The Essence of Right
INTRODUCTION
III.
History of the science of natural Right
31. These distinctions between the philosophy of Right and its connected, bordering sciences enable us to set the boundaries which have to govern our study and facilitate order and scientific method in dealing with this branch of philosophy. It is clear that scientific treatment of a subject requires constant adherence to a thread of reasoning which springs from a single, extremely simple principle; scientific treatment is not free (as common or familiar treatment are) to step aside a little from the subject under consideration. But in order to work in this way, we first have to define clearly what we are dealing with, and the limits within which it is contained. We cannot say that a science exists if our treatment of the matter in hand is not carried out with exact, controlled logic.
It follows that the history of various doctrines considered as sciences is reduced to the history of the more or less precise forms and refined methods with which these sciences have been carried out over the years. In every discipline we have to distinguish carefully between the history of science and the history of opinion, the two kinds of history.
32. My understanding of science is: `a system of truths dependent upon a single principle; my understanding of opinion is: `everything that people have known or thought or simply believed. It is clear, of course, that opinion or simple knowledge of things was present in the world long before the invention of sciences understood in the strict meaning of the word. It is also clear, because cognition and opinion pertain to mankind while sciences are proper to a few individuals, that the history of an opinion in any subject must be referred back to a period considerably antedating the history of the science corresponding to that opinion. The history of opinion is coeval with mankind, and can be assembled from languages, symbols, monuments, customs and chronicles; the history of science begins with the first scientists and is found principally in their individual writings.
33. Applying this distinction to the history of Right, we cannot doubt that human beings knew both right and obligation from the first moment of their existence on earth. Long before Plato and Pythagoras, human beings were taught, especially by their ancient traditions, what would later be written down so well in Italy and Greece. Peoples learned from their own traditions how to educate their reasoning and their noble feeling.
Even those determined to write down what mankind had known for so long prior to their own time worked according to the method they had learned from the people, their great common master. Although these writers were capable of reflection, of ordering, deducing and linking together the homogeneous parts of common knowledge, of presenting their work in logical form, and enhancing it with a kind of divine eloquence that seemed to bring new light to those who marvelled at what had been accomplished, they were unable and unwilling to reduce their work to the strict forms of discipline which would render it `science, as we would now call it. The first authors were extremely intelligent, highly motivated and quite different from their contemporaries, but this did not distant them from the familiar, flexible way of reasoning they had inherited.
34. In fact, progress requires that the great work of collating the teachings of mankind (of which we are now speaking) and forming them into sciences, should proceed according to the following steps: first, the doctrines must be collected and summarised in pithy phrases; then they have to be expressed in poetry and clothed in fine images. Without this, society, the people as a whole, cannot savour and penetrate the dignity and sublimity of the message coming to them through the medium of symbols, living images and figures. If society were not drawn to feel the importance and beauty of such written doctrines, the content of the books would never occupy peoples attention. No one ever began to write something original without the precious hope that his unique contribution to literature would be read widely.
35. At this point, more penetrating minds begin to pay attention to the rational part of what has been written. They devote their attention to what seems slight, specialised and almost buried under the weight of literary embellishment, but which they realise is the firm foundation of everything else. Having experienced what lies beyond the images that cover it, they never abandon what they have come to appreciate. The underlying truth becomes the sole object of their concern and love, and they undertake a new method of work quite opposite to that of their predecessors. In other words, they now start to strip the doctrine of the trappings in which it had first been clothed and enfolded.
36. During this period, the logical minds of the learned begin the great labour entailed in working through naked, but disconnected doctrines in order to bring together under a single head the scattered parts for which human intelligences are searching. Up to this moment there is no division between sciences. The whole of human knowledge, still divided into particular pieces of information mixed up together, stands before the researcher. Each of the numerous particles of information haphazardly drawn together requires mental attention or verbal expression. A long, slow labour is then protracted over centuries during which the clever people most interested in cognition diligently separate different pieces of knowledge which they later collect into various stacks, as it were.
37. New generations of enquirers come along and note with joy the gradual accumulation of these stacks of knowledge from which they begin to fashion orderly buildings according to thought-out designs of varying beauty. But these first edifices of science are not altogether successful for several reasons. First, the materials necessary for regularity and fine finish have not all been discovered, nor worked upon in such a way that they can be put together accurately. The designs used depend more on the available materials than upon what is needed for the building itself. Moreover, the materials themselves have not all been accurately classified and separated; some are mistakenly placed in stacks to which they do not belong. Thirdly, the novice-architects must necessarily form their vision of the work as they go along, and will inevitably fail in merging satisfactorily the various stones they possess. These and other causes ensure that the first attempt at reducing disconnected information to a scientific form results in irregular, incomplete constructions, lacking the truth and elegance which is aimed at, and which will one day be achieved. The last and most difficult operation is to build a science entirely of its own materials, without borrowing from other sciences, so that it stands on its own, although in continuity with other sciences from which it is carefully separated.
Considerations of this kind show that in the history of a science as such, we have to describe all the successive operations undertaken by the learned to reduce the subject to the form of a science. It is indeed very difficult if not impossible to assign the precise point at which one of these operations begins and the other ends. Nevertheless in attempting this, it is better to be satisfied with maintaining a firm, ordered series of ideas than insisting on temporal succession. Over-attention to fixed dates sometimes produces the opposite effect from that intended, with the result that historical facts are forced and distorted for the sake of compressing them into periods where they do not fit.
38. Hufelands(32) History of the science of Right, although an admirable and much imitated attempt at distinguishing various periods in the history of this science, fails because it attempts to record exactly the times in which these periods fall. In the book, Hufeland first distinguishes three periods in the history of Right and describes them excellently as periods of fragmentary treatment, systematic-indeterminate treatment, and systematic-determinate treatment. But attempts by historians to establish more precisely the periods in which one division ends and another begins are clearly forced and false.
For some, the second period starts with Grotius(33) and the third with Christian Wolff.(34) It is true that the works of Grotius and Wolfe are the weightiest that have been written on the subject, and do indeed mark an epoch. But if we wish to indicate the epochs of a science by following the development of ideas (which rise to new levels in certain periods) rather than the fame in which books are held, we find that the works of these two men certainly cannot serve as signs that human understanding has begun a new journey. An accurate history of the science of Right would have to distinguish the development of ideas amongst the learned from the development of the book-form to which these ideas are consigned. When these two developments have been distinguished, the three periods we have mentioned can be seen in each of them, and can be outlined as follows:
Period1. The period of fragmentary treatment, when writers, although dealing with rights and obligations as occasion offers or in passing, do not give them exclusive, reflective attention, nor separate them from other notions. On the contrary, they mix them with other ideas which they force them to serve.
Period2. The period of systematic-indeterminate treatment, when writers begin to fix their attention on rights which they coerce into a system by working to purify them of every heterogeneous element (that is, of elements which belong to other sciences).
Period3. The period of systematic-determinate treatment, when the learned have succeeded in entirely separating the science of Right from all other sciences near or bordering upon it, in determining its sphere, and in defining its matter accurately. This final period still has room, however, for developing what has been well-defined and separated, and penetrating it more deeply.
39. Such a triple work can obviously be carried out upon ideas before it is expressed in books, and this, I think, is what took place in the two periods long before Grotius and Wolff. Could we find, for example, more balanced ideas about natural Right than those in the Summa of St. Thomas Aquinas?(35) These ideas, besides being logically interconnected, coherent and resplendent, are also deduced from a single principle. In other words, they contain everything needed to make them a science. Before Grotius, many ecclesiastical writers, following St. Thomas, wrote treatises de justitia et jure, and accurately discussed the doctrines of natural Right. Lessius and De Lugo are good examples.
The development of ideas exists, therefore, and the work of the first two periods had already been done before Grotius time. However, these ideas had not been included in a separate book. What was lacking was simply their book-form that is, the art of making books from these ideas. Nothing was missing from their status as science. This is a consideration totally disregarded by our historians of the science.
Moreover, if the passage from the period of fragmentary treatment to that of systematic-indeterminate treatment is marked by the form and title of books, it has to be dated some time before Grotius, whose own book deals only with part, not the whole of Right.(36) Its title shows that it is not concerned with a complete science. We have to go back to Oldendorp,(37) Hemming,(38) Stefano,(39) Gentile,(40) and even further.
40. An unbiased and impartial historian of the science of Right will also have to note accurately that there were two professions, theologians and jurists, amongst the first writers on the subject. He will also discover without difficulty that the development of ideas about natural Right was far superior amongst theologians than amongst jurists. My own opinion is that none of the great principles of natural Right was lacking in the ecclesiastical writers of the 4th century, when St. Augustine lived. I say `writers because minds were certainly not devoid of these principles after the preaching of the Gospel. The jurists, however, furthered the development of the exterior form (what I have called book-form). The reason for this is clear.
Jurists needed to discover the reasons upholding positive Right, which alone could justify and explain positive law, and correct what might be lacking in it. When united, the reasons behind positive right constitute rational Right. They were however ignored or barely touched upon in positive Right as a result of the prejudice (I was tempted to say the eternal prejudice) which drives legislators to make laws depend upon authority, not on clear reason.(41) Jurists realised that they had to make up for this defect in positive decisions by investigating separately the dictates of natural reason, from which human positive laws draw their entire usefulness and true authority. In fact, the first treatises on rational Right were published only under the form of an Introduction to Roman law.(42)
Theologians were not under the same kind of pressure. In Christian theology they already possessed the doctrines of rational Right (and many others) and the roots of canonical right. They did not have to investigate these doctrines separately, outside theology, as jurists had to investigate them outside certain laws, and as an aid to these laws. It is true that in theology itself theologians found it convenient to separate the part which expounds the truths which have to be believed (which they called dogmatic theology) from the part which expounds the truths which have to direct actions (which they called moral theology). But they left the jural doctrines, which they always considered relative to morals (that is, in so far as they helped human beings to govern themselves and work for moral good), mixed with morals. This explains why theologians went no further with the methodical separation of Right from morals, a division which is almost wholly due to jurists, and later to philosophers.
41. Let us take as an example the year 1740, in which Christian Wolff published his Jus naturae, and ask ourselves if it is the best date for establishing the third-period epoch, that is, the period of systematic-determinate treatment. Examining the question we shall see immediately that the facts have been mishandled for the sake of subjecting them to an overpowering, preconceived order.
Delaying the start of the second-period epoch to 1625, the year of publication of De jure belli et pacis, is, I think, a mistake. On the other hand, the third-period epoch, if indeed it is an epoch, is made to start too soon. This epoch is one in which Right is treated entirely on its own, cut off and divided from every other science. But the work entailed in separating and dividing the doctrine of natural Right from that of every other science, and from ethics in particular, takes place in the second period; it was not completed either with Thomasius or with Wolff. The authors who followed Wolff were all strenuously engaged in this work, often without agreement amongst themselves. Even Kant was unable to draw a line between the sciences in a way that satisfied everybody.
42. The reason prompting the historians of rational Right to think that this science had been perfectly separated from all others in the works of Thomasius, Grundling, Gherardo and Wolff is its separation, in the external form of their treatises, of the science of Right from moral science. The development of form proceeded more quickly than the development of ideas. Although these authors fully intended to separate the sciences from the point of view of ideas also, they offered nothing more than promises to this effect. It is external forms and promises (which do indeed allow us to know the authors views) that attract the attention of those who write the literary history of sciences.(43)
43. If all these writers had together succeeded in drawing the correct line between natural Right and the other sciences, especially ethics, as they had proposed and promised, it would not have been necessary for Zeiller, a famous German, to have written:
The whole merit of critical philosophy lies in having identified certain definite signs that distinguish jurisprudence from neighbouring sciences, in having accurately determined the principal ideas which up till now have remained uncertain, in having introduced into jurisprudence the formal principles taken from the form of pure reason, and in having thus elevated jurisprudence to the status of a science.(44)
It is Zeillers opinion, therefore, that before Kant the concept of Right had not been fully distinguished from that of morals. But we may go on to ask whether this work was then completed by Kant himself or by his followers. Zeiller adds immediately:
Nevertheless, the philosophers of law, who held to a formal principle, were once more divided in their opinions. The particular difficulty was that some admit a principle of right independent of the supreme law of virtue, and some think that the principle of right has to depend in part absolutely and in part relatively on the principle of ethics.(45)
It is clear, therefore, that the relationships between Right and ethics were still not fixed to the satisfaction of all the interested parties. It cannot be said that the concept of Right and that of ethics were so clearly established that they were utterly distinct; nor can it be said therefore that the third period of systematic-determinate treatment had truly begun. For this to happen, the concept of Right would have to be fully determined and detached from all other concepts. The work of this third period is to bring Right to perfection after it has previously been distinguished from all other sciences.
44. We can understand better the imperfection remaining even now in the science of Right if we expound briefly the characteristics assigned to it up to the present as criteria for distinguishing it from ethics especially. Christian Thomasius was not content to recognise as jural only negative obligations, although such obligations are jural as we shall show. He also wanted to separate Right from ethics in such a way that Right would be concerned with the external action alone, and ethics with the entire internal part.
This, however, does not provide the kind of simple separation of the concept of Right from that of morals which I would require in good methodological separation. What we are offered by Thomasius is a real, and therefore absurd separation. External actions cut off from intentions and internal ends are actions without dignity precisely because they are deprived of that moral and personal character which gives rise to all the respect due to human actions. There can be no right in a merely external action which is simply a fact and as such depends for its efficacy on its power. Face to face with a stronger power capable of destroying it, this fact loses its efficacy.
45. Nevertheless, the absurd division of Right from morals gained some favour during and after Thomasiuss lifetime. Even Kant, the founder of the school of critical philosophy, was not exempt from this defect. He defines external legislation as: `that which provides a motive from outside the law for observing the law. In other words, the `motive is that of chastisement and punishment, which are not moral motives at all. He goes on to define Right as: `the complex of conditions which make external legislation possible that is, those conditions which make possible the institution of punishment and reward for those breaking or observing the law.
This shows clearly that Kant himself considers `Right more or less as Thomasius does, and totally separates it from internal, moral motives of action. There is no doubt that Right, separated by such an expedient from morals, is completely cut off from morals, from which it no longer receives life. This kind of Right is totally unworthy of the name. All that remains is the carcass of Right, equivalent, as Hugo said, `to a moral science for murderers.(46)
Sciences must certainly be methodologically divided from one another, but they are not to lose their natural communication. If they do, they all perish. Their life comes from their connection with the whole of knowledge, just as the life of our bodily members comes from their connection with the whole body. Perhaps it will be helpful if we can see the genesis of such an error, common to almost all German authors on Right from Thomasius to Kant.
46. These writers noticed that the external legislator is unable to observe the intentions of the spirit. Moreover, rational Right was conceived by them as a guide to the legislator in his formation of civil laws. They concluded that the science of Right was to be restricted `to the external conditions which make civil legislation possible. But this is too hasty a conclusion. Although it is true that simply internal intentions cannot be observed by legislators and judges, it does not follow that intentions should be excluded. Rather they should be considered upright until external signs show the contrary.
Intentions are sometimes manifested externally either through words or some other kind of sign. In these cases, the legislator must take the words and other external signs as indicative of internal affections. If these signs were of no use for external legislation, the legislator would never consider what is external as indicative of what is internal. This would lead, however, to all kinds of absurdities: words themselves would have no meaning in the sight of the law. What kind of legislation would result from the abandonment of language and of every sign manifesting the interior of the spirit? But whether intentions are held to be upright when nothing is seen to the contrary from outside, or whether intentions are positively acknowledged for what they are and shown to be such on the basis of external signs, it still remains that external actions have a value only in reference to intentions through which alone they merit respect and the protection of the law. If moral dignity is removed from actions, they neither could nor should be the object of any legislation whatsoever.
47. We may perhaps find another reason explaining the origin of the error under consideration if we deign to open a book written about five centuries before Kant. It was always believed, as we know, that the word `just, as a substantive (`that which is just), expresses a quality of action, and is used without reference to the spirit of the person who does the action. St. Thomas agrees; he finds this concept in the etymology itself of the word.
When we use the word `just about what we do, we are referring to something done relative to another person and in accordance with a certain kind of equality. For instance, the recompense we owe for some service rendered. We call something `just, therefore, because we wish to indicate that it possesses the uprightness of justice relative to that in which the action called `just terminates, without our considering the manner in which this action has been done by the agent.(47)
In the concept expressed by the word `just, therefore, the mind abstracts from the intentions and ends of the agent. But, says St. Thomas, `just has to be distinguished from `justice. Although `just, taken as a quality of an action, can be considered in itself as something on a par with a measure, that is, as fulfilling a law without more ado, the same is not true of `justice. As a virtue `justice is thus defined:
A habit through which we give to all, with a constant, persevering will, that which is just, that is, their right.(48)
Justice is present, therefore, only when the internal will is upright; and that which is just, or right, is formally such when it is joined to justice. `What is just is `the object of justice manifestum est quod jus est objectum justitiae.(49) Modern philosophers have gone no further than the meaning of the word justum, without taking into account the meaning of the word justitia, the object of which is `that which is just. Hence their mistake.
48. We have to conclude that historians of rational Right must consider the authors of the second period as divided into two great classes. All of them are working to establish the concept of this science and to indicate it in such a way that it is not confused with ethics or with other connected sciences. One class, however, errs through lack of distinctions; the other through excess of distinctions and abstractions. The first class of authors treats the doctrines of Right as intermingled and mixed with the doctrines of morals; one set of teachings is exchanged for the other. The second class cuts off the doctrines of Right from those of morals so crudely that every communication and relationship between these sciences would be destroyed; the knife of this method would bring nothing but death to these sciences. On the one hand we find Right larded by elements which do not belong to it; on the other hand, Right is made to starve. Authors who support the final death and burial of Right are those who, if you wish, date from Thomasius.
Notes
(32) Cf. his Sistema del Diritto naturale, Jena, 1765, and Saggio sui principi del Diritto naturale.
(33) 1625 is the date of the first Paris edition of his De jure belli et pacis.
(34) The first edition of his Jus naturae is dated 1740. Others make the third period begin with Christian Thomasius's Fundamenta juris nat. et gentium, Halle, 1705.
(35) In II-II, q. 57–120. Even these ideas are in part deduced from preceding writers going back as far as Aristotle.
(36) Grotius deals directly only with the `right of nations'.
(37) Jo. Oldendorp, Isagoge, seu elementa introd. jur. nat. gent. et civ. Col. Agripp., 1539.
(38) Nic. Hemming, De leg. nat. methodo apodict, Vit., 1564.
(39) Matt. Stefano, Method. tract. de arte juris, Gryisw., 1615.
(40) Alberico Gentile, born 1551 in Castel San Gennasio, in the Marche d'Ancona, wrote a number of books, among them De jure belli, libri tres. Hanau., 1598, in 8.
(41) Thomasius elevated this principle to the level of a maxim.
(42) They were, according to the barbarous, but effective expression of Senkenberg, a Jus civile naturalisatum [civil law naturalised].
(43) Another defect that can generally be observed in those who undertake to write `literary histories' is that they do not distinguish `the history of the science', which consists in describing the development of ideas (the most difficult and profound part of their work) from the `history of the influence exercised by authors on the development of the science itself.'
(44) Zeiller, Diritto privato, 37.
(45) Ibid.
(46) Eine Todtsschlagsmoral.
(47) Illud enim in opere nostro dicitur esse justum, quod respondet secundum aliquam aequalitatem alteri; puta recompensatio mercedis debitae pro servitio imprenso. Sic ergo justum dicitur aliquid, quasi habens rectitudinem justitiae, ad quod terminatur actio justitiae, ETIAM NON CONSIDERATO QUALITER AB AGENTE FIAT (S.T., II-II, q. 57, art. 1).
(48) S.T., II-II, q. 58, art. 1.
(49) S.T., II-II, q. 57, art. 1.