Appendix 3. (316).
Those responsible for Roman right knew that its source and substance lay entirely in the moral law, and that right sprang from duty. Consequently, they posited moral precepts as the foundation of laws. Justinians Institutes proclaimed: `The precepts commanded by right are these: to live uprightly, not to harm others, and to grant each one his due (bk. 1, De just. et jure, tit. 1). However, these great men had not seen the difference between moral duties, considered without qualification, and jural-moral duties. This is clear from the precepts we have indicated. They extend further than jural-moral duties, but are nevertheless called precepts commanded by right. This lack of careful advertence to the limits of jural-moral duty was the cause of many errors, especially in the description of the sphere of positive legislation.
The extension of jurisprudence was defined as follows: `Jurisprudence is the knowledge of divine and human affairs, the science of what is just and what is unjust (Ibid.) This led jurists to think they could abrogate to themselves the title of priests and take on the mission of declaring in all cases what was licit and what was not. `Right is the art of what is good and what is equitable. Because of this we are called priests. We cultivate justice, we unfold the knowledge of what is good and what is equitable by separating what is equitable from what is evil, and discerning what is lawful and what is unlawful. We desire to make people good not only by fear of punishment, but also by holding out rewards; and unless I am mistaken, we practise true, not lying philosophy (bk. 1 ss., De justitia et jure).
The quotation shows how morality is reduced totally to external laws; and how an attempt is made, by means of social laws alone, to judge what is good and equitable, and to distinguish what is just from what is unjust, what is lawful from what is unlawful. We should ponder, too, the claim these great jurists make of professing true, not lying philosophy. They realised that the commands of moral philosophy were spineless, and thought that public laws, furnished with punishments and rewards, would be more effective than the simple words of philosophers in inducing men and women to practise moral goodness. But human nature needs quite different means from these. Rome fell as her marvellous legislation grew more and more perfect. The inefficacy of laws in reforming human behaviour is examined in my Society and its Purpose, bk. 3, cc. 913.
But even if civil laws with their punishments and rewards were capable of influencing the human heart (which they are not), they would still enfold only a part of moral legislation, not the whole of moral teaching.
We should remember:
1. Social laws can forbid evil, but are unable to command beneficence, which forms the best part of morality.
2. Social laws cannot even forbid the whole of evil, but only the part which constitutes an injury to jural duty.
3. Social laws have a third limitation: they can inflict punishment not on all the injuries done to jural duty, but only on the harm shown in provable material acts, which fall under the senses. As long as the harm is merely internal and unproven, it cannot be punished. At the same time, there could be many unprovable, external injuries, while the spirit itself could contain a jural injury through a deliberate will and decree to offend another person in his rights. Consequently, social laws, which can focus only on the external, material part of jural injury, and not on the moral part which is always hidden, have to judge the existence of internal harm from the existence of external damage. Such a judgment is not always infallible.
4. A fourth limitation springs from the necessity of expressing civil laws in words. As a result of this necessity, civil laws can never focus upon, determine and set out in a graded fashion all the external, material injuries of jural duty, not only because many elude the legislators foresight, but also because 1. if they were all expressed in words, the quantity of legislation would make its use difficult, if not impossible; 2. language itself, as an imperfect instrument, would not be able to express matters with complete clarity.
5. Finally, the fifth limitation of social laws consists in their procedure and the immense difficulties encountered in applying them when an injury has to be proved with certainty, as it must be. Very often this cannot be done; many injuries remain therefore outside the sanction of civil laws. And where injury is proved, the proof is not obtained with infallible certainty. On the other hand, an injury is sometimes thought to be proved when no injury existed.
It is indeed extraordinary that so many limitations which restrict the sphere of morality embraced by social laws should have been overlooked by the great men of old. Moreover, they very often went on to confuse morals with civil law, to which they reduced all human duties! Plato himself shows in many places that he held this opinion, and Aristotle speaks of the public laws as though they were a lesson in perfect virtue! These authorities, and the imperfect idea of moral goodness prevalent at their time, were the object of Ciceros own exaggerated eulogy of civil laws: `From these (laws), we see how honour is to be sought in the best way: just and upright labour is rewarded with honours, rewards and splendour; human vice and deceit suffer punishment, shame, chains, stripes, exile and death. We are taught not by interminable arguments full of sophistries, but by the authority and fear of the laws, to control our lust, to hold our longings in check, to safeguard what is ours, and to withhold our minds, eyes and hands from what belongs to others (De Orat. 1: 43).
All this shows clearly that moral teaching was far from being known in all its fullness before the coming of Jesus Christ. And the contemporary idea that public laws could fashion upright people is easily explained if we remember that legal uprightness and immunity from great crimes must have appeared extraordinary, and wonderful holiness. What is truly difficult to grasp is the way in which this error, which reduces moral goodness to keeping the civil laws, has been propagated right up to the present day. We often find jurists maintaining that it is they who are to decide all cases of conscience, and that all goodness is to be measured by the laws of the State.
There is a trace of these errors even in the codes of civil law which enjoy the highest repute. For example, in the code of the Canton Ticino we find: `Every citizen of the Ticino is born free, and has no bond outside the law (Art. 17). But the law of the Canton Ticino cannot dissolve the many ties of conscience binding all human beings equally, and independently of the positive laws of this State.
Even the Austrian code, formed under the influence of great wisdom, seems to have allowed some ambiguity to creep into its definition of civil right. It states: `1. The complex of laws determining the rights and private obligations of the inhabitants of the State amongst themselves constitutes civil right. It is certain that `the private obligations of the inhabitants of the State amongst themselves are not comprised solely within civil right. There are many obligations which are not, and cannot be, contained in this right.
I realise that some will take this comment as mere pedantry. They will say that the Ticino code clearly speaks of a legal bond, and that the obligations mentioned in the Austrian code are also legal obligations. This is true, but this claim to clarity is not clear to everyone. A proof of this is found in the inveterate error confusing legality with morality. This error was handed down by the ancient Greek philosophers, passed into Roman laws, and has come down to us. And it is an extremely harmful error (cf. what I have written about it in the Storia de sistemi morali, c. 6).
My own opinion is that here we cannot apply the rule, `It is useless to speak about things which are present tacitly. Nor do I think that the words with which such important things as laws are expressed (which often form the sources of ways of thought in a nation) should be inexact or defective. My hope is that the understanding of the reader will render them exact and precise. Finally it needs to be noted carefully that progress in wisdom must consist (and is reduced almost solely to this) in expressing distinctly that which in other ages was not expressed, but understood implicitly both in the decrees of authority and in treatises of philosophy.
The article quoted from the Ticino code has been the subject of some fine comments by the lawyer, G. B. Monti, in his Secondo saggio di osservazioni sopra alcuni articoli del progetto del Codice Civile. Mendrisio, 1836.