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The Essence of Right

INTRODUCTION

V.

The division of natural Right

54. In this way, the concept of Right as science seems to be determined exactly because the concept of right as a faculty has been determined exactly. The treatise must in fact begin from the concept of right as a faculty because only knowledge of this concept enables us to know what Right is as science. As we have said, Right as science is nothing more than `the doctrine, reduced to its principles, of right as a faculty. From this source also, that is, from the correct concept of right as a faculty, springs the division of the science of Right. But in order to go forward clearly, we must first penetrate more deeply the understanding of the concept of the faculty we call right.

55. By `faculty we must not understand simply a physical aptitude for action, but a permission or authority proceeding from the jural law. In order to avoid confusion on this point, I thought it best to substitute throughout the book the word `governance for `faculty, which is normally used in the definition of right. `Governance seems to express better the authority coming from the law. I must repeat that right does not consist in physical action, but in action carried out under the safeguard of the law which forbids others to interfere with that action.

Substituting `governance for `faculty helps to avoid another possible misunderstanding which could easily be caused by the normal expression. The word `faculty seems to signify a mere potency of action rather than an action itself. But right, as we know, is also inherent to actions. The word `governance seems to me suitable for expressing even this facet of right because `governance includes the concept of authority. It does not entail merely a potency, but properly speaking a quality also, that is, a quality both of the potencies and of the acts of these potencies, and of the experiences comprised in these acts.

Right is not something potential, but a quality of actions. This is clearly indicated by the Italian word `diritto [and the English word `right] which corresponds to the Latin rectum from which `diritto [and `right] was originally transcribed. Just as the `rightness of the direction of a line is properly speaking the quality of a line, so `right is the quality of an action. I call this quality `jural in order to separate it from all other qualities, and by `jural quality I mean, therefore, the relationship that the natural or the positive law possesses with that action. This relationship consists in the protection accorded to the action against all who might wish to impugn it. Right is a jural governance, that is, an activity protected by the law (60) against those who impugn it.

56. It is clear now that if we could classify all activities protected by the moral law, and place them in the most perfect logical order, we would have succeeded in describing from its divine roots and as it were delineating in a wonderful schema the ideal proper to jural activity. In this case, we would have put the minor classes of activity below the major classes, and all of them under the most general of all activities; at the same time our understanding would have proceeded logically without omissions or errors of any kind. Our description would have provided the complete, infallible norm of life for the individual, the family, civil society, the State and the human race in a jurally perfect manner. All jurally innocent actions would have been traced for these categories of persons. Nothing more would be needed at this point than to realise those ideal actions held up for universal contemplation.

57. Nevertheless, this ideal of right from which individual and associated persons would be able to deduce their form of life, and live together jurally, would still not embrace the entire doctrine of Right. At the head of that marvellously configured schema of all rights, that is, of all jural activities, would stand the first and most general activity from which all others descend and branch out. It would still be necessary, therefore, to justify this first activity as governance, and to justify every other activity springing from it.

In other words, the principal work of philosophy would still have to be carried out: the authority of the law sanctioning this activity would still have to be shown. And if we were to consider this as the work of ethics (which properly speaking reasons about laws)(61) the relationship between eudaimonological activity and the law that seals and sanctions it would still have to be demonstrated. Such a work is outside and anterior to the ideal of right; it is the root of the ideal of right. It consists in the analysis of the constitutive elements of right and is, I maintain, anterior to the ideal which can be realised in the external actions of individuals, nations and the human race itself.

58. Consequently Hegels first division of the philosophical science of Right appears to me to be limited and over-restricted by an unnecessary demand for regularity. He posits three parts to this science, the ideal, the conception and the external realisation of right, and requires the second to come from the first, and the third from the second. But that part which is anterior to the ideal of right, that part which is the source of right and the authority of right, or rather which produces the feeling of right, is so proper to the mind and the spirit that it never abandons its primeval throne. It does not manifest itself outwardly through jural and historical actions, but only through symbols, representations and words.

59. I grant that individuals and nations manifest and realise in their interaction the conception they have of their own rights, and I grant that their subjective conception of mutual rights can be considered as the ideal itself of right (objective right) in so far as this ideal falls within the subject by which it is received and limited. Nevertheless, a distinction has still to be made between the ideal, exemplary right of individual actions, or of several actions bound together, and the primitive concept which includes in its simple, universal embrace all possible examples, through which alone it becomes the norm for action. Exemplars themselves have to be distinct and separate (just as actions and their groupings have to be distinct and separate) in order that the latter, like seals and models, may be able to conform to their exemplars. Plato, in his wisdom, was himself aware of this distinction when he posited eidea and paradeigmata.

60. There is a part of Right, therefore, which as higher and more sublime precedes the ideal of right and explains it. This reason is never manifested externally, never presented in history. Nevertheless, it is the invisible seed from which the very ideals of all jural actions are produced and draw their own proper substance. This is the part of Right which deals with the essence of the concept, that is, the principle common to every right (essence, concept and principle are more or less the same thing here).

61. We also need to note that neither the ideal of right nor the reason behind this ideal differ from the conception of right in so far as this conception is just and perfect. The erroneous part of our thoughts about right cannot be called a conception, but only a persuasion of right. When we speak of a true conception of right, therefore, we can indeed think the reason and the ideal of right first as a mere object, and then as an object intuited by an intelligent subject.

62. This distinction, however, rests on an abstraction, not on a fact. The concept of an object is essentially a contradiction in terms if the object is thought of as never conceived by a mind. The word `object itself expresses a relationship with an intelligence, whose term and light it is.(62) It is true that the intelligence to which all ideal objects are referred is essentially the divine, not the human intelligence.(63) Consequently an idea and an ideal can exist without their being communicated to limited, human minds. If, however, the idea and the ideal are communicated to human minds, they cannot undergo any modification whatsoever because reasons and ideas are all immutable. The conception of right is either the reason itself of right, that is, the idea itself of right, or it is not in fact the conception of right. (64) The contingent act of the human mind, although added to the idea, does not alter the knowledge of right in any way; it is something extraneous added to this knowledge.

63. Nevertheless, the conception of right differs from the reason and the ideal of right in so far as the conception is limited in a way unknown to the reason and the ideal. The latter are per se unlimited and perfect, but communicated to the human mind in a limited way relative both to their extension and to the intensity of light with which they manifest themselves. If we consider the conception of right as a share or communication in the reason and the ideal of right, we can no longer regard this reason and ideal as having a place in the division of the knowledge of right. Looked at in this way, they remain totally outside the knowledge to which only the conception can belong. In other words, the reason and the ideal of right are part of the knowledge of right only in so far as they are contained in this conception.

64. We can, however, think that besides the things which the human mind actually conceives about right, there may be something which it cannot reach because of its limitation. This would allow us to posit a certain negative knowledge or cognition about the reason of right and its ideal.

65. I can now summarise the thoughts which the human mind can have about rational Right. I have examined these thoughts, which include erroneous persuasions, and find that they can be reduced to the following major and minor classes:

66. And here we have to pause to compare the `history of philosophical Right with the `doctrine of Right itself. This will enable us to perfect and clarify the division already indicated in the doctrine of Right.

Our science of Right can have for its matter only right as conceived and thought by us. If only one thinking mind existed, the schema I have outlined above would contain all that could be written about the rational Right under consideration. But there are in fact many minds which think about right. Every generation has thought about it, and every human being thinks about it now. Some have considered it reflectively, in an ordered fashion, and scientifically. As a result, we have different kinds of conceptions and persuasions about right. Naturally enough, this provides ample opportunity and material for writing innumerable books in which opinions and systems are brought together. In other words, there is ample scope for writing histories of thought about right. Let me offer a few hints about the division of this kind of history.

67. First, it can be general or limited. It is general if it deals with all that remains of human thought about right; it is limited if it deals only with certain parts of this thought. In the case of limited histories, the matter may concern either common opinions about right, or simply scientific systems. If common opinions are dealt with, the history may extend to all nations, to several nations, or to one alone; to the whole of time or to certain periods. Scientific history may take as its subject all systems, or those which have appeared in certain parts of the world or at certain periods of time, or even a single system. It is obvious that `histories of human thought about right can vary indefinitely in their range. But they can also differ relative to the way in which they are carried. This also has to be considered.

68. It is clear that each intelligence judges the opinions about right espoused by other intelligences according to the norm or rule of right conceived and thought by the one who judges. He or she has no other criterion with which to judge the matter. Consequently, each intelligence which may be that of an individual, or a society of individuals such as a school of thought, a court of justice, a legislative assembly takes as the rule and ideal of right whatever right they use and approve.

Each philosopher, legislator or historical critic of Right can therefore divide the doctrine of right into two, as far as he is concerned. On the one hand, he possesses the ideal and the conception of right (the mentally conceived part of right). He raises his own system to the dignity of ideal, and considers the opinions of others as conceptions which approximate, more or less, to his system. Nevertheless, it remains certain that here we are dealing with only a relative and subjective ideal, not with one which is absolute and objective. The absolute, objective ideal is unique; relative ideals are as many as there are intelligences to embrace some doctrines of right and discard doctrines proposed by others. This reflection allows us to classify the histories of thought about right according to the way in which the matter has been treated.

69. The history of any doctrine can, therefore, be written in two ways: opinions and systems can simply be expounded, or one doctrine, already embraced by the writer, can be used as the rule and ideal for judging the opinions and systems of others. Recalling the distinction we have already made between a simple jural opinion and a system, and considering that the causes prompting the change and succession of opinions and systems depend upon certain laws and conditions to which humanity is subject, we have the following division of the history of the doctrine of right:

70. It is true, of course, that one system of right can come closer than another to the true, perfect system. But in this case a distinction has to be made between the greater or lesser proximity to perfection and the external reasons which cause us to presume some kind of proximity. Progress can be made both in proximity to perfection and in the external proofs and presumptions in its favour. The nearness of a system to the perfect science of Right can be known only by the individual minds which perceive its intrinsic reasons; but the progress of ever greater external presumptions, which renders the system more acceptable, depends upon the level of authority which approves this progress.

71. The level of the authority depends upon the number of those who support it and their own individual grade of authority. But each individuals authority itself depends upon intrinsic reasons, or on the weight of some other authority which has to be decided and calculated in the same way. The system itself is capable of becoming more authoritative as it is shown to be older, more diffused and more commonly held. Finally, there is no doubt that the authority of the human race as a whole, which unites in itself everything present in human understanding, is the highest human authority.

That author who, a few years ago, considered that the criterion of certainty was to be found in the authority of the human race actually restricted his views to external presumptions in favour of a system without noticing the intrinsic progress knowable only to individual minds towards the perfection of the system. Nevertheless, this intrinsic progress gradually harmonises with that of the highest human authority in such a way that the separate judgments of individual minds and public opinion gradually draw closer across the centuries until they touch. Thus, as time passes, critical histories of human thought about right inevitably acquire a firmer base because the relative ideal that philosopher-historians take as the norm of their judgments will always improve in perfection and authority.

72. I must now ask the reader to reflect upon the ample field presented to writers by the history of jural opinions, and to fix his attention simply on the great mass of evidence from which those opinions can be gathered, or even upon one single kind of witness, that is, human actions. From this point of view, all human history testifies to the opinions of these generations. In a word, history, as Hegel observes, is the realisation of right, of the conception of right.

73. But history is not the realisation of right alone. Human actions are directed simultaneously by many rules offered to human beings by their intelligence. Only one of these rules is the jural rule, the principle of right. The historian who investigates human facts under this jural respect, that is, investigates how right, which consists in mental conceptions and persuasions, is carried out in act, pursues his studies from a single point of view. This aspect differs, for example, from that of the person who studies history relative to ethical or eudaimonological or religious opinions which, by dominating human intelligence at various periods and amongst various nations, regulate human activity.

Whoever decides to undertake a description of human opinions about right must keep in mind that the realisation of right is not of itself history, nor the only characteristic impressed upon human actions. Indeed, that realisation is seen only in certain attitudes of human actions portrayed by history. The historian who loses sight of this will come to believe that history is restricted to his view-point, and that he alone is its vindicator and safeguard.

74. We can now see how close to one another are the history of right and the doctrine of right. They have many elements in common: opinions and jural systems described by history contain a great deal of truth, all of which necessarily forms part of the doctrine of right if this doctrine is perfect; finding these fragments of truth scattered amongst the history of opinions and systems produces, as we said, a favourable persuasion about the doctrine of right together with a guarantee against error and a weight of authority that must bring the doctrine to the attention of all.

75. We can now continue with our description of the division of the doctrine of philosophical right. So far, we have distinguished two parts in this doctrine, the first centred on the supreme jural reason, the second on the relative ideal of right. The ideal consists simply in the derivation of rights from the supreme reason. This derivation serves as a type for human actions in so far as they are clothed with some jural quality. The derivation of rights from their principle is, for the author who makes the derivation, the ideal. It is relative because he cannot see anything better.

76. We now have to add another two parts to our division. They originate as follows. There is only one principle of right, but the special rights derived from this principle vary because the exterior titles on which they are founded also vary. In Right, as in ethics, it is necessary to distinguish the law from the titles which bring it into act.(66) The law is entirely idea; the titles are facts. The law is idea, and nothing more; the titles are facts which, as they change, necessarily require a change in the application and actuation of the law. Consequently, derived right changes also. But these facts, which become titles of right by means of the jural law applied to them, are of two kinds: specific facts and individual facts.

These two classes of facts must be carefully distinguished: specific facts are ideal, and constitute the titles of ideal and possible rights which pertain to the theory of right; individual facts are real and constitute the titles of real rights, which pertain to the extreme realisation of right. For example, the marriage contract is the title of right to conjugal fidelity. But this title can be conceived as specific or as individual. If the marriage contract is conceived simply as possible, it is specific; in this case it is not simply a fact, but in truth a species of fact. Here there is no question of indicating Jane and Mary, or any real people whatsoever, in the marriage contract. Only if the contract is conceived as individual, is it considered as realised between two subsisting persons.

77. But two kinds of jural questions, one about rights in theory, the other about rights in act, spring from the distinction between specific and ideal facts, and individual and real facts. Questions about theoretical rights consider the existence of possible rights; questions about rights in act decide effective cases and judge real rights. The first kind of questions asks what the specific rights are; the second asks whether John, a real person, possesses the right which he claims to have. Everything that can be written about derived rights, therefore, can be divided into two vast areas, one embracing theory, that is, the specific titles of rights, the other the realisation of rights, that is, the individual, real titles of rights. Philosophers and legislators write about the first of these two classes; judges, lawyers, barristers and diplomats about the second.

Jural writings of the second class are not concerned with theory, but are decisions resulting from the application of theory (which is founded on specific titles) to real titles. Jural science can, therefore, be divided, as we have in fact divided it,(67) into pure Right and applied or actuated Right. There is no universal, lasting interest in writings about actuated, realised right unless the cases decided refer to the human race as a whole and to succeeding generations. The writings of lawyers and the decisions of tribunals in private affairs do not normally merit much attention; but the books and writings relative to the interests of rulers and nations form part of great libraries and should have a place in any encyclopedia of Right. Nevertheless, the two classes of writings are enclosed in the same sphere, as we have said.(68)

78. We should notice, however, that considerable ability is required in applying pure Right correctly to real cases; such an application is the proper work of the expert in jurisprudence. This ability, the art of jurisprudence, although fully attained only with practice, possesses like all other arts certain general rules which together make up a Theory of the art of the application of Right.(69) This holds a middle place between pure Right and applied Right and is used to derive the latter from the former. We now have four parts of the doctrine of right: the principle of Right, derived Right, the art of applying pure Right to real facts, and applied Right. The first three parts are included in the philosophy of Right; the first two parts constitute the science of rational Right.

79. We still have to say something about the division of rational Right, the principal argument of this present book. We have to describe the more special parts of rational Right, and discover how the principle of Right and the derivation of special rights, of which we have already spoken, are subdivided.

The first of these two parts, which deals with the principle or supreme reason of Right, takes its subdivisions from the elements constituting the essence of right. These elements will be enumerated in the treatise itself.

The second part, the derivation of special rights, would seem to require as its initial step an examination of the way in which rights are logically derived from the principle, and then an examination of derived rights. But although the separation of these two parts, abstractly considered, seems decisive, its length presents difficulties. The writer cannot deal satisfactorily with the way in which rights are derived from their principle without deriving all of them from that principle. On the other hand, rights which have already been derived cannot be expounded without indicating how they were derived. These two parts cannot be separated, as far as I can see, and I intend to deal with them together.

80. However, one extremely important division must be posited. I have already distinguished ideal from real facts. When considered in relationship with the jural law, the former constitute the ideal titles of rights, and give rise to the theory of rights; the latter constitute real titles, and give rise to the subsistence of rights.(70) I said that real facts and therefore real titles are varied and contingent, that they may and may not be, that they may be any one of a number of things. The principle of right, however, is one, and always the same. But I did not say whether ideal facts which constitute ideal titles are subject or not to variation. This investigation is important and necessary if we are to complete the subdivision of derived Right.

It is in fact useless trying to get to the bottom of the matter without thoroughly understanding the logical doctrine which acknowledges the presence of several modes in the same species of things;(71) these modes are not to be confused with individuals of the species. The species contains in each of its modes all possible individuals, that is, an indefinite number of individuals. With this distinction clearly in mind, it will be easy to understand how a specific fact, which puts in being a specific right whose title it forms, is able to receive various modes in different periods and states of the human race modes which then modify the specific title based on the specific fact.

81. Let us take as an example the title we have already used, that is, the marriage contract. From the point of view of the ideal, the marriage contract is not a single fact; it is a species of fact, or as we called it a specific fact. But this marriage contract, although always remaining specifically the same, can receive, and has received various modes at different periods in the life of the human race. I am not speaking now of unlawful, but lawful modes. The mode imposed on the marriage contract by the law of perfection, by the Gospel, is monogamy. But the Hebrew legislator had permitted this contract to receive the mode of polygamy. Can the reception of this mode be justified or excused according to natural Right?

82. My answer is this. Perfect love is monogamous. If human nature were perfect, it would be impossible for the marriage contract to receive any other lawful mode than this. The Gospel, therefore, which raises the human race from the depth to which it has sunk and bears it to the heaven for which it is created, had of necessity to lead marriage also to its perfection. But before the Gospel, human beings were imperfect, and capable of imperfect love in so far as they were seduced by the delightful illusions of the senses. As one acute commentator put it recently: `Love is in inverse relationship to lust. But the intrinsic substance of the title on which the rights arising from the marriage contract are founded is simply natural love when this substance is considered as a right of nature.

Natural love, however, esteems the uniqueness of its object to a greater or lesser degree. If this love, considered as pertaining to nature in general, that is, as relative to the actual state of a given people, is not such that it demands uniqueness and exclusiveness in its object, polygamy will undoubtedly be permitted as long as such a state lasts amongst the people. It will be allowed, even under an inspired legislator, as long as he lacks the power to remove the natural defect inherent in the people the author of the Gospel had this power, but it was not possessed by anyone before him. Polygamy will be permitted, I maintain, ad duritiam cordis, that is, through lack of love in the human heart. And the heart is said to be `hard because it cannot love sufficiently to conquer all the caprices of lust.

83. As far as I can see, this example shows clearly that specific rights change according to the periods in which the human race exists. It is not sufficient, therefore, to establish a single mode of these rights, which have to be considered in the entire course of a nations history a difficult, immense work indeed(72) which is certainly too much for my own weak forces and would require an entire association of learned jurists, an entire historico-philosophical school. But perhaps I could remind Italy of her ancient calling?

84. Nevertheless, I cannot entirely omit in a work which I have dared to call The Philosophy of Right (although the benevolent reader will kindly take this as an indication of the tendency of the book rather than a strict promise on my part) the part which deals with the changeableness of specific rights springing from the changeableness of the titles on which they are founded.

85. The need for clarity, therefore, prevents my dealing with all the modes of a specific right when I deal with the specific right itself. But it will help if we divide `derived Right into two parts, one of which will deal with the derivation and description of the species of these rights. These species will be indicated according to one of their modes, and if possible according to the best of these modes. In other words, I shall deal with the right as it is expressed in modern times and in our nation. The other part will show the variety of modes in which that species of right can be presented in any part of the human race.

86. For the moment, however, I have to exclude the second part. Its importance and dignity prevent my dealing with it as adequately as it deserves. I shall, however, consider the first part very carefully. Its various branches can then serve once more as a schema and index of the second part.

87. In the treatise on the derivation and classification of rights we first discuss the distinction between connatural and acquired rights. The two most general modes of acquisition depend upon the act of a single person and the acts of two or more persons. Both kinds of acts can either bring into being entirely new rights or modify already existing rights. Moreover, two or more persons can act in concert without the establishment of a true contract in such a way that their simultaneous acts can result in titles of right. These persons could also make true contracts which in affecting only the objects of right have the effect of modifying existing rights, but in affecting the subjects themselves of rights bring new rights into existence. Such contracts are social contracts and the source of social Right, a vast branch of the doctrine of derived rights. This sketch enables us to see that social Right, despite its immense breadth and importance, is not scientifically speaking one of the first two parts of the doctrine of Right (although it is often considered as such). The whole of Right is divided into private and public right, and social Right is rather a branch of right growing from the other branches which precede it.

88. I shall speak later about what we call `private Right as distinct from `public Right because this terminology is not altogether correct. For the moment it is sufficient for me to insist on something that springs from long consideration: if we are going to disentangle the intricacies of human rights, it is indispensable to abandon useless abstractions and fictitious entities, which result from the way we conceive things mentally, in order to establish the principle that `the subject of every right is always the individual. We have to reduce to individual rights even those rights which we call, for the sake of abbreviation, `social rights. There are not two subjects, the individual and the social body, which are capable of right, but a single subject, the human individual. However, this does not prevent our using the names individual Right and social Right if we find this convenient. The importance of this clarification of ideas will be seen at length in its appropriate place.

89. If we now add the division of `social Right, and make a synopsis of what has been said above about the more general divisions of the doctrine of Right, we have the schema shown overleaf.

Notes

(60) We always refer to a law which obliges morally. Consequently we could also say `protected by the moral law', indicating as moral all the laws which induce moral obligation.

(61) Cf. PE, 11.

(62) I have touched upon the synthesism intrinsic to the nature of things in several places. Amongst them cf. PE, fn. 19.

(63) Cf. CE, 1060.

(64) Cf. Rinnovamento della Filosofia, ecc., bk. 3, c. 39–47, for what I have written on the immutability of ideas.

(65) The word `conception' has two meanings in common usage. It indicates both the act with which something is conceived, and the thing conceived. Normally, it indicates the thing conceived; but in its proper meaning it expresses the act with which concepts are formed. I use it in this sense here.

(66) Cf. Storia comparativa de' Sistemi morali, c. 7, art. 7.

(67) Cf. SP, bk. 1, c. 3.

(68) The real rights of governments or States belong to history in so far as they are subsistent facts. Such history could be entitled `History of real right'. But as arguments in a controversy, they belong to `applied Right' in the same way as collections of famous trials, etc.

(69) We made the same comment about moral laws in the introduction to CS.

(70) I use the word subsistence constantly to indicate the factual reality of right. The word existence is used to indicate both the real existence (subsistence) and the ideal existence (possibility).

(71) Cf. The Origin of Thought, 646-659.

(72) As we have already seen, `the history of opinions and jural systems' has something in common with the `doctrine of Right'. In the same way, `the humanitarian history of Right', as we call it, has something in common with this part of `the doctrine of rights' which deals with the various modes according to which specific rights can come into being. However, the doctrine depends upon the history only to the extent that the history is used to stimulate the philosophical imagination in its quest for possible cases (although this imagination is not limited to historical cases). History, on the other hand, describes only the facts in which the modes of right are encountered, or at most the causes of these facts in the different conditions of the human race.

Introduction VI.