THE PHILOSOPHY OF RIGHT
Volume 1
In this foreword we want to indicate the point already reached in our series of English translations of Rosminis philosophical works, justify the next immediate step forward, and illustrate the principles underlying Rosminis philosophy of right.
The works already available in English (1) offer a general view of Rosminis treatment of the principles of knowledge (The Origin of Thought, Certainty), of the principles of morality and their final application (Principles of Ethics and Conscience), and of the basic realities comprising the human being, that is, the feeling, intellective and moral subject (Anthropology as an Aid to Moral Science).
Together, these volumes provide a fairly complete conspectus of the fundamental elements of human nature and its moral action. Without these works, it would be impossible to refer in English to explanations of tenets which Rosmini uses consistently throughout the whole of his philosophical production.
This does not mean that the books presented so far are the only works available in the Rosminian corpus on epistemology, anthropology and morality. In particular, Rosminis historical analysis of the development of ideas in these subjects still awaits translation,(2) together with his fully developed notions on the human subject.(3) For the moment, however, we have turned our attention to another field of philosophy in order to make best use of what is already available and apply it to a matter of intense interest and importance in our own day.
It is not perhaps exaggerated to state that human rights their nature, existence, development, exercise and protection have been the most debated subject of the past decade. This affirmation would certainly be true if we could judge the quantity and quality of debate by the conviction with which human rights are either asserted and valued or gratuitously invented in our daily existence and in the corridors of power. Let us say, therefore, that problems regarding the exercise of human rights are at least at the forefront of popular and philosophic discussion.
Listening to the discussion, as everyone must who pays the slightest attention to the world at large, we find ourselves embroiled (it is not too strong a word) in a confusion of ideas and thoughts that offers no possibility of cohesion and development on a theoretical plane, and total absurdity in practice. The spectrum of action runs from the defence of animal rights to `ethical cleansing, whose sole justification is a high-sounding phrase concealing a great evil; the spectrum of theory embraces systems making positive law the source of rights, and systems that deny the existence of rights which cannot be sanctioned by might.
The interest in human rights has not been repaid, it would seem, by any coherent, global thought. Everyone is convinced of the existence, necessity and importance of human rights, but there is no underlying foundation of principle enabling us, practitioners of these rights, to understand and evaluate them. We continue to insist upon the gravity of the problem, at least when there is question of our own rights, but we do not understand scientifically where the essence of rights lies, nor how rights are activated, exercised and supported in our daily lives. This lack of a sound, philosophical basis on which to build the edifice of rights leads inevitably to yet another fulfilment of words spoken long ago: the house is built `upon the sand; and the rain fell, and the floods came, and the winds blew and beat against that house and it fell; and great was the fall of it. As we look around the world, near and far, we can only marvel at the contradiction between our interest in human rights and the appalling treatment meted out in practice to possessors of rights.
Nevertheless, unfailing human instinct for the preservation of rights will not allow them to fall into oblivion. Despite neglect and abuse of rights, people know in practice and will insist that they are of supreme importance. The almost totally non-violent overthrow of communism in Eastern Europe, the suspicions felt about signs of totalitarianism wherever it manifests itself, the growing feeling for the unshakeable personal value of the handicapped and ailing, and even the preservation of the jury system and its commonsense approach to things, are all signs that human rights are not forgotten amongst ordinary people. In great things and small, we all understand what is meant when we utter or hear the cry: `Its not fair. Whether we are able to express our understanding is another matter.
What then do we mean by human rights? This is the problem addressed by Rosmini in his Philosophy of Right, the sheer size of which(4) is indicative of the nature of the difficulties found in the question. Rosminis answer takes us through a study of the essence of right, the derivation of rights, rights of the individual, social right and, within social right, the rights of the family, the Church and the State. The aim is always to point the way to the foundation of laws on the single principle of justice. In this first English volume, we find Rosmini dealing with the essence of right and the derivation of rights, both of which will be explained briefly in this foreword.
But is an explanation needed? Can we not leave Rosmini to provide his own explanation? We could, but Rosminis wordiness, his engagement with the philosophical problems debated in his own time, and his erudition combine to place obstacles to modern understanding.
Rosminis diffuseness, immediately obvious in practically all of his works, is not empty verbosity, but the expression of a desire to offer an adequate explanation for everything he says. Unfortunately, this encompasses difficulties which are real enough, but which would not perhaps have occurred to the average reader. Once pointed out, however, they can be seen for what they are. At this stage, the hare is scented, the chase begins and some time elapses before a return can be made to the point under discussion.
This particular difficulty is aggravated when the problem encountered has its roots in the history of the philosophy of right, or is more relevant to Rosminis time than to our own.
History is especially important for Rosmini in this study because it is the source on which he draws for the non-philosophical notion of right which, he maintains, is never lost sight of by human instinct. His knowledge of the history of law, for instance, enables him to show on various occasions that what he upholds philosophically and methodologically is already present in the practice of justice and in legal enactments. His appeals to history are consistently enlightening, but can often serve as a distraction from the main thrust of his argument.
As we said, this difficulty is also relevant to problems which were actual enough for Rosmini but have no implications for ourselves at least we think they have no importance for us, although in practice every code of law and every civil constitution will depend in some way on what has been enacted and decided in times past. Rosmini deals with such matters at length and in doing so tends once more to distract his readers thought from the main argument. Something similar occurs as the reader tries to keep pace with Rosminis erudition which is always displayed helpfully, but at times superabundantly. At points like this, it too may become a distraction from the basic topic.
Considerations of this kind make it imperative to offer a brief synopsis of the basic principles of each volume of this translation. Here, we deal with justice as the foundation of all law, the philosophy of right as the science of justice, the relationship between right and morality, the definition and the derivation of rights.
Finally, something will have to be said about the choice of certain English words used in expressing Rosminis thought.
Fiat justitia, ruat coelum (Let justice prevail, whatever the consequences). This must be the first principle underlying all positive law. Justice, says Rosmini, is the first principle of law in the human heart; people never forget that the most simple, basic foundation-notion of all law is justice. Thinkers who abandon human instinct for the sake of their limited reflection may lose sight of justice, but common sense never does. From this premise, substantiated by an accurate analysis of the notion of justice, Rosmini is able to declare that our business, absolutely speaking, is not to make laws, but to interpret the supreme law of justice. Positive laws, he maintains, are to be judged by justice.(5) The implications of this affirmation for natural law concepts, and for the application of natural law to jurisprudence, are profound and lasting.
The supreme natural, moral law, expressed in the self-evident precept, `Love being for what you know it to be, or `Love being in its order, contains the notion of justice, that is, the requirement that we respect all beings for what they are, and recognise in practice the rights which are theirs. In the end, the philosophy of right will be nothing other than `the science of justice. In other words, the philosophy of right will show us in an orderly fashion how justice is the principle of right and the source of all its derivations in various kinds of rights. In this sense, the philosophy of right, considered as the science of justice, stands as the unshaken foundation of every human authority as well as that of every legislation springing from that authority. There is nothing more `radical than justice, nothing more subversive of `unlawful legality than the philosophy of right. Fiat justitia, ruat coelum.
What constitutes the right(s) that justice obliges us to respect? Various definitions of right are offered throughout this first volume of the The Philosophy of Right; all of them can be reduced to the following elements:
— useful, personal activity, at least potential activity, on the part of some intelligent being
— moral freedom on the part of the person who exercises his/her activity (in other words, the person must be free, morally speaking, to act as he/she wishes there is no right to immoral activity)
— moral exigency in others which requires them, on pain of harming another, not to interfere with the exercise of this faculty by the subject possessing moral freedom of action.
It is clear from this briefest of outlines that a right is always a relationship between two intelligent, volitive beings, one of whom is free to act, morally speaking, while the other is obliged to respect, morally speaking, that freedom of action. Examination of the nature of this action and of the respect due to it from others is at the heart of Rosminis treatise on the essence of right but it is evident from what has been said that right stands half-way between morality and utility. Through his activity, the subject of right must be carrying out something morally upright and good for self; others must respect this activity, which cannot be violated without harm to the subject and consequently without immorality on the part of those offending the subject.
Rosmini goes on to use the five elements forming the supreme principle of right (activity, personal activity, useful activity, upright activity on the part of the subject of right; moral exigency in others not to interfere with the exercise of this faculty of activity) in order to show how rights are derived from the supreme principle. In effect, a right is truly present in an individual or a society when it can be shown that all five elements have their place in some relationship between persons. These elements may be constituted by the very nature of relationships between human beings or be acquired as life goes on. We thus have the two great divisions of right: connatural and acquired rights, which in turn are divided into rights of the individual and rights of society.
The activity to which Rosmini refers as a constituent of right has a general characteristic marking it out as a necessary element of right. This characteristic is ownership, that is, the dominion a person has over something: ownership is `the strict union of a thing with a person by means of which that thing is reserved totally and exclusively to the person as if it were part of him/her. How ownership, in the broadest sense of the word, is itself constituted is explained at length by Rosmini. Here, we need simply underline the truth that the violation of rights involves at least an attempt to harm the relationship between a person and what he owns (what is proper to him). In effect, the assailant strikes at the person himself when he attempts to undermine the persons ownership; it is the violation of personship which constitutes the immorality brought about by the violation of rights. From a positive point of view, we may affirm that the living person exists as the source of right and of rights through his activity as a being who is someone and who does something.
Rosminis philosophy of right is dependent, therefore, on his doctrine of person.(6) This teaching can now be seen as the vital heart of his philosophy of right, providing, as it does, a vision of the human person rooted in subjective feeling and far more sublimely determined by the sight of the idea of being, which is the immortal, infinite, necessary light of reason linking us once and for all with our Creator, but without disclosing him as he is in himself. In the last analysis, it is this inviolable light of being that is offended, but not diminished, when the subject of rights is harmed; the same light is denied in and by the assailant when he blinds himself to others rights and tries to make his own what is already theirs.
So much for the core of this first English volume of The Philosophy of Right. Some remarks about the translation itself must be now added to this introduction.
First, we accept that the use of `Right (where right is printed with upper case `R) is an irritant. Rosmini himself, however, states that his own use of it in Italian is consistent with his desire to refer in such instances to the `science of Right rather than to actual rights themselves. We have, therefore, endeavoured to reproduce his usage, although we are not convinced that it is entirely consistent with his stated aim. This may be due either to lapses on Rosminis part, or to inadequate correction of the complicated galley proofs of the original editions of the work. In passing, we may also mention that Rosminis use of footnotes has been respected as far as possible. But, as usual in these translations, we have inserted in the Appendix footnotes which would have run over to a second or even third page. Reference to their place in Rosminis text is clearly indicated.
Second, the unusual word `jural has been used for the Italian giuridico which, translated as `juridical, would have given a very restricted and often false idea in English of what was intended. We understand `jural in the sense defined by the Oxford English Dictionary, that is, `of or pertaining to rights and obligations.
Third, the word `personship has been used consistently to translate Rosminis personalit. Employing `personality, now degraded in English to a description of phenomenological characteristics, would inevitably have distracted readers from the metaphysical connotations of Rosminis use of the word.
| DENIS CLEARY TERENCE WATSON Durham, February, 1993 |
Notes
(1) The Origin of Thought, 2nd
edition, Durham, 1989.
Principles of Ethics, 2nd edition, Durham, 1989..
Conscience, Durham, 1989..
Certainty, Durham, 1992..
Anthropology as an Aid to Moral Science, Durham, 1992.
(2) Cf. especially, the first volume of Nuovo Saggio sull'origine delle idee, Intra, 1875, and Storia comparativa e critica de' sistemi intorno al principio della morale, Intra, 1867.
(3) Cf. Psicologia, vols 1-4, critical edition, Stresa 1988-89.
(4) Filosofia del diritto, vols 1-2 (in all pp. 1777), Intra, 1865. The work, written between 1840 and 1842, was first published in its entirety at Milan in 1845. Other editions followed at Naples in 1847 and 1856. The Intra edition contains the corrections made by Rosmini to the first edition. The author's philosophical acumen is matched in this work, as in others, by his vast erudition and historical insight. About 440 authors are quoted in all, and almost as many laws, most of which are placed firmly and clearly in their historical context.
(5) For the relationship between morality and justice, cf. Principles of Ethics and, in the present work, the section entitled Moral System, 93-222.
(6) Cf. AMS, 832 ss.