The Essence of Right
INTRODUCTION
IV.
The extension of rational Right
49. Those who err by unduly enlarging Right offend against the UNITY of this science; those who err by unduly restricting it offend against its UNIVERSALITY. But these are the two characteristics which we have assigned to true philosophy.(50)
50. The first defect was present in classical times, but not the second, which is far more subtle, far more harmful, and present today. It is easy, in fact, to recognise that in recent times natural Right seems to have been stripped of its most noble element. We are now left with a travesty of Right, which has been confined to external actions and consequently materialised. As a result, Right is necessarily restricted to material things, although to be coherent it also extends to animal actions. It cannot, however, reach up to God. And so the rights of the supreme Being are necessarily banished from a brutalised and atheistic science.
51. This consequence of the principle established long ago by Thomasius was set out in cold terms in the last century, which was entirely devoted to consequences. Everything noble and high-minded, even in pagan antiquity, would certainly have baulked at this. Ancient philosophy recognised no other Right than that which came from God himself; to deny the divinity was to deny Right.
52. Let me offer the sole authority of Cicero as an example of the good sense of antiquity in constantly deriving Right from God. I quote him as a reliable witness to Greek philosophy rather than as a philosopher himself. He knew how to discern the teachings of the Greeks, which he gathered together and recorded in such a brilliant fashion. Allow me, therefore, to quote at length a passage in which this ancient Italian sage leads Right back to its divine source. What he says will also serve as a preface to the present work which deals with the science of rational Right under the title The Philosophy of Right. Cicero therefore, with his broad, universal view of things, derives Right from human nature, and shows that both have their origin in God himself.
This provident, wise, many-faceted, sharp, remembering animal, full of reason and counsel, whom we call `man, was generated at a certain level of excellence by the supreme God.(51) We see animals of all kinds and species, but only one of them shares in reason and thought, qualities lacking in all the others. But I ask you: what is more divine than reason, not only in human beings, but in the whole of heaven and earth?(52) And reason, when rendered complete and perfect, is rightly called `wisdom. There is nothing better than reason either in human beings or in God;(53) humankinds first society with God is that of reason.
But it is necessary that those who have reason in common should also have right reason in common, which is the law. We must, therefore, recognise that human beings and God are associated in the law.(54) And those who share together in law, also share together in right (55), just as those who have these things in common must be considered as belonging to the same city. If human beings obey the same governments and the same powers, they should much more obey this heavenly order and divine mind and almighty God which is reason.(56) Today, more than ever, this entire world of ours should consider that there is one city common to the gods and human beings. What happens in any city, where the orders of various levels of society are distinguished according to male descent, also takes place in this city in so far as people actually consider themselves as possessing descent and birth from the gods.(57)
When we study the entire nature of things, we must come to realise (and this is indeed the case) that after endless movements and revolutions in the heavens a certain stage of maturity was reached for planting the human race whose seed, scattered and sown across the world, was increased by the divine gift of an intelligent spirit. Other things, too, formed part of human life, but were considered as the mortal, frail and weak things that they actually were. The spirit, however, was generated within us by God, and has provided us with descent, genus and kinship (as we can rightly call it) with the heavenly beings.
Amidst so many kinds of animals, therefore, none possesses any knowledge of God except ourselves. And amongst human beings there is no race so untamed and wild that it does not realise that there must be a God, even if they do not know which God should be theirs. This shows that human beings, who alone know God, remember and as it were understand their genesis. Recall, too, that virtue which is the same for human beings and God, is not found in any other generation of things. Virtue is simply nature as perfect in itself and at its highest point. There is therefore a likeness between human beings and God.(58)
Such is the ample, broad way in which the greatest minds conceived Right. For them, it was indicated and founded in the nature of human beings this nature possessed reason, which they understood as the trace of God and hence as the primary source, as well as the first subject, of all Rights.
53. If, therefore, we want to profit by the praiseworthy proposal of recent philosophers who have worked hard, precisely and wisely to separate the science of Right from all other sciences, we have at the same time to grasp with the ancient sages the greatness and solidity of what we see spontaneously, and the fullness of thought which always adheres to the substance of things. It is true that the ancients did not pay as much attention and energy to carrying out particular reflections as modern philosophers do, but they never lost their grip on what was essential to every reflection. I think we can respect both aspects of thought by holding carefully to the concept of Right which has already been given. Right consists, as I said, `in a eudaimonological faculty protected by the moral law.
Such a faculty is first found in the supreme Being. Human beings and the God from whom they receive their being share the same thing. Our book, therefore, has to deal with rights in their divine source, although briefly, as well as in their human derivation. Such a view of things embraces all rights while distinguishing carefully between ethics, which is concerned with duties, and natural Right, which deals with rights. The matter of ethics is essentially moral; the matter of natural Right is eudaimonological, as we said, but informed by its relationship with the moral law.(59)
Notes
(50) See the Prefaces to vol. 1 and 2 of the Opuscoli filosofici (Milan, 1827–1829), and the Preface to the Nuovo Saggio intorno all'origine delle idee.
(51) Here we can see how the supreme God, that is, the true God, was acknowledged even by the pagans.
(52) Note that the whole of antiquity recognised a divine element in human intelligence.
(53) Every portion of intelligence in human beings is found supremely in God. Cicero himself observes that while God is reason itself, human beings only share in reason.
(54) The eternal law is not different from the divine nature: it is necessity in God and obligation in human beings.
(55) This has to be well understood: human beings cannot fully correspond to God's rights, that is, they cannot give God that which he merits. See St. Thomas, S.T., II-II, q. 57, art. 1, ad 3.
(56) I have explained, in Storia de' sistemi morali, how this phrase can be rightly interpreted.
(57) Ernest thinks that here the text is corrupt. But I think I have merely rendered it with the meaning proper to the text.
(58) Laws, 1, c. 7: 10.
(59) I am glad to have the opportunity here of showing how much I appreciate the sound judgment of Prof. Baroli who was perhaps the first in Italy, after Egger in Germany, to propose the true distinction between natural Right and ethics.
He wrote: `Of its nature, Right is properly speaking concerned with rights alone (as Egger notes in §6 of his Private Natural Right) to which, for the sake of clarification, are added as corollaries, or as an appendix, jural rights. Ethics, therefore, is concerned only with the exposition of duties, of all duties, however, and consequently with jural duties' (Diritto naturale privato, §5). I would only add that it is not true to say that `jural rights' have to appear in natural Right merely as corollaries or as an appendix. This, I think, is not sufficient.
For me, right exists only in virtue of duty which imposes on other human beings respect for the eudemonological faculty that constitutes the matter of Right. We agree, therefore, that natural Right deals with rights alone. But in speaking of rights, natural Right must necessarily deal with duties in other human beings. As we said, `a faculty becomes right in virtue of this relationship with such duties.' Nevertheless, rational Right does not deal with these jural rights in the same way as ethics, which considers them as elements of human morality and deals with them in their entire extension.
Rational Right on the contrary considers jural rights merely in the relationship they have with rights, that is, in the relationship which is the form of jural rights. — A similar observation can, I think, be made about the way in which Rotteck (Lehrbuch des Vernunftsrechts 1. 1. B, §13) distinguishes Right from ethics. According to him that Right is a merely speculative science; ethics, on the contrary, is practical (the usual abuse of this word). Right does not impose obligation; ethics does. I would answer that something can be moral (or, as they say, practical) without its being obligatory. There are three forms of moral actions: that which is licit, that which is obligatory, and that which is supererogatory. A licit action is characterised by innocence, that is, it is permitted by the law. Right is not simply licit, as we shall see; it is also protected by the moral law. It has an essential relationship to the law and is thus characterised as moral.