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The Essence of Right

INTRODUCTION

I.

The importance of the philosophy of right

1. Modern governments, which are under constant pressure to provide definitive, certain and universally applicable legislation, find favour if they succeed in providing codes of law with these qualities. Certainly it would be ungrateful not to acknowledge what has been achieved by governments for the improvement of laws during the last century and up to the present. In my own opinion, I would add to my gratitude a sincere desire that all nations and indeed the whole world achieve the perfect legislation definitive, certain and universally applicable for which they long.

Nevertheless, I have to ask why those who desire this admirable kind of legislation never take into account the need to choose between just and unjust legislation. I admit that this kind of problem seems simplistic, and could provoke an angry or mocking reply. It is, of course, obvious that laws should be just; there is nothing new or strange in requiring laws characterised by justice. Nor do I doubt that people realise the need for justice as the primary factor in legislation: I know that when they have just laws they are content. I am puzzled, however, when I see, amidst the clamour for definitive, certain and universally applicable law, that so few people remember to speak about legislation as `just, or to call it `just from the start.

2. Is this too obvious? Is drawing attention to justice too simple and outmoded? People whose sole desire is to say something new and recondite may perhaps be ashamed to repeat what has been maintained throughout the ages as a part of ordinary common sense, but this surely is an unsatisfactory attitude. In any case, I am prepared, even at the risk of appearing simple and out of date, to persist with my enquiries about justice and legislation.

My question is this: is it more important for the laws imposed upon nations, or chosen by them, to be just, or to be certain, definitive and universal?

There is no doubt that justice is required above all else, but it is equally true that if laws are just, no other quality is required. Certainty, definitiveness and universality is desirable in laws only because these are conditions of justice; justice requires that laws possess these noble prerogatives. In other words, all the qualities desired for good laws, whatever these qualities may be, are already contained in the basic quality of justice; on the other hand, such qualities do not, of themselves, contain justice.

Dealing with law without expressly discussing justice means rejecting the genuine substance and vital principle of laws and forcing people to look for it elsewhere perhaps in daily life, or in common sense, or best of all, in human consciousness itself (from which certain kinds of writers wish to dissociate themselves). And we must indeed conclude that the first, most simple and important element in moral and jural disciplines is inserted in all human souls by divine Providence because everyone stands in need of it. It remains in the depth of the spirit, common to all, yet neglected because too familiar.

3. There are indeed times when writers may legitimately insist less on the most important, radical element of things, and focus more insistently upon the partial derivations and consequences of this element. This can easily be explained by the law of progress to which the human spirit is subject. When attention flags, it is entirely natural for the spirit to pass to other matters connected with the object of its meditation. A thousand stimuli draw the spirit to abandon the object upon which its attention is fixed: the spirit may, for instance, be satisfied with what it knows, or tired of it.

Almost all human faculties operate by moving from one act to another, from one object to another, and necessarily draw with them the attention which is their common force. Attention is no longer applied to principles, the original object of reflection, but to consequences. Curiosity and reasoning play their part in this, together with the multiplicity, ingenuity, remoteness and attraction of consequences. The elementary principles from which the spirit has set out are forgotten or neglected. Henceforward the spirit gropes along, deprived of its guiding principles and directed solely by its opinions. These in turn are at the mercy of its passions, which in the end disguise themselves in rational garb by simulating the true principles whose dominion they have usurped.

When the spirit has existed for a long time without genuine principles, however, it comes to realise that it has completely lost its way in an arid, trackless land. Terrified by its state and distrustful of self, it feels deeply its extreme need of the sadly forgotten principles, and longs for them as the deer longs for running water.The minds of individuals function in this way, and the same path of thought is taken by the collective mind of societies.

4. Some centuries are noted for their principles; in these periods, thought is healthy and strong, but poorly developed. Some centuries combine principles and consequences; thought is still healthy and strong because principles have not been forgotten and makes progress. In these periods nations flourish.

Other centuries follow, noted only for consequences. Principles are out of date, cold, boring. They still exist in proverbial form, but no one reflects on them. In these periods, thought, weak as it is, submerges itself in sophistry and frivolity, and connives with the senses. These centuries are lax, superficial, effeminate, corrupt moments in which nations perish, and humanity offers a poor image of itself. Prouder than ever, humanity despises the stupidity of previous ages and cuts itself off from its fathers. It passes from vanity to vanity, from one abyss to another, and finally finds itself intolerable in its own eyes.

But humanity wakens to its own misery and if helped by heaven to which the broken spirit may have appealed will perhaps turn back hesitatingly to search for the lost elements of knowledge; it concentrates once more on the first principles, whose immense importance and absolute necessity it begins to appreciate better. The principles become more beautiful, newer, fresher; they reveal themselves more clearly than when first contemplated. The spirit now possesses that reflective attention which returns to concentrate upon principles with a mind strengthened by exercise, with an adult understanding, with a more open, empty and hungry heart.(1) A second unfolding of ages, like the first but broader in its scope, begins for humanity.

5. Moral and logical principles had already been degraded and rendered obsolete in the eyes of the 17th century, a period when human attention was concentrated on accessories, ceremony, verbal altercations and capricious, extraordinary novelties. Mankind, betrayed by debility of mind, sank into dissoluteness and impiety which in turn brought forth anarchy, and destroyed public order of every kind. Towards the end of the 18th century, people could be seen reaching out for the forgotten principles, but only like drowning sailors grasping at straws in the hope of salvation. The 19th century is destined by Providence to re-establish the importance of true principles, and to make known to future generations the simplicity, supreme importance and incomparable beauty of these principles. If I have understood what is taking place in this present century, and have correctly interpreted its need and desires, people everywhere are secretly intent upon a work which some have already undertaken openly. They seek to return to the simplest principles and use them as the cornerstone of the edifice of human knowledge, virtue, happiness and society.

6. The principles of thought shine in the mind prior to all other cognitions because they are attuned to human nature itself. The great mass of humanity adheres to these principles as it adheres to the most elementary ideas, and continues to give them its adherence while individuals, whose powerful minds make them the avant-garde of mankind, seem to have rejected them. We should not be surprised, therefore, at recent appeals to common sense against the wayward speculation of the learned. Common sense has become a lighthouse erected by Providence on the immovable rock of humankind. Its light shines to guide home those individuals who have ventured too far for safety.

7. This kind of reflection has always directed my thought almost involuntarily in the research to which I have been drawn by the immense consolation found in love of what is true and good. I have felt the need to refer far more to humankind to the human nature in which we all share (which is Gods own work) than to the sayings of philosophers. There is immense satisfaction, as well as the fulfilment of an obligation, in being a lowly companion and disciple of the great majority of my neighbours; with them I can appreciate more deeply, search more diligently and meditate more lovingly the most common truths, authenticated as it were by a greater number of witnesses.

Hence the principal rule of method that I have employed in the books I have published, and which I intend to use in the present work, is to begin philosophising from what is most simple, obvious and well-known. If I begin with a genuine, indubitable truism, I am sure that I have a firm foundation for my work. I have never regretted following this rule, nor do I regret it now. I have learned that `the best or highest wisdom is not found in particulars, nor in generalities; it is that which allows the mind to see particulars in what is general. But the most general of all truths are those which enlighten the minds of the people. Thus the task of knowledge, the height of human wisdom, is to contemplate true particulars in such resplendent truths, where they properly belong.

8. In applying these considerations to positive laws, I became convinced that the most simple, basic, and therefore most noble idea is that of justice. All solid attempts at reasoning about positive laws had to begin here. Every other value possessed by positive law appeared accidental, accessory and derivative; the essence of the perfection of laws consisted in justice alone. And it is certain that the mind has to concentrate totally on the essence of what it is thinking about. Arriving at the naked essence of anything, it must throw itself upon it and devour it. The essence of anything is like an inexhaustible mine in which the mind can dig endlessly and find only pure gold.

In fact, the simple and altogether general ideas which we indicated as lights enkindled in human nature by the Creator are precisely the essences of those superior realities required by human nature. And one of these essences is justice. The profoundly mistaken thought that abandons these essences, and the ambitious discourse that excludes them, drifts around in search of what is already possessed. The forms taken by such thought and discourse may sound eminently scientific and highly persuasive, but they are substantially useless. The core of truth is lacking, and humankind, expecting great things, harvests wind alone.

9. But I began with a question about the certainty, definitiveness and universality of the laws governing civilised nations. The philosophers and publicists to whom I directed it are sound, of course, when they correctly require these qualities in laws. However, they take for granted the question of justice; justice is present as it were of its own accord. If I were to press my question, and ask them about the nature of this justice, which all agree is so necessary that there is no need to speak about it, they would probably come to blows over the answer although not before turning on me to mock my plebeian question. Some of them would certainly want to tell me that justice is simply what is useful, and is nothing more than self-interest properly understood. This would be denied by others who find themselves without any idea of justice at all. At this point it should be clear why utilitarians spend so much effort and care speaking about the beautiful qualities that laws should have, but take very little notice of justice. For them, the word has no content; `justice can be taken for granted because it has become a mere synonym for utility.

10. A little thought will show the real reason why modern writers spend so little time discussing justice, and expand so much effort considering the exterior and logical form of laws, their outward expression, their suitability and the political reasons motivating them. For such utilitarians, or those who care only for what is useful, justice is a kind of wound that should barely be touched; higher matters can be scrutinised as though they were completely cut off from justice.

At the height of its powers, the previous century lost sight of justice, the essence of the perfection of laws. Attention was confined to utility; principles were replaced by consequences. Justice is a principle; utility is a consequence. While utility as a consequence is considered in its connection with the principle of justice, thought remains sound; when utility alone attracts the spirits attention, sophistry reigns in minds and anarchy in society. Laws are looked at from an exterior point of view, wholly extraneous to their true, intimate essence.

11. This movement of the spirits attention towards utility and away from the justice proper to laws is not an isolated fact. The human spirit took the same step at every level of thought in the last two centuries. The following general formula expresses the condition of the mind when it has abandoned the contemplation of what is essential in order to devote itself exclusively to what is accessory: `People reject ideas, and devote their attention to sensations alone. Sensism: this is the single word explaining everything that has happened in theory and in practice. Sensism is a synonym of crass stupidity, a common phenomenon of presumptuous, verbose humanity. Only ideas indicate essences; sensations, which are nothing at all without ideas, are simply accessories for the intelligent subject. Utility is a fact, as sensation is a fact; justice is an idea. Beholding the facts in this idea of justice is to behold `particulars in what is general. This is the human wisdom of which we were speaking; and this is the aim of the philosophy of Right.

12. In my ideological works, I undertook a general examination of modern sensism and its consequence, subjectivism. My starting point was the ordinary phrase, `the light of reason,(2) which I tried to clarify. In the same way, I want to start from the common word `justice in this attempt to trace, rather than expound, the philosophy of Right. I would like to investigate justice more deeply, contemplating all the special teachings about the science of Right in the detailed mirror presented by justice.

Justice is not manufactured by human beings, nor can human hands dismantle it. It is prior to laws made by human beings; such laws can only be expressions of justice.(3) Justice is the essence of all laws to such an extent that St. Augustine had no hesitation in refusing to name as `law anything which lacked justice.(4) Nor does authority exist except as a servant of justice. Justice is the very essence of authority itself: `Through me rulers rule. (5)

13. The self-congratulation often present when new codes of law are established is therefore exaggerated, as far as I can see. Perfect legislation is not equivalent to bringing laws together in a single volume with regular divisions set out clearly and simply, and applying them uniformly and generally to every province and individual of a State, as though we were then dispensed from considering justice and injustice. The publication of new codes of law does not allow us to sit back and dispense with the study of rational Right.

I grant without difficulty that the formation of modern codes of law makes Roman law superfluous to the legislator despite the mourning this will produce in weighty law libraries at the thought of possible bonfires.(6) Nevertheless rational Right is as necessary now as it was in the past. It would be ignorance to think otherwise and a public calamity to imagine that rational Right can be dismissed contemptuously. Our own legislators did not treat the matter lightly. The Austrian civil code, generated in the heart of Germanic philosophy, wisely refers judges to natural Right (7) in doubtful cases.

Consequently natural Right, the enduring and immense receptacle of all good laws, was finally recognised in our century as national law, thanks to the efforts of the man who played such a great part in the formation of the Austrian civil code, and who wrote so wisely in his Natural, Individual Right: `Unless I am mistaken, the pretentious dream of a perfect code of law which will decide all cases has finally been swept away. What remains always and everywhere, therefore, as the code is the teaching of natural Right. This code, although subsidiary, is certain and decisive in contingent, legal cases.(8)

14. But this was not the only reason why we have to fall back on natural Right. Even if a code of law could be established which foresaw all possible cases, it would last for only a brief period and be applicable to a single people. Later I shall have the opportunity of showing clearly in this work that the elements to be decided in legal cases differ from one people to another, and even amongst the same people change with the times. But whenever the universal law of justice is applied to cases, it cannot be other than itself, simple and definitive.

I would be the first, therefore, to ask for Italy what Thibaut wanted for Germany,(9) that is, a common code of law for all the Italian regions. I would insist even more on a common procedure which would certainly be one of the most powerful, pacifying means and a moral means worthy of the wisdom of rulers for bringing together and reuniting the scattered members of our beautiful country.(10) Such a code of law was first proposed by Caesar(11) and put into effect by Theodoric, Justinian, Frederick and Napoleon. But this was not the result of regarding such codes as instruments of power and absolute imperial authority, as some have supposed.(12) Codes of law like these are natural effects that depend for their possibility on unity of power.

15. The formation of a code of law is such an immense work that it can only be undertaken when a strong hand holds the reins of State. The formation of a code, therefore, is not a reason for denigrating monarchies. On the contrary such a code is the greatest glory of this kind of government and acknowledged today as indispensable by the good sense of the most civilised nations.(13)

We have to reprove Napoleons anguished cry, however, which he is said to have uttered when he beheld the first commentary on his civil code: `My code has perished. Here, human law attempts sacrilegiously to usurp the law of nature and of God to which it dares to say: `Depart from the face of the earth. Your throne is mine. In this case, human laws, instead of presenting themselves as they are a simple, fallible, imperfect declaration of rational law, and a sanction of revealed law begin with a supremely solemn lie and injustice by offering themselves to the public as almighty, unique, infallible, unappealable, inflexible and unchangeable.

16. For myself, I would prefer to see the supreme authority preface the venerated code of social laws with the simple words: `The only law of the State, to which we ourselves are subject, is justice as declared by reason enlightened by the Gospel. The laws which follow are expressions of that justice and have been produced by us with the greatest light which we could procure. If anything proves inexact in what we have written, we shall rectify it by using the greatest source of light at our disposition. Against the sole law of justice, our own decision or interpretation is invalid.

Sacred, noble words like these, which express all that is most worthy in the social hierarchy and all that is most powerful and authoritative in a nation, would indicate a firm desire to maintain and protect justice by submission to it. They would do no damage whatsoever to the authority of human legislation, but rather serve as a sacred seal imposed on human legislation by God, the supreme Emperor of the universe. They would draw reverence for laws even from those who are the fiercest opponents of codes of law.

17. We should be careful to avoid thinking badly of those who feel they have to oppose codes of law. In fact, these authors possess the clearest and most far-seeing minds which are not deceived by the exterior, brief and elegant forms of laws applauded by lesser minds. The opposition to codes of law in such penetrating, acute persons is caused by the concept they have formed about codes, which they conceive as `a certain legal programme by which the State irrevocably abolishes everything not contained in the programme. This concept was De Savignys starting point in his bitter attack on so-called codification,(14) and no one could withstand his masterly attacks as long as he held such a position.

18. The concept, however, is historical, and this is its defect. It depends on the critique of actual examples of codes of law. Needless to say, it is impossible to argue with De Savignys position if a code is offered to the people as a divine oracle demanding worship of its dispositions, or set out once and for all as though it were the eternal, immutable law of God. No one can deny that the formation of codes of law means death to science, a life of ignorance, the rule of mediocrity, the exile of genius, the destruction of national customs, rejection of traditions, the oppression of freedom, the degradation of justice and the blocking of humanity in its journey towards progress. Certainly, I have no intention whatsoever of denying this. From this point of view, I feel myself completely at one with the standard-bearer of the historical school.

But I have to differ when he speaks of the kind of code of law that we shall have in the future.

What is required is a code which prescribes justice, and is not itself an injustice. We need a code whose first words are indicative of HUMILITY, the foundation and principle of all human justice. I am well aware that this will be scorned by some philosophers, but we must remember, despite the mockery, that humility is a public virtue, not simply a private affair as some people believe; it is above all a public, regal virtue. In other words, if we are to have a code which can validly subject human beings to its own rule, it must be subject to God. Our business as human beings is not to make laws but, as we have said, to interpret carefully the supreme jural law by means of all the enlightenment available to us. This interpretation will always be modifiable, but not as the result of caprice. It will not be found where power is greatest, but where the greatest wisdom is used by legislative authority. And the interpretation will remain constant and unchanged until this wisdom decrees otherwise.

19. In classical times, it was proverbial that judges should be ruled by laws, and people by judges.(15) Living as we do in the light of the gospel, we have to add that `laws themselves must be ruled by eternal justice. In other words, positive law must be subject to rational law, which must always be able to be heard; positive law must also be declared on every occasion according to the best available reason which has to ponder all the circumstances as well as the natural and supernatural data. This greatest of all rational authority(16) must always have free voice in the State, and act as living legislation which corrects written, dead legislation. Every authority must take its stand only on what is good and true, not on what is evil and false. As St. Paul said in those divine words: `For we cannot do anything against the truth, but only for the truth. (17) The philosophy of Right, therefore, considered as the science of justice, stands as the unshaken foundation of every human authority and of every legislation which springs from such authority; this explains its supreme importance.

20. Other reflections serve to increase even more the importance of the philosophy of Right. Jurisprudence can be considered as a science or as an art. We have already spoken about it as science. But what would it be as art if it abandoned the light of rational Right and deserted justice as an end, in order to keep solely to the material letter of the law and aim at settling cases abstractly, without reference to their justice or injustice? Common sense provides an immediate answer for everyone with good sense. Distressed families and all nations, which pay in various ways for such an attitude, also know the answer.

Abstractions of this kind are absurd because they endeavour to consider the matter in hand without reference to its essence, while retaining only its accidents; the art of jurisprudence, which is essentially the art of bringing about the triumph of justice, is carried out as though justice did not exist for it. We are no longer dealing with jurisprudence now, but with some other art which retains the old name in order to deceive people. It could be called `the art of winning just and unjust cases, or the art of deception. It might even take on some more delicate name. But it is not the art of jurisprudence, which is essentially noble because its aim is justice, the most noble of all things.

What used to be the art of jurisprudence has been transformed into a vile art that is totally indifferent to either the triumph or defeat of justice and which, as such, is proper to the devil himself, although practised by human beings. Cipolla, Ferrario and others, with their detestable treatises De Cautelis, are tolerated by our foolish world, and even considered great, practical legal experts.(18) What a state mankind finds itself in! The science of justice, the philosophy of Right, throws its light upon such practices as these, and clearly shows their distastefulness and cruelty. The public, enlightened in this way, will no longer tolerate such open wickedness.

Notes

(1) These periods, which manifest a law that presides inexorably over the course of nations, are revealed first in different ways of thinking amongst peoples in various ages, then in their affections, and finally in their external actions, all of which go to make up their final expression, the political state of society. I have shown elsewhere that the way people think necessarily influences the way they act. The ages which I distinguish here in the speculative order correspond, therefore, to those which I distinguished elsewhere in the political order. States originate, develop, grow old and perish in so far as they pay attention to principle or lose themselves in accidental and isolated consequences. Cf. The Summary Cause for the Stability or Dowfall of Human Societies, cc. 3-7.

(2) Cf. the preface to the Nuovo Saggio intorno l'origine delle Idee.

(3) Seneca defines law as: `The rule of what is JUST and UNJUST' (De Benef. 4, 12); likewise, Clement of Alexandria (1 Strom.). The word law is taken in different meanings, and principally in the two indicated by St. Paul when he says: `Gentiles who have not the law . . . are a law to themselves' (Rom 2: 14. Cf. Conscience, 49–71, 118–140). When he says, `who have not the law', he is speaking of the positive, Mosaic law; and when he adds, `they are a law to themselves', he indicates what is called rational law. Positive law always has some external expression: it is given or spoken in words, or promulgated in writing.

Nevertheless words, spoken or written, are not actually laws, but signs which communicate the law to others' intelligences. Law, therefore, stripped of all the signs by which it is communicated and promulgated, stands as a concept entrenched in the mind; it is an idea, a notion, expressing either the intrinsic order of being which demands respect of itself, or the will of the superior which also demands our respect. Because of this, I have elsewhere defined the formal law, stripped of every other accessory element, as `a notion of the mind used for making a judgment about the morality of human actions, which must be guided by it.' In the same place I noted that such a definition is substantially the same as that given by authors who define the law as `the reason for which things must be done' (Cf. Principles of Ethics, 1-19) [. . .].

(4) `I cannot think that what is unjust can be law' (Bk. 1, De lib arb. c. 5; De C. D., 19: 21). St. Thomas' teaching is the same (S.T., I-II, q. 96, art. 4). The pagans themselves recognised that laws without justice are not properly speaking laws, but oppression. Cf. Plato, Minos, and Cicero, Laws, bk. 2.

(5) Fr. Suarez aptly applies this passage to the eternal law which is the very wisdom of God. He says: `It is called human law because it was the proximate result of human intelligence and effort. I say proximate because in the beginning every human law is derived in some manner from the eternal law according to the words:

(6) The corpus of Roman law is valuable in so far as it contains a part of rational Right deduced and applied with admirable logic to circumstances. From this point of view the study of Roman law disciplines and directs human reason, and withholds it from the paradoxes in which ignorance and passion implicate it. This is a kind of hidden reason in favour of Roman law which serious, respectable people regard as a safeguard and teacher of jural reason. And under this aspect they are correct. But we must also look at the other side of the coin. We are dealing with a teacher whose ignorance and mistakes are extremely serious. Because of the exaggerated authority which Roman law has been granted, its errors have unfortunately been placed at the very heart of history along with the Gospel itself. And the errors would go on forever if they were to be endlessly backed by the same kind of exaggerated authority. Cf. Haller's observations on the errors arising from a false application of Roman laws in Ristaurazione della Scienza Politica, t. 1, c. 7: 3.

(7) §7.

(8) Zeiller, §25.

(9) In his famous work, Ueber die Nothwendigkeit eines allegmeinen bürgerlichen Rechts für Deutschland, published in 1814.

(10) We should be grateful to their majesties the Emperor of Austria and the King of Sardegna who have hinted at such a worthy, useful aim in their law of copyright which effects almost the whole of Italy.

(11) Suetonius says expressly in his Life of Caesar: `[Caesar wished] to summarise civil law in a certain way, and produce from the immensely extended volume of laws a small number of books containing the best and most necessary laws' (C. 44).

(12) M. E. Lerminier.

(13) Romagnosi observed rightly that monarchy is the form of government most readily disposed to give peoples good civil laws. This is true of the moderate, reasonable monarchies of which we are speaking.

(14) The famous dissertation, Our century's calling to contribute to legislation and jurisprudence, was his answer to Thibaut's work (cf. ftn. 8).

(15) `As the laws rule the judges, so the magistrates rule the people. It can be said that the magistrate is the law as spoken, and the law the silent magistrate' (Cicero, Laws, 3: 1; he follows Plato, Laws, 4).

(16) We shall show elsewhere what kind of reason must constitute the greatest natural authority of the State. Here it is sufficient to note that it would not be the greatest possible reason if it were not free of passion and cleansed from vice. Love of justice, probity and virtue are light that must be added to the light of the understanding if intelligence is not to be lost in darkness and suffocate in human stench.

(17) And almost immediately after: `In my use of the authority which the Lord has given me for building up and not for tearing down' (2 Cor 13: [8, 10]). This great principle is the source of the sweetness, unending reasonableness and rightful flexibility of the laws of the Church.

(18) One of Cipolla's cautions states: `A caution for one who owes a large sum: pay a little in the hope of being freed from the obligation.' The great jurist praises this advice: `I will give one admirable caution which you must always remember.' One of Tommaso Ferrario's cautions is intended to ensure that a beneficed person does not lose his benefice even if he has committed murder: `A caution against a prelate's losing his benefices because he has committed murder.' Another of his cautions is about speaking badly of another with impunity: `A caution for avoiding a harmful legal action when using harmful words against another.' For arguments against the use made of cautions by these authors, and against petty lawyers who employ other morally wrong artifices: cf. Samuel Stryck, De Cautelis contractuum, sect. 1, c. 1 (Wittenberg, 1690) and Kaspar Ziegler, Rabulistica (Dresden, 1685).

Introduction II