Chapter V: Judicial Activity as an Activity Generically Practical (economic)

[Sidenote: _Legislative activity, as generically practical._]

The will that wills classes of actions, or the activity that makes laws and that we can henceforward term _legislative activity_ without fear of misunderstanding, is either moral or merely economic; and therefore, when dialecticized, is either moral or immoral, economic or anti-economic. It is true that this will is abstract and indeterminate; but that does not prevent it from being, and from being obliged to be, either moral or merely economic; and, therefore, abstractly moral and abstractly economic, and so also abstractly immoral and anti-economic. A programme of action will be conceived, as they say, wisely or foolishly, to a good or to a bad end, for mere reasons of utility, or with a lively desire for good. The legislator is a volitional man, and as such to be judged both utilitarianly and morally. The laws that are his volitional product are useful or injurious, good or bad. This judgment is also without doubt abstract, for it is necessary first to see the legislator engaged in the practical act of the application of his law, in order to recognize what he can do and who he is. We know many (others or ourselves?) who make plans for the most beautiful lives, legislating admirably for themselves and for others; yet these show themselves mean and bad in action: and we not infrequently find the opposite case of men who calumniate themselves and who, after they have declared the most dishonest, or at least the most amoralistic, of intentions, when they find themselves face to face with the bad action, ugly with the ugliness of sin, say, as the old man in the fable said to Death: "I have not called thee!"

[Sidenote: _Vanity of disputes as to the character of institutions, economic or ethic: punishment, matrimony, the State, etc._]

From these considerations, which seem to be most obvious, a not obvious consequence is to be drawn; namely, that it is perfectly vain to descant upon the utilitarian or moral character of laws, or of these or those laws; to ask oneself, for instance, whether the object of _punishment_ be _deterritio_ or _emendatio_; if _matrimony_ be an exchange of services or a sacrament, a union of interests or a society with moral ends; if the _State_ be the result of a contract or of a moral idea, and so on. These questions have an immense literature devoted to them, which has been accumulated for centuries, and although they be vain for us, yet they cannot be so for one who has not yet become clear as to the special forms of the practical activity and as to the nature of law. For him they are not vain, since they represent as it were in a concentrated form, the complete philosophical problem concerning the practical; although they must of necessity turn out to be insoluble. Punishment can be conceived and willed as a mere utilitarian menace, to prevent others from performing certain classes of actions, even if they be ethically of the highest value; or as moral solicitude for the amelioration of society and the individual himself who has erred, by obliging him to re-enter himself and change his mind. Even the pain of death can be directed to this end and death that has given or restored to the guilty a day, an hour, an instant of that human life, of that contact with the infinite, which he had lost, may be held not to have been in vain. Matrimony may be instituted for the more regular satisfaction of the sexual instinct and for other similar interests of utilitarian life; and also to secure, that interpénétration of souls, which is the great mover of the moral life. The State may arise from a mere contract which draws together isolated individuals and groups and unites them for defence and offence; and also form the profound moral aspiration of the individuals, who recognize the universal in themselves and are attentive to realize it in modes ever more rich and more lofty. All institutions, all laws may receive this double form; and although there be laws that are merely utilitarian, those that are moral are also, as is clear, utilitarian or economic, and therefore not useless but useful. An amoral man will make for himself amoral laws; and between an amoral man and an amoral woman no other marriage but that of interest is possible; and between a hundred amoral individuals, no other State is possible but that established by contract; and no other punishment will be applicable in such a State save that of mere _deterritio._ It will be objected that amoral individuals and multitudes do not exist, and it may be true that they do not exist in a continuous manner: but they do exist at certain moments; and this as we know, suffices to justify, indeed to prove necessary, our theory.

[Sidenote: _Legislative activity as economic._]

Thus no other answer is possible to the question asked as to whether the legislative activity be moral or merely economic, save that it may be the one or the other, and therefore, that it is not of necessity moral; thus, defining it in its full extension, it must be called _generically practical,_ or taken in itself, _merely economic._

[Sidenote: _Juridical activity: its economic character._]

Passing now from the legislative activity to that of him who realizes and executes the law (an activity that we may call _juridical,_ in order not to confound it with the other), and asking whether juridical activity be moral or distinct from morality and if distinct, what is its distinctive characteristic, the answer cannot but be most simple for us who have attained to our present position. So simple indeed, that to give it would seem to be almost superfluous. Not only must the activity of carrying out the law not be intrinsically diverse from the activity of legislating, but as has been seen, it obeys exclusively practical principles, economic and ethic. Hence the 'juridical activity can be merely economic and it can be moral; and seeing that economicity is the general form that of itself involves the other, the juridical activity is generically practical, or _economic. _ As such and in so far as it is such, it is at once distinct from and united with the moral form.

[Sidenote: _Its consequent identity with the economic activity._]

But juridical activity does not merely enter the economic activity; it is exactly identical with it: juridical activity and economic activity are _synonyms._ Legislative activity enters economy and nevertheless distinguishes itself from it, as volition of the abstract, indeterminate volition. The juridical activity is on the other hand concrete and determined, like the other, nor is it distinguished from it by any secondary character. It might be attempted to subdistinguish the economic and juridical activity, while admitting the generic identification, and to look upon the latter as such that although obeying the economic principle, it is yet developed _under the laws;_ whereas the former would exist even where _laws were wanting._ But the distinction would be empirical, of undulating boundaries. Strictly speaking, man is surrounded with laws in all his actions, and he always acts under all the laws, and at the same time he effectually acts under none of them, save that of his own practical conscience.

If the identity and synonymity of law, understood as juridical activity with economy, has not been discovered, that too is connected with the lack of recognition of the practical utilitarian category on the part of philosophers and with their considering it, as they erroneously did, either as egotism and immorality, or as an altogether empirical division, to which was added a concept, also empirical, of the juridical activity itself, which should be limited to what are called laws emanating from the State, sometimes graciously including in them social laws, and always altogether ignoring the fundamental form, individual laws.

[Sidenote: _The failure to recognize the economic form and the meaning of the problem concerning the distinction between morality and law._]

But this failure of recognition has not prevented the appearance and persistence of the problem of the _combined unity and distinction of law and morality,_ which has been the most frequent though the most complicated mode of affirming the claim of a special Philosophy of economy. A serious beginning of meditation upon law had hardly begun, when something was observed in it that it was impossible to resolve into the concepts of Ethic. Hence the generally admitted recognition of the distinction between law and morality and the many attempts at determining of what the peculiar character of the former exactly consisted.

[Sidenote: _Theories of compulsion and exteriority, as distinctive characters: critique._]

This character was placed most frequently and with greater insistence in the two determinations of _compulsion_ and of _exteriority._ And it was said that law is distinguished from morality because it is possible to exercize compulsion in the juridical, but not in the moral field; or that law deals with the field of external relations, morality with the internal; or that one is the _psychical,_ the other the _physical_ side of action. But as to the first determination, we have already shown that it has no meaning at all when applied to the forms of the spiritual activity, where nothing is compulsory and everything is at once free and necessary: the juridical activity, if it be activity, must likewise always be determined by free agreement. The second, which is the determination of exteriority, is not less inconceivable; for it is not given to separate the external from the internal, since they are both one, nor the word from its meaning, nor the body from its spirit. Compulsion and exteriority, taken strictly as concepts, are therefore, in this case, void and contradictory formulæ. To fill them somehow with a thought, it would be necessary to understand as compulsion certain modes of action, as opposed to certain other modes; for instance, compulsion would be the action by which an accused person was conducted to prison by two policemen and non-compulsion that of him who should be induced to go and constitute himself a prisoner through the persuasion of others; and as exteriority, certain classes of actions opposed to certain others; so that, for example, the deportment of an individual as communal or provincial councillor would belong to external life, his relations with his confessor or with his Æsculapius to internal life. But compulsion and exteriority, reduced to these meanings, become gross and empirical concepts, of which no use can be made in philosophy and which therefore cannot be of the least value as qualifying and distinguishing law from morality.

In the same way, no value is to be attached to such a distinction, when determined from what is licit to what is commanded, from rights to duties, from what is permitted to what is obligatory; because licit and commanded, rights and duties, from what is permitted to what is obligatory, are correlative concepts constituting an indissoluble nexus and it is not possible to separate and to oppose them to one another.

[Sidenote: _Moralistic theories of rights: critique._]

The difficulty of conveniently fixing the distinction with the characters indicated, leads one to think of a different sort of tentative, according to which rights would certainly be distinguished from ethicity, not placed above or beside it, but rather in the very sphere of morality itself, as the species in respect to the genus or the part in respect of the whole. Juridical action would be moral, but it would belong to the inferior levels of morality; it would be occupied with the execution of simple _justice,_ with the establishment of order, proportion, equality; whereas morality would represent _more than justice,_ and would upset the equilibrium of rights with benevolence, generosity, sacrifice, heroism. Rights (it is also said) are limited to the _ethical minimum,_ while morality strives for the _maximum;_ rights are concerned with strict rights or _perfect_ duties, morality with meritorious and supererogatory actions, _imperfect_ duties. But these determinations also pretend to separate the inseparable, by drawing an arbitrary line of division between small and great actions, between least and greatest, and they employ concepts that are altogether empirical, as, for instance, that of justice as distinct from benevolence, of the strictly obligatory from the meritorious and supererogatory; and worse still than this, metaphors and symbols, such as equality, order, regularity; or they operate directly with the arithmetical and geometrical proportion of actions. And consciously or unconsciously a return is made to Ethic pure and simple, with the theories that make juridical activity to consist of the recognition of others as _persons,_ or with the search for _general utility_ (superindividual). When we act in view of the _person_ in other individuals (or in oneself), or of the useful, which is not the useful for the individual, but although it comprehends, yet transcends it:--the merely juridical conscience has already been surpassed, it has been filled with a moral content, that is to say, an ethical form has been given to the practical activity. The double sense of the terms "rights" and "morality" is in this way preserved in words but denied in fact.

[Sidenote: _Duality of positive and ideal, historical and natural rights, etc.; and absurd attempts at unification and co-ordination._]

The dual sense of the terms is also affirmed by the very ancient distinction between _positive and ideal, historical_ and _natural_ rights, _right_ and _justice,_ or, as it has also been formulated, between the _two different justices,_ realistic and idealistic, fruitful in conjunction. Natural rights, with their homonyms just stated, besides the generically practical significations that we have already examined, have also had the narrower one of ethical ideal or morality; and therefore it cannot cause astonishment that it should appear now conjoined with, now detached from positive rights. But how joined and disjoined? For us it is a question of degrees, whence the positivity of both forms is recognized: the second of these is included in the first: the ideal right or morality (if it be right, and not simply abstract excogitation willed by no one, or vague desire) is both positive and historical. But those who posited the distinction without being able to make it definite and so to dominate it were led to conceive one or the other term as negative; and therefore both as negative between themselves and existing only in a third: which meant to reannul the distinction by reducing it to abstract contradiction. If one of the two were conceived as negative, either the ideal justice (that is, the seriousness of moral strength) was denied and turned to ridicule, or positive justice, that is, the seriousness of volitional strength, was presented as something turbid and impure and at best as a human imperfection, to which it was advisable to resign oneself since it would disappear in a society of perfect men or in a future life of perfection. Juridical activity became something contingent and mortal. Matters were even worse, if it were found impossible to eliminate it with similar religious, apocalyptic, or millenary fancies. The negative was then conceived as positive or co-ordinated with the positive: hence incredible logical divisions of rights into forms or species of _moral_ and _immoral rights, of just_ and _unjust_ rights, in which the species has the function of _negation of the genus,_ almost as though the race of horses were to be divided into two kinds: _dead_ and _living_ horses! Unjust or immoral rights are not rights, but a contradiction of them, and if we sometimes describe in this way a real and effective juridical act (an economic act), it is necessary to observe that the denomination is given from the point of view of a superior form of activity. Rights in themselves as rights, understood positively, are never immoral, but only _amoral._

[Sidenote: _Value of all these theories as confused perception of the amoral character of justice._]

All these errors, all these sterile tentatives have their origin, as has been said, in the lively consciousness of a distinction existing between right and morality and at the same time of the impossibility of determining this correctly, owing to lack of clarity as to the purely economic form of the practical activity. When the juridical activity has been identified with the economic and when juridical (economic) activity has in consequence been conceived as at once united with and distinct from morality, we are able to recognize that these attempts have nevertheless fulfilled a very useful function; that is to say, they have more or less energetically asserted and defended the position that there existed a characteristic distinction between right and morality and that it was necessary to seek for it. They are therefore far superior, notwithstanding their errors, to that confused ethical conception, which receives rights and morality indistinctly into its bosom, or to the utilitaristic conception, which arrives by a different route at the same indistinction. This merit belongs to the theories of the moral minimum, of justice, of the two justices and of the contest between positive and ideal rights; but in a much greater degree to that of compulsion, of exteriority, of the licit. With these last was almost unconsciously set in relief the fact that right obeys a law different from that of Ethic, and may be called _compelled and not free by comparison with it,_ because not founded upon the necessity of the universal; that in respect to the supreme _interiority_ of Ethic it can be considered as something _exterior;_ that in respect to the ethical imperative, it appears as something indifferentiated or _licit._ These are without doubt symbols, tautologies, vague and imprecise phrases, but efficacious in keeping the attention alert and in promoting doubt and research.

[Sidenote: _Confirmations of this character in the ingenuous consciousness._]

But the impossibility of absorbing rights into Ethic altogether and without leaving residues is proclaimed or confessed, not only in the theories of philosophers, but by simple thought, and especially by the consciousness we have of the real world being governed, not by abstract morality, but, as is said, by _force,_ or by the will in action. "Disarmed prophets" will be efficacious in poetry, but ridiculous in practical reality: _la force prime le droit,_ precedes it and is always of greater value than an unreal and contradictory ethical right and aspiration, afterwards dissolved in the empty and arbitrary. We will not recall proverbs, maxims, historical examples, though this would be easy; that little story of Franco Sacchetti which preserves "a fair speech" of Messer Ridolfo da Camerino, will suffice for all. One of his nephews had been at Bologna studying law for a good twelve years, and when, having become an excellent lawyer, he returned to Camerino, he went to pay a visit to Messer Ridolfo. When he paid the visit, Messer Ridolfo said, "And what didst thou do at Bologna?" He replied, "My Lord, I have learned _reason._" Said Messer Ridolfo, "Thou hast spent thy time ill." The young man replied that the saying seemed to him to be very strange. "Why was it ill spent, my Lord?" And Messer Ridolfo said, "_Because thou shouldst have learned force, which is worth two of the other._" The youth began to smile, and thinking it over again and again, both he and the others that heard, perceived that what Messer Ridolfo had said, was true.[1]

[Sidenote: _Comparison between right and language. Grammars and codes._]

And here too we are at last able to establish a parallel between the practical and theoretic activity, between the problems of the Philosophy of right and those of Logic and Æsthetic. The comparison of right and language has been several times attempted, with very great correction of thought, although necessarily defective execution, since it was customary to conceive both language and right in an abstract and empirical manner. Whoever should wish to take up the inquiry again would do great service, were he to insist upon the fact that since it has been impossible to understand what language really is, so long as grammars and vocabularies were taken as its reality, so it is impossible to understand anything of rights, so long as the eye is fixed upon laws and codes, or what is even worse, upon the commentaries of jurists, or upon the abstract volitional fact, or altogether upon what is not a true and proper volitional fact, but the elaboration of formulæ and of general concepts.

[Sidenote: _Logic and language; morality and rights._]

Only when rights appear as individual and continually new work of individuals, only when the attention is directed to the spectacle of real life and not to the abstractions of legislators and dispenses with the dissertations of jurists, is it possible to state the problem: how does this juridical work coincide with, and how does it differ from moral work? And here too the comparison with language is fitting, although language be not logicity, yet logical thought cannot become concrete, save in speaking; so moral activity cannot live, save by translating itself into laws and institutes, and in the realization of laws and institutes, that is, in the juridical and economic activity.

Finally, just as the history of a language is always arbitrary and abstract, so long as it is considered alone, outside the works in which the language is incarnate and the true history of a language is its poetry and literature, so _the true history of the rights of a people_ (of the rights that have really been executed and not merely formulated in laws and codes, be often proved to be a dead letter) cannot but be altogether one with _the social and political history of that people:_ an altogether juridical or economic history; a history of _wants_ and of _labour._

[1] Novelle, xl.