The Essence of Right
INTRODUCTION
II.
The distinction between the philosophy of right and related sciences
21. The philosophy of Right is that which gives life to positive laws and to the art of jurisprudence. This is sufficient to indicate its importance. But before examining the philosophy of Right, we need to define it and sketch its outline by distinguishing it carefully from sciences connected with it. This will ensure first that our discussion is confined within necessary limits, and second that it is carried forward within those limits in an orderly, clear and scientific fashion. We have to ask what the philosophy of Right is, what its related sciences are, and how it is distinguished from them.
The philosophy of Right is the doctrine of first reasons applied to jural justice. And jural justice is justice rooted in rights. The sciences connected with the philosophy of Right are principally positive Jurisprudence; the philosophy of positive Right; natural or rational Right; politics, and especially morals, and eudaimonology. We have already seen how the philosophy of Right is superior to positive jurisprudence. The former lawfully generates the latter; the latter is generated from the former just as consequences are generated from principles, which implicitly contain all consequences. The philosophy of Right is the reason and authority behind positive jurisprudence which it also emends, tutors and interprets. This was admirably clear to the greatest minds of antiquity who were happy to pass from the narrow study of limited civil law to the wider fields of jural philosophy. Plato and Cicero are examples who spring to mind immediately.
22. Let me quote from Ciceros book on laws, which he puts in the form of a dialogue between himself, his brother Quintus and their friend Atticus. His fertile words show how the great minds of antiquity were clearly aware of the superiority of the philosophy of Right over legal minutiae.
We can also see from these words the kind of research they undertook, and how impossible it is for a person of great intelligence to consider the arid details of positive decisions without reaching out in spirit to the universal reason and foundations that sustain such decisions. Plato is used as an example in these words of Cicero. And this is what Cicero tells his friend, T. Pomponius, when the latter asks what he thinks about civil law:
| Cicero. Remember that the greatest men in our city used to interpret it to the people, and answer questions about it. Although they were taken up with matters of great importance, they were also engaged in minute affairs. What is so great as the common right, and so minute, yet so necessary to the people, as the office of these consultants? I do not think for a moment that those responsible for such an office were ignorant of universal right. But they exercised what they call civil right because their only wish was to dominate the people.(19) Universal right was set aside as less necessary for ordinary use. So what are you asking me? Are you encouraging me to compile booklets about rights connected with water collection or boundary walls, or to record contractual formulas and judicial decisions? These things have already been dealt with carefully and at length by many authors. Besides they are too insignificant for me to expect you to be interested in them. Atticus. Look, this is what I am interested in. You have written about the perfect state of the republic, and it would seem obvious that you should now continue to write about laws. Your Plato did the same, I see, and you admire him above all others. Marcus. Remember how, on a summers day, Plato discussed with Clinia, the Cretan, and Megillo, the Spartan, the constitutions of republics and their wonderful laws. The three of them walked and sat amongst the cypresses and woods of Gnossus, and we can do the same, discussing the things they discussed while we walk and rest amidst these tall poplars in the shade of these steep green banks. It will certainly be more fruitful than talking about what happens in the forum. Atticus. These are the things I want to talk about. Marcus. Well, Quintus, what about it? Quintus. There could be nothing better. Marcus. Youre right. Remember that this is the very best kind of argument for showing beautifully what human beings have been given by nature, how many SUPREMELY GOOD THINGS the human mind contains, what responsibilities we are born to cultivate and exercise. When we uncover these things, we already find ourselves at the source of laws and right. Atticus. So you do not think that the subject of Right should be sought from praetorian edicts, as many imagine nowadays, nor from the XII Tables, as our ancestors thought, but sought from the depths of philosophy? Marcus. Yes! And the reason, Pomponius, is that we are not researching legal cautions(20) or the replies sought in the course of consultations. These are not light matters, of course, and it is good that they should have been investigated by great men in the past, and in the present by the one who holds supreme authority and wisdom. But in our discussion we should embrace the entire cause of universal rights and of laws in such a way that what we call civil right may be restricted within the small and narrow sphere of nature. We have to declare the nature of right, and seek it in the nature of human beings. We have to think about the laws which are suitable for governing communities, and then discuss the rights and statutes of civilised peoples in which the rights of our own people are included. Quintus. You're right to begin at this high level, my friend. It really is necessary to start at the beginning. Anyone who begins to teach civil right from some other starting point is not dealing with the ways of justice, but with litigation. |
23. This quotation shows that the distinction between the philosophy of Right and positive Right was recognised very early. Greek and Roman sages themselves realised that the latter without the former was simply degenerate, ruinous litigation rather than the art of making justice prevail in human society. The quotation also shows that positive, lowly, detailed right, which of itself is contemptible, acquires its greatness, dignity, decency and entire utility from philosophy. It shows also that it is the duty of the philosophy of Right to lead laws back to their primitive source from which this philosophy then has to unleash the just sanctions which alone must preside over the nations and which alone can help them. The philosophy of Right rejects, as spurious and illegitimate, sanctions which are not generated and contained virtually in this supreme source. Its duty is also to penetrate human nature and discover those supremely good things, inserted by nature in the human mind, which underlie the force of every right and the strength of every obligation.(21)
24. The science of natural Right and the philosophy of positive Right are as it were two parts of the universal philosophy of Right. The science of natural right studies the principle of rights and from it deduces particular rights, some of which belong to human beings by nature, some of which are consequences of particular natural rights. In the same way, the philosophy of positive Right first studies how positive laws should be made. Then it considers the laws of the State, confronting them with the ideal laws which it has formulated in order to test the civil laws and see if they are justly directed to the protection of true rights. In other words, the laws of the State have to protect true rights exactly, neither more nor less. They are not to invade natural freedom and thus violate rather than maintain the rights of individuals nor are they to create new, arbitrary and imaginary rights, nor overlook any rights which could and should be forcefully protected.
It is clear therefore that the universal philosophy of Right has three responsibilities. It first establishes what human rights there are, then how positive legislation should be brought about, and finally undertakes a critique of positive laws. Such a critique can only be undertaken successfully when it is known which positive laws have to be made, and how they are to be made. There are therefore three fundamental jural sciences:
1. That which determines the nature of rights rational Right;
2. That which applies rational Right to possible positive laws and shows how these laws should be made the theory of positive laws;
3. That which applies the theory of positive laws to real positive laws in different States and indicates their advantages and defects the critique of positive laws.
25. The last two sciences are together called the philosophy of positive laws which is a union of sciences rather than a single science.(22) It is clear that the third science, the critique of positive laws is never-ending because it expands and divides in a way similar to that of the various laws and legislations which have ruled the various peoples of the earth in different times and places. For my part, I have preferred to call this book The Philosophy of Right precisely because such a title expresses the result of an admixture of all the three named sciences.
I did indeed begin with the simple intention of expounding the principles of rational Right. But as I wrote, I realised that the teachings relative to rational Right were clarified to a great extent by applying them now and again to existing civil legislations, and vice versa. Historical method is thus intermingled with rational method.(23) This is, I think, the most secure and persuasive way of making progress. It is also of more practical use in so far as the application of theory is foreseen and indicated beforehand. Nevertheless, the principal part of this work concerns rational Right.
26. But what is the relationship between the philosophy of Right and the philosophy of politics? I have already described the nature and division of the philosophy of politics elsewhere, and I assume that the reader is aware of what I have written.(24) I listed four kinds of political criteria, the second of which contains the criteria drawn from the examination of the natural construction of civil society.(25) Justice is the first element to enter the construction of every human society. In the last analysis, a society cannot be anything except an accumulation of rights and duties. Society is a complex of agreements, which themselves are acts of justice. There can in fact be no agreement at all except between people who maintain and make others believe that they wish to stand loyally by the word they have given. Society itself is an effect or work of justice which exercises its authority over mankind.(26)
The theory of justice, therefore, is a part of the theory of society. Vice versa, the theory of society is, under another aspect, part of the theory of justice. Consequently, the politician, that is, the person who is responsible for governing society, must be aware before all else of the theory of justice. He should be especially mindful of that part of justice which binds individuals and joins them in society (this part is normally called internal public Right). Unless practical politics aims at conserving the bonds with which justice draws together the various members of society, it will soon become clear that such politics cannot succeed in developing society nor even in holding it together.
The preservation of social rights is, therefore, identical with the preservation of society. If the first duty of politics is to preserve society,(27) its first duty is also to defend the social rights that form and constitute society. These rights are the cement that binds society together. The philosophy of Right, therefore, as the science of social justice, is the end relative to the philosophy of politics; and the philosophy of politics is the means relative to the philosophy of Right. We obtain the same result if we compare politics with the other part of the theory of justice, which concerns the rights of individuals and is commonly called private Right or, as I call it, individual Right.
27. The preservation of the rights of individuals is a part of their moral good and of their eudaimonological good. Moral good requires that a person respect the rights of others; eudaimonological good requires that the same persons rights be respected by others. But if what I have said about the nature of the science and the art of government in civil, communal groups is true that is, government is simply `a means of obtaining and increasing the good and perfection of the individuals who make up the social body(28) it follows that politics can exist only on condition that it first keeps in view all the rights that individuals possess.
These rights form the end of government. If government has to promote the moral good, it must consequently persuade all those who are governed to respect the rights of others; if government has to promote the eudaimonological good, it must defend with force all the rights of every person who is governed so that no one will dare violate them. These are the two great duties of governments. Government, therefore, must not simply use force, but also every means of reasonable persuasion. With force alone, it can only weakly and partially maintain the eudaimonological good of individuals. Force can never promote moral good which depends on the spontaneous movement of disciplined and well-disposed wills. And it is clear that human perfection, which always resides in individuals, and is the end of politics, consists in both categories of good, moral and eudaimonological.
28. Hence the philosophy of politics followed the philosophy of Right, just as a science concerned with means takes its order and direction from a science concerned with ends. Moreover, anyone who has not clearly understood a science concerned with ends cannot usefully be taught anything about a science of means. The reader will therefore see immediately why in this series I have begun with the moral and jural works and then moved on to political studies. He will also see how absurd and wrong it is to consider political doctrine in abstraction from jural teaching, as Machiavelli did (and he was the first amongst many). Politics cannot go its own way, cut off from jural teaching whose humble servant it is. It is impossible to conceive of the prosperity of a society of rational, moral beings (and this is the aim of politics) without simultaneously conceiving the development and increasing perfection of reason and morality which constitute and inform that society.
29. Finally we have to compare the science of Right with eudaimonology and with ethics, establishing its limits relative to them in such a way that all three are confined to their own territory without impinging on that of the others. We need to know, therefore, whether Right(29) is a part of ethics, or ethics treated under some other aspect, as has sometimes been thought, or whether Right is perhaps a kind of branch of eudaimonology. My own view is that the science of Right stands between eudaimonology and ethics in such a way that its two extremes each touch one of these other sciences. Let me explain.
I understand the word `right as `a faculty which human beings have for doing or experiencing(30) anything useful. It is protected by the moral law which obliges others to respect this faculty. But the faculty for doing or experiencing anything useful to human beings is a eudaimonological good. In this sense rights pertain properly speaking to eudaimonology. An evident proof of this is found in the fact that a person with more right than another is said to be more fortunate, not morally better.
On the other hand, right is not simply a mere eudaimonological faculty. The faculty could never be called `right unless it were protected and defended by the moral law which prohibits all other human beings, or some of them, from attacking it. Consequently, the protection afforded by the moral law is properly speaking the form by which the merely eudaimonological by nature takes on jural dignity. The science of Right, therefore, has eudaimonological good as its matter to the extent that what is good in this respect is regulated and protected by the moral law. It is properly speaking a science concerned with the relationship between what is eudaimonological and what is moral.
30. It should be easy now to understand how our way of conceiving Right places it as a science between eudaimonology and ethics, although fully distinct from both of them. It is also clear that Right has been wrongly defined by some as `the science of jural laws. In fact, these laws, which are a class of moral laws,(31) do nothing more than impress a seal on the faculty, enhancing it so that it possesses the moral uprightness enabling it to be called `a right. Nevertheless, this faculty of doing and experiencing, enhanced in this way, always remains the proper subject of the science of Right. The law that enhances the faculty is never the subject of the science of Right.
Notes
(19) Hoc (ius) civile quod vocant eatenus exercuerunt, quoad populum praestare voluerunt. These words, if my interpretation is not mistaken, would seem to confirm the opinion of modern writers who regard the solemn formulas, to which ancient Roman jurisprudence attributed so much importance, as a political tool of the aristocracy. By means of these formulas, the aristocracy gained a monopoly of the science of Right and thus held the people dependent upon them for decisions when judgment had to be given.
(20) Quemadmodum caveamus in jure.
(21) Quid sit homini tributum natura, quantum VIM RERUM OPTIMARUM mens humana contineat.
(22) Lampredi erred, as Signor Baroli justly noted, when he defined natural Right as the critique of laws which have to be made, and the study of laws which have been made. This is the definition of the philosophy of positive Right. And even Kant, who devoted himself to indicating the precise boundaries between one science and another, seems not to have presented the true, correct definition of rational Right when he defined it as `the complex of conditions in which external legislation is possible'. This definition simply indicates a relationship between rational Right and external legislation. But the relationships between one thing and another are never the essential element of the thing under consideration. Seeking the nature of rational Right is one matter; seeking its relationship with external legislation is another.
According to us rational Right is `the science that determines rights'. Its relationship with civil legislation consists principally in this: `The rights determined by the science of rational Right become the object of external legislation in so far as the latter expresses and sanctions the former.' Kant's definition, however, is coherent with his principle of `co-existence'. For him, rights arise from the necessity of social co-existence. This in turn is the effect and the condition determined by external legislation, and must therefore be determined through the scientific development of rights. There are no rights in Kant's system other than those constituting the conditions which make external legislation, and therefore society and human co-existence, possible. We shall examine this kind of system in its own place. — Cf. my Storia comparativa de' sistemi morali, c. 5, a. 11 and 12.
(23) I have indicated the advantages of this historico-rational method (which is my normal way of procedure,) in the Introduction to the Anthropology [Anthropology as an Aid to Moral Science]. On the one hand, therefore, I am glad to agree with the German philosophers when they maintain that the historical element does not enter science, which is completely speculative. On the other hand, I cannot grant the consequence which some of them draw from this truth, that is, that history is useless to science. History provides the mind with data and authorities. In its turn, authority is extremely helpful to the understanding in finding the path which leads it safely to the speculative truths for which it is searching.
(24) In the Prefazione alle opere politiche [. . .].
(25) Ibid., p. 21; and Society and its Purpose, Introduction.
(26) This was demonstrated more fully in SP, bk. 1, c. 2.
(27) It is self-evident that the preservation of the existence of society is the first, and the most important duty of the science and art of politics. Nevertheless, governments sometimes lose sight of their responsibility in order to attain some apparent good. This accounts for the decline of civil societies, as I have shown in SC.
(28) Cf. PE, 9 ss.
(29) `Right' spelt with a capital letter stands for `the science of rights'.
(30) The word `experience' expresses in its general and philosophical sense every kind of passivity, even a pleasurable kind.
(31) I cannot agree with Kant who completely separates jural from ethical duties, although I do maintain that `merely ethical duties' are excluded from jural duties. The motion of duty would cease entirely if it did not include some moral obligation. For me, every duty is essentially ethical.