Part 26

Ueb. d. wissensch. Behandlungsarten d. Naturrechts, in Werke, i. 353; cf. Gesch. d. Phil. iii. 533 sqq.

Gründl, d. Moral, in Werke, ed. cit., iii. 538, 542-543.

Lettres prov. 1. 5.

System d. Sittenlehre, pp. 49-51.

THIRD PART

LAWS

LAWS AS PRODUCTS OF THE INDIVIDUAL

Law is a volitional act, which has for content a series or class of actions.

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.

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?

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.

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.

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.

The exclusion of the character of sociality from the concept of law frees philosophy from a series of problems, grafted upon that pretended character. The principal of these was that of the distinction of social laws into political and judicial, on the one hand and merely social on the other; and the further distinction of judicial law into public and private, civil and penal, national and international, into laws properly so called and regulations, and so on. If the concept itself of social law be empirical, then all the distinctions and sub-distinctions of it proposed must also be empirical, and altogether without philosophical value. So true is this that it is impossible to decide for one distinction or definition against another, or to correct those hitherto given by proposing new ones. Whoever undertakes to examine any one of these distinctions, at once realizes the aphilosophical character affirmed of them a priori. Thus judicial or political laws have been distinguished from the merely social, with the affirmation that those are compulsory, these conventional; whereas compulsion is impossible in both cases, for the reasons given, and if by compulsion be meant the threat of a penalty, this is to be found in merely social laws, not less than in judicial. The law against the falsification of public money is usually described as judicial: he who falsifies it runs the risk of undergoing some years' imprisonment. It is a law called social that we must answer a salutation with a salutation: he who does not do this runs the risk of being held ill-bred and excluded from the society of the well-bred. What essential difference is there between the two laws? An attempt has been made to differentiate them by saying that the former has emanated from and is sustained by a supreme power, vigilant as to its observance, the second from particular circles of individuals. But where is the seat of this supreme power? Certainly not in a superindividual, who dominates individuals, but in individuals themselves. And in this case its power and value correspond with the power of the individuals who compose it; that is to say, it is the law of a circle, empirically considered to be larger and stronger, but whose volitions are realized in so far as the individuals composing it spontaneously conform to them, because they recognize the convenience of doing so. Monarchs who believed themselves to be most powerful, have realized at certain moments that the power did not at all reside in their persons or title, but in a universal consensus of opinion, failing which their power vanished, or was reduced to a gesture of solitary command, not far removed from the ridiculous. Laws that seem to be excellent remain unapplied, because they meet with tacit general resistance, or as is said, do not accord with custom: this should suffice to enlighten the mind as to the inseverable unity of what is called the State and what is called society. The State is not a being, but a mobile complex of varied relations between individuals. It may be convenient to limit this complex as well as possible, to make a being of it to oppose other complexes: of this there can be no doubt; and let us leave to jurists the excogitation of these and other similar distinctions, fictitious but opportune; nor let us consider that their work should be declared in the least absurd. We only say that it must not be forgotten that the fictitious is fictitious, as is the claim made to reason about it as rational and philosophical, and to fill volumes and volumes with tiresome disquisitions, which are necessarily vain, though the distinctions that form their object are not vain in their circle. We who are not jurists but philosophers, and to whom it is therefore not permitted to produce and adopt practical distinctions, must conceive as laws and include equally in the same category, alike the English Magna Charta and the statute of the Sicilian Mafia, or of the Neapolitan Camorra; the Regula monachorum of Saint Benedict and that of the brigata spendereccia that was sung in sonnets by Folgore di San Geminiano and Cene della Chitarra and is recorded by Dante in the Inferno; the canon law and the military code, and that droit parisien, which a certain personage of Balzac had studied for three years in the blue boudoir of one lady and in the rosy drawing-room of another, and which, although no one ever speaks of it, yet constitutes (says the great novelist) une haute jurisprudence sociale, qui, bien apprise et bien pratiquée, mène à tout. What more can be said? Even those literary and artistic laws are laws which express the will to produce works, possessing this or that other kind of argument and arrangement, as would be the law that drama should be divided into five or three acts or days, and that romances must not exceed four or five hundred pages, 16mo, and that a monumental statue must be nude or heroically clad. It is evident that if anybody violate these laws, he may be excluded (and he was indeed excluded) from the academies of good taste, which did not prevent his being received for that very reason into the anti-academies of the independents: in just the same way as to have incurred punishments announced by the penal code is a title of admission to certain criminal societies.

These examples that we have selected among the most extraordinary and the most apt to scandalize, help to make it quite clear that the concept of law must be taken in its full logical extension, when we wish to philosophize about it. Among the many obstacles that philosophy meets with is a curious sort of false shame, which looks upon contact with certain arguments as injurious to the dignity of philosophy: a contact which is avoided by arbitrarily narrowing and therefore falsifying philosophical concepts. That of law especially has a tradition of solemnity, and brings with it associations that must be broken in pieces. Otherwise it is impossible even to understand what are those firm and unwritten laws of the gods, which Antigone opposed to the decrees of men and how they exercise their efficiency; or the sayings of Lacedaemon, in obedience to which fell the three hundred at Thermopylae; or the laws of the fatherland, which, with their irresistible authority, caused Socrates to remain at the moment when others counselled and facilitated his flight. Life is composed of big and little actions, of least and greatest, or better, of a very dense web of very diverse actions; and it is not a too brilliant idea to cut that web in pieces and to throw away some of the pieces as less beautiful, in order afterwards to contemplate in those pieces only that have been thus selected, cut out and disconnected, the web that no longer exists.

Balzac, Le Père Goriot (ed. Paris, Calman Lévy, 1891), p. 85.

THE CONSTITUTIVE ELEMENTS OF LAWS. CRITIQUE OF PERMISSIVE LAWS AND OF NATURAL LAW

The undue restrictions and empirical divisions of the concept of laws having been destroyed, if our attention be now directed to the character that has been determined as properly belonging to them, we have the means of distinguishing them from the other spiritual forms with which they are often confused, partly as the result of the metaphors and homonyms usual in ordinary speech. Laws, as has been said, are volitional acts concerning classes of actions. Therefore, where the volitional element or the element of class is wanting, there cannot be law, save in name and by metaphor.

So-called laws of nature or naturalistic laws are not laws, owing to the absence of the volitional element: they consist of simple enunciations of relations between empirical concepts, that is, of rules. This is an instance of what is called a natural law: platinum melts at a temperature of 1780 degrees; or this other of a grammatical law: that in the Greek language masculine nouns of the second declension have the genitive in ου(with exceptions, in this as in the other case). But they are laws in about the same way as the King of Cups is king; and indeed it is known historically that this denomination was transported by the Stoics from the domain of politics, where it had first appeared, to that of nature. Empirical concepts and rules may, as we know, assume an imperative literary form; hence it will be said: "If you wish to melt platinum, heat it to 1780 degrees"; "If you wish to speak Greek, decline masculine nouns of the second declension with an ου in the genitive." But the literary form does not change anything of their true nature: those imperatives are hypothetical imperatives, that is, false imperatives, improper laws. Grammatical and chemical laws will remain mere formulæ, instruments of knowledge, and not at all of action, until some one obliges me or I oblige myself to talk Greek, or to open a chemical laboratory where platinum is melted. The jurist who elaborates cases and rules is not the legislator: the latter alone (with a sword in one hand) can endow the excogitations cf the other with the character of law.

Certainly an act of will is necessary in order to construct empirical concepts, formulæ, and rules (as indeed we know), an act of will which is not that of the will implied in every act of thought, but is a special and explicit act which, by manipulating representations and concepts, makes a quid medium, which is neither representation nor concept, and although altogether irrational from the theoretical point of view, is of use in the economy of the spirit. But the law in its true meaning is a volitional act, which assumes that primary volitional act whence are formed the pseudo-concepts or concepts of class as already completed; precisely because it is the will which has for its object a class of objects. It is not possible to impose speaking according to the rule of the Greek language, or to melt platinum according to its chemical formula, before these rules have been laid down. And here appears very clearly the difference between those two kinds of spiritual products, which the imperative literary form, given to classes and rules, darkens and confuses. This difference can be recognized in concrete cases by means of a most simple expedient: if the rule (as we have already had occasion to prove) can be converted into a statement of class, then the law is inconvertible. "If you wish to melt platinum, heat it to 1780 degrees" is a proposition that is exactly equal to "platinum melts at 1780 degrees." But the law, "Let there be opened in every city a chemical laboratory where platinum is to be melted," is not to be converted from the imperative to the indicative, whatever efforts we make.

If the volitional element be wanting to naturalistic laws, it is certainly present in other spiritual formations also denominated and considered as laws: but not that of class, therefore neither are these laws. Such is the case with economic and moral law, and through them, with logical and æsthetic laws. The moral law says, "Will the universal"; that is to say, "Will the good, the useful, the true, the beautiful." Therefore (considered in reality and not in scientific theory, where it appears as the concept of itself) it is a volitional act. But this volitional act has the spirit itself for object, which is and exists, in so far as it wills and affirms itself; it has for object a form or a universal, whereas laws have for object something material and at the same time not instantaneous, something more or less fixed, something general: a class, not an idea. Universal laws (that would better be called principles) are the Spirit or producer; true and proper laws are the special product of the spirit; therefore the first can certainly be called laws, but for an altogether different reason to the second.

Owing to the absence of the element of generality or of class, no one would describe a single individuated act as law. The resolution and action by which I do not rise from my seat at this moment and go eagerly to meet the friend whose coming at the wrong moment interrupts me at my work, is a volitional act, not a law; such as on the other hand would be the volitional act that I might form within myself, consisting in the intention or the programme of receiving my friends seated and in a lukewarm way, whenever they should come to visit me in the hours before noon, in order to make them understand by this act of mine that they disturb me at my work, and that they should abstain from their inopportune visits, unless they wish to submit to the penalty of meeting with anything but a cordial reception from their friend.

From the general but not universal character that we must recognize to the content of laws, we have the solution of certain controversies of the greatest importance which have been and are much discussed, hitherto without a satisfactory or duly demonstrated conclusion. In the first place, we must mention the dispute as to whether or no there exist permissive laws, and whether the formula that the law aut jubet aut vetat aut permittit is to be accepted. It has generally been admitted that the law aut jubet aut vetat, and that the permission is nothing but the removal of a previous inhibition, that is, the partial or total abrogation of a law. But in reality, the law, since it is a volitional act, jubet only; to command is to will: to command that a chemical laboratory be opened in every city means to will that one should be opened. And since every willing is at the same time a not-willing, as every affirmation is at the same time a negation, every command is at the same time an inhibition, and every jubeo is a veto (whether the will be expressed in the literary form of positive or negative, of command or of inhibition, is here without importance).

As to permissive laws, these are inconceivable side by side with the imperative or prohibitive, not indeed because no law ever permits, but because by the very fact that those are imperative or prohibitive, they are at the same time permissive: every jubeo or veto is at the same time a permitto. Principles, as universal volitions, never permit, because nothing escapes their command; but a single volitional act, affirming itself, does not exclude for that reason the possibility that other volitional acts, indeed infinite acts, should be affirmed; for the singular never exhausts its universal. And laws are volitions of class, they impose groups of single acts--groups that are more or less rich, but always contingent: hence a law always leaves all the other actions and classes of action that can be the object of will unwilled (that is, neither commanded nor prohibited), and, therefore, permitted. And even if we take all the laws formulated up to a given moment, all together they do not exhaust the universal; and if new laws be accumulated, one upon the other, be divided and split up "with panting breath," to obtain complete exhaustion, a progressus in infinitum will certainly be attained, but never exhaustion, which is unattainable. This amounts to saying that outside law or laws, there is always the permitted, the lawful, the indifferent, the privilege, the right, or whatever be termed the concept correlative to that of command, veto, or duty, a duality of terms that expresses the finitude of law; hence, when a determined privilege, a determined legal right, a determined right, has been annulled by a new law, when something previously indifferent has been differentiated, privilege, the permitted, the indifferent, right, always arise from the bosom of the new law.

Another contingent character of the content of laws is their mutability. Laws are changeable, whereas principles, or laws of the universal content, are unchangeable, and ready to give form to all the most various historical material. Since actual conditions are constantly changing, it is necessary to add new laws to the old, to retouch and correct these, or to abolish them altogether. This is to be seen equally in the programmes of individual lives, as in the programmes of social and political laws.

The question as to the number of modes of changing that laws possess does not concern us, because, philosophically speaking, there is never but one mode: the free will that produces the new law in new conditions of fact. Involuntary changing can only be a formula for indicating certain changes, always voluntary, that occur in a less solemn way than others; but from these, can never be absent the solemnity of the human will that celebrates itself. Thus, in like manner, the question as to whether we should recognize conservation or revolution as the fundamental concept of practical life, does not concern us; for every conservative is at the same time a revolutionary, since he is always obliged to adapt the law that he wishes to preserve to the new facts; and every revolutionary is also a conservative, since he is obliged to start from certain laws that he preserves, at any rate provisionally, that he may change others and substitute for them new laws, which he in his turn intends to preserve. Revolution for revolution's sake, the cult of the Goddess Revolution, is an insane effort, which is so none the less because it has sometimes appeared in History and like all insane efforts it ends with suicide. Revolution revolutionizes itself and turns into reaction. Thus when revolutionaries and conservatives are distinguished and opposed to one another, an empirical distinction is made there also, the meaning of which is to be found in the historical circumstances among which it has arisen. Count Cavour was a conservative in respect to certain problems and revolutionary in respect to certain others, to such a degree that he seemed to the Mazzinians to be a conservative and to the clericals and legitimists a revolutionary. Robespierre, if he were a revolutionary for the Girondins and at last even for the neo-moderate Danton, yet to the eyes of Hébert and of Chaumette seemed to be a conservative, enemy of the free development of the rights of man.

We should on the other hand be very careful as to the demand so often made and also so far as possible put into execution, for an eternal code, a limit-legislation or model, a universal, rational, or natural justice, as it has been variously termed. Natural justice, universal legislation, eternal code, claim to fix the transitory and are therefore a contradictory concept: contradictory precisely to the principle of the mutability of laws, which is the necessary consequence of their contingent and historical character. Were natural Right permitted to do what it announces, were God to permit that the affairs of Reality should be carried on according to the ill-assorted ideas of writers and professors, we should witness with the formation and application of the eternal Code, the cessation ipso facto of Development, the end of History, the death of Life and the dissolution of Reality.