Chapter III

UNREALITY OF THE LAW AND REALITY OF ITS EXECUTION. FUNCTION OF LAW IN THE PRACTICAL SPIRIT

[Sidenote: _Law as abstract and unreal volition._]

Since law is the volition of a class of actions, it is the volition of an _abstract._ But as we already know, to will an abstract is tantamount to willing abstractly. And to will abstractly is not truly to will, for we will only in concrete, that is, in a determined situation and with a volitional synthesis corresponding to that situation, such that it is immediately translated into action, or better, is at the same time effective action. Consequently it seems that we should declare the volition that is law to be a pretended volition: contradictory, because lacking a single, unique and determined situation; ineffectual, because springing from the insecure ground of an abstract concept; a volition, in fact, that is not willed; a volitional act, not real, but _unreal._

[Sidenote: _Ineffectuality of laws and effectuality of practical principles._]

Such indeed it is. What is really wanted is not the law, but the single act, done _under_ the law, as it is called, that is to say, the _execution_ of the law. The single volition is the only one that is carried out: the execution of the law is the only thing really and truly willed and done. When the law has been formulated, life continues ceaselessly to propound its problems, and these either do not enter into the provisions of the law and are solved simply and solely with universal practical principles (economic and ethic), or they do enter into them and then it is necessary _to apply_ the law, unless it be held to be more convenient to change it, or (this would be a pathological case) action be not taken against it, although there be consciousness that this is ill done.

But even when we are in the situations foreseen by the law and act in accordance with it, or, as is said, _apply or carry out_ the law, we must not allow ourselves to be misled by all these metaphors; for we must consider that the single situations in which we will and act can never be foreseen by the law, nor is it possible to act in accordance with it, to follow it out and to apply it. Situations are not foreseen, because nothing is foreseen, and the real fact is always a surprise, something that happens once only and we can only know it as it is after it has happened. For the new fact a new measure is necessary; for the new body a new suit of clothes. The measure of the law, on the other hand, since it is abstract, hesitates between the universal and the individual and is without the strength of either. To carry out the law? But it is only the pedant of life who proposes to do such a thing, as it is only the pedant of art who attempts to apply the rules of art. The true artist follows the impulse of his æsthetic conscience, the practical man the initiative of his practical genius. What is called the single act, observance and execution of the law, obeys, not the law, but the ethical or practical principle, and obeys it individually. The man who has his head full of laws that he has made for himself or has accepted from others, makes a deep reverence to the Ladies' Law when the time comes for action, and proceeds on his own initiative.

[Sidenote: _Exemplificatory clarification._]

It is the law that at the age of twenty we must present ourselves in our district and do military service for a certain time. Let us for the moment set aside the case in which those called upon to serve rebel and, having seized the power of the government, abolish the law of conscription, and re-establish that of voluntary enlistment. And let us likewise set aside the other case, in which the conscripts violate the law by deserting and going abroad, or hide in a cave, like a hero of Padre Bresciani, or (like a good Tolstoian who applies the principle of non-resistance to evil) allow themselves to be put in prison rather than touch arms. Let us select the case of the peaceful burgess who becomes a warrior that he may not go to prison; or of the good citizen who recognizes his duty of serving his country and for that reason obeys the law. In presenting himself in his district and in the regiment, he has obeyed, not the voice of the law (which is a voice), but his moral conscience, or simply his economic conscience. This has already been demonstrated and we need not insist upon it. But how can he ever obey the law, which directs him to do military service of precisely this or that nature? Each individual has his own temperament, his own talent, his own particular physical strength, and each one will lend his services entirely in his own way, different from that of another. And (be it noted) he will not do so only more or less well or observing the law more or less, but really in a different way, even when all observe the law with equal diligence and scrupulosity. It may seem as if all carry out a military exercise at the same moment, but the fact is that each man moves in a different way to the others; or that in a parade march all walk in the same way, but, as a matter of fact, all (even in the Prussian army) walk in a different way. If we look at it as a whole and from a distance, there seems to be uniformity; if we look at it from near at hand we discover the difference. If we could make the experiment of comparing a regiment of fifty years before with one of fifty years after, leaving military regulations, arms, accoutrements, and everything else unaltered in the interval, the lack of uniformity of the apparent uniformity would leap to the eyes, a lack of uniformity that would have been rendered possible by the changes that had taken place in the surrounding life, in the culture, the moral education, the political conscience, the mode of nourishment, the dwellings, and so on. But the experiment is possible, if not in time, then in space, that is to say, by observing the application of the same military regulations upon two different populations. Thus one seems to have in hand one book written in two different languages; which is literally no longer the same book, but two different books. Giusti translated into Milanese and Porta translated into Florentine are no longer Porta or Giusti, but two new poets.

[Sidenote: _Doctrines against the utility of laws. Their unmaintainability._]

This indubitable truth, as to the impossibility of applying the law and of incorporating it in facts, and as to the necessity of acting in each case, according to historical exigencies, is the true reason for the turning of so many people's heads at different times and in different places, causing them to proclaim nothing less than the inutility of laws and to ask for their abolition. If it be necessary to come eventually to the individual action, and if deliberation and execution must be remitted to the action of the individual, what is the object of binding ourselves with bonds, which it is afterwards necessary to tear off and to break, that we may act? What is the object of laboriously constructing instruments, which we are obliged to throw away when we come to practical action, that we may use our naked hands? Owing to such ingenuous reasonings as these, people have come to long for a society without laws, in which each will do his own share of work, on account of its attractiveness alone, as we find among the Harmonicists of Fourier and in many other anarchical Utopias. Or they have sighed for the absolute paternal government of the good old days, for the geniality of a good-hearted tyrant, untrammelled with laws, who will be able to follow the best dictates of his heart. Or, to descend to less strange and more actual examples, it has been proposed that the judge should on each occasion create the law, according to the case before him; that is to say, that he should cease to be a judge (not having a law to apply, and properly speaking not being able to give judgment) and be a free decider of litigation and corrector of customs; or at least that he should free himself from _legal fictions_ and judge according to the individual reality of each individual case.

[Sidenote: _Unsustainability of such confutations._]

These theories are without doubt unsustainable, not excluding the last, which has the appearance of being moderate; because the so-called judicial fiction is intrinsic to the law and exists even when we think that it is not present, for it is always a fiction to place a concrete case in an abstract category. But defenders of the utility of law have met these erroneous doctrines with the bad argument that law does not admit of individual solutions, and demands strict obedience, because the moment of individuality, of inobservance, and of violation that may be called legitimate, does actually exist in the law and is intrinsic to its very nature. Both adversaries and defenders of law are therefore philosophically wrong, those who assert its inutility and those who claim for it an impossible utility.

[Sidenote: _Empirical meanings of those controversies._]

And we say "philosophically," for it is well known that in this case, as in so many other disputes of philosophic appearance, are often concealed disputes of a practical and political nature, in which right and wrong are divided and connected in an altogether different manner. The adversaries of laws are often nothing but adversaries of too many laws, or legitimately demand a less pedantic and mechanical office for the judge than that which he often has at present; whereas the maintainers of laws are opposed to revolutionaries, who would wish to abrogate the definite laws, on which civil progress rests, or to discredit all laws, and cause society to enter upon a terrible crisis that would not promise good results. But all this is extraneous to the philosophic problem.

[Sidenote: _Necessity of laws._]

If the defenders of the utility of laws had wished to make use of an argument of good sense against their adversaries, of the sort that imposes, even when it does not rigorously demonstrate their contention, they might have simply noted the demand for laws, for ordinances, for justice, for the State, which appears at all points of human history.--Better a bad government than no government at all; better laws that are mediocre, but stable, than the frantic pursuit for better and better laws, with the instability that is the inevitable consequence! And on the other hand, may God save us from genial despots, from inspired judges, from tribunals that dive into treasures of equity!--These are the utterances that we hear in history. Battles have been fought for _legality,_ and rivers of blood have been shed for it; for legality are faced the troubles of litigation, and energetic action is displayed, which only superficial intellects can consider a waste of time and trouble; for no trouble is superfluous when we are protecting our own rights, and none is more sacred, since it also guards the offended majesty of the law, the rights of all. Those who declaim against laws can well do so with a light heart, for the law surrounds, protects, and preserves their life for them. No sooner had all laws disappeared than they would lose the wish to declaim:

In such wise as when sometimes in the wood
The shepherd spies the wolf, and straight has lost
Spirit and sense, and words die on his tongue;

and he would be obliged to have speedy recourse to the remedy and make laws of some sort again, whatever they be, that he may again resume his calm, his work and his gossip.

[Sidenote: _Laws as preparation for action._]

Passing from consideration _ad oculos_ to the philosophical, it is to be said, on the other hand, that the utility of law does not at all reside in its effectuality, which is something impossible, since the single act of the individual is alone effectual; but in this, that in order to will and to carry out the single act, it is usually necessary to address oneself to the general, of which that individual is a single case; that is, to address oneself to the group, of which the individual is a component part, just as in aiming we generally begin by aiming at the region where is the point upon which the aim will be fixed. Law is not a real and effectual volition; it is without doubt an imperfect and contradictory volition, but for that very reason a preparation for the synthetic and perfect volition. Law, in short, since it is the volition of an abstract, is not a real volition, but an _aid_ to real volition; as (to employ the usual comparison) wooden bridges and scaffoldings are aids to the construction of a house and have not been useless, because they must be pulled down when the house has been built.

[Sidenote: _Analogy between the practical and the theoretical spirit: practical laws and empirical concepts._]

Here the analogy between the constitution of the practical and of the theoretical spirit is again shown to be most exact. We meet with theoretical forms in the latter also, which are not really so and are contradictory in themselves, positing representations that function as universals and universals that are representative: arbitrary forms, in which the will undertakes to command what it is not possible to command, that is to say, representations and concepts, things which precede and do not follow the volitional and practical form. But we know that those fictitious concepts, those formulæ, those laws that are not laws, those admitted falsities, which, therefore, are not falsities, serve as a help to memory, and assist thought in finding its way amid the multiform spectacle of the world, which it must penetrate for itself. We do not think them, but they help us to think; we do not imagine them, but they help us to imagine. Thus the philosopher generally fixes his mind upon the pseudo-concepts, that he may afterwards rise to the universals; and the artist also turns his attention to them that he may find beneath them the individual, the lively and ingenuous intuition that he seeks. The same pseudo-concepts, made the object of volition and changed from formulæ to laws, fulfil an analogous office in the practical spirit, making it possible for the will to will in a certain direction, where it afterwards meets the useful action, which is always individuated.

[Sidenote: _The promotion of order in reality and representation._]

Another aspect of the analogy is not less important. The pseudo-concepts would not be possible, if reality did not offer the like side by side with the unlike; which is not the universal and necessary, but the general, a contingent (so to speak) less contingent than others, a relatively constant variable. Pseudo-concepts are arbitrary, not because they posit the like where is the unlike, but because they make that variable rigid, which is only relatively constant, making of it something absolutely constant and changing the like into the identical. Now the practical spirit, which creates reality, has need to create not only the unlike, but also the like; not only that which lasts an instant, but also that which endures almost unchanged for a year, a century, a millennium, or a millennium of millenniums; not only the individual, but also the species, not only the great man, but also the people, not only the actions that do not occur again, but also those that return periodically, similar, though not identical. Laws fulfil this function, for they constitute what is called the _social,_ or _cosmic order._ This order, however, is always relative and includes instability in itself; it is a rectilinear figure, which, on being closely examined, reveals itself as also curvilinear. For this reason it is necessary to make laws, and it is necessary to violate, though obeying them in their execution.

[Sidenote: _Origin of the concept of plan or design._]

This function of law as an unreal volition, aiding nevertheless and preparing the real, throws light upon a concept that we have had to reject when exposing the nature and method of functioning of the volitional act; that is to say, on the concept of _plan or design or model,_ as proper to the practical activity, which is said to act by carrying out a pre-established _design._ We have already demonstrated that design and the execution of the design are in reality all one, and that man acts by changing his design at every instant, because reality, which is the basis of his action, changes. And as in the Philosophy of the practical in general, so in particular in Ethic, the concept of pre-established design has no place; because, if it be true than in ethicity the universal is distinguished from the merely individual action, it is also true that the universal does not exist in concrete, save incorporated and individualized as this or that good action. The universal of ethicity is not a design and cannot be willed for itself outside all individuation, in the same way as to fall in love is to fall in love with an individual and not with love. But that concept of design, proposed for action and carried out by its means, though erroneously adopted in Economy and in Ethic, must nevertheless have its legitimate meaning in some special order of facts; otherwise it would not be possible to make even erroneous use of it. This meaning is to be found, as has been seen, in the fact of laws.