency the saying of the Pythagorean, that the best way of educating a young man is to make him citizen of a State ruled by good laws; and he remarks that Herculeses belong to primitive and barbarous times, and that individual valour has but a small field in times of culture. He was most averse to criticism of and rebellion against the authority of the State; for these did not seem to him to correspond to the reality of the spirit. That surface is not the reality; at bottom all desire order; and it is necessary to distinguish apparent political sentiment from that which men really will, for within them they will the thing, but hesitate as to particulars, and enjoy the vanity of censuring.[33] Men believe that the State exists and that in it alone are particular interests realized; but habit makes invisible to them that upon which our entire existence depends. There is in short in Hegel, besides the philosopher, a politician and moralist regretful of the excesses of revolutionaries and of unbridled romanticism; and there is also in him the desire for an exact inquiry into the function and limits of positive law.[34]

[Sidenote: _Recent doctrines._]

In recent times there have been many and very various manifestations connected with the concept of this function and of its limits, and it would occupy much space to enumerate and to illustrate them all. We shall mention three, very distant and different. The first, which belongs to the political and social field, is the doctrine of anarchy and is opposed to laws of all sorts; it is a not purely philosophical doctrine, though it involves philosophical questions.[35] The other two, which more properly belong to the juridical field, are, the assertion of the importance of laws and of the duty of defending their existence, even where their violation by others does not interfere with our individual interests, or when their defence costs individual sacrifices (this was the argument of a vigorous little book by Jhering);[36]--and by way of contrast the demand for a free creation of the law by the judge (_die freie Rechtsfindung,_) which has given rise to discussions that are yet burning, more directly provoked by a little book of Kantorowicz (Gnaeus Flavius).[37]

[Sidenote: _Natural rights and their dissolution. The historical school of rights._]

VI. If then there has not been a great gain in clearness of fundamental concepts, as regards this part of the subject, there has on the contrary been an indubitable advance in consciousness acquired as to the mutability of laws and as to the consequent contradictoriness of the idea of natural Rights. This, with its complement, the catalogue of innate natural and inalienable rights of man, had great success in the seventeenth century for political and social reasons, attaining its highest development in the century following. But it may be said that the doctrine of innate rights was liquidated by Kant in the _Metaphysic of Custom,_ when he wrote the proposition that liberty is the only original and innate rights, which belong to man through his very humanity,[38] at the very moment when it was most energetically affirmed in a practical form in the _Declaration of the Rights of Man._ In the system of Hegel the constructions of natural rights began to lose their rigidity; becoming indeed historical categories of Ethicity or _Sittlichkeit,_ determinations of the spirits of various peoples (_Volksgeister,_) which are in their turn determinations of the Absolute or of the Idea. Owing to this view (without taking into account his error of wishing to philosophize and to make dialectical what is historical and empirical), Hegel connected himself closely with the historical school of rights (Hugo, Savigny, etc.). This, notwithstanding the exaggeration by which he seemed to deny the value of the ideal demands made of rights, had the merit of shaking the old conception of natural rights. This has retained its place in treatises from that time onward in a more or less worm-eaten and unstable condition by the force of inertia; or it has been preserved by Catholic writers (by Rosmini not less than by the Padre Taparelli), whose conception is of necessity but little historical; or it has reappeared in those curious Catholics and anti-historians, the positivists (Spencer, Ardigò). But that natural rights are nothing but _new_ historical rights in the struggle of their becoming, is a conviction that has penetrated the general consciousness.

[Sidenote: _The comparison between rights and language._]

We also owe to the historical school the comparison between the life of rights and the life of language; this was prepared by the discoveries of comparative linguistic, which although substantially correct, yet had, as we have observed, the defect of limiting itself to the _grammatical_ form of both facts, not to their genuine and direct reality. Jacobi, in the already quoted effusions of _Woldemar,_ had recourse to the same comparison, for other reasons and with a more exact understanding of its terms; speaking there of the moral infraction of laws, he wrote: "For such exceptions, for such _licences of lofty poetry,_ the grammar of virtue has no definite rules and therefore does not mention them No grammar, least of all the general and philosophical, could contain in itself all that appertains to a living language, and teach how, in every epoch, every dialect must be formed. But it would be unwise to affirm that every one may speak as they feel inclined." And again, "Virtue is free art; and as artistic genius gives laws to art by its creations, so moral genius gives laws to human conduct: just, good, noble, excellent, is what the just, good, noble, and excellent man practises, achieves and produces in conformity with his character; he _invents virtue,_ procures and generates adequate expression for human dignity."[39]

[Sidenote: _The concept of law, and the studies of comparative Rights and of the general Doctrine of Rights._]

VII. The study of the concept of law is also progressing, and henceforth is not confined to so-called juridical laws and to legislations and codes. Researches into primitive rights and into those of savage and barbarous peoples, known as juridical Ethnography or comparative rights, have greatly contributed to destroy many prejudices; as also the attention that has been directed to facts called social, that is to say, not strictly political. A school that has had independent yet partly similar manifestations in England (Austin, Sumner Maine, etc.) and in Germany, where it has taken the name of school of _the general Doctrine of Rights (allgemeine Rechtslehre,_ according to the denomination given to it by Adolph Merkel), studies in particular the concept of law in its various classes and subclasses; and from it there cannot but issue a more correct understanding of the concept of law, as from the refinement of political Economy into pure Economy has come, first Psychology and then the Philosophy of economy. Meanwhile (and as far as we know) the literature of the school, dominated as it is by the needs of jurisprudence, maintains an empirical or _intellectualistic_ character; and jurists, rather than philosophers themselves, are those that most cultivate it. The distinctions and sub-distinctions of the laws are conducted with subtlety, but are without solid foundation, because the concept posited as basis of law is uncertain and arbitrary. Limiting ourselves to a single example, let us mention Bierling, perhaps the most philosophical of those various writers. Bierling first of all excludes from the concept of law the modes of man's conduct toward God, toward himself, and toward animals; but he gives no serious reason for this. He then arrives, by a mere arbitrary act, at the limiting of the concept of law to the manner of men's conduct among themselves, and defines rights in the juridical sense (as he calls it: "in general, all that men living together in any sort of community reciprocally recognize as a norm and rule of this living together"). He then introduces into the concept thus defined, not by deduction, but as the result of a second arbitrary act, the concept of exteriority, adding that, "the object of law is a definite _external_ procedure of man toward man."[40] In all this is evident the bad influence of jurisprudence and of its empirical preoccupations.

[Sidenote: _legalism and moral casuistic._]

VIII. Ethical legalism became a bitter question for Christianity, precisely because of the contest between lofty Christian morality and its legalitarian form, chiefly inherited from Judaism. In the ancient world there is almost no trace of the question, just because the struggle was never acute.[41] Hence the difficulties debated among the patristics and the scholastics as to derogability from divine laws and the consequent distinctions between a perfect and an imperfect moral life, between precepts and counsels; and as recourse is had to precedents in judicial questions, so here with these ethical problems concerning exceptions made by God to the moral law, to the precepts of the Bible (where some were not beautiful).[42] The practical needs of confession give origin to books on casuistic, of which collections exist dating from the fourteenth and fifteenth centuries. The Reformation manifested aversion to these treatises: Luther said that moral theologians had first extinguished in men the fear of God and had then placed soft cushions beneath their hands and feet; and Melanchthon lamented that the Christian Republic was honoured _theologastrorum sententiis de conscientiae casiobus, inestricabilibus, ubi nunquam non ex quaestione quaestio nascitur,_ and called them _conscientiarum cauteria._[43]

[Sidenote: _Probabilitism and Jesuitic morality._]

The inconclusiveness of legalism was converted into a most powerful poison by the Jesuits, with their _probabilitism,_ of which precursors were not wanting in the Middle Ages, but it received definite form from the Dominican Bartolomeo Medina in 1577. From that time onward probabilitism began to be surrounded with a copious literature, which continually increased in the course of the seventeenth century, to decline in the century following. The opposition originated by the Jansenists, whose capital literary document, the _Provinciales_ of Pascal also dates from the seventeenth century (1656), was the period of the greatest vigour of the doctrine. But if the most perfect and most Christian moral conscience dwelt in the Jansenists and in Pascal and if the absurd consequences to which probabilitism led became clearly evident in that polemic, yet it cannot be said that philosophically the error was finally superseded. Ere this could have happened, it would have been necessary, on the one hand to destroy all possibility of theological utilitarianism (which was impossible to carry out in a religious and transcendental Ethic, owing to its mystical and irrationalistic character) and on the other to destroy legalism. Pascal himself (and St. Augustine, to whom he appeals) was always confined in the legislative conception of morality; hence he speaks of the laws of "not slaying," which it was necessary to obey strictly, save in the cases established by God or when he gives particular orders to put certain persons to death. The Catholic Church, always astutely political, condemned without hesitation the extreme _rigorists,_ who wish that the law should always be followed and the extreme _latitudinarians,_ who think that any sort of reasons, however slight and improbable, suffice for not observing the law; allowing intermediate sects to discuss among themselves until they were out of breath, that is to say, _the moderate rigorists, the probabiliorists or tutiorists, the equiprobabilitists and the probabilitists._ Sant Alfonso dei Liguori adhered to these last, who were of opinion that it is always permissible to do what we wish, provided always that there be probable reasons, though less probable than those that militate in favour of the law. In his _Dissertatio de usu moderato opinionis probabilis,_[44] he thus exposed the principal argument of his thesis: _Peto ab adversariis ut indicent (si possunt) tibinam legem hanc esse scriptam invenerint, quod teneamur inter opiniones probabiles probabiliores sequi? Haec lex quidem, prout universalis, deberet omnibus esse nota et certa: at quomodo ista lex certa dici potest, cum communis sententia doctorum, saltem longe major illorum pars, post tantum discrimen absolute asserant, hanc legem non adesse? Usque dum igitur de tali lege dubitatum, opinio quod adsit haec lex sequendi probabiliora, quamvis alicui videatur probabilior, nunquam tamen lex dici potest, sed appellanda erit mera opinio, utpote ex fallibili motivo deducta, quae vim nequaquam habet, ut lex, obligandi._ This doctrine still retains in our day very firm supporters among the Jesuits (Cathrein,[45] Lehmkuhl,[46] etc.).

[Sidenote: _Critique of the concept of the licit._]

But if the destruction of theological utilitarianism has been brought about by the criticism of the transcendental and by idealistic Ethic, that of legalism, with its expression as the licit, the permissible, or morally indifferent, appears in Fichte and in Schleiermacher. Kant did not treat the question explicitly and, as observed, we can deduce from certain of his utterances that he did not altogether abandon the concept of the licit.[47]

[Sidenote: _Fichte._]

But Fichte, in a note to his _Natural Rights,_ wrote: "A right is evidently something of which a man can avail himself or not; and is therefore the result of a law that is merely permissive. ... The permission is not expressly given by the law and is deduced by interpretation from its limitation. And the limitation of a law is shown by the fact of its being something conditioned. It is not absolutely apparent, therefore, that a permissive law which commands in an unconditioned manner and therefore extends to all, can be deduced from the moral law."[48]

[Sidenote: _Schleiermacher._]

What was a mere mention in Fichte became an ample demonstration in the celebrated memoir of Schleiermacher, _On the Concept of the Licit_ (1826), which resolutely drove the licit out of the field of Ethic, by demonstrating its altogether juridical nature: "The original seat of this concept cannot be the domain of Ethic, in which it is not admissible: it appertains to the domain of law and of positive law; and there is something originally licit in civil life, precisely in this sense that there is something half-way between what is commanded and what is forbidden, the proper object of law."[49]

[Sidenote: _Rosmini._]

Rosmini, owing to having ignored this origin of the lawful, proceeded to divide human actions into four classes: the prohibited, the licit, the commanded, and the superogatory; the last three were all innocent, but the licit was simply innocent, while the commanded and the superogatory were also furnished with moral value. Hence arose grave errors in his Ethic and in his Philosophy of law and definitions that it is impossible to grasp, such as the following relating to superogatory actions: "The obligatory consists in preserving the moral order, but the superogatory consists in preserving the said order in a more excellent and perfect manner, with fuller, more frequent, and more ardent acts of the will. These second not only preserve the moral order, but augment it, almost creating a part of it themselves with their activity; they make themselves not only followers of the good, but authors of the good itself." Rosmini also considered that the posing of the question of probabilitism represented progress in Ethic; that is, upon "what man should do, if he found himself in doubt as to performing or omitting to perform an action." But the solution of the question that he gave on his account amounted (be it said to his honour) to the annihilation of legalism, since for him a doubtful law does not oblige when it is positive Rights, but it does oblige when it is moral law, that is, when there is a fear of offending against the supreme and necessary law, which wills absolutely to be always fulfilled.[50] In other terms, the true practical law is never (even when it appears to be so) positive law; and the concept of law, which always has a positive meaning, is extraneous to Ethic and to the Philosophy of the practical: a result to which Rosmini does not attain, or at least is not conscious of attaining.

[1] See above, pp. 286, 287.

[2] _Krit. d. rein. Vern._ (ed. Kirchmann), p. 572.

[3] Lasson, _System der Rechtsphilosophie_ (Berlin, 1882), p. 2.

[4] _Gorgias,_ 476-478.

[5] _Eth. Nicom._ 3, v. c. 1-2.

[6] _Ibid._ v. c. 7, 9; _Magna Moralia,_ i. c. 34.

[7] _De repudi,_ iii. c. 22; _De legibus,_ ii. c. 5.

[8] _De imo univ. jur. princ._ §§41, 43, 86.

[9] _Fundamenta juris nat. et gentium_ (1705).

[10] Windelband, _Geschichte d. Phil._ p. 424.

[11] _Gründl. d. Naturr._ (1796), append., sect. I.

[12] _Metaphys. d. Sitten,_ 1797 (ed. Kirchmann), pp. 31-35.

[13] _Gründl, d. Naturr._ pt. i. sect. 1.

[14] Spinoza, _Tract, pol._ c. 6, § 3; Fichte, _System d. Sittenlehre,_ § 18 _in fine._

[15] _Phil. d. Rechts,_ passim, concerning force and violence, §§ 3, 57, 94.

[16] _Op. cit._§ 158, _sqq._ 161, 258.

[17] _Werke,_ I., p. 371.

[18] _Allg. prakt. Phil._ pp. 48, 126-128.

[19] _Werke,_ i. 441-445; cf. v. 259-260.

[20] _Fil. d. diritto_ (Napoli, 1844), i. 20-21, 88-89, 94-97.

[21] _Saggio teor. d. dir. nat._ (Palermo, 1857), _in princ._

[22] Stahl, _Rechts-u. Staatslehre_² (Heidelberg, 1845), b. ii. ch. I; Ahrens, _Naturr._ (It. tr., Napoli, 1860), i. 219 _sq._; Trendelenburg, _Naturrecht auf d. Grunde d. Ethik_ (Leipzig, 1860).

[23] Kirchmann, _Begr. d. Rechtes u. d. Moral_² (Berlin, 1873), pp. 107114; see Jhering, _Der Zweck i. Reckt_ (i.2, 1883; ii.3, 1886).

[24] Lasson, _op. cit.;_ Steinthal, _Allg. Ethik_ (Berlin, 1885), pp. 135-8; Schuppe, _Ethik u. Rechtsphil._ (Breslau, 1881), pp. 283-4; Wundt, _Ethik_² (Stuttgart, 1892),.p. 565 _sq._; Cohen, _Ethik d. reinen Willens_ (Berlin, 1904), p. 567.