Chapter II

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

[Sidenote: _The volitional character and the character of class._]

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.

[Sidenote: Distinction of laws from the so-called laws of nature.]

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.

[Sidenote: _Implication of the second in the first._]

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.

[Sidenote: _Distinction of laws from practical principles._]

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.

[Sidenote: _Laws and single acts._]

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.

[Sidenote: _Identity of imperative, prohibitive, and permissive laws._]

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).

[Sidenote: _Permissive character of every law, and impermissive character of every principle._]

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.

[Sidenote: _Mutability of laws._]

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.

[Sidenote: _Empirical concepts as to the modes of change._]

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.

[Sidenote: _Critique of the eternal Code or natural Right._]

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.

[Sidenote: _Natural justice as the new justice._]

This world-ending does not take place, because, though it be possible to dwell in contradiction, it is impossible to make it concrete and actual: God, that is to say Reality, does not permit this. Thus it happens that under the name of natural justice, two sorts of products have existed in turn, or sometimes a mixture of those two different products, which have nothing to do with the programme announced. On the one hand, projects of new laws that seemed better than the old or good by comparison with these judged more or less bad, have been proposed as natural or rational justice, and precisely for this reason the old laws were called unnatural and irrational and the new _rational and natural._ Just as passionate and erotic temperaments, uninstructed by the experience of their past, swear with the utmost seriousness that their new love will be _constant, eternal and their last,_ so man, when he creates new laws, is often seized with the illusion that his laws will not change as did the old ones, forgetting that the old ones were once young and that they "satisfied divers" in their heyday, to express oneself in the words of the old carnavalesque song. Those natural laws are historical, those eternal laws are transitory, like all the others. All know how in certain times and places, religious tolerance, freedom of trade, private property, constitutional monarchy, have been proclaimed eternal; and in others, the extirpation of unbelievers, commercial protection, communism, the republic, and anarchy.

[Sidenote: _Natural justice as philosophy of the practical._]

Universal concepts, which were nothing but the Principles of the philosophy of the practical themselves, have on the other hand had a tendency to be classed as natural justice and to surpass the transitory and contingent. They are certainly eternal and unchangeable, but no longer laws, for they are formal and not material. Thus treatises of natural justice have sometimes become simply treatises (sometimes very valuable) of the Philosophy of the practical and especially of Ethic.--When (as to tell the truth has generally been the case) a practical description has accompanied a general treatment of Ethic, leading to a series of proposals for social, judicial or political reform, there has then occurred a _mingling_ of two different productions, which we have mentioned, philosophy and casuistic. But a natural justice has always remained unachieved, because unachievable and contradictory.

[Sidenote: _Critique of natural justice._]

In our times, owing to the increase of the historical sense, the constructions of natural justice and of the eternal Code have almost altogether lost the attraction they once exercized. But absurd problems having their origin in those contradictory concepts still persist and absurd methods of treating problems of similar origin legitimate when taken in their true terms. An example of the first of these two kinds of diseased residues is the treating of the _natural rights_ of man and the attempt to establish what rights belong to man by nature and what by historical contingencies. Among the first are enumerated the right to life, to liberty, to work, to the family and so on; and among the second, those that have their origin in the Italian State or in special contracts that have been concluded. But no right of any sort belongs to man outside society (which in this case means outside history), that is to say, considered as spirit in universal, save that of existing as spirit, which indeed is not a right, but necessary reality. Catalogues of natural rights are either tautologies, which repeat that man as spirit has the right (and therefore at the same time the duty) of developing himself as spirit (and he does develop in this manner, if he be man and be alive); or they are arbitrary rationalizations of historical contingencies, such as the right to work, which is nothing but the formula of the workpeople of the _ateliers nationaux_ in forty-eight, or of the insurgents of Lyons; or the right to private property, which was the formula of the burghers against the bonds of feudalism and is again their formula against the modern proletariat movement.

[Sidenote: _Jusnaturalism persisting in judgments and juridical problems._]

We must recognize examples of the second kind of error in the discussions constantly held as to social or political institutions, when instead of combating them as irrational, or of defending them as rational in historical circumstances, they are defended and combated because they differ from or conform to the true idea of right or to the true idea of those particular institutions, recourse being thus had to abstract reasons, as has very well been said. A reformer will maintain the recognition of the right of women to the administrative or political vote, because women also form part of the State and have general and particular interests, which they wish to guarantee directly, without the inter-position of men, whose interests are sometimes at variance with theirs: an argument that a conservative will deny altogether, making appeal to the function of woman, enclosed by eternal law in the circle of the family. A reformer will propose divorce as the natural complement to matrimony, because, where spiritual agreement ends, there too should end every other tie, whereas a conservative will oppose the argument as contradictory to the very essence of matrimony, comparing such a proposal with concubinage, or with what is called free love. And so on.--When such arguments are heard, it is remarked that natural rights are not dead. But the question as to the political vote for women may be serious or ridiculous, according to place and time; as divorce is loftily moral or profoundly immoral, according to time and place, and it is only mental narrowness or ignorance that can place outside humanity, or believe to be living or persisting in immorality, peoples that practise divorce or indissoluble matrimony, or those of to-day, who refuse the vote to women or those of the future who will recognize their right to it, if they do recognize it. But even polygamy or free love is not immoral, irrational and unnatural, once it has been an institution considered legitimate in certain times and places; nor even, we insist upon saying it (however repugnant to our hearts and to our stomachs of civilized Europeans), anthropophagy, for even among the anthropophagi were men (we hope it will be admitted), who felt themselves to be most virtuous in their clearest consciousness of self, and who nevertheless ate their like with the same tranquillity that we eat a roast chicken, without hatred of the chicken, but being quite well aware, for the moment at any rate, that we are not able to do otherwise. The unconscious reasoners on the basis of natural law must have forgotten that page of Cornelius Νepos, which, however, they must certainly have translated in their first years at the gymnasium: _Expertes literarum Graecarum nihil rectum nisi quod ipsorum moribus conveniat putabunt. Hi, si didicerint non eadem omnibus esse honesta atque turpia, SED OMNIA MAJORUM INSTITUTIS JUDICARI, non admirabuntur nos in Graiorum virtutibus exponendis mores eorum secutos. Neque enim Cimoni fuit turpe Atheniensium summo viro, sororem germanam habere in matrimonium: quippe quum ejus cives eodem uterentur instituto; at id quidem nostris moribus nefas habetur. Laudi in Graecia ducitur adolescentulis quam plurimos habere amatores. Nulla Lacedaemoni tam est nobilis vidua quae non ad scenam eat mercede conducta..._. And he continues to give further examples.[1] So ancient are the unreasonable tendency to be scandalized and the reasonable defence of the variety of customs made by good sense.

[1] _Vitae excell. imper.,_ pref.