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 GAYLORD 
 
 
 
 PRINTED IN U.SA 
 
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 http://www.archive.org/details/cu31924017857370 
 
THE MODERN LEGAL PHILOSOPHY 
 SERIES 
 
 The Formal Bases of Law 
 
THE MODERN LEGAL PHILOSOPHY 
 SERIES 
 
 Edited by a Committee of the 
 ASSOCIATION OF AMERICAN LAW SCHOOLS 
 
 INTRODUCTION TO THE SCIENCE OF LAW. By Karl 
 Gareis of the University of Munich. Translated by Albert 
 KocouREK of Northwestern University. 
 
 THE WORLD'S LEGAL PHILOSOPHIES. By Fritz Berolz- 
 HEIMER of Berlin. Translated by Rachel S. Jastrow. 
 
 COMPARATIVE LEGAL PHILOSOPHY, applied to Legal 
 Institutions. By LuiGl Miraglia of the University of 
 Naples. Translated by John Lisle of the Philadelphia Bar. 
 
 GENERAL THEORY OF LAW. By N. M. Korkunov of the 
 University of St. Petersburg. Translated by W. G. Hastings 
 of the University of Nebraska. 
 
 LAW AS A MEANS TO AN END. By Rudolf von Ihering 
 of the University of Berlin. Translated by Isaac Husik of 
 the University of Pennsylvania. 
 
 MODERN FRENCH LEGAL PHILOSOPHY. By A. Fouillee, 
 J. Charmont, L. Duguit and R. Demogue of the Uni- 
 versities of Paris, Montpellier, Bordeaux and Lille. Trans- 
 lated by Mrs. F. W. Scott and Joseph P. Chamberlain. 
 
 SCIENCE OF LEGAL METHOD, SELECT ESSAYS. By 
 Various Writers. 
 
 THE FORMAL BASES OF LAW. By G. Del Vecchio of the 
 University of Bologna. Translated by John Lisle of the 
 Philadelphia Bar. 
 
 THE PHILOSOPHY OF LAW. By Josef Kohler of the Uni- 
 versity of Berlin. Translated by Adalbert Albrecht. 
 
THE FORMAL BASES 
 OF LAW 
 
 BY 
 
 GIORGIO DEL VECCHIO 
 
 Professor of Philosophy of Law in tfieUniversity of Bologna 
 
 TRANSLATED BY 
 
 JOHN LISLE 
 
 of the Philadelphia Bar 
 
 WITH AN EDITORIAL PREFACE BY 
 
 JOSEPH H. DRAKE 
 Professor of Law in the University of Michigan 
 
 AND WITh INTRODUCTIONS BY 
 
 SIR JOHN MACDONELL 
 Professor of Comparative Law in University College, London 
 
 AND 
 
 SHEPARD BARCLAY 
 Former Chief Justice of the Supreme Court of Missouri 
 
 THE MAGMILLAN COMPANY 
 1921 
 
 All rights reserved 
 
Copyright, 1914 
 By the boston book company 
 
 01.Q7 
 
EDITORIAL COMMITTEE OF THE ASSOCIATION 
 OF AMERICAN LAW SCHOOLS 
 
 Joseph H. Drake, Professor of Law, University of Michigan. 
 Albert Kocourek, Professor of Jurisprudence, Northwestern 
 University. 
 
 Ernest G. Lorenzen, Professor of Law, University of Wisconsin. 
 Floyd R. Mechem, Professor of University of Chicago. 
 Roscoe Pound, Professor of Law, Harvard University. 
 Arthur W. Spencer, Brookline, Mass. 
 
 John H. Wigmore, Chairman, Professor of Law, Northwestern 
 University. 
 
 LIST OF TRANSLATORS 
 
 Adalbert Albrecht, North Easton, Mass. (Associate Editor of 
 
 the Journal of Criminal Law and Criminology). 
 Ernest BruNCKEN, Washington, D. C. (Library of Congress). 
 Joseph P. Chamberlain, Columbia University, New York, 
 
 N. Y. 
 
 William G. Hastings, Lincoln, Neb. (Dean of the Faculty of 
 
 Law, State University). 
 Robert L. Henry, Jr., Grand Forks, N. D. (Professor of Law in 
 
 the State University). 
 Isaac Husik, Philadelphia, Pa. (Lecturer of Philosophy in the 
 
 University of Pennsylvania). 
 Mrs. Rachel Szold Jastrow, Madison, Wis. 
 Albert Kocourek, Chicago, 111. (of the Editorial Committee). 
 John Lisle, Philadelphia, Pa. (of the Philadelphia Bar). 
 Mrs. Ethel Forbes Scott, State University, Urbana, 111. 
 
GENERAL INTRODUCTION TO 
 THE SERIES 
 
 By the Editorial Committee 
 
 "Until either philosophers become kings," said Soc- 
 rates, "or kings philosophers, States will never succeed 
 in remedying their shortcomings." And if he was 
 loath to give forth this view, because, as he admitted, 
 it might "sink him beneath the waters of laughter and 
 ridicule," so to-day among us it would doubtless resound 
 in folly if we sought to apply it again in our own field 
 of State life, and to assert that philosophers must be- 
 come lawyers or lawyers philosophers, if our law is 
 ever to be advanced into its perfect working. 
 
 And yet there is hope, as there is need, among us to-day, 
 of some such transformation. Of course, history shows 
 that there always have been cycles of legal progress, 
 and that they have often been heralded and guided by 
 philosophies. But particularly there is hope that our 
 own people may be the generation now about to exem- 
 plify this. 
 
 There are several reasons for thinking our people 
 apt thereto. But, without delaying over the grounds 
 for such speculations, let us recall that as shrewd and 
 good-natured an observer as DeTocqueville saw this 
 in us. He admits that "in most of the operations of 
 the mind, each American appeals to the individual exer- 
 cise of his own understanding alone; therefore in no 
 country in the civilized world is less attention paid to 
 philosophy than in the United States." But, he adds, 
 "the Americans are much more addicted to the use of 
 general ideas than the English, and entertain a much 
 
vi GENERAL INTRODUCTION 
 
 greater relish for them." And since philosophy is, 
 after all, only the science of general ideas — analyzing, 
 restating, and reconstructing concrete experience — 
 we may well trust that (if ever we do go at it with a will) 
 we shall discover in ourselves a taste and high capacity 
 for it, and shall direct our powers as fruitfully upon law 
 as we have done upon other fields. 
 
 Hitherto, to be sure, our own outlook on juristic 
 learning has been insular. The value of the study of 
 comparative law has only in recent years come to be 
 recognized by us. Our juristic methods are still primi- 
 tive, in that we seek to know only by our own experi- 
 ence, and pay no heed to the experience of others. 
 Our historic bond with English law alone, and our con- 
 sequent lack of recognition of the universal character 
 of law as a generic institution, have prevented any wide 
 contact with foreign literatures. While heedless of 
 external help in the practical matter of legislation, we 
 have been oblivious to the abstract nature of law. 
 Philosophy of law has been to us almost a meaningless 
 and alien phrase. "All philosophers are reducible in 
 the end to two classes only: utilitarians and f utilitari- 
 ans," is the cynical epigram of a great wit of modern 
 fiction.* And no doubt the philistines of our profession 
 would echo this sarcasm. 
 
 And yet no country and no age have ever been free 
 (whether conscious of the fact or not) from some drift 
 of philosophic thought. "In each epoch of time," says 
 M. Leroy, in a brilliant book of recent years, "there is 
 current a certain type of philosophic doctrine — a phil- 
 osophy deep-seated in each one of us, and observable 
 clearly and consciously in the utterances of the day — 
 alike in novels, newspapers, and speeches, and equally 
 
 ' M. Dumaresq, in Mr. Paterson's "The Old Dance Master." 
 
GENERAL INTRODUCTION vii 
 
 in town and country, workshop and counting-house." 
 Without some fundamental basis of action, or theory 
 of ends, all legislation and judicial interpretation are 
 reduced to an anarchy of uncertainty. It is like mathe- 
 matics without fundamental definitions and axioms. 
 Amidst such conditions, no legal demonstration can be 
 fixed, even for a moment. Social institutions, instead 
 of being governed by the guidance of an intelligent free 
 will, are thrown back to the blind determinism of the 
 forces manifested in the natural sciences. Even the 
 phenomenon of experimental legislation, which is pecu- 
 liar to Anglo-American countries, cannot successfully 
 ignore the necessity of having social ends. 
 
 The time is ripe for action in this field. To quote the 
 statement of reasons given in the memorial presented at 
 the annual meeting of the Association of American Law 
 Schools in August, 1910: — 
 
 The need of the series now proposed is so obvious as hardly to 
 need advocacy. We are on the threshold of a long period of construc- 
 tive readjustment and restatement of our law in almost every depart- 
 ment. We come to the task, as a profession, almost wholly untrained 
 in the technic of legal analysis and legal science in general. Neither 
 we, nor any community, could expect anything but crude results 
 without thorough preparation. Many teachers, and scores of 
 students and practitioners, must first have become thoroughly 
 familiar with the world's methods of juristic thought. As a first 
 preparation for the coming years of that kind of activity, it is the 
 part of wisdom first to familiarize ourselves with what has been 
 done by the great modern thinkers abroad — to catch up with the 
 general state of learning on the subject. After a season of this, we 
 shall breed a family of well-equipped and original thinkers of our 
 own. Our own law must, of course, be worked out ultimately by 
 our own thinkers; but they must first be equipped with the state 
 of learning in the world to date. 
 
 How far from "unpractical" this field of thought and research 
 really is has been illustrated very recently in the Federal Supreme 
 Court, where the opposing opinions in a great case {Kuhn v. Fair- 
 
vili GENERAL INTRODUCTION 
 
 mont Coal Co.) turned upon the respective conceptions of "law" 
 in the abstract, and where Professor Gray's recent work on "The 
 Nature and Sources of the Law" was quoted, and supplied direct 
 material for judicial decision. 
 
 Acting upon this memorial, the following resolution 
 was passed at that meeting: — 
 
 That a committee of five be appointed by the president, to arrange 
 for the translation and publication of a series of continental master- 
 works on jurisprudence and philosophy of law. 
 
 The committee spent a year in collecting the material. 
 Advice was sought from a score of masters in the leading 
 universities of France, Germany, Italy, Spain, and else- 
 where. The present series is the result of these labors. 
 
 In the selection of this series, the committee's pur- 
 pose has been, not so much to cover the whole field of 
 modern philosophy of law, as to exhibit faithfully and 
 fairly all the modern viewpoints of any present impor- 
 tance. The older foundation-works of two generations 
 ago are, with some exceptions, already accessible in 
 English translation. But they have been long sup- 
 planted by the products of newer schools of thought 
 which are offered in this series in their latest and most 
 representative form. It is believed that the complete 
 series will represent in compact form a collection of 
 materials whose equal cannot be found at this time in 
 any single foreign literature. 
 
 The committee has not sought to offer the final 
 solution of any philosophical or juristic problems; nor 
 to follow any preference for any particular theory or 
 school of thought. Its chief purpose has been to present 
 to English readers the most representative views of the 
 most modern writers in jurisprudence and philosophy 
 of law. The series shows a wide geographical represen- 
 tation; but the selection has not been centered on the 
 
GENERAL INTRODUCTION ix 
 
 notion of giving equal recognition to all countries. 
 Primarily, the desire has been to represent the various 
 schools of thought; and, consistently with this, then to 
 represent the different chief countries. This aim, how- 
 ever, has involved little difficulty; for Continental 
 thought has lines of cleavage which make it easy to rep- 
 resent the leading schools and the leading nations at 
 the same time. Germany, for example, is represented 
 in modern thought by a preponderant metaphysical 
 influence. Italy is primarily positivist, with subordinate 
 German and English influences. France in its modern 
 standpoint is largely sociological, while making an effort 
 to assimilate English ideas and customs in its theories 
 of legislation and the administration of justice. Spain, 
 Austria, Switzerland, Hungary, are represented in the 
 Introductions and the shorter essays; but no country 
 other than Germany, Italy, and France is typical of any 
 important theory requiring additions to the scope of 
 the series. 
 
 To offer here an historical introduction, surveying the 
 various schools of thought and the progress from past 
 to present, was regarded by the committee as unneces- 
 sary. The volumes of Dr. Berolzheimer and Professor 
 Miraglia amply serve this purpose; and the introductory 
 chapter of the latter volume provides a short summary 
 of the history of general philosophy, rapidly placing 
 the reader in touch with the various schools and their 
 standpoints. The series has been so arranged (in the 
 numbered list fronting the title page) as to indicate that 
 order of perusal which will be most suitable for those who 
 desire to master the field progressively and fruitfully. 
 
 The committee takes great pleasure in acknowledg- 
 ing the important part rendered in the consummation 
 of this project, by the publisher, the authors, and the 
 translators. Without them this series manifestly would 
 have been impossible. 
 
X GENERAL INTRODUCTION 
 
 To the publisher we are grateful for the hearty spon- 
 sorship of a kind of literature which is so important to 
 the advancement of American legal science. And here 
 the Committee desires also to express its indebtedness 
 to Elbert H. Gary, Esq., of New York City, for his 
 ample provision of materials for legal science in the 
 Gary Library of Continental Law (in Northwestern 
 University). In the researches of preparation for this 
 Series, those materials were found indispensable. 
 
 The authors (or their representatives) have cordially 
 granted the right of English translation, and have shown 
 a friendly interest in promoting our aims. The com- 
 mittee would be assuming too much to thank these 
 learned writers on its own behalf, since the debt is one 
 that we all owe. 
 
 The severe labor of this undertaking fell upon the 
 translators. It required not only a none too common 
 linguistic skill, but also a wide range of varied learning 
 in fields little travelled. Whatever success may attend 
 and whatever good may follow will in a peculiar 
 way be attributable to the scholarly labors of the several 
 translators. 
 
 The committee finds special satisfaction in having 
 been able to assemble in a common purpose such an array 
 of talent and learning; and it will feel that its own small 
 contribution to this unified eff'ort has been amply recom- 
 pensed if this series will measurably help to improve 
 and to refine our institutions for the administration of 
 justice. 
 
CONTENTS 
 
 Page 
 
 1. General Introduction to the Series v 
 
 2. Editorial Preface to this Volume, by Joseph H. Drake . . xvii 
 
 3. Introduction by Sir John Macdonell xxix 
 
 4. Introduction by Shepard Barclay xxxvii 
 
 5. Author's Preface li 
 
 6. List of Abbreviations Iv 
 
 PART I 
 
 Philosophical Presuppositions of the Idea of Law 
 
 CHAPTER I 
 
 Reason and Necessity for a Logical Definition of 
 
 Law 1 
 
 Immediate intuition of law and its insufficiency. 
 The systematizing function of definition. Actual need for 
 a logical treatment of law. 
 
 CHAPTER II 
 
 Divergency in Positive Law and the Sceptical Con- 
 clusions BASED Thereon 8 
 
 Problems of definition and contradictions in historical 
 data. Sceptic theory. Need of a higher synthesis. 
 
 CHAPTER III 
 
 Idea of Natural Law 14 
 
 Natural law as shown by conscience and as a philosophical 
 problem. Modern refutation and its value. Distinction 
 of the question of natural law from that of the logical defini- 
 tion of law. 
 
xii CONTENTS 
 
 CHAPTER IV 
 
 Page 
 
 Common Elements of Law 21 
 
 Uniform and fixed parts in the laws of various peoples. 
 "Jus naturale" and "consensus gentium." Impossibility 
 of logical synthesis on such bases. 
 
 CHAPTER V 
 
 Legal Growth 25 
 
 The series of historical changes and the study of the laws 
 of alternation. Theory of flux and reflux. Lack of sys- 
 tematic historical unification. 
 
 CHAPTER VI 
 
 Connection between Law and Historical Conditions 32 
 The moulding of law upon circumstance as a political 
 criterion and as a natural fact. Signs of the penetration 
 of this concept into the science of individual and social 
 relations. Idea of historical development. Theory of 
 progress. The German historical school and the scientific 
 explanation of the variety of law. Contemporaneous 
 thought and new confirmation of the historical relativity 
 of law. 
 
 CHAPTER VII 
 
 Consequences and Limits of the Relativity of Law 58 
 Recognition of historical variety and the apparent im- 
 possibility of an unvarying determination of law. Exces- 
 sive relativism and realistic conformity in institutions. 
 Progressive unification of law. Value of this principle 
 "per se" and in the present study. 
 
 CHAPTER VIII 
 
 Form and Content of Law. The Position of the 
 
 Problem in the Theory of Knowledge 68 
 
 Logical unity and actual multiplicity. The logical 
 universal as form. The problem of knowledge in its 
 fundamental relations. Criticism and positivism. Meta- 
 physical character of ideas. Fundamental presuppositions 
 in the application of philosophical ideas to law. Logical 
 and actual determination. Concept and ideal. Criticism 
 of deontological definitions. 
 
Contents xiii 
 
 CHAPTER IX 
 
 Page 
 
 Value and Significance of the Logical Form of Law 81 
 Juridical propositions as materializations of the logical 
 form of law. "Quid juris" and "quid jus." Juridical 
 experience and its limit of possibility. 
 
 CHAPTER X 
 
 Logical Form of Law Opposed to Juridical Empiri- 
 cism 85 
 
 Attitude of different schools in regard to the logical form 
 of law. Classical legal philosophy. Dogmatic historicism. 
 Empirical historicism and the confusion of science and 
 philosophy. Kant and juridical empiricism. Insufficiency 
 of the historical and positive doctrines in respect to philos- 
 ophy of law. Concept of law in the ideology of positivism. 
 Historico-genetic method and its logical basis. Identifica- 
 tion of the datum and function of the formal concept in 
 experience. Empirical recognition of law as an "a poster- 
 iori" proof of the applicability of the concept. Retrospec- 
 tive quality of this research. Logical priority of form. 
 
 CHAPTER XI 
 
 Logical Form of Law: Conclusion. Critical and 
 
 Complementary Notes 107 
 
 General logical demands of science and of jurisprudence 
 in particular. Formal character of law and "allegemeine 
 Rechtslehre." Philosophical meaning and objective value 
 of form. Critical delucidations. Concept of law as forma- 
 tive power. Concept and ideal of law. 
 
 PART II 
 
 The Concept of Law 
 
 CHAPTER I 
 
 Human Acts are Subject to Juridical Criteria 125 
 Juridical criteria apply to acts. Analysis of acts. Non- 
 applicability of juridical criterion because of a deficiency of 
 the physical or psychical element. 
 
xiy CONTENTS 
 
 CHAPTER II 
 
 Page 
 
 iNATURE OF THE JURIDICAL CRITERION 147 
 
 Law is external. Law is valuative. Law is bilateral. 
 
 Juridical and natural law. Law is not force alone. Morals 
 
 and law. 
 
 CHAPTER III 
 
 Imperative Quality of Law 166 
 
 Genesis of law. Imperative quality of law. Traditional 
 classification. Imperative, prohibitive and permissive 
 norms. Explicative norms. 
 
 CHAPTER IV 
 
 Rights 183 
 
 Rights constitute the juridical sphere of the individual. 
 Rights and duties. Juristic capacity. Rights are bilateral. 
 Rights exhibit the potentiality of action. 
 
 CHAPTER V 
 
 Law and Coercion 193 
 
 All law is coercive. Coercion and compulsion. Ap- 
 parently uncoercive law. Possessor of right and wielder 
 of coercion. 
 
 CHAPTER VI 
 
 Law and Interests 207 
 
 The object of law. Ihering's definition of law. Rights 
 and utilities. 
 
 PART III 
 
 The Concept of Nature and the 
 Principle of Law 
 
 CHAPTER I 
 
 Preliminary Considerations 219 
 
 Philosophical need of reference to a universal. Philo- 
 sophical doubt and popular certainty. Progressive order 
 Of the grades of knowledge. Reliance on the particular as 
 a prephilosophic stage. Logical condition of scepticism. 
 
CONTENTS XV 
 
 CHAPTER II 
 
 Page 
 
 Principle of Causality and Mechanical Conception 
 
 OF Nature 224 
 
 Co-ordination of phenomena according to a causal 
 criterion. "Apriority" of such criterion. Its limits. Com- 
 plementary postulates. Impossibility of ascertaining values 
 by it. "Even the unnatural is natural." Idea of final 
 causes and the physical sciences. Mechanical determinism 
 and the denial of teleology, especially in the doctrine of 
 Spinoza. Universal validity of the principle of causality. 
 
 CHAPTER III 
 
 Appreciation of the End and Metaphysical Con- 
 ception OF Nature 238 
 
 Teleological interpretation as the complement of causal 
 interpretation. Need of distinction; the fault of the Aris- 
 totelian theory. Intrinsic finality of nature and measure 
 of the naturalness of nature. "Nexus effectivus" and "nexus 
 finalis"; value of the two criteria and their legitimate co- 
 existence. Organism and entelechia. Observations on a 
 Kantian doctrine. Consequence of the appreciation of the 
 end. New idea of the natural. Nature and spirit. 
 
 CHAPTER IV 
 
 Primacy of the Ego over Nature and the Founda- 
 tion of Ethics 258 
 
 Condition of man in nature. The world as a function 
 of the ego and the logical primacy of knowledge. Objective 
 and subjective orientation. Need of such orientation for 
 ethics. Absolute quality of the person and the supreme 
 norm of ethics. The possibility of the imperative. Double 
 quality of man and the violability of the norm. 
 
 CHAPTER V 
 
 Deduction of the Principle of Law 269 
 
 Two forms of ethics : morals and law. Logical basis 
 of distinction. Principle of morals. Individual con- 
 science and duty. Principle of law. Autonomy as rule 
 of the relations of groups. Value of such principle in 
 relation to positive law and the logical form of law. 
 
xvi CONTENTS 
 
 CHAPTER VI 
 
 Page 
 
 Some Paralogisms Touching the Concept of Nature 
 
 IN THE Philosophy of Law 277 
 
 Uncertainties dominant in this matter. The state of 
 nature and the empirical position of the problem. Natural 
 in the sense of primordial; nature and the birth of things. 
 Logic of the genetic criterion and the inconsequence of the 
 jus-naturalists. Spinoza. Antithesis of the natural and 
 the human. Confusion of primitive and exemplary; the 
 myth of an ideal past in the doctrines of the philosophy of 
 law. Origin and function of this kind of error. 
 
 CHAPTER Vn 
 
 Concept of Nature in Some Systems of the Philoso- 
 phy OF Law 295 
 
 Preoccupation of the ideal in the consideration of his- 
 torical facts. Regard for the primitive in the study of 
 human nature. Hobbes: his method in the study of the 
 natural. Egoism and the social sense. Empirical 
 motives and the basis of law. Nullity of natural law 
 according to Hobbes. Antithesis between "jus naturale" 
 and "lex naturalis." Critical observations. System of 
 Spinoza. Reduction of law to physical force and incon- 
 sistency of the principle of obligation. Negative signifi- 
 cance of the doctrines of such writers. ' 
 
 CHAPTER Vni 
 
 Conclusion. Naturalness of Positive Law and 
 
 Natural Law 317 
 
 Critical solution of the problem. Phenomenal side of 
 law and its hyperphenomenal principle. Legitimacy of 
 the two considerations. Errors of empiricists and jus- 
 naturalists. Natural law as a deontological need and as 
 the goal of historical development. Delucidations and 
 recapitulations. 
 
 First Appendix. Critique by HANS Reichel 337 
 
 Second Appendix. Critique by J. Segond 355 
 
 Index < ... 389 
 
EDITORIAL PREFACE TO THIS VOLUME 
 By Joseph H. Drake » 
 
 I. The Author and the Translator. 
 
 Giorgio Del Vecchio (born at Bologna, August 26, 
 1878) studied at the universities of Genoa, Rome and 
 Berlin, obtaining in the University of Genoa his doctor's 
 degree in the philosophy of law. In the year 1903 he 
 was nominated professor of that subject in the University 
 of Ferrara, where he began his teaching with the discourse 
 "Right and Human Personality in the History of 
 Thought." He occupied that chair till the end of 1906, 
 giving also a course of lectures as docent in the University 
 of BolQgna during the years 1905 and 1906. In 1906 he 
 was nominated for the professorate of the philosophy of 
 law in the University of Sassari and remained there until 
 the end of 1909. To this period belong, among others, the 
 dissertation on 'The Phenomenon of War and the Idea 
 of Peace," which was read originally at the University 
 of Sassari as an inaugural address of an academic year. 
 
 In 1909 Del Vecchio was called to teach in the Uni- 
 versity of Messina, which at that time was being re- 
 established after the fatal earthquake of 1908. He was 
 appointed in the first group of professors who offered 
 themselves for the work of reconstruction, which had 
 at that time a high moral and civil significance. From 
 Messina, Del Vecchio returned finally at the beginning 
 
 ' Professor of Law in the University of Michigan, and member 
 of the Editorial Committee for this series. 
 
xviii EDITORIAL PREFACE 
 
 of the year 1911. In this year he was nominated profes- 
 sor in the University of Bologna. He began his teaching 
 in this university, where he still teaches, with the dis- 
 course "Upon Positivity as a Quality of Law." 
 
 Del Vecchio has participated in various international 
 scientific congresses. Among others was the Inter- 
 national Congress of Philosophy at Heidelberg, in the 
 year 1908, reading there an article, "Upon the Con- 
 ception of a Science of Universal Comparative Law." 
 This has been published in Italian, German, French, 
 Spanish, Portuguese and Roumanian. He belonged 
 from the beginning to the "International Vereinigung 
 fur Rechts- und Wirtschaftsphilosophie" of Berlin, and 
 represented Italy in the honorable council of that society. 
 He likewise was a member from the beginning of the 
 "Society of J. J. Rousseau," in Geneva, and he has had 
 similar share in many scientific bodies, e. g., "The 
 Academy of Science of the Institute of Bologna," "The 
 Accademia Peloritana of Messina," and others. He 
 has the title of Professor Honorarius of the University 
 of Ferrara, and is Corresponding Member of the National 
 Committee for the History of the Italian Renaissance. 
 
 Several of his works have had the purpose, aside from 
 that of translation, of communication to a foreign 
 academy, as for example, the essay "Upon the Theory 
 of the Social Contract" which was presented by the 
 philosopher Emile Boutroux to the Institute of France 
 (Acaddmie des Sciences Morales et Politiques) at the 
 sitting of July 20, 1907. 
 
 The translation presented in this volume in three 
 parts was published in Italian in three separate volumes: 
 the first appearing in 1905, under the title of "The Philo- 
 sophical Presuppositions of the Idea of Law" ; the second, 
 in 1906, under the title of "The Concept of Law"; the 
 third, in 1908, under the title of "The Concept of Nature 
 
EDITORIAL PREFACE xix 
 
 and the Principle of Law." "The Formal Bases of Law" 
 has been chosen as the title for these combined volumes 
 which form one connected work.^ 
 
 ' The other published works of the author are: 
 
 1. "L'evoluzione dell' ospitalitS," (in "Rivista italiana di Sociolo- 
 gia," A. VI, Fasc. II-III). Roma, 1902. 
 
 2. Giordano Bruno (in "Rivista ligure," A. XXIV, Fasc. III). 
 Genova, 1902. 
 
 3. "II sentimento giuridico" (in "Rivista italiana per le scienze 
 giuridiche," Vol. XXXIII, Fasc. III). Torino, 1902. Seconda 
 edizione, 1908. 
 
 4. "L'etica evoluzionista." Nota critica (in "Rivista italiana 
 di Sociologia," A. VI, Fasc. V-VI). Roma, 1903. 
 
 5. "La Dichiarazione dei diritti dell' uomo e del cittadino nella 
 rivoluzione francese." Genova, 1903. 
 
 6. "Diritto e personality umana nella storia del pensiero" (in 
 "Rivista di Filosofia e scienze affini," A. VI, Vol. I, N. 3). Bologna, 
 1904. 
 
 7. "II comunismo giuridico del Fichte." Nota critica (in 
 "Rivista italiana di Sociologia," A. IX, Fasc. 1). Roma, 190S. 
 
 8. "Su la teoria del contratto sociale." Bologna, 1906. 
 
 9. "Suir idea di una scienza del diritto universale comparato" 
 (in "Bericht iiber den III Internationalen Kongress fiir Philosophie"), 
 Heidelberg, 1909. Seconda edizione, Torino, 1909. 
 
 10. "Un punto controverso nella storia delle dottrine politiche." 
 Nota critica (in "Rivista italiana di Sociologia," A. XIII, Fasc. 
 V-VI). Roma, 1909. 
 
 11. "II fenomeno della guerra e I'idea della pace.'' Sassari, 1909. 
 Seconda edizione (in "Rivista di diritto internazionale," A. V, Fasc. 
 I-II), Torino, 1911. 
 
 12. "Tra il Burlamachi e il Rousseau." Nota critica (in "Cul- 
 tura contemporanea," A. II, N. 4). Ortona a Mare, 1910. 
 
 13. "La comunicabilit4 del diritto e le idee del Vico" (in "La 
 Critica," A. IX, Fasc. I). Trani, 1911. 
 
 14. "Sulla positivit^ come carattere del diritto" (in "Rivista di 
 Filosofia," A. Ill, Fasc. I). Modena, 1911. 
 
 15. "Sui caratteri fondamentali della filosofia politica del Rous- 
 seau" (in. "Rivista ligure," A. XXXIX, Fasc. V). Genova, 1912. 
 Terza edizione, 1914. 
 
 Some of the publications above mentioned have been translated 
 
XX EDITORIAL PREFACE 
 
 The translator of the present volume, John Lisle, 
 is a graduate of the College and the Law School of the 
 University of Pennsylvania, and a practitioner at the 
 Philadelphia Bar. He is abo the translator of the works 
 of Miraglia and Vanni in the present series, and of 
 Calisse's "History of Italian Law," in the Continental 
 Legal History Series. 
 
 XL The Formal Bases of Law. 
 
 t In paraphrase of a hackneyed apothegm, it may be 
 well said that the thinking man is incurably philosoph if:al. 
 This desire to attain the final reason of things begins at 
 the dawn of self-consciousness in the individual. Most 
 of us as college boys experienced this intoxicating philo- 
 sophic impulse, and the elevation of temperature con- 
 sequent thereon brought with it an uplift of the spirit 
 that some of us mistook for the birth of a new intellectual 
 life. Then we felt we had reacheri, or at least were in 
 sight of, an answer to Pilate's question, "What is truth?" 
 The essence of tliifigs, the ultimate reality, was whatever 
 for our time was the latest style of the "absolute," — 
 that something which the thinking rnan could not help 
 thinking, which was true for all times and in every place.'. 
 This philosophic reality, which was with Pbto lim, 
 with Aristotle <yl<rta, with Kant the "Ding an Si^h," 
 with Hegel the "absolute," appears in Roman law as 
 "jus naturale," in medieval jurisprudence as the law 
 of nature, and in later juristic thinking as the law of 
 reason. With each successive emergence of this fi|nda- 
 mental concept we seem to have reached the longed for 
 
 into variouii foreign language*; German, Spanush, French, Portu- 
 guese, Dutch ami Roumanian. "Sulla po«itivit4 o-jrne carattere 
 ^i\ fliritto'' ha<i bef;n tra.ni\auA into Engli*h under the title of 
 "Po«itive Right" (cf. "Law Magazine and Review," vol. XXXVIIl 
 N. 368, May, 1913.) 
 
EDITORIAL PREFACE xxi 
 
 finality. But on closer examination we find what is 
 apparently only the old idea in a new garb, and in our 
 disappointment we say we will have none of it; philos- 
 ophy may be valuable as mental gymnastics, but brings 
 nothing to aid in the solution of the practical problems 
 of being or of doing. 
 
 This philosophic nihilism was characteristic of the best 
 English juristic thought of the last half of the past 
 century; The insufficiency of Benthamism and later 
 types of English utilitarianism as an answer to the basic 
 question of philosophy was plainly recognized, but the 
 belief in experience as the only source and test of truth 
 remained. Nevertheless an aggregate of individual 
 experiences, no matter how large, can lead us only to 
 the general, not to the universal, and it is some form of 
 the universal that the eternal question calls for. Thus 
 are we thrown back again on the something that trans- 
 cends experience, that which exists prior to experience 
 and which makes it possible. "Juridical thought is 
 anterior to its concrete realization in law," (cf, § 104, in 
 fine) and to the study of this transcendental concept the 
 juridical thinkers of the present century have again 
 turned. 
 
 Early in his treatment of the subject, Del Vecchio tells 
 us that "necessity and universality are elements foreign 
 to experience but understandable by reason" (§52), 
 and to reason must we turn for an answer to the philo- 
 sophic query. This universal element is what he calls 
 the logical form, "forma dat esse rei," (§55, in fine) 
 and this logical form, he says, "gives essence not exis- 
 tence." (§ 56.) In this assertion that form is the essence, 
 we have apparently a reversion to the use of form as 
 equivalent to the Aristotelian absolute (ota-ia), and as it 
 is ip this sense that the title of our translation uses the 
 phrase "formal bases" as a paraphrase of "I presupposti 
 
xxii EDITORIAL PREFACE 
 
 filosofici" of the Italian, we may profitably tarry on 
 some consideration of the philosophic as contrasted with 
 the popular use of the word "form." That there is a 
 necessity for some elucidation of this word is self-evident. 
 Del Vecchio says (§ 81) "no word is understood in 
 so many ways as the word form"; though he himself 
 holds consistently to the one connotation, namely, that 
 form is the metaphysical and "a prK)ri" essence of law, 
 and the word "formal" has its philosophic meaning 
 which has prevailed from the time of Aristotle. But 
 in this sense, meaning "essential," it is the direct antonym 
 of the popular use of formal, namely, non-essential or 
 superficial. In this use of the words "form" and 
 "formal" Del Vecchio is harking back to the oiirta of 
 Aristotle. The concept oiaw. (etymologically our 
 word essence), the ultimate truth of Aristotle's system, 
 was the analogue of Plato's IBia. The distinction be- 
 tween the two concepts is for our purpose unimportant. 
 The philosophic element common to the two is that each 
 is held to be a true absolute, a truth that comes to us 
 by virtue of our common intelligence, that which every 
 man must think as of necessity. The type of this sort 
 of truth is of course the mathematical axiom, and in the 
 history of philosophy prior to Plato and Aristotle we 
 have a mathematical absolute, that of number, in the 
 philosophy of Pythagoras. When Cicero clothed Greek 
 philosophy in Roman dress, we find that he used the 
 word "forma" as a translation of these Greek absolutes 
 ("De Orat." 10. "has rerum /ormaj appellat iSras Plato 
 easque gigni negat et ait semper esse ac ratione et 
 intelligentia contineri"). 
 
 Medieval philosophy coined two participles from the 
 classical "esse," namely, "ens" which appears in "entity" 
 and "essens" from which comes "essential." The word 
 "essentia" is constantly used throughout the Middle 
 
EDITORIAL PREFACE xxiii 
 
 Ages as the equivalent of the Aristotelian oia-ia, and 
 appears in modern Romance languages with the same 
 meaning as in English. It seems therefore that the 
 primitive meaning of "formal" was "essential," and 
 this has been preserved in philosophic and juristic 
 thinking, while the use of "formal" in the popular speech 
 as the antonym of "essential" is a derivative meaning 
 and has developed at a comparatively modern period. 
 
 III. Philosophy and Practice. 
 
 Pound has shown (22 Yale L. J. 114) how the struggle 
 for better definition of law has resulted in continually 
 widening the practical application of law. In like man- 
 ner it may be shown that the constant broadening of 
 the metaphysical bases of law has been accompanied 
 by improvements in its practice, and to this purpose 
 we may well address ourselves. Supposing then that 
 the above lucubrations do embody the truth, the question 
 naturally presents itself, what of it — ' 'cui bono practico ?" 
 Of what avail is philosophic thinking, past or present, for 
 the busy lawyer or the puzzled judge with his pragmatic 
 demands for results? 
 
 The question is as old as man itself; and philosophy 
 has been struggling — successfully we may assume — 
 for an increasingly better answer to it from the time of 
 Socrates and the Sophists. Justice, according to the 
 Sophists, is dependent on a purely arbitrary subjectivity. 
 What is just for you may be unjust for me. Right on 
 one side the mountains becomes wrong on the other. 
 "Yes," says Socrates, "but there is in the community 
 the ideal of the ethically normal, to which all good citi- 
 zens should attempt to conform." The laws of the 
 State embody this ideal, and the just man is he who 
 obeys the laws of his State. The inadequacy of the 
 answer appears on its face. But it marks a great advance 
 
xxlv EDITORIAL PREFACE 
 
 over the negation opposed to it. Each of us is to strive 
 for a common ideal, and knowledge of this ideal is to 
 be attained only by individual effort. Government thus 
 becomes self-government. The end of government is 
 the welfare of all the citizens and a government of law 
 and not of men is established. 
 
 Plato's service was mainly in his refinement and 
 development of the doctrine of the "idea." This idea, 
 or perfect image, of justice is to be found, not as with 
 Socrates in the average man with all his imperfections, 
 but in the perfect type of the ethical elect. Although this 
 narrows the scope of the idea of justice it increases its 
 intensity, and within this more select circle Plato "recog- 
 nizes popular conviction, the collective sense of right, 
 as the source of justice." 
 
 In Aristotle we come for the first time upon a fully 
 developed theory of natural law. Man by his very 
 nature is a social being and the combination of men 
 in political bodies forms a natural social unit, the Statp. 
 But the concept of State existed prior to its practical 
 realization, just as the concept of the whole exists prior 
 to its parts. This natural law is in Aristotle's theory 
 of jurisprudence the equivalent of the ovo-m or essence 
 of his metaphysic ; that is to say, it is Aristotle's formula- 
 tion of the philosophic absolute, the necessary and 
 unconditioned basis of law. Where is the man of action 
 who would deny that Aristotle's philosophic theories 
 have been devoid of practical results ? During the Middle 
 Ages the law of nature, divine in origin, was the only 
 bulwark for the protection of the nations against the 
 arbitrary caprice of pope or emperor. In the hands of 
 Grotius it became the basis of the Law of Nations. In 
 a perverted form of a return to nature it was made the 
 justification of all the excesses of the French Revolution, 
 and one of its fundamental dogmas, that of equality, 
 
EDITORIAL PREFACE xxv 
 
 has been incorporated in many modern declarations of 
 -independence and bills of right, which simply reiterate 
 the Aristotelian principle that ' ' j ustice is equality.' ' Nor 
 has this influence been confined to the field of politics 
 and public law. Sir Frederick Pollock well says that 
 the law of nature under its modern name of the Law of 
 Reason is still "the prevailing ideal of which it would 
 be hardly too much to say that it is the life of the modern 
 Corrimon Law." 
 
 Probably no one is disposed to question the practical 
 results of the pseudo-philosophic theory of utility as 
 promulgated by Bentham and elaborated by his fol- 
 lowers among the later English Utilitarians. To be sure 
 it can hardly be classified as a juristic philosophy. It 
 is rather simply a theory of legislation. But as such 
 it gave a unifying principle, philosophic in character as 
 a striving for unity, which constituted the "vis a tergo" 
 of the reform movement of the last century. However 
 mechanical or even grotesque the theory of utility was 
 from a philosophic standpoint, no one can deny that 
 its application to practical politics has resulted in re- 
 fashioning large sections of our English law so far as 
 that can be accomplished through the instrumentality 
 of legislation. 
 
 The metaphysics of law went out of style on the Con- 
 tinent as well as in England in the middle of the last 
 century. Properly so, we must assume. Savigny was 
 right and his opponents were wrong. A knowledge of 
 the detail of the history of European law and a com- 
 parison with the laws of other places and periods was 
 an essential prerequisite to any effort at unification of 
 legal principles or of any attempt to arrive at the under- 
 lying philosophic meaning of law. But philosophy had 
 her revenge even on the great Savigny. He drove out 
 the form of natural law with an esoteric content which was 
 
xxvi EDITORIAL PREFACE 
 
 in style at the beginning of his century. But even 
 before he had reached the end of his life, philosophy had 
 reconstructed a new natural law with an historic content 
 out of the materials gathered by him in the course of 
 his brilliant historical reconstruction of Roman Law. 
 
 With the end of the last century there has come a 
 revival of idealistic philosophy on the continent. This 
 has in the main taken the form either of a movement 
 back to Kant or of a revival and extension of Hegelianism. 
 Del Vecchio is classed as a Neo-Kantian, and the every- 
 day lawyer may ask of him (as he has of his predecessor*) 
 what contribution he has made to the practical better- 
 ment of our complex legal situation. 
 
 Kantian philosophy has been described by one of its 
 modern critics as "the last great uprising of rationalism 
 in general philosophy and of the doctrine of 'natural 
 law' in legal philosophy." In the metaphysical system 
 of Kant the "Ding an Sich" is the modern analogue 
 of the ovo-to of Aristotle. Each is a formal concept 
 existing independently of experience and prior to any 
 realization in experience. Kant's system of natural law 
 has been freed from the trammels of the classical theory 
 of natural law and appears in its modern form of a law 
 of reason. 
 
 It is from this concept that Del Vecchio starts.JJ "The 
 law of equality of the radii governs before the circle 
 is drawn." "Whoever builds a house does not there- 
 by make its concept." These two sentences from 
 Chapter X of Part I of this work (§ 77 and § 75) give 
 the basis of the Kantian theory of law upon which 
 Del Vecchio builds. It is worthy of note that they both 
 go back to classical antiquity. The first is even pre- 
 Socratic, as it involves the concept of number, i. e., 
 mathematical truth, which was the Pythagorean absolute. 
 The second is manifestly the Platonic ISea. The house 
 
EDITORIAL PREFACE xxvii 
 
 of brick and mortar which appears before our eyes 
 is not the real house. The true reality is the idea of 
 house that exists, as Plato says, in the mind of the god. 
 The circle that we draw is only a copy of the true reality 
 which is the mathematical concept of curved and con- 
 tinuous line, each point of which is connected by radii 
 of equal length with the central point. The formal basis 
 of law — here "formal" equals "essential" — is not 
 found by generalization from any number of positive 
 laws, no matter how large, but is a true universal, exist- 
 ing prior to experience and not conditioned by it. 
 Del Vecchio gets away from the old natural law over to 
 the law of reason in his proposition (§ 195) that "the 
 eternal seed of justice, the foundation of the idea of law 
 is not furnished by nature considered as the complex 
 or succession of empirical facts but by the essence (or 
 nature) of man, which comprehends and transcends 
 other nature and is in itself autonomous." "The prin- 
 ciple of law is therefore deducible 'a priori' from the 
 nature of man." (Cf. Pt. Ill, Chaps. IV, V, post.) 
 
 What then are the practical bearings of this Neo- 
 Kantian philosophy of law? First and foremost it is 
 to be noted that it is true, or at least it possesses more 
 ' of truth than do the older natural law theories or than 
 is to be found in the empirical and positive theories that 
 it supplants. If it is true, we need hardly go further. 
 The Lord'struth will take care of itself, and men may 
 be trusted to find a practical use for it. But we need 
 not stop with this. The advocates of positive law 
 assert that the essence of law is force, namely, that it is 
 an emanation of the sovereign power. The historical 
 school would apparently confine us to the quietistic 
 course. We may observe what law has been and is but 
 can scarcely have an outlook for the future. We must 
 simply wait on the slow processes of history. But in 
 
xxviii EDITORIAL PREFACE 
 
 contrast to both of these, "a conception which goes beyond 
 the phenomenology and empirical determination of 
 action and finds its principle and norm in the intel- 
 ligible essence of man" (§ 192) relieves us, oji the one 
 hand, from the dominance of arbitrary force and, on 
 the other, gives us a hopeful program for the future. 
 Law is neither force simply nor growth simply, but law 
 is right reason, existing in the nature of man himself, 
 and this reasonable law is to be worked out in the expe- 
 rience of mankind by an intelligent prevision under the 
 control of a directive purpose, innate in the reason of 
 man.: 
 
 Here is its practical message for us. Possibly it is 
 not the best formulation of the philosophic reality. The 
 caustic criticism of some of the Neo-Hegelians, including 
 their great leader, Kohler, would deny any significance 
 to it. But surely, as Pollock says, the law cannot 
 afford to throw away any of its resources. Here we have 
 a broader formulation of philosophic theories than is 
 found in any of the juristic predecessors of the Neo- 
 Kantians, and this theory can be used as a formal basis 
 from which a practical advance may be made. 
 
INTRODUCTION TO THIS VOLUME 
 By Sir John Macdonelli 
 
 This volume contains the translation of three of the 
 chief works of a distinguished, prolific and many-sided 
 Italian jurist, some of whose works have been translated 
 into several languages, and have exercised, and are exer- 
 cising, no small influence. At certain points the three 
 overlap. At several points they seem to touch many 
 other questions and matters than those which fall within 
 the philosophy of law even in the author's comprehen- 
 sive view of it. In seeking firm foundations Professor 
 Del Vecchio may seem to compass the whole field of philos- 
 ophy. But there is a certain unity in all three works. 
 They help to elucidate each other, and they deal instruc- 
 tively with fundamental questions of jurisprudence. 
 
 For some years there has been In Italy remarkable 
 activity and interest in regard to those questions; a 
 veritable juridical "Risorgimento" ; activity which at 
 first and for a time manifested itself in translations from 
 German legal literature and in applications or restate- 
 ments of the teaching of Kant or Hegel, but which, 
 reverting to Vico, stimulated by Gioberti, Rosmini and 
 other earlier native thinkers, and concerning itself at 
 first hand with the great problems of jurisprudence, has 
 of late produced a rich harvest of original investigators. 
 All the workers in this field ask, and for the most part 
 independently answer, questions which most English 
 and American jurists pass over and the obtrusion of 
 
 ' Professor of Comparative Law in University College, London; 
 Secretary of the Society of Comparative Legislation. 
 
XXX INTRODUCTION 
 
 which they as a rule resent. Knowing comparatively 
 little of a very large literature, I have no right to speak 
 with much confidence of the general characteristics of 
 these writers. It is enough to say that they are not 
 compilers; that they do not in merely mechanical' 
 fashion collect facts and note similarities. 'They seek 
 for the principles underlying these facts and their relation 
 to other social phenomena ; and they are concerned with 
 the philosophy of law. 
 
 But can there be a philosophy of law? And if it is 
 possible, in what sense does or can it exist? Will the 
 residuum distilled after the evaporation of the particular 
 and accidental elements be so small as to be unimportant? 
 Can such a philosophy be constructed without reference 
 to ethics and indeed to philosophy in the largest sense? 
 Some of these questions I touched upon in a short Intro- 
 duction to the translation of Berolzheimer in this series. 
 
 I will here merely add a few observations, especially 
 with reference to Professor Del Vecchio's attempt to con- 
 struct such a philosophy. 
 
 The modern^ Italian writers who have discussed these 
 questions fall into two groups; those who deny the exist- 
 ence or possibility of a philosophy of law, and those 
 who, otherwise differing infinitely among each other, 
 hold the contrary. • Miceli, Professor of law at Palermo, 
 is a type of the former. - In his view, "A true philosophy 
 of law is not possible. What is presented as such either 
 is not a true philosophy, but rather a mixture of empiri- 
 cal elements, or it is the philosophy of something else 
 than that of law." - ("Rivista Italiana di Sociologia," 
 XVII, 336.) The conception of law is an emgirical one, 
 connected with the state of society at any given tinie. 
 Law is a combination of elements varying according to 
 practical exigencies. Philosophy quits its province, and 
 becomes an intruder, a disturber and author of confusion, 
 
INTRODUCTION xxxi 
 
 when it enters the domain of law. The distrust of law- 
 yej;s as to philosophy is justified. "They feel that the 
 universal criteria of philosophers disturb those distinc- 
 tions, those classifications, those categories which are 
 for law practically indispensable, and are irreducible to 
 universal conceptions." • All which, if true, speaks of 
 want of familiarity on the part of theorists with the sub- 
 ject-matter which they examine, but.which is not incon- 
 sistent with the need and possibility of a really scientific 
 analysis of the very diverse jural facts. It is merely 
 saying that the philosophy of law has,' too often, 
 attracted writers ignorant of law or pWlosophy or both. 
 
 Next, as to those who in one form or other believe in 
 the practicability of a philosophy of law. At present 
 they fall into two groups: one the positive, the other 
 vaguely described as the idealist. The one would treat 
 law as a fact to be examined, just as are the economic 
 facts of society. The other would recognize the exist- 
 ence of the ethical element, the ineffaceable distinc- 
 tion between what ought to be and what is. The latter 
 group may be subdivided into the Neo-Hegelian class, 
 represented by Kohler, and the Neo-Kantian, to which 
 belongs the author here translated. 
 
 Del Vecchio's teaching, expressed more clearly than 
 is usual with philosophical writers, is free from the heavy 
 verbiage, not incompatible with superficiality, which is 
 the characteristic of many writers on jurisprudence. 
 With him, philosophy is not the art of making common- 
 places obscure. Nor is his teaching based, as was the 
 case with so many of his predecessors, merely upon a 
 knowledge of Roman law or one or more modem sys- 
 tems. He would found his generalizations upon all the 
 facts of jurisprudence. He is, therefore, a student of 
 comparative law in its widest sense and fully recognizes 
 its value as a storehouse of experience. : But he insists 
 
xxxii INTRODUCTION 
 
 — it is a distinctive note of his teaching — that there is, 
 and must be, in jurisprudence, an element not derivable 
 from experience. "As long as we consider human acts 
 in -their empirical aspects, as they enter into the causal 
 succession of objective nature, we shall be able at most to 
 trace the course of history, but never to create a philos- 
 ophy" (§168). "Ethical valuation deals with an essen- 
 tially metaphysical relation, and is only possible where 
 it is based on a criterion which transcends phenomena" 
 (§171). 
 
 And here let me say as to these diverse opinions that, 
 with several authors in my mind who have discussed the 
 philosophy of law, I cannot but think that much of the 
 controversy is a battle in which shadows fight with shad- 
 ows; one in which friend and foe are indistinguishable; 
 in which vague statements are repelled by others equally 
 vague; in which metaphors often serve for arguments; 
 a battle, it may be added, arising to some degree from 
 misunderstanding. There is a common ground on 
 which the combatants might meet. Even those who 
 hold, with Miceli, that there is not and cannot be a true 
 philosophy of law, admit that there may be "an empiric 
 superior science of law, a general consideration of all 
 legal systems." They would admit what is sometimes 
 called a phenomenology of universal law; an orderly 
 and brief statement of the common qualities and inci- 
 dents of all law. Further, even they who challenge the 
 possibility of a philosophy of law must recognize the 
 existence of questions not solved by systems of "All- 
 gemeine Rechtslehre" or indeed any scientific exposition 
 of facts (see § 80). Those who with our author 
 attempt to construct a philosophy of law seek to satisfy 
 an imperious need — "the ethical need" as it is some- 
 times called — the demand for something different from 
 the mass of historical dissertations and investigations 
 
INTRODUCTION xxxiii 
 
 which, if they elucidate the past, too often serve to 
 obscure present and future needs. When facts have been 
 collected and arranged, when their common elements 
 have been extracted, we are brought into the presence of 
 a problem which experience cannot solve. It is not 
 enough to know that such and such is commanded, such 
 and such forbidden. Wedoandmustask, Why? We do 
 and must endeavour to distinguish between the quality 
 of certain commands and rules and that of others. 
 
 This "ethical consideration of the social life" is a 
 necessity. There is a conviction, true or false, but ine- 
 radicable, assuming many forms but never at any time 
 wholly absent, that there is attainable or desirable an order 
 of things better than that which exists — in other words, 
 a "sittliche Weltordnung," — and that this order can be 
 furthered or retarded by the operation of law.. The 
 sentiment of justice is as real a fact as the existence of 
 electricity. By that ideal actual laws are judged. Cling 
 as we may to the facts of experience, we shall be compelled 
 to judge the facts by a standard not derived from that 
 experience. And here it may be remarked that our author 
 does good service in rebuking and confuting the legal 
 Pyrrhonism which dwells upon the variety and acci- 
 dental elements in law, to the exclusion of consideration 
 of common features. "The modem studies, by whose 
 light the variety in the forms of life and the differences 
 according to time and place of both men and nations are 
 more clearly seen, have shown with equal clearness that 
 there are deep-rooted similarities and continuous analo- 
 gies, and even true and actual equalities of principle and 
 institutions among various people in different ages." 
 Impartial reflection reveals beneath many differences 
 a common substratum, — which Vico calls "the defi- 
 nite common mind of the nations"; an element which 
 brings about the progressive unification of law and a 
 
xxxiv INTRODUCTION 
 
 tendency to co-ordinate law and institutions. No 
 doubt, it is hard to detect the common elements in sys- 
 tems apparently, and sometimes really, very unlike. 
 But what is a source of difficulty for science does not 
 cease to exist in reality; "and it is a vain illusion to 
 ignore a need because we cannot satisfy it" (§ 14). 
 
 In my brief Introduction to the translation of Berolz- 
 heimer, in this series, I pointed out that there were at 
 least five tasks to be performed. 
 
 The first task is to trace the origin of law to its 
 sources in human nature; in which task the psychologist 
 and jurist must co-operate, and in which Wundt, Iher- 
 ing and many others have had their share. This is a 
 theme touched upon, though imperfectly dealt with, by 
 our author in certain sections; for example, in § 134, 
 where he remarks: "Law is by its nature a vital force 
 and as such dominates the wills of those subjected to it, 
 but its realization is not always mechanical. PsychoIog7 
 ical coercion is as effective as the physical." 
 
 In the second place, it is some one's business — and 
 whose if not the philosophic jurist's? — to connect^law 
 with the society and circumstances in which it originated ; 
 to seek to put legal phenomena into their true relation- 
 ship with the other phenomena of society — for example, 
 with economic facts. That all social facts are related; 
 that there is no isolation ; that they form a whole ; that 
 they interlock and interact ; that they are not fortuitous ; 
 that they may not form an organism, but that they 
 form a system, we all admit. That relationship or sys- 
 tem is as much a matter of scientific Inquiry as are the 
 individual facts themselves. This is an inquiry in 
 which aid is received from the economist and the soci- 
 ologist; an inquiry for the first time rendered possible 
 during the last twenty-five years, by reason of the accu- 
 mulation and accessibility of materials. 
 
INTRODUCTION xxxv 
 
 The next task is to analyse the uhimate elements of 
 law; in particular to realise fully the true nature and 
 varieties of sanction. A further task is to state the laws 
 of the growth of jurisprudence, what Leibniz calls the 
 "historia mutationum legis," to determine whether there 
 is evolution or mere accumulation or addition; to 
 inquire into the evolution of progressive legal systems. 
 
 In the next place, it is legitimate to inquire what are 
 the internal impulses which produce law; in other words, 
 the psychology of law. 
 
 The last task is to discriminate between law and ethics. 
 
 As to all these points, our author gives assistance. 
 But as to all of them, I note sometimes certain defects; 
 for example, occasionally a certain cloudiness of phrase; 
 a proneness to lose touch with, reality; perhaps also 
 hesitation in drawing the full conclusions from his own 
 reasoning. He is right in protesting (§ 139) against Iher- 
 ing's attempt to fix or define the universal object of law. 
 On the other hand, he himself seems to me to limit the 
 field of law too much; there are facts not to be ignored 
 by jurisprudence which do not fall within his formula. 
 
 In my Introduction to the translation in this series of 
 Berolzheimer's Philosophy of Law, I remarked that 
 there is a philosophy or spirit of law deeper than that of 
 Montesquieu. He did much to get beneath the surface 
 of law ; to trace its relationship to other phenomena ; 
 to show that mere legal analyses was imperfect; that, 
 all parts of national life being united to each other, all 
 parts of law originating in that life were related also. 
 I am inclined to think that this volume penetrates deeper. 
 It seeks to find the roots of law in human nature and not 
 merely in external facts and the social "milieu." 
 
 The book is also to be welcomed as a protest against 
 "the excess of philosophical reaction." Such words as 
 these are opportune: "The demand for a new basis of 
 
xxxvi INTRODUCTION 
 
 jurisprudence is largely unanswered, while philosophical 
 doubt, which is so obvious a mark of it, increases. The 
 multiplication of historical studies, increasing the data, 
 shows more clearly every day the need of giving more 
 weight to speculative and dialectic studies." 
 
 I cannot sum up in a sentence or two the merits of the 
 volume. But to my mind its great service is twofold. It 
 is a contribution to what is in jurisprudence the theme 
 of themes, the History of Justice; to that book, yet 
 unwritten which describes the growth of that sentiment 
 in ethics and in law. The second service is that the 
 book prepares the way for a true Natural Law based 
 upon the common elements and need in men's nature 
 and independent of group morality.^ Held for centuries 
 by jurists as the basis of their teaching and their science, 
 and despised as mere "fustian" by Bentham and Austin, 
 Natural Law reappears in a new form ; with new argu- 
 ments, not open to the old objections, it is put forward by 
 recent writers. No one holds that there is one law every- 
 where to be found ; that is now an obviously untenable fic- 
 tion. But there are ethical criteria which are applied to all 
 laws ; there are ever-present needs ; and attempts to satisfy 
 them produce in similar circumstances similar results.' 
 
 To quote a distinguished countr3mian of Del Vecchio, 
 Professor Carle:* "Nel diritto occorre un elemento 
 immutabile, costante, universale, che 6 rappresentato 
 dair idea del giusto, ed un elemento mutabili, particolare, 
 transitorio, che 6 rappresentato dai fatti contingent!, a 
 cui il diritto deve essere applicato. In esso vi ha un 
 elemento unificatore, che 6 I'idea del giusto, ed un ele- 
 mento che direbbesi diversificatore, il quale consiste 
 nelle speciali contingenze, a cui deve proporziarsi e deve 
 accomodarsi quest unica idea." 
 
 'I am not forgetting Herbert Spencer's work. 
 
 •See Hobhouse, I, 274. 
 
 •"La vita del diritto," p. xxxvii. 
 
INTRODUCTION TO THIS VOLUME 
 By Shepard Baro^ay* 
 
 It is a pleasure no less than an honor to be among 
 those who have the privilege of introducing the follow- 
 ing writings of Professor Del Vecchio to Anglo-Ameri- 
 can readers. My allies, in the other introductions, have 
 given from several view-points such interesting out- 
 lines of the life and writings of our author that my 
 effort may be abbreviated into a few additional sugges- 
 tions intended to commend his work for its practical 
 utility to all students, whether novitiates or experienced 
 lawyers, on the Bench or at the Bar, even in our busy 
 modem days. 
 
 It has been remarked by a French writer on evolu- 
 tion of law that "of all phases of social life the law is 
 that wherein philosophic speculation has in our day 
 been the least exercised." * 
 
 If that fact W£is noticeable on the continent of 
 Europe in the time of that writer, it certainly was more 
 evident on this side of the Atlantic. Although pioneer 
 workers of long foresight in America have made a few 
 valuable contributions to law philosophy, yet of all parts 
 of the civilized world our country has exhibited less of 
 such speculation, until within a recent period, when 
 the activity of some leaders in our universities hcis de- 
 veloped literary fruits in that field sufificient to induce 
 comment from a distinguished source to the effect that 
 
 •Formerly Chief Justice of the Supreme Court of Missouri, Cir- 
 cuit Judge in St. Louis, and Judge of the St. Louis Court of Appeals. 
 *Tarde, "Les Transformations du Droit,'' (2d ed., 1894), p. 1. 
 
xxxviii INTRODUCTION 
 
 manifestations here impart "the feeling that the next 
 great step forward in the history of speculative thought 
 may come, not from this old side of the world, but from 
 the United States of America."' 
 
 Let us hope that expectation may be realized! 
 
 The attempts by the Editorial Committee of the 
 Association of American Law Schools to give right direc- 
 tion and impetus to such steps have led to the promotion 
 of the Modern Legal Philosophical Series, including these 
 writings of Del Vecchio, an extremely industrious pro- 
 fessor at the renowned University of Bologna, which 
 the philosophical historian Herder* described, more 
 than a century ago, as "the learned city" because of its 
 pre-eminence in law teaching. Del Vecchio is worthy 
 of his setting and of its traditions. He brings a message 
 which carries the reader into the pure, invigorating atmos- 
 phere of Platonic dialectic, where guiding stars seem 
 brighter and the spell of infinite Mind more potent than 
 elsewhere. When American thought, so intense in its 
 activity, turns freely into channels of such study, we 
 may count upon results which will enlarge the intellec- 
 tual wealth of our country — our best possession. That 
 study may also play a useful part toward the establish- 
 ment of an equilibrium between the formulas of law 
 and the ethical justice in public opinion, which latter in 
 an enlightened republic is a force to be reckoned with. 
 The balance-wheel in the American system of govern- 
 ment is and long has been the judiciary, which, while 
 exercising as in other countries the ever important func- 
 tion of law interpretation in private controversies, has 
 exerted also a power and finality of interpretation of con- 
 stitutional and governmental law larger than has been 
 
 3 Haldane, "Pathway to Reality," Vol. 1, p. 145. 
 * Herder, "Ideen zur Geschichte der Menschheit" (Brockhaus, 
 , Vol. 3, p. 244. 
 
INtRODUCTION xxxix 
 
 accorded in other parts of the world. The effect of that 
 practice has been to increase the ethical responsibilities 
 of that office in America, as well as to give rise to well 
 defined schools of opinion concerning the scope and 
 limitations of such power.* 
 
 In some parts of the United States the judiciary has 
 been put upon the defensive as being deficient or at 
 least slow in discerning the force of ethical principles 
 evolved from modern industrial conditions, and as apply- 
 ing the law with obsolete interpretations which disturb 
 the conscience of many of our citizenship. A note of 
 warning has been sounded in a very high quarter : 
 
 "If you do not adjust your laws to the facts, so much 
 the worse for the laws."* 
 
 Now there is no special training for judges marked out 
 by custom or in the program of our law schools other 
 than that intended for students in other walks of our 
 profession. The training and habits of the American 
 lawyer, following the traditions of the Common Law, a 
 system developed from judicial rulings in concrete 
 cases through centuries, prompt him, upon meeting a 
 law problem, to turn to his library to find some decided 
 case as a precedent to guide the court to the result he 
 desires. That practice becomes firmly fixed as part of 
 his mental engineering. If he reaches the Bench he 
 naturally follows his old way as the safe way. The 
 greater importance and weight given, by Bench and 
 Bar alike, to decided precedents in England and America 
 as compared with continental countries, have had a ten- 
 dency to minimize with us the value of original specu- 
 lation in all legal investigations. >. 
 
 ' See Prof. Pound's "Scope and Purpose of Sociological Jurispru- 
 dence" (1911), 24 Harv. Law. Rev. 591; 25 id, 140, 489. See also 
 "The Danger Line" (1898), 32 Am. Law. Rev. 321. 
 
 « Woodrow Wilson, "The New Freedom" (1913), p. 34. 
 
xl INTRODUCTION 
 
 But the time has come when we must move forward. 
 The complexity of social life, the magnitude of its busi- 
 ness affairs and the problems of constitutional law have 
 brought to the surface in recent years momentous ques- 
 tions for the solution of which the rules of ancient law 
 do not appear entirely adequate. They encounter phases 
 of sociology unknown to the revered sages of the Com- 
 mon Law, and although its principles have wonderful 
 capacity for expansion and for application to new con- 
 ditions, more spiritual light is needed to analyze and 
 solve the enigmas of doubt and difficulty now arising. 
 Some of the difficulties thus perplexing the judges 
 have been shown in an interesting article by Professor 
 Pound, who suggests the propriety of classifying those 
 phases of experience under the head of Sociological 
 Jurisprudence.' What better exercise of those higher 
 judicial faculties, imperatively required to solve justly 
 those difificulties, than is found in the study of the 
 science of thinking? Those faculties are stimulated to 
 efificiency by judicious training. It is the best passport 
 to a view of "pure Right as an ideal conception"* (to 
 quote our author), by which "many things are made 
 clear, that else lie hidden in darkness." 
 
 To follow a master like Del Vecchio- through a work 
 such as is here presented is an elevating process worth 
 all the pains needful to gamer its complete meaning. 
 Some pains are needful to grasp his scientific method, 
 especially for those who begin with him, for (to quote 
 another) "It is just because the scientific aspect of the 
 truth is the aim of Philosophy that its language is abstract 
 and that its methods have the defect of their quality." ' 
 But the "quality" is worth the search and the student 
 
 ' 24 Harv. Law Rev. 591; 25 id. 140, 489. 
 
 » Del Vecchio, "Positive Right" (38 Law Mag. & Rev. 1913, p. 308). 
 
 » Haldane, "Pathway to Reality" (1905), Vol. 2, p. xv. 
 
INTRODUCTION xli 
 
 is rewarded for his pains. The judge who meets a 
 problem of conflicting principles in a submitted case, 
 and is required to discern and to decide which principle is 
 paramount and controlling, must search for that truth 
 along lines of reasoning such as we find in these researches 
 of Del Vecchio into the concept of law. Beyond the 
 usual equipment for entering the Bar, no better train- 
 ing can be found for that highest function of our 
 profession, the exercise of legal judgment, than in such 
 study. Its broadening effect is a revelation to many 
 minds. The philosophy of law is so essential a hand- 
 maid to judicial investigation in these latter days that a 
 diligent searcher after truth cannot hope to attain a 
 full measure of equipment without it. , 
 
 Our author, in far off Italy, has emphasized the 
 utility of a clear concept of Right, in the practical 
 administration of justice, along and in immediate con- 
 nection with his postulate that the certainty of positive 
 law should be such as to guarantee legal liberty to the 
 citizen against the arbitrary will of any judge. That 
 emphasis Del Vecchio has thus expressed : 
 
 "Nobody can be ignorant that the interpretation of 
 Right, and especially that which is required of the 
 judge, is a genuine and original consideration of it, that 
 supposes a deep aptitude for it, while it profits by all 
 suggestions evoked by the ever new relations which 
 arise. This judicial interpretation is a subordinate 
 element, but a necessary one for the full development 
 of the system in force: it excites, like leaven, its ideal 
 and hidden powers, and discovers often in ancient laws 
 meanings which their authors could not have explored. 
 But though the logical foundations of the system and 
 the organic unity of its structure remain unchanged 
 by the interpreter, still within these limits the system 
 receives new and fruitful increases in the course of its 
 application."" 
 
 w Del Vecchio, "Positive Right," 38 Law Mag. & Rev. (1913), 293. 
 
xlii INTRODUCTION 
 
 Those who have passed through the Battles of Ideas 
 which take place on the field of judicial experience 
 between conflicting principles contending in sociological 
 contests *' will appreciate, more keenly than others can, 
 the wisdom of those observations. As Del Vecchio 
 points out, an understanding of the true concept of law, 
 as he explains it, is of inestimable value in aid of the 
 judicial function. It is no less so to the practitioner 
 at the Bar who must appeal to and convince judges in 
 order to secure the fruits of the knowledge he may 
 possess. The search for that concept of law or Right 
 must become part of that advanced education for which 
 our profession in America, Bench and Bar, are ready, 
 to enable them to move onward to fulfill our manifest 
 destiny of leadership in civilization. 
 
 The breadth of discernment which comes from the 
 study of different systems of law and of their correla- 
 tion and philosophy has been remarked by a distin- 
 guished cosmopolitan jurist, now Lord Chancellor, in 
 reference to proceedings of the House of Lords, as a 
 judicatory of Scotch as well as of English law: 
 
 "Its history as a Scottish tribunal of appeal has been 
 an illustration on a great scale of the truth that fine 
 legal intelligence, even in a comparatively unfamiliar 
 field, is better than the understanding whose main 
 qualification is only special knowledge. The jurispru- 
 dence of all countries is much the same in its funda- 
 mental principles. Strip it of its technical terminology, 
 and the differences in great measure disappear. The 
 master of legal principle who has a mind large enough 
 to be free from provincialism is, therefore, in all cases 
 the best kind of judge. What he does not know he sets 
 in its proper place and proportion, as he gathers it from 
 the argiunent."'^ 
 
 «5tote V. Loomis, 115 Mo. 307 (22 S. W. Rep. 350; 21 L. R. A- 
 789; Thayer, Cases on Const. L., I, 929). 
 " Haldane, "Education and Empire" (1902), p. 141. 
 
INTRODUCTION xliii 
 
 In our country the varied laws of the several states 
 and the complexity of local governments, in operation 
 by the side of the federal power throughout our Union, 
 present frequent problems of constitutional law calling 
 for the highest degree of philosophical learning in our 
 federal court of last resort. Fitness for service there is 
 incomplete without the broad culture of which Philoso- 
 phy of Law forms a part. A learned British critic has 
 declared that law reforms in the United States can only 
 be attained "after the reformers have become familiar 
 with the world's methods of juristic thought. They 
 must first be equipped with the state of juristic learning 
 in the world to date. Thus equipped they may then do 
 original work."". But another conspicuous English ob- 
 server, already mentioned, appears to have a more roseate 
 view of our condition and extends warm encouragement 
 to our progress in this field : 
 
 "In abstract knowledge as in commerce America is 
 going ahead by leaps and bounds. Why is it? I put 
 it down, partly at least, to the development of higher 
 teaching that has taken place in America."" 
 
 The teaching of law in our country is keeping up with 
 the intellectual standards of the age, as is evidenced by 
 the introduction of these unique writings of Del Vecchio, 
 along with other books of this Series. 
 
 The true lawyer is always a student, young or old. 
 His learning should be varied, broad, accurate and deep, 
 and, in these days, cosmopolitan as well. His power 
 is in his intellectual structure and his character. These 
 he should strengthen by every experience. As was 
 tersely phrased by Dean Wigmore in his model intro- 
 duction to Gest's "Lawyer in Literature": ^ 
 
 " Editorial note: 38 Law Mag. & Rev. (1913), p. 499. 
 " Haldane, "Education and Empire" (1902), p. 61. 
 « (1913) Boston Book Co., p. xii. 
 
xliv INTRODUCTION 
 
 "The best literature — drama or poetry, philosophy 
 or fiction — must always be an arsenal for the lawyer." 
 
 We add: that part of the lawyer's fighting armor 
 should be the Philosophy of Law, the study of which 
 ought to "accompany and permeate" the law itself, 
 according to the high authority of Professor Heinrich 
 Ahrens," whose outline for juristic study remains, after 
 more than half a century, a most useful program for 
 the culture of young men in our profession. He recom- 
 mended Philosophy of Law as part of a three years' 
 curriculum. In many parts of Europe that study has 
 had a similar place in the educational scheme of the 
 best universities as it has now in many of ours. Our 
 author has filled the chair of that science for many 
 years, and is a master in unfolding the wealth of its 
 resources. His is a work of singular merit which now 
 is laid before English-speaking readers. It seems scarcely 
 fair, in an introduction, to filch in advance the sweets 
 of such literary labor, and thereby possibly diminish 
 its zest by diluted paraphrase. These introductory 
 suggestions will endeavor to avoid so doing, although a 
 few specifications of admiration may be tolerated, for 
 reasons which will appear. 
 
 The theme of these writings has long engaged the 
 attention of philosophers. Much controversial literature 
 has been produced in discussion as to the true concept 
 of law. There is directness and candor in its present 
 exegesis, refreshing at this advanced stage of the argu- 
 ment. The various schools of philosophic thought, 
 historical, analytic, empirical, positivist, sociological, or 
 by whatsoever names they are self-labeled or otherwise 
 classified, receive alike from Del Vecchio respectful con- 
 sideration. He probes the intent ai^d spirit of the law 
 
 " Principles, Juristic Methodology (Hastie, transl., 1892, from 
 Juristische Encyclopadie), p. 224. 
 
INTRODUCTION xlv 
 
 deeply, in explaining its meaning. His heart is evidently 
 full of a noble purpose to elevate the ethical results of 
 law administration, the necessity of which elevation 
 he appreciates, as he says (sec. 5) : 
 
 "The doubt of the innate reason of law is in our day 
 singularly bitter and widespread." 
 
 That doubt Del Vecchio evidently believes it is the 
 mission of our profession to dispel. It may do so by 
 developing to the public understanding the inherent 
 justice of law, and its conformity to the standards of 
 ethical Right, the idea of which takes shape in the uni- 
 versal mind before it assumes expression in concrete 
 form as positive law. To vindicate a true concept of 
 the law, as a just, vital, spiritual and uplifting social 
 force, is the proposition read between the lines of this 
 masterwork. The author would infuse into the law 
 the moral tone which it should possess, in all its mani- 
 festations. 
 
 "The genesis or unfolding of Right out of the spirit 
 of the People is an invisible process." . . . 
 
 "The Conviction of the People, as reflected in the 
 Consciousness of its members, is the first of the modes in 
 which Right arises, because it stands nearest to the 
 primary source of all human Right, and is immediately 
 connected with it."" 
 
 The growth of podtive law in the process of evolu- 
 tion from subjective Right is the belief of Del Vecchio, 
 who boldly combats the idea of von Ihering that the 
 power of coercion lies at the root of the concept of law. 
 It was the latter writer who began his greatest work 
 with the dramatic declaration: 
 
 "The end of the law is peace. The means to that end 
 is war." . . ^^ 
 
 " Puchta, "Outlines, Science of Jurisp." (Hastie, transl., 1887), 
 pp. 37, 38. 
 
 « Ihering, "Struggle for Law" (Lalor, transl., 6th ed., 1879), p. 1. 
 
xlvi INTRODUCTION 
 
 In a later work he said : 
 
 "The current definition of law is as follows: law is the 
 sum of the compulsory rules in force in a State, and in 
 my opinion it has therewith hit the truth. The two 
 elements which it contains are that of rule, and that 
 of the realization of it through coercion. Only those 
 rules laid down by society deserve the name of law 
 which have coercion, or, since, as we have seen, the 
 State alone possesses the monolopy of coercion, which 
 have political coercion behind them. Hereby it is 
 implicitly said that only the rules which are provided 
 by the State with this function are legal rules; or that 
 the State is the only source of law."^^ 
 
 That author further developed the theory in the 
 passages which are well answered by Del Vecchio (sees. 
 139-40). Yet an American statesman and jurist of 
 renown gave some support to von Ihering's idea: 
 
 "It is essential to the idea of a law that it be attended 
 with a sanction; or, in other words, a penalty or pun- 
 ishment for disobedience."^" 
 
 A penalty or force does not appeal to the enlighten- 
 ment of to-day as the only sanction for a true concept 
 of law. The clash of armies affords little aid to tlie dis- 
 cernment of truth. • Some of the most profound and 
 philosophic students of the world's history have agreed 
 with Del Vecchio that law has a better foundation 
 than coercion for its being. In the 18th century Prof. 
 Rutherforth wrote that "Natural laws are those which 
 mankind are obliged to observe from their nature and 
 constitution," as distinguished from voluntary or posi- 
 tive laws, which mankind "are obliged to observe by 
 the immediate will and appointment of a superior."'^ 
 
 " Ihering, "Law as a Means to an End" (Husik), Boston Book 
 Co., 1913, p. 239, sec. 10. 
 ™ Hamilton, "Federalist," No. 16. 
 ^ Rutherforth, "Institutes" (2 ed.), 1779, p. 8. 
 
INTRODUCTION xlvii 
 
 Many others have held the same conviction. One of 
 the most erudite writers on this topic in our mother 
 tongue has complained of the narrow interpretation of 
 the term "Law" in the English world: 
 
 "It is not necessary to warn a Continental student 
 of the importance of this lesson. None of the words 
 rech' droit nor jus have ever been restricted to the 
 narrow meaning that, in the hands of Bentham and 
 Austin, the word law has acquired in England. And 
 yet it is true that the excessive precision by which the 
 use of the word law has of late been narrowed in this 
 country has tended to save English students from 
 many of the pitfalls of vagueness and indeterminateness, 
 not to say sentimentality, to which some foreign writers 
 are undoubtedly prone. But precision, valuable as it 
 is, must not be sought at the expense of truth ; and the 
 question is now presented, as to whether recent Eng- 
 lish legal writers have not, in aspiring after clearness 
 and brevity, entailed upon themselves a loss which is 
 not appreciable at the full till the problem of the scien- 
 tific nature of so-called 'International Law' comes under 
 treatment. "^^ 
 
 We need not go further into the polemics of the issue 
 we have last described; although, in fine, we may sug- 
 gest that much of the apparent difference in opinion 
 among writers of this class, touching the true concept 
 of law, seems to originate in the fact that law, viewed 
 abstractly, contains the elements of many meanings, 
 the precise one of which properly applicable will depend 
 upon the circumstances in the use of that term which 
 unfold its application to the interpreter and its conse- 
 
 "Amos, "Science of Law" (1891), 324. 
 
 At the present, in the midst of a general war, it seems inopportune 
 to attempt to follow Dr. Amos concerning the sources and the 
 sanction of International Law. It will be sufficient to cite another 
 notable English philosopher whose carefully defined view agrees 
 with our author that a coercive sanction is not essential to the 
 right concept of law. Spencer, "Ethics" (1892), pp. 50-51. 
 
xlviii INTRODUCTION 
 
 quent import so applied., But that suggestion is not 
 intended to diminish in any respect the usefulness of 
 researches into those meanings. 
 
 Our author, outlining the concept of law, is impatient of 
 inertia retarding the activity of its progress. He deplores 
 (sec. 70) a condition of "muteness" to which the Philoso- 
 phy of Law is to-day reduced before the legislative and 
 political reforms "which are everywhere being realized," 
 when it ought to control them. Here, as in many 
 writings of von Ihering, can be discerned between the 
 lines much of significance, to interpret which the reader 
 should appreciate the environment and the limita- 
 tions of the authors as oracles of authority, and 
 especially as instructors of youth. 
 
 In some parts of our author's cogitations (§§ 69-72) 
 will be found a far , reach into the realms of specula- 
 tion as to the meaning, source and final purpose of 
 the law, suggestive of the thesis so brilliantly unfolded 
 by Viscount Haldane in the "Pathway to Reality,"^' 
 a work of world-wide philosophical importance. We 
 cannot elaborate in that direction more than to advise 
 the parallel reading of these two writers on the phases 
 of our author's discussion touched by the sections cited. 
 
 As to the literary aspect of his work, Del Vecchio is 
 not averse to the "jargon" of the Germans (as -Austin 
 calls it).''* On the contrary, he adheres to their specu- 
 lative terminology, and is not far away from the school 
 of inspiration of Kant. Yet he has progressed far 
 beyond the neo-Kantian sphere, and gives indications 
 of further development. His work we welcome as a 
 most valuable contribution to that sort. of education 
 
 2' (Murray, 1903) Vol. I, pp. 31-32; 52-60. (Murray, 1905) Vol. 
 II, pp. 301-306. 
 '» Austin's "Lectures," II, p. 737 (Murray, 3 ed., 1869). 
 
INTRODUCTION xlix 
 
 which appeals to the noblest and best in our intel- 
 lectual structure. A recent French writer has said : 
 
 "If the social question could be summed up in one 
 formula, we might fearlessly say that the question is 
 one of Education." ^^ 
 
 One of the most needed phases of education is the 
 science of law philosophy, if our learned profession is to 
 maintain the leadership in thought which it enjoyed in 
 days gone by. The world does not stand still. It is 
 spiritually as physically a movable body. When it 
 stops, it will be at an end. Our author has done his 
 good part toward its uplift and its progress. The seed 
 which he sows is full of vitality and of hope. To close 
 with the words of an energetic leader along the same 
 pathway : 
 
 "We must rely chiefly upon the philosophical jurist 
 to keep us in our course toward right and justice as 
 ends." 26 
 
 25 Demolins, "Anglo-Saxon Superiority" (1899), p. 49. 
 " Pound, "Scope and Purpose of Sociological Jurisprudence," 24 
 Harv. L. Rev. 610. 
 
ATITIIOK'S I'klJ'ArF, 
 
 'I'lin QiuilyHlH (if IIk- liiiiiliniu'iiliil (iMiccplH of june- 
 |)iif<lciu « In (»ii(i of dm cliii'f (Idlii'H of (III) pliiloMopliy of 
 liiw III nil (inicH; liiil: !l it (•n|)('( iiilly iicccHHiiiy iiiid do 
 iiitiiiilM piirliciiliir iilicniidii iil pri'ix'iil: wliuii llicn; existB 
 Ki'i'iil (Iniilil at Id lll(<lll(i(lrt llllil wlii'ii a K>'i'''il^ Il<'<'<l of 
 ii'fonii ill (locliiiid in cvciywlii'io fell. 
 
 'I'lic |)i('viiIcM(i' of llid ciiipirical Iciidciicy and llio 
 (•oimt>r|iii'iir Mciiicily of priiiciplcM kIv" modcni <-on- 
 ccpliiiil hliidicH a proviHioiiul and puiliciilar (liuraclcr. 
 AIiIiiiiikIi IIiIh iiiakcH llicni licllcr Hiiilcd lo (('ilaiii 
 I iincK'lc aiirl iiiini('diiili> ciidi-i, il: dcprivcH llicin of a liiiu 
 ''adai'(|iiiili() rci" mid jiliiloMopliical value. 'I'lu; HiiialL 
 HUci-fHH of Hlii'li MliidicH ciiii alHo tio liaicd lo iiiiduc 
 liiiiiliiliniiH and an iiiidiic appliiiilioii of IIk; liiMl<iii<':i,i 
 iiiflliod, 'I'lii- di'iiiiiiid for a new liaHJH of jiiiiHpi'iidciK'o 
 Ih liiiKi'ly iiiiniiiHWci'cd, wllilf philoHopliiiMl doiilil, wliic'li 
 in lio olivioiiM a, mark of il, iiicrciiMCH. 'I'lic mull iplical ion 
 of liiiiloiii'iil HliidicM, iiicicimiiiK; liic <liila, bIiowh moru 
 clearly cvx'iy duy (he need of niviuK' uuiro wt-inlil to 
 Mpt'culiilivc and diiilcilicHludicH, 1)y wliicli llu^ philoHopliy 
 of law can t'xt'iciMd ilM cliicf duly of HyHli'miillzntion and 
 HynliicHlH. 
 
 'i'li(> cxIhIIiik coiifuMioii, wlii<'li Iiuh oilier cokuiiIo cjUIHcI'I 
 l)c'Nitlt>H lilt' one K'veii, in lecliuically (iiiled llic criHiH o( 
 (li(i pliiloMopliy of law, a li'im wliicli well deHcribcH liio 
 preneul Mlale of thai Hliidy, iilllioiiRli il: iieedn fiiiilier 
 explaualioii on one poiiil. I'lie duly of pliiloHopliy 1b 
 to co-oi'diiuiti' and reKulale (lie cliapleiii of liuiuan 
 
lii AUTHOR'S PREFACE 
 
 knowledge, whence it follows that every new current 
 which disturbs and alters the content of knowledge is 
 necessarily reflected in philosophy. Every real or ideal 
 historical change constitutes a new element in philosophy, 
 and a new force ,to be given its place in the conception 
 of the world. What, therefore, is a mark of catastrophe 
 and crisis in the different fields of historical life, is the 
 "raison d'etre" of philosophy. It is born of scientific 
 disagreements. It is in necessary and irreconcilable 
 crises that the inexhaustible activity of the mind and 
 its constant effort for unity are shown. 
 
 The crisis of the philosophy of law is coeval with the 
 philosophy of law. A glorious crisis marked its begin- 
 ning, when in the daybreak of the human mind, — 
 Hellenic civilization — the intellectualer volt of Sophie 
 scepticism gave birth to the philosophies of Socrates 
 and Plato. From that day, the history of the philosophy 
 of law has never been separated from that of the serious 
 revolts which have changed the conditions of human 
 society. There is no doubt that this philosophy will be 
 preserved in the future, aftd far from being weakened 
 or overthrown, will gain new dignity and strength 
 in the struggles in which it will be called upon to in- 
 tervene. While the occasions, and even the methods 
 and forms of the crises change with the years, yet crises 
 remain the constant law of its development, the surest 
 sign of its life and the chief ground for its necessity. 
 
 Critical conceptual revision, however, is not the sple 
 object of legal philosophy. Such a limited program, 
 although in accord with some modern tendencies, is 
 caused by an imperfect conception of philosophy. The 
 definition of the concept of law allows the gathering 
 of empirical data, the objects of history and legal science 
 strictly understood; but since the concept is not com- 
 plete in these data, its definition serves also as a basis 
 
AUTHOR'S PREFACE liii 
 
 for a study independent of them, which is especially 
 speculative and looks to the idea of law or pure justice. 
 The concept is the mean term and, as it were, the point 
 of tangency between empirical fact and the ideal. ' 
 
 But a study, above all if it is of a philosophical nature, 
 cannot be well understood until its possibility and 
 method of effectuation are considered. Hence, the need 
 of a preliminary study which well answers these two 
 questions : 
 
 Is an objective (and, therefore, universal) definition 
 of law possible? 
 
 And, if possible, what are its methodic conditions, 
 that is, how is it possible? 
 
 Such is the object of the first part of this volume. 
 Having thus set forth the methodological principles, 
 in the second we proceed, in accordance with these, to 
 the deduction of the concept of law. That gives oppor- 
 tunity for an analytical discussion of the various elements 
 or aspects of this same concept, by which discussion the 
 substantial unity of these several elements is established. 
 
 Finally, in the third part, the system of the philosophy 
 of law is completed. For besides the formal concept 
 of law, which embraces every kind of content indifferently, 
 there is set forth the ideal of law, namely: perfect justice, 
 which permits us to estimate properly, as by a touchstone, 
 all the various cases of juridical experience. It is not 
 enough in truth to discriminate (as is done by means of 
 the concept of law) the juridical from the non -juridical. 
 We must besides distinguish within the realm of the 
 juridkal that which has more or less of justice. From 
 this comes the necessity of a new search and a new 
 critique, which indeed is derived from the essence of 
 human nature. Thus is satisfied in accordance with an 
 all inclusive conception of the universe that ethical need 
 
Uv AUTHOR'S PREFACE 
 
 of the spirit, which certainly is distinct from the logical 
 but not less legitimate. 
 
 Although the three parts of the present volume were 
 originally published separately, they are in reality closely 
 connected with each other, and constitute, as it were, 
 a trilogy. For this reason the idea of the American 
 editors of collecting the three in a single volume has 
 received my full approval. I hope that the reader will 
 consider with indulgence the slight inequality and external 
 lack of harmony, which might arise from the fact that 
 the three parts were composed at different times. 
 
LIST OF ABBREVIATIONS USED 
 
 Ahrens. Naturrecht — Naturrecht oder Philosophic des 
 
 Rechts und des Staats. 
 Anzilotti. La Scuola del diritto naturale — La Scuola 
 
 del diritto naturale nella Filosofia giuridica 
 
 contemporanea. 
 Aristotle. Anal. Post. — Analytica Posteriora. 
 
 Met. — Metaphysics. 
 Nic. Ethics — Nicomachean 'Ethics.. 
 Phys. — Physics. 
 Polit. — Politics. 
 Brugi. Introduzione — Introduzione enciclopedica alle 
 
 scienze giuridiche e sociali nel sistema della 
 
 giurisprudenza. 
 Burle. Essai historique — Essai historique sur le de- 
 
 veloppement de la notion de droit naturel dans 
 
 I'antiquite grecque. 
 Cantoni. Vico — G. B. Vico. Studi critici e comparativi. 
 
 Carle. La Filosofia del diritto — La Filosofia del diritto 
 
 nello stato moderno. 
 La vita del diritto — La vita del diritto nei suoi 
 
 rapporti colla vita sociale. 
 Carlyle. A History — A History of Medieval Political 
 
 Theory in the West. 
 Cavagnari. Saggio di Filosofia giuridica — Saggio di Filo- 
 
 sofia giuridica secondo i canoni della scuola 
 
 storica. 
 Croce. Filosofia di Hegel — Ci6 che e vivo e ci6 che fe 
 
 morto della Filosofia di Hegel. 
 Filomusi-Guelfi. La dottrina dello Stato — La dottrina dello 
 
 Stato neir antichit^ greca nei suoi rapporti 
 
 con I'Etica. 
 Del concetto del diritto — Del concetto del 
 
 diritto naturale e del diritto positivo nella 
 
 storia della Filosofia del diritto. 
 
Ivi 
 
 Fiorentirio. 
 
 Flint. 
 Gabba. 
 
 Hildenbrand. 
 
 Janet. 
 
 Jellinek. 
 Jodl. 
 
 Kant. 
 
 Lange. 
 
 Merkel. 
 
 Petrone. 
 
 Plato. 
 Post. 
 
 Puchta. 
 Savigny. 
 
 Spinoza. 
 
 ABBREVIATIONS 
 
 Telesio — Bernardino Telesio ossia studi storici 
 
 su r idea della natura nel risorgimento italiano. 
 Vico — G. B. Vico. 
 Alcuni piu generali problem! — Intorno ad al- 
 
 cuni piu generali problemi della scienza sociale. 
 Geschichte und System — Geschichte und Sys- 
 tem der Rechts- und Staatsphilosophie. 
 Histoire de la science politique — Histoire de la 
 
 science politique dans ses rapports avec la 
 
 morale. 
 System — System der subjektiven oiTentlichen 
 
 Rechte. 
 Ueber das Wesen des Naturrechts — Ueber das 
 
 Wesen des Naturrechts und seine Bedeutung 
 
 in der Gegenwart. 
 Krit. d. rein. Vern. — Kritik der reinen Ver- 
 
 nunft. 
 Krit. d. prakt. Vern. — Kritik der praktischen 
 
 Vernunft. 
 Krit. d. Urtheilskr. — Kritik der Urtheilskraft. 
 Vom Verhaltniss. — Vom Verhaltniss derTheorie 
 
 zur Praxis im Volkerrecht. 
 Met. Anfangsgr. d. Rechtslehre — Metaphysische 
 
 Anfangsgriinde der Rechtslehre. 
 Geschichte des Materialismus — Geschichte des 
 
 Materialismus und Kritik seiner Bedeutung 
 
 in der Gegenwart. 
 Gesammelte Abhandlungen — Gesammelte Ab- 
 
 handlungen aus dem Gebiet der allgemeinen 
 
 Rechtslehre und des Strafrechts. 
 Contribute — Contributo all' analisi dei carat- 
 
 teri differenziali del diritto. 
 Repub. — Republic. 
 Bausteine — Bausteine fiir eine allgemeine 
 
 Rechtswissenschaft auf vergleichend-ethiio- 
 
 logischer Basis. 
 Cursus — Cursus der Institutionen. 
 Vom Beruf unserer Zeit — Vom Beruf unserer 
 
 Zeit fiir Gesetzegebung und Rechtswissenschaft. 
 Syst. — System des heutigen romischen Rechts. 
 Tract. Pol. — Tractatus Politicus. 
 Tract. Theol. Polit. — Tractatus Theologico- 
 
 Politicus. 
 
ABBREVIATIONS 
 
 Ivii 
 
 Statnmler. Wirtschaft und Recht — Wirtschaft und Recht 
 
 nach der materialistischen Geschichtsauf- 
 
 fassung. 
 Thomasius. Fund. Jur. Nat. et Gent. — Fundamenta Juris 
 
 Naturae et Gentium. 
 Thomas Aquinas. Sum. Theol. — Summa Theologica. 
 Trendelenburg. Naturrecht — Naturrecht auf dem Grunde der 
 
 Ethik. 
 Vico. Scienza nuova — Principj di scienza nuova 
 
 d'intorno alia comune natura delle nazioni. 
 Vanni. Filosofia del diritto — II problema della Filo- 
 
 soiia del diritto nella filosofia, nella scienza e 
 
 nella vita ai tempi nostri. 
 Maine — Gli studi di H. S. Maine e le dottrine 
 
 della Filosofia del diritto. 
 Sist. di Spencer — II sistema etico-giuridico di 
 
 H. Spencer. 
 Lezioni — Lezioni di Filosofia del diritto. 
 Zeller. Die Philosophie der Griechen — Die Philoso- 
 
 phie der Griechen in ihrer geschichtlichen 
 
 Entwicklung. 
 Ueber teleologische und mechanische Naturer- 
 
 klarung — Ueber teleologische und mechan- 
 ische Naturerklarung in ihrer Anwendung auf 
 
 das Weltganze. 
 Windscheid. Pand. — Die Lehre der Pandekten. 
 
The Formal Bases of Law 
 
THE FORMAL BASES OF LAW 
 
 PART I 
 
 THE PHILOSOPHICAL BASES OF THE 
 IDEA OF LAW 
 
 CHAPTER I 
 
 REASON AND NECESSITY FOR A LOGICAL 
 DEFINITION OF LAW 
 
 IMMEDIATE INTUITION OF LAW AND ITS INSUF- 
 FICIENCY. — THE SYSTEMATIZING FUNCTION OF DEFI- 
 NITION. — ACTUAL NEED FOR A LOGICAL TREATMENT 
 OF LAW. 
 
 § 1. Definition of Law. The application of a juridical 
 criterion to man's acts, or their consideration "sub 
 specie juris" is so old, universal, and frequent, that law 
 should be clearly and distinctly understood by everyone. 
 Every educated man, it would seem, should be able to 
 answer the question, "What is law?" with facile cer- 
 tainty, and his thoughts and acts should be controlled 
 by its concept. But this is far from true; many of 
 those who have given special study to legal principles 
 and institutions would hesitate to offer an. answer. 
 Whoever considers the diversity and incongruity of its 
 definitions cannot fail to see that, notwithstanding the 
 labor expended on the science and philosophy of law 
 
^ NECESSITY FOR A DEFINITION [Ch. I 
 
 and the number of special researches recently instituted, 
 the concept of law has not yet assumed definite shape in a 
 truly logical sense.* 
 
 § 2. Intuition of Law. The reason why the need of 
 a definition is not more apparent is because law is gener- 
 ally felt as an immediate and simple intuition.* The 
 idea of law is one of those ideas which seem intelligible 
 
 1 Gierke wrote, "At the beginning and the end of the study of juris- 
 prudence there stands, as a matter of course, the question, 'What is 
 law?' Law is neither better nor worse than its many cognate 
 studies. Many hundred years of effort have had no result in obtain- 
 ing a universally true answer to this question. No universal practi- 
 cal definition has been found showing the relation of law to other 
 fields of man's social activity." "Naturrecht und deutsches Recht" 
 (Frankfurt, 1883), p. 4. Bergbohm wrote to the same effect, "Words 
 unfortunately cannot give even an approximate picture of law. 
 On the contrary, the legal concept is more unstable to-day than 
 ever; uncertainty envelops it on every side. Upon reading on this 
 subject, one finds much groping in the dark and many provisional 
 definitions without any underlying scheme or connective links, 
 where all should be worked in together." "Jurisprudenz und 
 Rechtsphilosophie," I Bd. (Leipsic, 1892), p. 77. 
 
 ' This quality as a psychological fact is recognized even by those who 
 deny the "apriority" of the idea of law. See, particularly, J. Stuart 
 Mill, "Utilitarianism" (London, 1863), Ch. V; Strieker, "Physiologie 
 des Rechts" (Vienna, 1884), p. vii; Letourneau, "L'evolution 
 juridique dans les diverses races humaines" (Paris, 1891), Preface. 
 And the attacks on the "naturrechtliche Psychologic" — even those 
 as bitter as Bergbohm's ("Jurisprudenz und Rechtsphilosophie," 
 p. 454 et seq.) — cannot weaken the evidence of juridical feeling. Cf . 
 Putter, "Der Inbegriff der Rechtswissenschaft oder juristiche Encyclo- 
 padie und Methodologie" (Berlin, 1846), Introduction; Hoppe, 
 "Der psychologische Ursprung des Rechts" (Wurzburg, 1885), (the 
 refutation of the work we have cited by Strieker) ; Miceli, "Filosofia 
 del diritto internazionale" (Florence, 1889), p. 150 et seq; "Studi 
 di psicologia del diritto," I. "Le basi psicologiche del diritto" 
 (Perugia, 1902). Also Del Vecchio, "II sentimento giuridico" (Turin, 
 1902, in "Rivista italiana per le scienze giuridiche," Vol. XXXIII; 
 and 2 ed., 1908) and other authors there cited. 
 
§2] INTUITION OF LAW 3 
 
 of themselves — almost obviating the difficulty, which so 
 troubled Jean Jacques Rousseau, that definitions need 
 words.' Certain it is that the generic intuition of law and 
 its many resultant forms have, in most instances, taken 
 the place of logical definitions. So the idea of law has 
 been "pure ac simpliciter" taken for granted in legal 
 doctrines and studies, and in practice definitions have 
 been used which were so imperfect and defective that, 
 considered apart, they seem fitted rather to increase 
 than destroy the doubts about the specific nature of law. 
 Emmanuel Kant wrote:* "Jurists still seek a definition 
 of their concept of law," and it cannot be said that time 
 has yet reversed his judgment.* Our progress without 
 
 ' "The method of defining all terms and of constantly substituting 
 the definition for the defined seems good, but is impractical; for 
 how can a circle be avoided? Definitions would be excellent, if we 
 did not need words to make them." Rousseau, "ifimile," Lib. II, 
 (Lefevre ed.), p. 101. Cf. Pascal, "Penstes," P. I, Art. I and II 
 (Didot'ed.), p. 25 et seq. 
 
 * "It is advisable but often difficult to obtain (a definition). The 
 jurists still seek a definition of their concept of law." "Kritik der 
 reinen Vernunft," Transscendentale Methodenlehre (Hartenstein 
 ed.) (Leipsic, 1853), 1 Hauptst., 1 Abschn., p. 625 n. We may note 
 that this passage from Kant is often referred to; Trendelenburg, "Die 
 Definition des Rechts"in "Kleine Schriften," Zw. Th. (Leipsic, 1871), 
 p. 81; RUmelin, "Eine Definition des Rechts" in "Reden und 
 Aufsatze," Neue Folge (Freiburg, 1881), p. 317; and Stammler, 
 "Wirtschaft und Recht nach der materialistischen Geschichtsauf- 
 fassung" (Leipsic, 1896), p. 492. 
 
 ' In this regard, we may recall a profound doctrine of Kant, which 
 holds that it is possible to develop what is called a science only by a 
 system derived from a pure idea. And yet (he observes) it is rare that 
 the system and the definition itself on which it is based correspond 
 to the idea. It exists as a germ in the mind, in which all the elements 
 are hidden, enveloped, and often hardly recognizable by a micro- 
 scopic observation. Only after we have spent much time (led by the 
 idea latent in us) getting together many separate pieces of knowledge 
 relative to it as material for construction, and an equally long time 
 
4 NECESSITY FOR A DEFINITION [ Ch. I 
 
 a definition may raise doubts as to its necessity. For, 
 if the science of law can be formed and developed in 
 every branch with merely an intuitive and generic 
 knowledge of its object, if the nature of law is well known, 
 if everyone daily finds its meaning clearly shown in his 
 own and other's acts, what advantage can there be in 
 a rigorous examination of its concept? A definition 
 might rather lessen than increase its clearness. Thus 
 Reid argued in regard to contracts, showing that the 
 definitions of Ulpian and others, far from clearing, 
 obscured the idea commonly held, and he concluded that 
 definitions of what is clear of itself are worse than use- 
 less.' Certainly, if the purpose of definition is to render 
 an object clearer they fail more often than not. In the 
 greater number of cases, an example or characteristic 
 is more fitted to illustrate an idea than a strict analysis 
 of its logical content.' On the other hand, an intuitive 
 idea of an object is not usually the result of definition 
 but the basis of it — its natural and constant boundary ; 
 whence, a circle from which we vainly try to escape. 
 Why, therefore, is definition necessary, and what is its 
 function in the search for knowledge? And how can we 
 explain the fact, noted by John Stuart Mill, that "some 
 of the most profound and most valuable investigations 
 
 arranging them technically, is it possible for us to show the idea 
 clearly and to build up a whole according to the uses of reason. 
 "Krit. d. rein. Vern.," Transscendent. Methodenl., Ill Hauptst.: 
 "Die Architektonik d. r. Vern.," p. 591 et seq. 
 
 ' Vide Reid, "Essays on the Intellectual Powers of Man," Essay 
 V, Cap. VI: "On the Nature of Contract and of Obligation from 
 Which It Is Derived." Also Pascal, "Penstes," Art. I and II, p. 25 
 et seq. 
 
 ' Kant's advice is good: as a rule of prudence, do not give a 
 definition when the citation of some character of the object is suffi- 
 cient. "Krit. d. rein. Vern.," p. 227, n. 2. 
 
§2] INTUITION OF LAW 5 
 
 which philosophy presents to us have been introduced 
 by, and have offered themselves under the guise of, 
 inquiries into the definition of a name"?* 
 
 §3. The Systematizing Function of Definition. This 
 belief is very different from that which Reid and many 
 with him seem to uphold. The duty of definition — 
 more than to make an object clear — is to give it its true 
 place in the scheme of knowledge, to show its origin and 
 connections with other cognate facts which depend upon 
 its essential qualities, so that those problems which 
 cannot be well answered by the simple aid of popular 
 knowledge may be solved. We must not be surprised, 
 therefore, to find that the definition is often more difficult 
 and complicated than the popular idea. It is a mistake 
 to think this a mark of imperfection or inutility. To 
 go back to the example which we have given : the exact 
 determination of the concept of contract guides us in 
 building up a theory and shows essential elements and 
 possible vices ; for which purpose, simple popular thought, 
 however clear, would not be sufficient. The function 
 of every conceptual study is, therefore, systematic. 
 The analysis of concepts should be a way and means 
 to the work of co-ordination and synthesis, which 
 is the final goal of science and of philosophy.' 
 
 § 4. The Insufficiency of Immediate Intuition. The 
 history of juridical thought shows clearly that imme- 
 diate intuition cannot take the place of rigorous 
 analysis. Even if everyone knows well enough what is 
 meant by law under most concrete circumstances, and if 
 ordinary juridical manifestations are universally recog- 
 
 * J. Stuart Mill. "A System of Logic, Ratiocinative and Induc- 
 tive," 4th ed.. Vol. I, p. 175. 
 
 • Cf., on the subject of the function of definition, laine, "he posi- 
 tivisme anglais," "fitude sur Stuart Mill" (Paris, 1878), p. 125 et seq. 
 
6 NECESSITY FOR A DEFINITION [Ch. I 
 
 nized as such, infinite difficulties would arisen" in relation 
 to the highest and most general problems, from the need 
 of fitting the idea of law into our scheme of knowledge, 
 showing its essential elements and distinguishing it 
 from other closely related objects and categories. These 
 difficulties, spreading from the scientific sphere to that 
 of common knowledge, increase the tendency to scep- 
 ticism, the love of paradox and the sophistic opinion of the 
 non-existence of the philosophy of law, contra-distin- 
 guished from positive jurisprudence, except as a kind of 
 science of phantasy in the minds of arbitrary thinkers.*^ 
 § 5. Actual Need of a Logical Treatment of Law. The 
 doubt of the innate reason of law is in our day singularly 
 bitter and widespread. While, on the one hand, the 
 schools are confused by the greatest uncertainty of 
 method and variety of tendencies, on the other hand 
 (by reason of the same facts), the most absolute theories 
 are held by the laity, which alternately asserts and 
 denies law in the abstract, attributing values and sources 
 to it at will, extending or restricting its applicability, 
 admitting new and excluding old qualities without 
 a full knowledge of the meaning of their presuppositions 
 and results.12 It is obvious that only a rigorously 
 objective criticism can throw light on so many ambi- 
 
 " Vide similar observations by Herbart, "Analytische Beleuchtung 
 des Naturrechts und der Moral" (Gottingen, 1836), Introduction, 
 § 1. — Gierke, "Naturrecht und deutsches Recht," p. 4, enumerates 
 the principal questions that arise from the various doctrines of the 
 concept of law. See also, as to the harm done by uncertainty about 
 fundamental juridical concepts, Bergbohm, "Jurisprudenz und 
 Rechtsphilosophie," pp. 90-102. 
 
 ^ " Hobbes noted the beginning of this tendency: "Scientiam hanc 
 civilem . . . non modo philosophi, sed etiam otiosi, quasi facilem 
 nullo studio ambiendam, cujuslibet ingenio naturali expositum et 
 prostitutum attrectaverunt attrectantque." ("De Give," Prsef.) 
 "Spencer lamented this abuse. "Justice," §37. 
 
§51 LOGICAL TREATMENT 7 
 
 guities, by laying bare the initial points of divergence 
 in method and doctrine, and rendering possible at least 
 (through an analysis of the conceptual presuppositions) 
 a clear discussion of points now hidden by misunder- 
 standing. 
 
DIVERGENCY IN POSITIVE LAW [Ch. II 
 
 CHAPTER II 
 
 DIVERGENCY IN POSITIVE LAW AND THE 
 
 SCEPTICAL CONCLUSIONS BASED 
 
 THEREON 
 
 PROBLEMS OF DEFINITION AND CONTRADICTIONS 
 IN HISTORICAL DATA. — SCEPTIC THEORY. — NEED OF 
 A HIGHER SYNTHESIS. 
 
 § 6. Variety of Historical Data. If we seek the aid 
 of history to show what law is, we find a manifold variety 
 of juridical determinations and institutions adopted 
 in turn by different nations. It does not give a positive 
 answer. ~ Every historical system determines in its own 
 way what law is and what law is not; the same act or 
 relation may be differently qualified in different ages 
 or by different peoples. ■ This is the first evidence which 
 a most superficial examination of history gives. ^ The 
 variance of the juridical criterion with time and place 
 has been an object of study from a very early period. 
 Tales of historians and travelers, communications with 
 foreigners in war or trade, apart from everyone's per- 
 sonal experience, especially in times of revolution, have 
 
 C" Comparative law teaches that law differs in different ages 
 and with different peoples and that often law has decreed what 
 we, with our modern comparative law and reason, hold to be 
 illegal and even absolutely wrong. In the historical development 
 of law it is not unusual to find something permitted by one legal 
 system, to which another system metes out the direst punishment." 
 Post, "Der Ursprung des Rechts." "Prolegomena zu einer allge- 
 -meinen vergleichenden Rechtswissenschaft" (Oldenburg, 1876), p. 17. 
 Also the examples there given. 
 
§6] HISTORICAL DATA 9 
 
 been sufficient to call attention to this fact^ and require 
 its investigation. Ordinarily, as Herodotus said in his 
 "History,"* each people has its own laws, which it 
 believes best suited for its betterment, and remains firm 
 in this belief until with the development of speculative 
 thought it finds marks of relativity in the ethnical and 
 temporal limits of its statutes; this is a "punctum pru- 
 riens" of philosophy and opens the door to scepticism. 
 The primal santity of law is subjected to destructive 
 analysis; existing systems are shown to be the effects 
 of free will or based on transitory and particular con- 
 ditions; the positivity or extrinsic force of law appears 
 distinct and separate from its nature or intrinsic reason. 
 §7. The Sophistic and Sceptic Theory. Pyrrho. This 
 attitude of thought is clearly and characteristically shown 
 by the Sophists.* Sceptic philosophy, under the leader- 
 ship of Pyrrho, developed afterwards the antinomy of the 
 real to an extreme, employing the diversity of judgments 
 on the same object to show the impossibility of knowledge. 
 Of the ten tropes (tjooitoi, called also, Aoyoi or ron-oi), 
 
 ' For the ancient sources of observation on this point, see Gam- 
 perz, "Griechische Denkfer" (French ed.), "Les Penseurs de la Gr^ce," 
 I (Paris, 1904) p. 11 et s"eq., 403 et seq, 
 
 » Lib. Ill, Cap. 38. 
 
 * Vide ChiappelU, "SuUe teorie social! dei sofisti greci" (in "Atti 
 della R. Accademiadi scienze moralie politiche," Vol. XXIII (Naples, 
 1889). Cf. Petrone, "Le nuove forme dello scetticismo morale e 
 del materialismo 'giuridico'' (in "Rivista Internazionale di scienze 
 sociale e discipline ausiliarie," Sept. and Oct., 1896), including 
 a just comparison of the Sophists with some modern ethico-juridical 
 doctrine. As to the ethical and theoretical doctrines of the Sophists, 
 seealsothe fundamental treatise hy Zeller, "Die Philosophie der Grie- 
 chen in ihrer geschichtlichen Entwicklung," Erst. Th., Zw. Halfte, 
 5 ed. (Leipsic, 1892), p. 1033 et seq.; the critical observations by 
 Simmel, "Einleitung in die Moralwissenschaft," 2 Ausg. (Stuttgart, 
 1904,) II Bd., p. 100 et seq.; and Fmgapane, "II problema 'delle 
 origini del diritto" (Rqme, 1896), Lib. I, Cap. I. 
 
10 DIVERGENCY. IN POSITIVE LAW [Ch. II 
 
 by means of which the Sceptics showed the suspension 
 of all judgment, {iTroxn, a.4>a<Tui), one is based on the 
 discordancy of institutions, customs, beliefs and laws, 
 from which it is inferred that no one can affirm what is 
 truly just or unjust "per se," but only in relation to some 
 institution, law, or custom.^ 
 
 § 8. The Sceptic Theory. The Second and Third Acad- 
 emies. The scepticism of the Second and Third Acad- 
 emies, while less radical than that of Pyrrhonism, is 
 based on the same principles. The furore in Rome over 
 the dialectic of Carneades is well known. In approaching 
 Pyrrhonism, he held that the criterion of the just does 
 not lie in nature, "nam si esset ut calida et frigida et 
 amara et dulcia sic essent justa et injusta eadem omnibus." 
 "Genera vero si velim juris institutorum morum con- 
 suetudinumque describere non modo in tot gentibus 
 varia sed in una urbe vel in hac ipsa millies mutata 
 demonstrem." ° 
 
 ^ The tea tropes are attributed to Enesidemus by Zeller, "Die 
 Philosophie der Griechen," Dritt. Th., Erst. Abth., p. 485 et seq. 
 See Sextus Empiricus, "Pyrrhonise Hypotyposes," Lib. I, 14; 111,23. 
 Apart from the real discordances, the Sceptics, in order to prove the 
 indefinite variability of customs, took even possible discordance 
 into their calculations. "If we did not have arguments at band 
 to prove differences, we would only have to suggest that they might 
 exist among peoples unknown to us. For example, though the 
 Egyptian custom of marriage between brothers and sisters were 
 unknown, we could not state absolutely that such a custom did not 
 exist, so that even if the facts which we know are in conformity, we 
 cannot state that they conform to all facts in their order." Sexttis 
 Empiricus, "Pyrrhonise Hypotyposes." Cf. Diogenes Laertes, in 
 his life of Pyrrho, § IX. 
 
 ° To this effect, Cicero, restating the ideas of Carneades, "De 
 Republica," III, 5 et. seq. Cf . Hildenbrand, "Geschichte und System 
 der Rechts- und Staatsphilosophie," 1 Bd. (Leipsic, 1860), §121; 
 Zeller, "Die Philosophie der Griechen," Dritt. Th., Erst. Abth., 
 p. 497, et seq. 
 
§9] SCEPTIC THEORY 11 
 
 §9. The Sceptic Theory. Montaigne. This same pro- 
 cess of thought we see repeated by the French sceptics. 
 Michel de Montaigne, "the first Frenchman who dared 
 think," asked: "What goodness can there be which the 
 passage of a river makes a crime? What truth is there 
 bounded by these mountains, a lie to the men across 
 them? The true commands of nature we obey, without 
 a question of common consent." "There is nothing," he 
 adds, "in which the world differs so much as in customs 
 and laws. What is abominable here meets approval else- 
 where. Jnfanticide, patricide, communion of women, 
 traffic in stolen goods, license for all kinds of volup- 
 tuousness — nothing in fact is so extreme that it is not 
 admitted by the usage of some nation." " 
 
 § 10. The Sceptic Theory. Pascal. Later, Pascal was 
 of the same opinion: "We can hardly find a belief of 
 justice or injustice, which does not change its quality 
 with a change of clime. Three degrees of latitude 
 reverse all jurisprudence. A meridian decides what is 
 true, or a few years' possession. . . , Law has its ages. 
 Conventional justice, which a river or mountain bounds! 
 Truth on this side of the Pyrenees, error on that." * 
 
 ' Montaigne, "Essais," Lib. I., Cap. 22; Lib. II, Cap. 12. 
 
 « Pascal, "Pensees," Pt. 1, Art. VI, 8; vide also VI, 9, IX, 5 et 
 Beq. According to Pascal, original sin deprived man of all knowl- 
 edge of true justice and the contradiction of laws is a consequence 
 thereof. Cf. Duhuc, "Quid de juris principio et essentia Pas- 
 calis senserit" (Paris, 1888). This was also the thought of Mon- 
 taigne, who did not absolutely deny the existence of natural law, 
 but only the possibility of its knowledge by reason (vide "Essais," 
 Lib. I, Cap. 22; Lib. II, Cap. 12). It was generally admitted 
 in the Middle Ages that the destruction, or man's loss of vision, 
 of justice was one of the effects of his fall. See the famous "Specu- 
 lum juris" of Duranti (Sec. XIII), Proemium, cited by Filomusi- 
 Guelfi, "Del concetto dell' enciclopedia del diritto" (Naples, 1876), 
 p. 4. The exaggeration of this concept gave scepticism a kind of theo- 
 logical basis. 
 
12 DIVERGENCY IN POSITIVE LAW [Ch. II 
 
 § 11. Variance of Law. Locke. Beyond the confines 
 of scepticism, the variety of human judgments is used 
 to prove the non-existence of absolute law and its cor- 
 responding intuition in the human mind. Locke, for 
 example, to prove that there are not innate ideas of the 
 practical as well as of the speculative order, relies on the 
 fact that there is no rule of justice of universal accept- 
 ance.' To-day the followers of practical ethics generally 
 accept such reasoning.'" 
 
 § 12. Method of a Higher Synthesis. As to pure 
 scepticism, it is evident that it raises the problem but 
 does not solve it. In fact, it declares it unsolvable and 
 absolutely repudiates science. But scientific knowledge 
 is a necessary aspiration of our spirit,^' whose con- 
 sciousness of self shows an undeniable and constant 
 proof of vital and intellectual existence. . Hence it is that, 
 although sceptical negation reappears periodically on 
 the speculative horizon (fulfilling a special function), 
 it only represents a transitory phase of thought. Scep- 
 tical negation or doubt is followed necessarily by new 
 and profound positive constructive labor, which the 
 prior doubt has prepared and incited. A stronger and 
 more fecund expansion follows the restriction.'^ So 
 in relation to law, the sceptical point of view cannot 
 satisfy the human mind, which always struggles to 
 
 ° Vide Locke, "Essay Concerning Human Understanding," I, 2. 
 
 " See, for example, besides Post, "Der Ursprung des Rechts," cited 
 ante: Bain, "Mental and Moral Science" (London, 1884), p. 449 et 
 seq; 5^e?zcer,"TheDataof Ethics," §14; "The Inductions of Ethics," 
 i 120. We will consider this again in Caps. VI and VII, p. 32, post. 
 
 11 "IlavTes avQpunroi to5 etSc'mi opiyovraL c^uVei." Aristotle, 
 "Metaphysics," Lib. I, Cap. I. Cf. note by BarthSlemy Saint- 
 Hilaire, "Metaphysique d'Aristote," Vol. I (Paris, 1879), pp. 1-2. 
 
 12 This psychological fact, which we find in individual thought as 
 well as in the dominating thought of various historical epochs, is of 
 itself one of the strongest arguments against scepticism. 
 
§12] HIGHER SYNTHESIS 13 
 
 overcome the contradictions of the empirical world and 
 to reach a simple rational principle — in other words, to 
 reduce the manifold variety of historical laws to one 
 general and constant system. Attempts at synthesis, 
 which "ab antiquo" have occupied a notable part of 
 scientific and philosphic thought, have been made in 
 divers ways and according to different criteria. Hence 
 we must consider them separately, with an eye to the 
 purpose we wish to accomplish. 
 
U IDEA OF NATURAL LAW [Ch. Ill 
 
 CHAPTER III 
 IDEA OF NATURAL LAW 
 
 NATURAL LAW AS SHOWN BY CONSCIENCE AND AS A 
 PHILOSOPHICAL PROBLEM. — MODERN REFUTATION 
 AND ITS VALUE. — DISTINCTION OF THE QUESTION OF 
 NATURAL LAW FROM THAT OF THE LOGICAL DEFINITION 
 OF LAW. 
 
 § 13. Absolute Justice. It is worthy of consideration 
 that, even in ancient times, arguments in favor of the 
 conception of a criterion of the just, which would be 
 fixed and "per se" valid, rising superior to conflicts of 
 opinion and variance of fact, have been raised by the 
 historical mutability and incoherence of law, which are 
 the origin of moral and political scepticism. And 
 the possible conflicts alleged by the sceptics, in addi- 
 tion to the real discordance between institutions, the 
 indefinite possibilities of contradictory institutions 
 in the historical field, seem, in the light of moral con- 
 sciousness, the most certain proof of the necessity of 
 finding the foundation of justice elsewhere (than in 
 empirical facts), in order to render it independent of 
 the fact of its positive sanction.' The conception of 
 
 * Cicero is characteristic of these thinkers, "De Legibus," I, 15 et 
 seq. : "Jam vero illud stultissimum, existimare omnia justa esse, 
 quae sita sint in populorum institutis aut legibus. Etiamne, si quae 
 leges sint tyrannorum? Quodsi populorum jussis, si principum 
 decretis, si sententiis judicum jura constituerentur, jus esset latro- 
 cinari, jus adulterare, jus testamenta falsa supponere si haec suffra- 
 ges aut scitis multitudinis probarentur." For the antithesis of 
 this, see Sextus Empiricus, "Pyrrhoniae Hypotyposes," cited ante, 
 n. 6, p. 1. 
 
 We may say that this is not the only case of antinomy of human 
 
§13] ABSOLUTE JUSTICE 15 
 
 absolute justice Is one of the fundamental needs of the 
 human mind. If customs and commands by dominant 
 powers were recognized only indistinctly in their extrinsic 
 authority, and if juridical norms had no other weight than 
 that given by the fact of their respective authorization, 
 they would lack their actual respondence with and 
 foundation in the human soul, and the ideal subjective 
 vocation for justice, which is the primary condition and 
 basis of positive law, would be a fiction. 
 
 § 14. Natural Law. It is not without deep-seated 
 reason that in all ages and countries the idea of natural 
 law, that is, one founded on the very reality of things 
 and not on the siniple "placet" of the legislature, has 
 been cultivated. This conclusion is reached in various 
 and opposite ways; by observing certain rules of law 
 which exist in widely separated countries, as well as by 
 seeing the need of overcoming the caprice and irra- 
 tionality of rulers and judges, through recourse to a 
 system of unwritten truth. This law has shown its 
 authority in various ways. It has been upheld as the 
 will of God?, it has been deduced analytically from pure 
 reason, and considered as a reflex or result of physical 
 laws. The relations between the dictates of natural 
 justice and juridical norms have also been variously 
 conceived, depending upon diverse speculative tenden- 
 cies and historical phases. Often a wide and impas- 
 sable separation arose between the two systems of 
 determination, while at other times the difference 
 seemed one of genus and species, or two views of the 
 
 thought, where diverse views of the same fact have brought about 
 opposite ethical inductions. Thus the existence of evil in the 
 world gives rise to arguments both for and against the existence of 
 God. See, on this point, Faggi, "Un' antinomia dello epirito umano,'' 
 in "Rivista di Filosofia," Vol. I, 1899, p. 105 et seq. 
 
16 IDEA OF NATURAL LAW [ Ch. Ill 
 
 same object.^ These partial divergencies in doctrine 
 (common to all branches of philosophy) should not pre- 
 vent the recognition of the deep-seated unity of the 
 conception, containing all the characteristics of a 
 psychological necessity, which is not disproved, but 
 confirmed, by the number of ways in which the concept 
 itself is reached and by the number of demonstrations 
 given of it. We must not forget that the divergency 
 lies much more in methods and arguments than in con- 
 clusions. For example, certain conclusions of natural 
 law are reached from widely difffering premises. The 
 well-known coincidences in the juridical formulae of 
 Kant and Spencer are examples of this.^ That many 
 
 2 Hegel, for example, considered the difference between natural 
 and positive law to be analogous to that between the Institutes 
 and the Pandects; "that natural law or the philosophy of law is 
 different from positive law, the latter being confused in the former; 
 that they are contrary and opposed to one another, is a grave mis- 
 conception; the former bears the same relation to the latter as the 
 Institutes bear to the Pandects." "Grundlinien der Philosophie des 
 Rechts" 2 ed. (Berlin, 1840), § 3. On this concept, and in general 
 on opinions on this subject, cf. Filomusi-Guelfi, "Del concetto del 
 diritto naturale" (Naples, 1874). 
 
 [For a criticism of Hegel's analogy see Miraglia, "Filosofia del 
 diritto," 3d ed. (Naples, 1903), p. 156, trans, under title of "Com- 
 parative Legal Philosophy" (Boston, 1912), § 155. — Tr.] 
 
 * According to Spencer, the fundamental principle of law is "the 
 liberty-of each, limited only by the like liberties of all"; whence his 
 formulas: "Every man is free to do that which he wills, provided 
 that he infringes not the equal freedom of any other man." "Jus- 
 tice," § 27. He expressed the same idea in 1850 in "Social Statics." 
 As he himself recognized later (see "Justice," Appendix A) this 
 formula is analagous to Kant's, "So act that the free use of your free 
 will can co-exist with the liberty of all under a universal law." "Meta- 
 physische Anfangsgrunde der Rechtslehre," 2 ed. (Konigsberg, 
 1798), Introduction, § C. And yet, no two things could differ more 
 than the methods by which the two philosophers reach the same 
 conclusion. See "Justice," App. A; cf. Carle, "La Filosofia del 
 
§14] NATURAL LAW 17 
 
 points in the silbject-matter are sources of controversy 
 only proves that the philosophy of law has not completed 
 its mission. Perhaps it never will. But, this doubt 
 is not enough to destroy or counter-balance the constant 
 attestation of consciousness, which is the ^apologia of 
 the philosopher of law, and which is far more certain 
 than most of its deductions and disquisitions. What is a 
 source of difiEculty for science does not cease to exist 
 in reality ; and it is a vain illusion to ignore a need because 
 we cannot satisfy it. 
 
 § 15. Modern Refutation of Natural Law and Us 
 Value. The war against natural law, which many have 
 declared in our day, is a reaction against the errors and 
 omissions of the philosophical systems of the past; but 
 it is unjust and irrational, if it attempts, under the pre- 
 text of correcting such errors and omissions, to destroy 
 the object of these systems, which is essential to human 
 nature. That law is only positive is a simple affirmation 
 which has not been and cannot be proved, but is believed 
 out of respect to a dogma of a passing philospphy.'* 
 All the arguments used to demolish natural law are 
 based on this hypothesis, and are reducible, therefore, 
 to the proof that natural law does not exist ... as posi- 
 tive law, which is not the question. It would be entirely 
 
 diritto nello Stato moderno," Vol. I, Sec. 1 (Turin, 1903), p. 240 et 
 seq. See also Aniilotli, "La scuola del diritto naturale nella Filosofia 
 giuridica contemporanea" (Florence, 1892), p. 13 et seq. It must 
 be stated, however, that the deep diversity of Kant and Spencer's 
 concepts of freedom gives their formulas meanings not perfectly 
 homogeneous. 
 
 < A proof of this thesis cannot be found in Wallaschek, "Studien 
 zur Rechtsphilosophie" (Leipsic, 1889); Bergbohm, "Jurisprudenz 
 und Rechtsphilosophie; Jodl, "Ueber das Wesen des Naturrechtes 
 und seine Bedeutung in der Gegenwart" in "Juristische Viertel- 
 jahresschrift," Bd. XXV (Vienna, 1893), 1 Heft, nor in the works 
 of all those who have attempted the destruction of natural law. 
 
18 IDEA OF NATURAL LAW [Ch. Ill 
 
 superfluous to repeat here the reasons, already well 
 enunciated by Petrone and others, which show that the 
 existence of natural law is purely deontological and nor- 
 mative, that is, equivalent to a duty to be and not to an 
 existence in fact. It exists inasmuch as it is a force, 
 and it has force even where it is broken. The violation 
 is phenomenal and does not destroy law, which is above 
 phenomena. Natural law exists, therefore, as a system 
 of the highest truths, not sensible but rational,^ and is, 
 then, independent of the existence of common institutions 
 in all nations, and apparent disagreements with reality. 
 So while psychological analysis reveals the foundation 
 of an absolute law of justice (or natural law) in the 
 human spirit, critical gnoseology endorses its validity, 
 explaining its special method of existence and showing 
 its full applicability in its proper sphere. The idea 
 of natural law, which has withstood the attacks of 
 sceptics and empiricists in past times, will resist those 
 of modern positivists,* and will guide humanity in the 
 future.' 
 
 ^ This distinction was not unknown to the great masters in natural 
 law, even before Kant and the "Vernunftrecht." Thomasius, for 
 example, says explicitly as in a passage to which we have referred 
 before (of. Del Vecchio, "Diritto e personality umana nella storia 
 del pensiero," Bologna, 1904): "Jus pro lege acceptum est vel 
 naturale vel positivum. Fundamentum huius divisionis est prin- 
 dpium cognoscendi. Jus nature cognoscitur ex ratiocinatione 
 animi tranquilli, jus positivum requirit revelationem et publica- 
 tionem." "Fundamentum Juris Naturae et Gentium," Lib. I, Cap. 
 V, §XXIX. 
 
 'Special attention must be called to the fact, which we have 
 alluded to above (n. 3, p. 16.) that Spencer, the leader of modern posi- 
 tivism, has accepted the concept of natural law and acted as sponsor 
 for it in his book "Justice." All this to the great scandal of his 
 followers, who accused him of inconsistency. Cf. Vanni, "II prob- 
 lema della Filosofia del diritto" (Verona, 1890), p. 60 et seq; "II 
 sistema etico-giuridico di Herbert Spencer" (an introduction to the 
 
§16] DEFINITION OF LAW 19 
 
 § 16. The Question of Natural Law Does not Involve 
 the Logical Definition of Law. The need of a logical 
 determination of law, which is the object of our study, 
 must be kept distinctly separate from the deduction of 
 a system of natural or rational law. This consideration 
 prompts us to make a more minute analysis of natural 
 law. When this deduction was made, we had not solved 
 
 Italian edition of "Justice"), esp. pp. ix-xxix et seq.; Anzilolti, 
 "La scuola del diritto naturale," p. 16. We cannot deny the 
 inconsistency, but must be content with determining which of his 
 contradictory doctrines contains the truth. 
 
 'This prophecy is Carle's, an eloquent defender of the theory 
 of natural law. Vide "La Filosofia del diritto," Pt. 1, Lib. Ill, 
 Cap. IV; and cf. Bryce, "The Law of Nature," in his "Studies in 
 History and Jurisprudence" (Oxford, 1901), Vol. II, pp. 112-172. 
 For a historical appreciation of the idea of natural law, read Filo- 
 musi-Cuelfi, "Del concetto del diritto nat.," "Enciclopedia giuridica," 
 5ed. (Naples, 1907), §§15 and 37. Petrone has published an excel- 
 lent critical vindication of natural law in "La fase recentissima del 
 Filosofia del diritto in Germania" (Pisa, 1895), § 2, Cap. Ill; in 
 "Filosofia del diritto al lume dell' idealismo critico" in "Rassegna 
 nazionale" (Florence, 1896); and in "La storia interna e il problema 
 presente della Filosofia del diritto" (Modena, 1898). Against the 
 theory that law must be positive, see Del Vecchio, "SuHa positivita 
 come carattere del diritto" (English Trans., "Positive Right,'' in 
 Law Magazine and Review, vol. 38, May, 1913) ; Miceli, "Filosofia 
 del diritto internazionale," p. 232 et seq, 282 et seq. ; "Studi di psico- 
 logia del diritto," I, p. 150 et seq.; "La giustizia e il diritto nei loro 
 caratteri differenziali" in "Riv. Ital. di Soc," Anno IV, 1902, Fasc. 
 II-III. See also MiragUa, "La Filosofia del diritto," Lib. II, Cap. I 
 and II, or its English translation, "Comparative Legal Philosophy," 
 loc. cit.; Waulrain-Cavagnari, "Genesi, fondamento, e fine del diritto 
 in relazione con I'ordine universale" (Genoa, 1876) ; "L'ideale del 
 diritto" (Genoa, 1883), Cap. I, VIII; Cavagnari, "Corso moderno di 
 Filosofia del diritto" (Padua, 1882-92), Vol. I, p. 154 et seq.; Lilla, 
 "II diritto nei suoi rapporti colla persona, coUa society, e collo 
 State," in "Studi giuridici dedicati a F. Schupfer" (Turin, 1898); 
 "Manuale di Filosofia del diritto" (Milan, 1903), p. 64 et seq.; 
 Cimbali, "Diritto naturale'' in "Digesto italiano," Vol. IX, Pt. 
 Ill (Turin, 1899-1902). 
 
20 IDEA OF NATURAL LAW [ Ch. Ill 
 
 our problem, which is to give a definition of objective 
 value of the entire reality of law. This definition, to 
 have objective value, must correspond, not to a particular 
 set of legal theories and propositions, but to all of them 
 which exist or in general are possible. Natural law, 
 whatever its content and however important its author- 
 ity, always constitutes a special order of juridical rules, 
 founded upon a definite criterion. Belief in it, however, 
 should not prevent recognition of many other criteria 
 and consequently differing juridical propositions. If 
 natural law, therefore, is in a certain sense logically 
 universal and absolute, still it constitutes one of the 
 varieties of law and does not eliminate such variety nor 
 include the whole of law. A system of natural law is, 
 in the last analysis, only a system of law. Logically 
 it joins and completes the others, and increases rather 
 than solves the difficulty of including them all in one 
 definition. From this, the grave mistake of confusing 
 two naturally diverse needs can be seen ; andCthe failure 
 of the. attempt to satisfy both at once, by conceiving 
 of natural law not as the ideal rule of law but as the 
 synthesis of all existing law, is at once clearly seen." 
 From this, another important conclusion is derived — 
 that the problem of natural law, which is to-day a 
 question of such lively discussion, is independent of that 
 which concerns us here. Its solution in no wise affects 
 the following chapters. 
 
$171 UNIFORMITY OF LAW 21 
 
 CHAPTER IV 
 
 COMMON ELEMENTS OF LAW 
 
 UNIFORM AND FIXED PARTS IN THE LAWS OF VARIOUS 
 PEOPLES. — "jus NATURALE" AND "CONSENSUS GEN- 
 TIUM." — IMPOSSIBILITY OF LOGICAL SYNTHESIS ON 
 SUCH BASES. 
 
 § 17. Partial Uniformity of Law. Aristotle. The 
 distinction of an immutable and a mutable part of law is 
 another important doctrine, aimed to solve law's phe- 
 noraenological antithesis, which only limits the problem 
 without going to its root. This distinction, clearly out- 
 lined by Aristotle and later accepted and developed in 
 Roman jurisprudence, was familiar to all antiquity and 
 is upheld — although perhaps not with its original 
 significance — in the successive developments of juridical 
 thought. Aristotle was not ignorant of the arguments 
 with which natural law was assailed, arguments based 
 chiefly on the fact of the variety of positive law.^ To 
 overcome this difficulty, he had recourse to a distinction. 
 He admitted that there was natural justice (^va-u Sticatoi/), 
 which was not absolutely inviolable, because of the 
 imperfections of human nature. It exerted its power 
 over men, however, without difference or distinction. To 
 this justice he opposed positive law (vofim or 6 ia-a BCkomv), 
 based upon particular conditions and therefore variable. 
 The part of law derived from nature is common to 
 
 ' What is natural is equal everywhere and always: fire burns 
 equally in Greece and Rome. Law, which is various, is not of 
 nature. Vide "Eth. Nic," Lib. V, Cap. X (VII in some editions) ; 
 cf. Lib. I, Cap. I (III). 
 
22 COMMON ELEMENTS OF LAW [ Ch. IV 
 
 all States (vo/*os Koivoi), and the other, founded on 
 accidental circumstances,^ is peculiar to this or that 
 State (vdjitos iStos) . 
 
 § 18. Partial Uniformity of Law. "Jus Gentium." 
 The concept of a law, common to all peoples, which the 
 Greeks generally accepted but did not subject to a 
 systematic application,' became the basis of the Roman 
 theory of "jus gentium." The essential distinction 
 between this and the "jus civile" is that the former is 
 founded on the dictates of the "naturalis ratio" (uniform 
 for all peoples), while the "jus civile" (or "proprium 
 civitatis") comes from separate specific interests.* The 
 inductive recognition of the participation of all peoples 
 in a common law (the results of the extension of inter- 
 national relations), was regarded a-s a proof of the com- 
 mon human nature ; while inversely from the fact of our 
 common nature it was deduced that certain norms must 
 be common to all.^ So, while Roman jurisprudence theo- 
 
 2 Vide "Rhetoric," Lib. I, Cap. XIII. Cf. Hildenbrand,"GescUchte 
 und System,'' §61; Filomusi-Cuelfi, "La dottrina dello Stato nell' 
 antichitll greca nei suoi rapporti con I'Etica" (Naples, 1873), § 35. 
 
 '"In general, the universal concept of law common to different 
 peoples . . . isaconcept well known to the Greeks, but one to whose 
 development, from a juristic point of view, they did not give their 
 attention." Leist, "Graeco-italische Rechtsgeschichte" (Jena, 1884), 
 p. 648. 
 
 ^ "Omnes populi qui legibus et moribus reguntur partim suo 
 proprio partim communi omnium hominum jure utuntur; nam 
 quod quisque populus ipse sibi jus constituit id ipsius proprium 
 civitatis est vocaturque jus civile quasi jus proprium ipsius civitatis; 
 quod vero naturalis ratio inter omnes homines constituit id apud 
 omnes populos peraeque custoditur vocaturque jus gentium quasi 
 quo jure omnes gentes utuntur." "Institutes," I, 2, § 1. 
 
 s Cf. Bruns, "Geschichte und Quellen des romischen Rechts" in 
 "Encyklopadie der Rechtswissenschaft of Holtzendorff," § 16. As to 
 the relations between the essentially Greek concept of "jus naturale" 
 and the essentially Roman concept of the "jus gentium," see Carle, 
 "La vita del diritto nei suoi rapporti colla vita sociale," 2 ed. (Turin, 
 
$18] UNIFORMITY OF LAW 23 
 
 retically distinguished the "jus naturale" from "jus gen- 
 tium," its practical tendency was to confuse them, 
 considering all the qualifications of both as the logical 
 consequence of either. 
 
 § 19, Partial Uniformity of Law. Grotius. In a later 
 age, Grotius followed the feame line of thought, and taught 
 that the consensus of all or almost all nations could 
 constitute a means to show "aliquid esse juris naturalis."' 
 Thus he, in substance, followed the theory that natural 
 law is nothing but a positive law common to mankind.' 
 
 § 20. Partial Uniformity of Law. Conclusion. The 
 truth of the facts upon which the doctrine of natural 
 law is based should not deceive us as to its value. If 
 the existence of common elements or uniform ideas in 
 the laws of various peoples is not to be doubted, and 
 if the admission of a common human mind can be made, 
 even in juridical matters, it is evident that the con- 
 struction of the supreme unity of law on these common 
 elements destroys the specific idea of natural law and 
 does not solve the logical problem of definition. In 
 the first place, such a process is closely connected with 
 the methodical instance of the sceptics, inasmuch as it 
 
 1890), pp. 152-67. The works of Voigt go to the bottom of this 
 subject; "Die Lehre vom jus naturale, aequum et bonum und jus 
 gentium der Romer" (Leipsic, 1856-75); and of Hildenbrand, 
 "Geschichte und System," Bd. 1. 
 
 » "De Jure Belli ac Pacis," Lib. I, Cap. I, § 12; cf. id., § 14. 
 
 '. This point, although of capital importance, was not made clear 
 by the school of natural law which left the relations of "jus naturale" 
 and "juS gentium" in doubt. Cf. Pufendorf, "De Jure Nat. et 
 Gent.," Lib. II, Cap. Ill, § 23; Thomasius, "Fund. Jur. Nat. et 
 Gent.," Lib. I, Cap. V, § § 60-61, 65-70. Also the thought of Grotius 
 is not always explained in the skme way. Vide, for example, "De 
 Jure Pacis ac Belli," Proleg., § 17 (18), and Lib. II, Cap. XX, § 41. 
 For the diverse meaning of the "jus naturale" in relation to the 
 "jus gentium" attributed to Grotius, cf. Hartensiein, "Darstellung 
 der Rechtsphilosophiedes Hugo Grotius" (Leipsic, 1850), p. 504etseq. 
 
24 COMMON ELEMENTS OF LAW [ Ch. IV 
 
 admits that natural law, in order to exist, must have 
 positive value and that, too, to an equal extent among 
 all nations.^ This theory deprives natural law of its 
 essential and characteristic requisite, its absolute value 
 "per se," which puts it in opposition to positive law in 
 place of making it but a repetition of the latter. The 
 •strength of this antithesis once eliminated, and an 
 admission made that the "jus naturale" should be 
 confirmed and seconded by an effective "consensus 
 gentium," in other words, that it should be part of the 
 "jus civile," it loses its separate function and becomes 
 a mere useless mental repetition. On the other hand, 
 it is no less clear that a comparative study of the common 
 elements of positive law cannot lead to a complete 
 logical synthesis. Some particular elements of law are 
 shown by historical observation to be diverse — not 
 reducible to common element. Neither does it help 
 the argument to say that the differences between the 
 legal systems of various peoples are only in external form 
 or in secondary and accidental modality; because his- 
 torical research shows in the last analysis (in conformity 
 to a categorical law of thought) that what seems acci- 
 dental and secondary is a rational adjunct and cannot 
 be considered as uninfluenced by the underlying cause. 
 Furthermore, an objective definition must comprehend 
 all the realty of the object without exception ; the concept 
 of law cannot be truly defined unless the definition 
 corresponds in effect to all manifestations of juridical 
 phenomenology, and not only to those which are, or are 
 thought, principal and constant.' 
 
 8 Thus, too, the Sophists held that the mark of a law of nature was, 
 or should be, its univeral acceptance. For example, Xenophon, 
 "Memorabilia," Lib. IV, Cap. IV: "'Aypi(jiOVi 8e Ttvas oTada, & 
 IirTTia, vofwvs; Tovs y iv naurj, i'^tj, X'^Pt Kara TaiiTo. vojui^o/tevovs." 
 Cf. Cap. II, ante, p. 8. 
 
 ' For the importance from another point of view of the stable 
 and universal element of positive law, see Chap. VII, post, p. 58. 
 
S211 JURIDICAL MODIFICATIONS 25 
 
 CHAPTER V 
 LEGAL GROWTH 
 
 THE SERIES OF HISTORICAL CHANGES AND THE 
 STUDY OF THE LAWS OF ALTERNATION. — THEORY 
 OF FLUX AND REFLUX. — LACK OF SYSTEMATIC HIS- 
 TORICAL UNIFICATION. 
 
 § 21. Juridical Modifications are Systematic. Other 
 ways of reducing the innumerable historical variations 
 of law to unity must be tried, since we have shown the 
 insufficiency of those which we have considered. The 
 series of political changes which have taken place in every 
 State from time to time, necessarily give rise to a question 
 as to whether they are not governed by a fixed law. The 
 uniform regularity, which is not found in the legal 
 institutions, differing in different ages, may depend upon 
 a higher principle, that is on the order of their modification. 
 Thus, the old concept of certain natural laws con- 
 trolling the acts of mankind is rehabilitated, though 
 understood in a different way. 
 
 § 22. Political Modifications. Plato. Plato, in his 
 "Republic," ^ convinced that everything which is 
 created must in time perish, investigated the principles 
 of political transformations in general and made the first 
 synthesis of such modifications. Constitutional changes 
 take place, he claims, in conformity with the nature 
 of the system, according to psychological motives. It 
 may be doubted, however, if Plato, in outlining the 
 
 » Lib. VIII, Cap. Ill (546). 
 
26 LEGAL GROWTH [ Ch. V 
 
 successive stages from one form of government to another, 
 had intended to give a true and exact historical law.* 
 
 § 23. Historical Modification. Aristotle. Aristotle, 
 interpreting the Platonic system in this sense, confuted 
 it and pointed out that it did not include or exactly 
 correspond to all of reality.' As a matter of fact, there 
 is no proof that aristocracy (as Plato taught) gives 
 place to democracy, and that to tyranny. Political 
 changes can follow any other order, as Aristotle showed, 
 taking advantage of the historical knowledge of his day. 
 He does not, however, formulate any synthetic law 
 of historical change, but merely gives some causes, more 
 or less general, upon which constitutional changes 
 depend.* Notwithstanding that these attempts to 
 define exactly the apparently unconnected laws governing 
 political changes showed the great difficulty of the 
 undertaking, attempts at synthetic historical reconstruc- 
 tion have been made in all ages.' 
 
 'For reasons for this doubt, see Hildenbrand, "Geschichte und 
 System," § 27; cf. Filomusi-Guelfi, "La dottrina dello Stato," p. 60. 
 
 ' "Politics," Lib. VIII (or V in some editions), specially Cap. X. 
 
 '"Politics," Lib. VIII, and cf. Hildenbrand, "Geschichte und 
 System," §§ 102-7; Filomusi-Guelfi, "La dottrina dello Stato," 
 §71-72. 
 
 ' On the principal system of the kind, see Rosmini, "Filosofia 
 della Politica," 2d ed., (Milan, 1858), Lib. IV, Cap. 17; Cavagnari, 
 "Saggio di Filosofia giuridica secondo i canoni della scuola storica" 
 (Bologna, 1865), Cap. VI; "II nuovo diritto degli individui e dei 
 popoli" (Padua, 1869), p. 419 et seq.; Marselli, "La scienza della 
 storia," I, "Le fasi del pensiero storico" (Turin, 1873); Miraglia, 
 "La legge dei mutamenti politici" in "Atti della R. Accad. di Napoli," 
 Vol. XX, 1886. Cf., too, Ferrari, "Corse sugli scrittori politici 
 italiani" (Milan, 1862) ; Cantoni, "G. B. Vico. Studii critici e com- 
 parativi" (Turin, 1867); Flint, "The Philosophy of History in 
 France and Germany" (London, 1874); "G. B. Vico" (Florence, 
 1888); Bluntschli, "Geschichte der neueren Staatswissenschaft," 
 3 ed. (Munich, 1881); Janet, "Histoire de la science politique dans 
 ses rapports avec la morale," 3d ed. (Paris, 1887). 
 
§24] HISTORICAL MODIFICATION 27 
 
 § 24. Historical Modification. Vico and his Doctrine 
 of Flux and Reflux. While Polybius, and after him 
 Machiavelli, Bodin and Campanella, believed in such a 
 circular recurrence of political constitutions, Vico taught 
 an analogous, but greater and more profound theory, that, 
 as all nations have a common nature, so their history 
 must of necessity follow a uniform course, and it must be 
 possible to discover the "ideal eternal history, which all 
 nations complete in the ages." This is the object of the 
 "scienza nuova," which, Vico said, must be both the his- 
 tory and the philosophy of mankind. The flux and reflux 
 of nations form, therefore (we again quote Vico), "a uni- 
 versal and immutable law, gqverning history and arising 
 in the constitutional uniformity and constancy of the 
 human mind." "Human institutions" have a tendency 
 (awicendamento), "which they not only have always 
 had to follow in the past, but must follow now and will 
 have to follow in the future, no matter what infinite 
 worlds are born of eternity from time to time." No con- 
 ception can be grander than this; but it is easy to see its 
 weakness, both absolute and relative to our problem. 
 In the first place, such an historical systematism (as it 
 ■ was well named by Cantoni) is disproved by experience. 
 For, the development of various peoples is not uniform 
 in all civilizations, and some peoples do not pass, as 
 Vico claimed, through three ages of definite length, to 
 which three kinds of nature, custom, law, government, 
 language, authority, and reason correspond.^ History, 
 the kingdom of the individual, which always varies (for 
 the very reason, to follow Vico's glorious reasoning, that 
 it is made by men), does not tolerate such theories of 
 systemization and does not lend itself to geometrical 
 
 ' See, especially, "Principj di scienza nuova d'intorno alia co- 
 mune natura delle nazioni," 2d ed., Lib. IV; and cf. Cantoni, "Vico," 
 p. 230 et seq. 
 
28 LEGAL GROWTH [Ch. V 
 
 configurations or preconceived symmetries. It rebels 
 against every mechanical formula to which we try to 
 subject it, because of its irresistible innate transfigura- 
 tion and development. By its nature, it is always under- 
 going transformation and development. Hence it is, 
 that no scheme of systematic unification can hope for 
 complete success, and all general syntheses, intended 
 to include the past and future of humanity, no matter 
 how lately revised, are always discredited. 
 
 f 25. Historical Modification. Vico's Doctrine a 
 Denial of Progress. One of the logical conclusions from 
 the doctrine of a circle or circular periods showing a 
 uniform and invariable course of humanity, which we 
 must point out, is its denial, in the last analysis, of all 
 true historical development. It tends to liken the devel- 
 opment of human relations to that of inorganic bodies, 
 holding that the regularity of both kinds is similarly 
 constituted. Acts of man and changes in things would 
 have the same relation — essentially passive — to their 
 laws ; nations would fulfill their cycles as planets complete 
 their orbits. This is clearly a denial of development and 
 spontaneous growth, which , are characteristic not only 
 of human acts but of organic facts in general (although 
 the former are superior to the latter by qualities un- 
 necessary to mention here). The idea of life, with all 
 its rich variety of possible explication, escapes systemiza- 
 tion in fixed cycles, which are but false objectivations 
 or projections "sub specie seternitatis" of facts existing 
 "in certain forms in certain ages," ' and are real only 
 to that extent.* It can be easily seen how the doctrine 
 
 , 'Vico. 
 
 ' On this proposition Romagnosi, sustained by his profound 
 knowledge of history, wrote the following clear exposition: "I am far 
 from being able to persuade myself that such circular development 
 can take place (not in the extrinsic form and material vestment, 
 
§25] HISTORICAL MODIFICATION 29 
 
 of constant cycles or pmods necessarily excludes belief 
 in any effective progress or advance by humanity. 
 Between the two conceptions, whatever be thought to the 
 contrary," there is a true and insurmountable antithesis. 
 The former is substantially equivalent to immobilism. 
 lit definitely synthesizes history, including it in the rigid 
 form of a model. It cannot follow reality as a vital 
 entity and denatures it in reducing it to a system. The 
 doctrine, however, which represents social life as a true 
 progressive development, conforms to truth and does 
 not run counter to the spontaneous activity of historical 
 forces. But this theory falls short of the other ideal 
 end of gathering all facts into a synthetic scheme. By 
 not attempting to limit the modification of historical 
 reality, it must fail to define the concept accurately. 
 The moment one yields to the unifying instinct of the 
 human mind, and attempts dialectically to formulate 
 
 as I might say, of government, but in the real growth of the civil 
 lives of nations), according to which, the quality of the people's 
 mind and heart, by which laws, customs, modes of happiness and 
 sorrow follow one another in regular succession; on the contraiy, 
 I believe that they undergo metamorphoses, that their state, despite 
 similar form of government, acquires such differences and accidentals, 
 that what succeeds can in no wise be likened to what has preceded. 
 "Delia vita degli Stati," § 1057, in De Giorgi's edit, of his "Works," 
 Vol. Ill, Pt. II (Milan, 1845). This theory of Romagnosi is 
 explained more in detail in his "Osservazioni suUa scienza nuova di 
 Vico" in *'Opuscoli su vari argomenti di diritto filosofico," § V. 
 Carle, too, does not accept Vico's idea of a.reflux in social and human 
 affairs. Vide "La vita del diritto," p. 200 etseq.; "La Filosofia del 
 diritto," p. 161 et seq.; and cf. his "Le leggi storiche e la liberty 
 deir uomo," in "Saggi di Filosofia sociale'' (Turin, 1875), p. 27 et 
 seq. 
 
 • Vide, for example, Tommaseo, "G. B. Vico," in "Studii critici" 
 (Venice, 1843), p. 124etseq.; Sarchi, Preface to his edition of Vico's 
 "Deir unico principio e dell'unico fine del diritto universale" (Milan, 
 1866), p. xxi et seq.; Siciliani, "Sul rinnovamento del Filosofia 
 positiva in Italia" (Florence, 1871), p. 83. 
 
30 LEGAL GROWTH [Ch.V 
 
 all phases of progress, past, present and future, one meets 
 objections analagous to those given against the theory 
 of flux.'" So, what this method gains in universality it 
 loses in accuracy. The ideal determination of historical 
 synthesis is bought at the cost of truth. 
 
 § 26. Historical Modification; Approximate System- 
 ization — Which Alone is Possible — Cannot Be the Basis 
 of Definition. The study of the rules of change in human 
 affairs (and, therefore, in law) cannot lead to a sufficient 
 
 "• For these objections, see Schelling, "1st eine Philosophie der 
 Geschichte moglich?" in "Sammtliche Werke," 1 Abth., 1 Bd., 
 p. 466 et seq.; "System des transcendentalen Idealismus'' (ib.), HI 
 Bd., p. 587 et seq.; Rosmini, "Filosofia della Politica," Lib. IV, Cap. 
 17; CoK<o»j, "Vico,"p. xvet seq.,234 et seq. For a general criticism 
 of the law of history, see Rumelin, "Ueberden Begriff eines socialen 
 Gesetzes" in "Reden und Aufsatze" (Tubingen, 1875), p. 1 et seq.; 
 "Ueber Gesetze der Geschichte" (ib.), Neue Folge (Freiburg, 1881), 
 p. 118 et seq.; Dilthey, "Einleitung in die Geisteswissenschaften," 
 
 1 Bd. (Leipsic, 1883), pp. 116-141; Wundt, "Logik — Eine Unter- 
 suchung der Principien der Erlcenntniss und der Methode Wissen- 
 schaftlicher Forschung," II Bd., II Abth., 2 ed. (Stuttgart, 1895), 
 p. 129 et seq., 340 et seq., 382 et seq. ; Sigwart, "Logik," 3 ed. (Tubin- 
 gen, 1904), II Bd., § 99, p. 629 et seq.; Boutroux, "De I'idee de loi 
 naturelle dans la science et la philosophie contemporaines" (Paris, 
 1895), Cap. XIII; Rickerl, "Die Grenzen der naturwissenschaft- 
 lichen Begrififsbildung" (Tubingen, 1896-1902); Petrone, "I limili 
 del determinismo scientifico," 2d ed. (Rome, 1903), VI; Naville, 
 "La notion de loi historique" in "Revue de synthese historique" 
 (Paris, 1904); Simmel, "Die Probleme der Geschichtsphilosophie," 
 
 2 ed. (Leipsic, 1905), Cap. II. Vide, also, on this subject the dis- 
 cussion between Xenopol, Berr, Simiand and Croce in the "Revue 
 de Synthese historique," June, 1902, February, April and June, 1903; 
 and Croce, "II concetto della storia nelle sue relazioni col concetto 
 deir arte," 2d ed. (Rome, 1896); "Materialismostoricoedeconomia 
 marxistica" (Milan, 1900), p. 13 et seq.; "Estetica" (Milan, 1902), 
 p. 42 et seq.; Salvemini, "La storia considerata come scienza" in 
 "Riv. ital. di Soc," A. VI, Fasc. I, 1902; Xenopol, "Sociologia e 
 storia" in "Riv. ital. di Soc," A. VI, Fasc. IV, 1904; cf. the 
 "Annte sociologique," VII (Paris, 1904) p. 147 et seq. 
 
J 261 HISTORICAL MODIFICATION 31 
 
 definition of the institutions themselves. Analogies and 
 regularities or variations are so limited that only by a 
 disregard of their limitations resulting in inaccuracy 
 can one include all the complex and multiplicate variety 
 of human history in a fixed scheme. This does not mean, 
 of course, that certain syntheses of historical, and parti- 
 cularly of juridical, evolution cannot be made in this 
 way. This point we will take up at a later time." Our 
 meaning is, that syntheses of this sort, being essentially 
 incomplete, do not give the ultimate essence of things 
 or comprehend its universality. 
 
 " Cf. Chap. VII, p. 58, post. 
 
32 LAW AND HISTORICAL CONDITIONS [Ch.VI 
 
 CHAPTER VI 
 
 CONNECTION BETWEEN LAW AND HISTORI- 
 CAL CONDITIONS 
 
 THE MOULDING OF LAW UPON CIRCUMSTANCE AS A 
 POLITICAL CRITERION AND AS A NATURAL FACT. — SIGNS 
 OF THE PENETRATION OF THIS CONCEPT INTO THE 
 SCIENCE OF INDIVIDUAL AND SOCIAL RELATIONS. — 
 IDEA OF HISTORICAL DEVELOPMENT. — THEORY OF 
 PROGRESS. — THE GERMAN HISTORICAL SCHOOL AND 
 THE SCIENTIFIC EXPLANATION OF THE VARIETY OF 
 LAW. — CONTEMPORANEOUS THOUGHT AND NEW CON- 
 FIRMATION OF THE HISTORICAL RELATIVITY OF LAW. 
 
 § 27. Law is Relative. One of the surest ways to 
 arrive at a scientific explanation of the variety of law 
 is to study the relations by which it is bound to specific 
 conditions of time and place. It is primarily evident 
 in politics that law should be adapted to the condition 
 of the people which it controls. In every age, law- 
 makers should take environment into consideration 
 and endeavor to make laws meet social needs. As law 
 is objective by nature, its correlation with historical 
 conditions has always been recognized as a practical 
 necessity for governments. The idea that laws are con- 
 nected naturally with the circumstances to which they 
 are applied and therefore, independently of the precon- 
 ceived notions of their makers, they ought to te fashioned 
 in accord with all other elements of culture, represents 
 an ulterior phase of thought and is essentially modern jl 
 
 § 28. Relativity of Law. Greece and Rome. 'Signs 
 of such a belief, however, can be found in earlier ages. 
 Hippocrates, in "Iltpi 'Aepcov, 'YSaruv, Toircov," made a 
 
§ 28 ] RELATIVITY OF LAW 33 
 
 rational attempt to explain the variety of customs 
 through the action of climate and physical conditions.' 
 Plato, no stranger to the idea of historical development,^ 
 taught that political constitutions are the results of cus- 
 toms.* Aristotle showed a marvellous sense of relativity 
 in discussing the means and limits of legislative progress,^ 
 in his critique of constitutions and throughout his 
 "Politics."^ The same intuition of historical relativity 
 can be found in all the legal and political work of the 
 Romans, who, not only in theoretical formulization, 
 but even more in practical application, showed a fine 
 appreciation of the close ties between law and all the 
 conditions of social life.^ 
 
 ' Chiappelli, "SuIIe teorie social! dei Sofisti greci," p. 464. The 
 singular coincidences of the treatise by Hippocrates and the Dar- 
 winian theory are here noted. 
 
 2 For this less considered phase of Platonic thought, see Fraga- 
 pane, "II problema delle origini del diritto," pp. 35-43. 
 
 ' "Repub.," Lib. VIII, Cap. II (544D). 
 
 * "Pol.," Lib. II, Cap. V, §§ 10-14. 
 
 ^ Vide "Nic. Ethics," esp. Lib. V, Cap. X, 1135a, where laws of 
 weights and measures are compared, which vary according to place 
 because of the different economic situations. "Ta 8e Kara cruvOrjKrjV 
 Kal TO <rvfi(f>ipov tSiv SiKatW o/iioid icrri rots /jLerpoii- ov yap Travrap^oS 
 iaa Ta oLvrjpa. koI a-irrjpa p-irpa, aX\' ov [liv wvovvTai, p,ei^<j), ov Sc 
 ■ira>\ovcTLV, iXixTTm. ' ' Aristotle's use of the comparative method, which 
 renders his treatises still useful, is noteworthy. Cf. Dilthey, "Ein- 
 leitung in die Geisteswissenschaften," p. 289 et seq. 
 
 ' Inst. I, 2, § 2. "Nam usu exigente et humanis necessitatibus 
 gentes humanae quaedam sibi constituerunt," etc. In a remark- 
 able passage of Aldus Gellius, the jurisconsult Sextus Cecilius thus 
 addresses Favorinus, the philosopher, "Non ignoras legum oppor- 
 tunitates et medelas pro temporum moribus et pro rerum publi- 
 carum generibus, ac pro ultilitatum praesentium rationibus, proque 
 vitiorum, quibus medendum est, fervoribus, mutari ac flecti, neque 
 uno statu consistere, quin, ut facies coeli et maris, ita rerum atque 
 fortunse tempestatibus varientur." "Noctes Atticae," XX, 1. Cf. 
 Hegel's comment in "Grundlinien der Philosophie des Rechts," 
 p. 28 et seq. Arnold is right, "It was natural that the Roman jurists 
 
34 LAW AND HISTORICAL CONDITIONS [Ch.VI 
 
 § 29. Relativity of Law. The Middle Ages. The recog- 
 nition of the diversity of law because of the diverse 
 circumstances of life continued during the Middle Ages. 
 It was governed by the most rigid dogmatism, although 
 it was affected by a belief in a law of nature immutable 
 and above the changes of positive law. Thomas Aquinas, 
 who, in speculating on the "lex naturae," finally denied 
 the name of law to all positive statutes which were not 
 in accord with it," recognized elsewhere that a certain 
 variety of law should correspond to the variety in 
 human affairs.* So, at the renaissance of legal phil- 
 
 did not write long discourses about the connection of law and life, 
 for they had it before their eyes every day, and memory, which 
 could not recall its absence, thought nothing else possible." "Cul- 
 tur und Rechtsleben" (Berlin, 1865), p. 212. The historical and 
 practical feeling of the Romans was clearly emphasized by Ihering in 
 "Geist des romisohen Rechtsauf verschiedenenStuf en seiner Entwick- 
 lung,'' 5 ed. (Leipsic, 1891-99). Cf. Carle, "Le origini del diritto 
 romano" (Turin, 1888), Lib. I, and "La vita del diritto," § 209. 
 
 ' "Omnis lex humanitus posita ... si in aliquo a lege naturali 
 discordet jam non erit lex sed legis corruptio." "Summa Theologia," 
 I, 2, Qu. 95, Art. 2. 
 
 ' "Dicendum, quod principia communia legis naturae non eodem 
 modo applicari possunt omnibus propter multam varietatem rerum 
 humanarum et ex hoc provenit diversitas legis positivae apud diver- 
 sos." "Summ. Theol.," I, 2, Qu. 95, Art. 2, Ad. 2. Cf. Hanng, "Der 
 Rechts- und Gesetzesbegriff in der katholischen Ethik und modernen 
 Jurisprudenz" (Graz, 1899), §§ 8-10. Vide Vadali-Papale, "Le 
 leggi nella dottrina di S. Agostino e S. Tommaso" (Catania, 1894), 
 Cap. IV. This belief was illustrated by Dante in a memorable 
 passage: "Habent namque nationes regna et civitates inter se pro- 
 prietates quas legibus diflFerentibus regulari oportet. Est enim lex 
 regula directiva vitee. Aliter, quippe, regulari oportet Scythas 
 qui extra, septimum cHma viventes et magnam dierum et noctium 
 inaequalitatem patientes intolerabili quasi algore frigoris premuntur; 
 et aliter Garamantes qui sub sequinoctiali habitantes et coaequatam 
 semper lucem diurnam noctis tenebris habentes ob sestus aeris 
 nimietatem vestimentis operiri non possunt." "De Monarchia," I, 
 16. Dante's profound insight into the function of law which 
 
S291 RELATIVITY OF LAW 35 
 
 osophy at the end of the Middle Ages, theoretical 
 research was generally prompted by practical and, more 
 specifically, by political purposes; the study of objective 
 relations was to a certain extent directed to the pro- 
 motion of the art of government. Thus, two principles 
 control Machiavelli, or rather two aspects of one thing. 
 Men should study their times and bow to opportunity. 
 In history there is a law of continuity, by which every 
 State or thing leaves projecting stones upon which the 
 next must build.' This theory shows on one hand a 
 natural fact and on the other outlines a plan of action.'" 
 
 resulted in his celebrated definition, "Jus est realis ac personalis 
 hominis ad hominem proportio, quse servata hominum servat societa- 
 tem, corrupta corrumpit," is seen in this passage, in which, accord- 
 ing to Kohler, "a loftiness of view in regard to natural law was 
 attained which was not again reached until Hegel's time." "Rechts- 
 philosophie und Universalrechtsgeschichte" in Holtzendorfif's 
 "Encyc. der Rechtswissenschaft," 6 ed., § 1. Cf. Carle, "La vita 
 del diritto," p. 232 et seq.; "La Filosofia del diritto," I, p. 101 et 
 seq.; Vadali-Papale, "he leggi nella dottrina di Dante Alighieri e 
 di Marsilio da Padova" (Turin, 1898). We may note, also, that 
 Dante elsewhere compares language with custom to show their 
 equal mutability; "Omnis nostra loquela . . . nee durabilis, nee 
 continua esse potest; sed sicut alia, quse nostra sunt, puta mores 
 et habitus, per locorum temporumque distantias variari oportet," 
 "De Vulgari Eloquentia," I, 9. 
 
 Carle, "Prospetto d'un insegnamento di Filosofia del diritto" 
 (Turin, 1874), p. 43. With a purpose analogous to Machiavelli's, 
 another eminent statesman, Bodin, studied the relations which 
 should exist between the regulations of a people and the natural 
 conditions in which it lives. Vide "De Repub.," Lib. V, Cap. I, 
 "De conformando civitatum statu pro regionum ac populorum 
 varietate, quibusque disciplinis populorum mores dissimilesque 
 naturae percipiantur," where the effects of climate, geography, and 
 therefore of the nature of each people and its political life and 
 constitution, are studied. Cf. Fournol, "Bodin, predecesseur de 
 Montesquieu" (Paris, 1896), Cap. IV. 
 
 10 Bacon used this test in defining the relation of ethics to the 
 science of nature. 
 
36 LAW AND HISTORICAL CONDITIONS [Ch.VI 
 
 § 30. Relativity of Law. Vico. If we omit the 
 partial observations and applications, which, however 
 ingenious they may be, do not correspond to a full 
 scientific knowledge of the subject, we may say that 
 the study of actual relations between law and the sum 
 of historical conditions have not really occupied human 
 thought except during the past two hundred years. Vico 
 and Montesquieu were the first to advance the theory 
 that the differences in the laws of diverse people were the 
 results not of chance or man's caprice but of certain 
 natural, necessary, and constant causes, which science 
 could and should discover and explain. In this both 
 writers represent an anticipation which their age could 
 but imperfectly understand. Two opposite principles 
 were in Vico's mind, giving his thought two distinct 
 sides. A dogmatic mind and well-reasoned belief in 
 eternal ideas contained in the infinite mind of God " 
 led him to speculate about the transcendental; and a 
 profound historical sense, such as no one before him 
 possessed, led him to seek the slow and complex forma- 
 tion of human affairs in the obscurity of the past. The 
 general character of his work is the result of the union 
 of these opposite qualities. It shows a constant and 
 sincere effort to mould the multitude of divergent 
 empirical data into ideal designs, conceived "a priori." 
 Thus looked upon "sub specie eeternitatis," or to use 
 Vico's own words, "described from the point of view 
 of Providence," history was the same as philosophy. 
 Such is the object of the "Scienza nuova." But, as 
 
 " For the theological character of Vico's doctrines, even those in 
 respect to law, see Flint, "Vico," Cap. VII, p. 160 et seq.; of. p. 198 
 et seq., p. 213 et seq. We must not forget that civil theology was 
 one of the many names given his new science by Vico himself; of. 
 Cantoni, "Vico," p. 226. For a criticism of Vico's system from a 
 religious point of view, see Labanca, "G. B. Vico a i suoi critici cat- 
 tolici" (Naples, 1898). 
 
S301 RELATIVITY OF LAW 37 
 
 we have said before, Vice's systematism, which led to 
 his doctrine of the flux and reflux of nations, was not 
 true to fact, and is in contrast even with the other 
 fundamental motive or theory of his work. The second 
 and strictly historical phase of Vico's thought is the 
 most original and rich.^^ In it, he discloses his theory 
 of the birth of things "in certain times and in certain 
 guises" and conceives of the genesis of human facts in 
 their concrete and determinate individuality and with 
 their intrinsic connections. He reached a synthetic 
 vision of the human world which none attained before 
 him. By studying the elements of social life in all 
 forms and aspects — from language to religion, from 
 custom to government, — we intuitively grasp the his- 
 torical causes of law, which bind it to the psychological 
 state of nations and contain its true and necessary extrin- 
 sification. In our mind, Vico's best intuition was the 
 consideration of juridical regulations as a reflex from 
 the minds of nations; which enabled him to hold — 
 a stupendous thing in his day — that law, being based 
 on human nature, was first revealed in custom, and 
 later by successive developments reached the fully 
 developed form of legislation.^' But Vico was not 
 
 '2 For a critical reconstruction, see Fragapane, "II problema delle 
 origini del diritto," pp. 79-89. 
 
 " In this regard, Vico is the forerunner of the whole historical 
 school. His philosophical grasp of law is, however, much larger 
 and deeper than that of the school of German jurists. Carle is 
 correct in stating that it is a great mistake to think "that Vico 
 belongs to the school which would found law on historical develop- 
 ment." "Prospetto d'un insegnamento di Filosofia del diritto," 
 p. 60. The cardinal doctrines of "De uno universi juris principio 
 et fine uno" do not leave a doubt on this point. Cf., for an exact 
 and lucid epitome of Vico's philosophico- juridical thought, Filo- 
 musi-Guelfi, "Del concetto del diritto naturale e del diritto posi- 
 tivo," p. 29 et eeq.; "Del concetto della enciclopedia del diritto," 
 p. 10 et seq. 
 
38 LAW AND HISTORICAL CONDITIONS [Ch.VI 
 
 successful in adequately expressing his vast historical 
 conception of law, and this for many reasons. In the 
 first place, his tendency to systematism, which we have 
 already noted, hindered him by destroying the objec- 
 tivity of his observations and by leading him into forced 
 interpretations and arbitrary co-ordinations.^* In the 
 second place, his lack of critically proven historical 
 material interfered with his work. This lack, we may 
 note, affected comparative as well as historical matter.^^ 
 And, finally, to omit other hindrances, he was affected 
 by his genius which was irregular and intuitive.^* His 
 work must be appreciated more in its intention than 
 in its execution; more as a scientific program than as a 
 true and strict scientific treatise. It promulgated a 
 new system of research, of which it offers a rough sketch 
 (not to say, with Romagnosi, "a phantastic outline"). 
 Until it was given a fresh impulse through the trans- 
 formation of historical studies by- the vast science of 
 civil psychology " it remained almost uncomprehen- 
 
 "See especially on this point "Osservazioni sulla scienza nuova 
 di Vico," by Romagnosi. 
 
 ^'Ferrari, in "La mente di Giambattista Vico" (Milan, 1837), 
 calls attention to the old-fashioned character of Vice's education, 
 which was an anachronism. Vide, esp., Pt. II, Cap. VIII. Cf. 
 Cantoni, "Vico,"' Pt. II, Cap. VIII, where he strongly, and with 
 reason, criticizes Vico on this point. 
 
 *° Cf. Scolari, "Instituzioni di scienza politica'' (Pisa, 1871), p. 37 
 et seq. Flint thought that imagination was the predominant ele- 
 ment of Vice's mind, and added that "he never acquired the power 
 to restrain his imagination or to distinguish between the 'possible, 
 *" the probable, afid^he certain, or to know when a proposition was 
 sufficiently proven and when not, or to put his thoughts in order 
 and to give his proofs in a distinct and easy manner." "Vico," 
 Cap. IV, p. 43 et seq. This criticism is far from exaggerated. 
 
 " Vadalh-Papale in "Dati psicologici nella dottrina giuridica e 
 sociale di G. B. Vico" (Rome, 1889) treats of him as the founder 
 of the psychology of law and of social psychology or that of nations. 
 
§30] RELATIVITY OF LAW 39 
 
 ded.^' Only with the recognition in different ways and 
 for other reasons of an historico-psychological need, 
 realized before its day by Vico, did his work begin to 
 be given its true and full value. 
 
 § 31. Relativity of Law. Montesquieu. "L'Esprit 
 des lois," Montesquieu's masterpiece, which indubitably 
 marked a new step in the historical interpretation of law, 
 
 Cf., too, Fragapane, "II problema delle orgini del diritto," p. 78 et 
 seq. Carle, who has in his various works developed and elaborated 
 in modern form some of Vico's most profound doctrines, said that 
 "because of his largeness of vision, he had the singular fate of 
 appearing to some as the philosopher of history, and to others 
 as a psychologist," while "his greatness lay in being both. 
 On this account he should be considered, if not as the founder 
 of sociology, as some would have it, at least as the most dis- 
 criminating forerunner of a true comprehensive science of social 
 relations and, therefore, he could justly call his book 'Principji 
 di una scienza nuova,' for such it was." "La Filosofia del diritto," 
 I, p. 28. 
 
 " We must not ignore the fact that Vico's thought has had a 
 consistent following in Italy. It is due to him that some writers of 
 the 1700's brought a profound historical and philosophical criticism 
 to bear on the study of civil affairs. Among these are StelUni, "De 
 ortu et progressu morum" (1740), Duni, "Origine e progressi del 
 cittadino e del governo civile di Roma (1763), "La scienza del cos- 
 tume o sia sistema sul diritto universale" (1775), Pagano, "Saggi 
 politic! del principi, progressi e decadenza delle societcL (1783-1792), 
 and, to a certain extent, Filangieri, "Scienza della legislazione" 
 (1780-88) ; then at the beginning of the following century, Cataldo 
 Janelli, ^'Sulla natura e necessity della scienza delle cose e, delle 
 storie umane" (1817). Cf., on these writers, Cantoni, "Vico," 
 Pt. Ill, Cap. XVI; Siciliani, "Sul rinnovamento della Filosofia posi- 
 tiva in Italia," Lib. I, Cap. I, II. On Janelli, in particular, see also 
 the famous essay by Romagnosi, "Cenni sui limiti e suUa direzione 
 degli studi storici," a preface to the second edition of Janelli's works 
 (Milan, 1832); Fragapane, "Obbietto e limiti della Filosofia del 
 diritto," II (Rome, 1899), p. 106 et seq.; Gentile, "Dal Genovesi al 
 Galluppi" (Naples, 1903), pp. 56, 68-70. Janelli foreshadows the 
 great progress since 1800 in history and philology. See his book 
 cited, § II, Cap. XII. 
 
 \ 
 
40 LAW AND HISTORICAL CONDITIONS [ Ch. VI 
 
 was in this respect premature. This explains its merit 
 and its unavoidable imperfections. Montesquieu pro- 
 posed to go to the bases of positive law. He connected 
 the study of law with the study of the natural con- 
 ditions of life.i' The crisis even then immanent in 
 France constituted an historical state suitable for 
 deductive and strictly rationalistic work. But vast 
 numbers of particular studies of the various sides of social 
 life were lacking, and these alone could have made the 
 realization of Montesquieu's philosophic design possible. 
 This is the reason for its fragmentary and unproportioned 
 character and the imperfect application of its general 
 principles. And this also explains how his analysis 
 (elsewhere inaccurate) of the English constitution, which 
 he held up as a model and example for other nations, 
 was read and followed by his contemporaries more than 
 the fundamental conception of the physical and social 
 relativity of law, for it better suited the condition of 
 minds wherein the Revolution was gestating. 
 
 § 32. Continuity of History. The tendency to con- 
 nect the study of man with that of nature found expres- ~ 
 sion in Germany in theageof the "Aufklarung." Moved 
 by a concept similar to Montesquieu's, J. G. Herder 
 was among the first to understand and trace the con-, 
 tinuity of history and to appreciate the specific force 
 of tradition, which he called the substratum of govern- 
 
 " "The chief characteristic to my mind of this memorable work 
 ("L'Esprit des lois") is its predominant tendency throughout to 
 consider political phenomena as necessarily subject to invariable 
 natural laws like all other kinds of phenomenon," writes Comte, 
 "Cours de philosophie positive," Vol. IV, Lecture XL VII, p. 243. 
 But, as he points out, Montesquieu but imperfectly understood the 
 concept of historical formation. On this point, see Fragapane, 
 "Obbietto e limiti della Filosofia del diritto," I, p. 46 et seq. Liep- 
 mann's judgment is even more severp. "Die Rechtsphilosophie des 
 J. J. Rousseau" (Berlin, 1898), p. 62 et seq. 
 
§32] CONTINUITY OF HISTORY 41 
 
 ment and of all institutions.'"' Thus, from simple 
 observation of the mutability of human institutions came 
 little by little the idea of their true and proper historical 
 development. This idea was not possible before a fixed 
 relation between human events and the conditions in 
 which they take place was recognized. Such recognition 
 was long in supplanting the belief in the causality or 
 caprice of facts themselves. The passage from one 
 concept to the other was not made in one step, for the 
 first attempts to determine the system of variation led, 
 as we have seen, to the creation of a fixed and quasi- 
 geometrical order, that is, to a mechanical and inorganic 
 concept. An attentive observer could see in this a 
 residuum or alteration of the earlier unscientific concep- 
 tion of arbitrium or chance, for the law of variation was 
 considered extrinsic to the variable facts rather than 
 resulting from their natural constitution. It did not 
 set forth an internal causality or inherent property. 
 And it did not give, therefore, a real explanation 
 of facts but only the dogmatic hypostasis of a superior 
 will, which determined the series of change in its own 
 ' caprice. 
 
 § 33. Historical Modification Governed by Internal 
 Law. It was, therefore, only in a more advanced age of 
 scientific thought that the naturalness of social facts 
 could be considered without dogmatic prejudices, by 
 studying them with those objective criteria, which had 
 given such good results in the physical sciences. The 
 law of historical transforma^tion was considered as 
 
 '" On the works of Herder, "Ideen zur Philososphie der Geschichte 
 der Menschheit,'' see two editions of Kant in Kirchraann's edit., 
 "Philos. Bibl.," Bd. 47. Cf. Flirit, "The Philosophy of History in 
 France and Germany," Cap. IV. For a critico-comparative valua- 
 tion of Herder's thought, see Jouffroy, "Bossuet, Vico, Herder," in 
 "Melanges philosophiques," 2d ed. (Paris, 1838.) 
 
42 LAW AND HISTORICAL CONDITIONS [Ch.VI 
 
 inherent in the facts themselves, as immanent and not 
 transcendent. And the successive phases of institutions 
 were looked upon in their organic character as moments ~ 
 of the vital development of their nature.^' The for- 
 mation of a science of economics was the factor and mark 
 of this intellectual revival. The work of the physiocrats 
 and, in general, of the early economists is, in this respect, 
 more relevant because, as Gabba points out,^^ the dis- 
 covery of constant laws governing economic phenomena 
 was the first instance in which modern thought saw and 
 grasped the possibility of an objective and experimental 
 science of human facts and the exterior manifestations 
 of human liberty. The doctrine of progress, which 
 appeared about 1750, was a philosphical synthesis and 
 idealistic dream founded on the concept of historical 
 development, which emerged from such objective study. 
 In the belief that continuous^and co-ordinated changes of 
 human society always mark an advance on the road to 
 perfection, there was, without doubt, a reflection of the 
 metaphysical habit, which still dominated consideration 
 of social facts.^' A proof of this is that in a more recent 
 age, marked by a strong anti-metaphysical reaction, the 
 theory of progress was subjected to bitter criticism 
 
 ^ See, in this regard, the historico-critical analysis of Gabba, "In- 
 torno ad alcuni piu generali problem! della scienza sociale," Vol. Ill 
 (1876-87), "Deir indirizzo e delle condizioni odierne degli studii 
 intorno alle scienze sociali," asp. Vol. I, Lect. I, "Dell' indirizzo e 
 delle condizioni odierne degli studii intorno alle scienze sociali"; 
 Dilthey, "Einleitung in die Geisteswissenschaften," p. 475 et seq.; 
 and Fragapane, "Obbietto e limiti della Filosofia del dtritto," Vol. I, 
 Cap. II. I 
 
 22 Gabba, "Alcuni piu generali problemi," I, p. 16. 
 
 " In this sense, the critical observations by Cqmte in "Cours de 
 philosophie positive" Vol. IV, p. 366 et seq. should be remembered. 
 Although Comte himself denied the unlimited perfectibility of the 
 human race, he admitted a constant amelioration as a fact normally 
 correlative to that of social evolution. Ibid., p. 381. 
 
§33] HISTORICAL MODIFICATION 43 
 
 aimed to destroy or lessen its value.^^ While there 
 - may have been some improper and unscientific elements 
 in the first doctrine demanding correction and reserva- 
 tion,''^ it is certain that the reaction vy^as ill-considered 
 and excessive. It lost sight of the true and general 
 character of the facts observed, through an all-absorbing 
 fear of abstraction and a cringing obsequiousness 
 to separate empirical data.^^ Furthermore, we must 
 remember that the docft-ine of the progressive movement 
 of humanity was, from the first, intended to supplant 
 and reverse the theological doctrine of the Fall, whose 
 immense authority it was almost impossible to overcome. 
 The doctrine of progress corrected a traditional doctrine 
 by a rational hypothesis aimed to simplify and explain 
 the undeniable fact of civilization. It would be wrong to 
 ignore the value and truth of the doctrine because of some 
 inaccuracies or partial exaggeration. 
 
 § 34. Unity of History. Turgot was the first to have 
 a clear and profound idea of the new concept which, 
 
 " Maine believes that after a certain stage in the formation of law 
 is reached, that is, when the norms have been reduced to writing, 
 most societies remain stationary and only the exceptional few con- 
 tinue to feel the need of progress. See esp. "Ancient Law" (Lon- 
 don, 1891). Cf. Vanni, "Gli studi di H. S. Maine e le dottrine della 
 Filosofia del diritto" (Verona, 1892), § 7; "Prime linee di un pro- 
 gramma critico -di Sociologia" (Perugia, 1888), p. 66; "Lezioni di 
 Filosofia del diritto" (Bologna, 1904), Pt. Ill, Cap. IV. 
 
 2' For a critical revision in this sense, see the authors cited in 5/ 10, 
 ante, p. 30. 
 
 ^ As a verification of this proposition we have the enlightening 
 observation of ioMowi: "The unfortunate fact occurs in every branch 
 of knowledge that whoever depends on experience and experience 
 alone, will, on the most certain phenomenic fact, miss the mark or fall 
 into contradiction, because of some preconceived notion, prejudice or 
 so-called sound commonsense." . "System der Rechtsphilosophie" 
 (Berlin, 1882), p. 442. — We will speak of some of the more definite 
 and notable aspects of juridical progress later; | 106, et seq., post. 
 
44 LAW AND HISTORICAL CONDITIONS [Ch.VI 
 
 notwithstanding its later qualifications and elaborations, 
 was destined to remain fundamental henceforth in the 
 study of social phenomenology. He conceived of human 
 progress as a spontaneous development based on the 
 inter-action of all things and more particularly on the 
 tradition of culture. Studying the various elements 
 in the life of a people — science, art, government, cus- 
 toms, morals, law, religion — Turgot saw that their 
 conditions at a definite time were intimately interwoven, 
 that there was a constant reciprocity of action between 
 the forces which operate in society. At the same time, 
 he saw that all these inter-connected elements were 
 slowly transformed, through various phases, each one 
 of which represented a new elevation of human nature." 
 § 35. Historical Progress. Kant. The same idea of 
 progressive historical development was later upheld 
 more enthusiastically but less scientifically by Condorcet 
 in his celebrated work, "Esquisse d'un tableau historique 
 
 ^ "All the ages, ' ' wrote Turgot in one of his " Discours sur les progrSs 
 successifs de I'esprit humain" (1760), "are connected by a causal 
 chain which binds each to its predecessors. The increasing power of 
 language and letters, by giving men the means of making sure of 
 the possession of their ideas and of communicating them to others, 
 has made a common treasure of all the particular branches of knowl- 
 edge, which every generation hands on as a heritage constantly 
 increased by new discoveries; and the human race, considered from 
 its beginning, appears to the eyes of a philosopher as an immense 
 whole, which, like an individual, has its infancy and its ages." 
 "CEuvres de Turgot," new ed. (Paris, 1844), Vol. 11, p. 597 et seq. 
 In these and in other analogous ideas of Turgot can be found, as 
 Ferneuil observes, the germs of the historical method. "Des prin- 
 cipes de 1789 et la science sociale" (Paris, 1889), p. 6 et seq. Cf. 
 Flint, "The Philosophy of History in France and Germany," Cap. 
 IV; Janet, "Histoire de la science politique," Vol. II, p. 671 et seq. 
 It is worth noting that Turgot anticipated many of Comte's prin- 
 cipal doctrines, including that of "the three states." 
 
§35) HISTORICAL PROGRESS 45 
 
 des progr^s de I'esprit humain." ^^ Kant's treatise, 
 "Ideen zu einer allgemeinen Geschichte in weltburger- 
 licher Absicht," ^' is of similar import, but far more 
 profound, and animated by a more precise philosophical 
 purpose. Kant's philosophical principles enabled him to 
 distinguish accurately between the metempirical or 
 noumenic and the empirical or phenomenal phases of 
 human acts. From the first point of view, acts are but 
 extrinsifications of human liberty; from the second, they 
 are subject to the laws of nature, which govern all 
 phenomena. History studies human acts from the second 
 point of view,; it should, therefore, lay bare their causes, 
 wherever found, and show the regularity of their processes. 
 Thus, facts considered individually may seem to be 
 produced confusedly and irregularly, but, when con- 
 sidered in the sum of the species, they can be recognized 
 as a continual though slow development from their 
 original manifestation. The development of the ten- 
 dencies of human nature should necessarily lead to the 
 full use of reason and, therefore, to the establishment 
 of a universal civil society, where justice would reign 
 and the liberty of each individual would harmonize 
 with that of all others. The history of mankind can, 
 in this sense, be regarded as the fulfillment of a secret 
 
 '^ See Comte's criticism of this book, "Cours de philosophie positive," 
 Vol. IV, p. 252 et seq. Cf. "Syst^me de politique positive," Vol. 
 IV, App., p. 109 et seq. ; Flint, "The Philosophy of History in France 
 and Germany" p. 74 et seq., 95 et seq. ; Janet, "Histoire de la science 
 politique," Vol. II, p. 682 et seq. 
 
 2' Other writings of Kant in point are: "Vom Verhaltniss der 
 Theorie zur Praxis im Volkerrecht," composing part three of "Ueber 
 den Gemeinspruch: Das mag in der Theorie richtig sein, taugt aber 
 nicht fiir die Praxis," and "Der Streit der Facultaten," Zw. Abschn. 
 ("Der Streit der philosophischen Facultat mit der J uristische n. Ob 
 das menschliche Geschlecht im bestandigen Fortschreiten zum Bes- 
 eeren sey?") 
 
46 LAW AND HISTORICAL CONDITIONS [Ch.VI 
 
 design of nature to produce a perfect political constitu- 
 tion.'" This idea of a goal for world history has an 
 essentially speculative value in Kant's mind, serving as 
 a link to systematize human acts, which otherwise would 
 constitute an unformed mass. Kant declared explicitly, 
 however, that this cosmopolitic view of history, con- 
 ceiving of it as "a priori" to a certain degree, does not 
 prevent empirical research." Theoretically, therefore, 
 the idea of universal progress js a necessary hypothesis, 
 confirmed by experience; practically it is a postulate 
 of our moral consciousness. The belief that only the 
 individual can perfect himself and grow better, while 
 the human race, oscillating between progress and regress, 
 always keeps about the same degree of morality and 
 happiness, contradicts the imperious demands of prac- 
 tical reason. Kant wrote one of his books'^ expressly 
 to overcome this belief, which Mendelssohn held in 
 his day. The hope that individual acts tend to the 
 betterment of humanity is a necessary concomitant of 
 a similar duty. For this reason, Kant states that faith 
 in human progress is not merely a speculative principle 
 formed to grasp historical movement in its generality, 
 but an irrefutable corollary of moral law. , 
 
 § 36. Juridical Development' Objectively Treated. The 
 lofty doctrine of Kant (as to the truth of which we shall 
 have furthur occasion to adduce proof) represents the 
 final rationalistic form of the concept of historical move- 
 ment, i But, for divers reasons, by the year 1800 and 
 
 'o "One can look upon the history of the human species as the 
 completion of a hidden plan of nature to actualize an internally 
 and externally complete State, or as a unit in which it can develop 
 all the phases of the life of man." "Ideen zu einer allgemeinen 
 Geschichte," 8 Satz. 
 
 " "Ideen zu einer allgemeinen Geschichte," 9 Satz, in fine. 
 
 '2 "Vom Verhaltniss der Theorie zur Praxis," p. 75, n. 2. 
 
§36] JURIDICAL DEVELOPMENT 47 
 
 more markedly since, a decided change in the considera- 
 tion of social facts in general, and of law in particular, 
 took place. An objective and phenomenalistic point of 
 view was substituted for the old subjective and rational- 
 istic standpoint, so that the philosophical development 
 of law was forgotten. Law was considered merely in its 
 phenomenological and empirical aspect. This change 
 of method was more marked and more rapid in law 
 than elsewhere, because, apart from general causes, 
 which brought about a similar change in all mental 
 sciences, there were immediate motives for reaction 
 against the legal theories of the past. Before juridical 
 and political criticism had commenced its philosophical 
 work, opposition to the rationalistic doctrine of law and 
 State had been aroused and sustained for political 
 reasons. The French Revolution, begun under the flag 
 of the old doctrine and ending in riot and anarchy, 
 seemed a proof of its fallacy and resulted in the associa- 
 tion of natural law with revolution; A bitter struggle 
 was begun against revolutionary metaphysics (as it 
 was then called) by those who had to fear the direct 
 or indirect effects of the Revolution or its possible suc- 
 cessors. Such a reactionary movement, drawing alle- 
 giance away from abstract juridical speculation, had to 
 depend upon the advances of the studies of historical 
 reality of the preceding period, while applying them in 
 a very different philosophical spirit. And thus juridical 
 and political sciences were governed before the others 
 by a cult of tradition and fact in place of one of reason, 
 by objectivism in place of subjectivism, and by empirical 
 "a posteriori" analysis in place of ideal "a priori" deduc- 
 tion. The "historische Juristenschule," then formed, 
 was the expression of this great tendency. And as the 
 theory of progress, corresponding to a rationalistic con- 
 ception of law, was eminently liberal in its principles, 
 
48 LAW AND HISTORICAL CONDITIONS [Ch.VI 
 
 so the new historical doctrine, arising from a foundation 
 of empiricism, through the impulse of political reaction, 
 was essentially conservative and anti-Hberal.^' 
 
 § 37. Juridical Views of the Historical School. Yet 
 it is true that the theory of the new school included a 
 speculative ^element in the historical consideration of 
 law. it originated in Schelling's transcendental phil- 
 osophy (then, also, in Hegel's), which, recognizing 
 the organic aspect of popular formations of culture, 
 referred it to the evolutive and creative activity of the 
 universal spirit or soul of the world. Comte saw the 
 double nature — metaphysical and positive — of the 
 historical school of law.'* But this speculative element, 
 
 " See, on this point, Del Vecchio, "La Dichiarazione dei diritti dell' 
 uomo e del cittadino nella rivoluzione francese" (Genoa, 1903), 
 Cap. IV and cf. Brugi, "Di un recente libro sulla Dichiarazione dei 
 diritti dell' uomo e del cittadino del 1789" (Padua, 1903), in "Atti e 
 memorie della R. Accademia di scienze, lettere ed arti in Padova." 
 
 " See Comte, "Cours de philosophie positive," Vol. IV, p. 284. 
 Comte valued the school of German jurists as evidencing a new 
 positivistic beginning in social and historical studies, since it had 
 "taken for its principal task to connect, in each epoch of the past, 
 the sum of legislation with the corresponding state of society." But 
 he also noticed "the tendency to fatalism or optimism . . . resulting 
 from the necessarily incomplete and even ambiguous nature of these 
 interesting works, still essentially dominated by a metaphysical 
 philosophy." Vanni attempted to confute this criticism, stating 
 that "there are all the earmarks and spirit of positive research" in 
 the doctrines of the positive school. "I giuristi della scuola storica 
 di Germania nella storia della Sociologia e della Filosofia positiva" 
 (Milan, 1885), in "Rivista di Filosofia scientifica," p. 13. Cf. "II 
 problema della Filosofia del diritto," p. 12. It cannot be denied, 
 however, that the "historische Schule" admits a dogmatic and 
 transcendental element in its principles, which fact is worthy of 
 particular note inasmuch as originally this school did not pretend 
 to constitute "per se" a full philosophy of law. Gierke, "Naturrecht 
 und deutsches Recht," p. 7. "The historical school has not even 
 understood the question which the philosophy of law solves. It 
 
§37] HISTORICAL SCHOOL 49 
 
 which resolved itself in the logical proof of growth and 
 above all of the grown, remained practically barren. 
 In fact, the scientific program of the school is openly 
 explained as the application of the test of phenomenal 
 relativity to the study of law. This criterion, of ^he 
 dependence of juridical reality upon accidentals and its 
 connection with society in general, was necessarily 
 neglected or considered secondary and subordinate until 
 law was treated less as a phenomenon than as an idea. 
 The knowledge of the connection of law with historical 
 conditions had, of course, increased in the course of time, 
 as we have said, but no school had used this knowledge 
 as grounds for a radical change in the philosophical 
 doctrines of law. Many had come to look upon its 
 natural variety as a problem wherein it was necessary 
 to reconcile this variety somehow with a traditional 
 principle of original unity. No school, however (if we 
 except the sceptics), admitted that this variety contained 
 in itself a negative solvation of the problem, or that it 
 was incompatible with the idea of absolute law, and was, 
 
 has looked upon it as of no importance or has passed it by." Cf. 
 Stahl, "Die Philosophie des Rechts," 5 ed. (Freiburg, 1878), I Bd.; 
 ' Geschiehte der Rechtsphilosophie," p. 584 et seq. Such was the 
 meaning which the historical doctrine took on later and the inter- 
 pretation given it under the influence of predominant empiricism. 
 (Cf. § 72, post.) We must not forget that recently there has been 
 a general effort to give the theories of the historical school a phil- 
 osophical meaning, by citing Hegel and Vico. Cf. Lasson, "System 
 der Rechtsphilosophie"; Cavagnari, "Saggio di Filosofia giuridica," 
 esp. Caps. VIII-X; "Corso moderno di Filosofia del diritto," 
 Vol. I, esp. p. 414 et seq. For the philosophical meaning of the 
 historical school, see aXsoBrugi, "I Romanisti della scuola storica e 
 la Sociologia contemporanea" in "Circolo giuridico," XIV, 1883, 
 p. 151 et seq.; "Introduzione enciclopedica alls scienze giuridiche 
 e sociali nella sistema della giurisprudenza," 4th ed. (Milan, 1907), 
 pp. 36-65; "I Romanisti della scuola storica e la Sociologia con- 
 temporanea" in "Riv. ital. di Soc," VI, 1902, p. 228 et seq. 
 
50 LAW AND HISTORICAL CONDITIONS [Ch.VI 
 
 therefore, ready to exclude it. - The theoretical reversion 
 of the historical school (continued by the positivistic^ 
 schools) had this significance: the methodical supplant- 
 ing by genetic and relative criteria of all other tests which 
 had hitherto been thought predominant and "a priori" 
 in respect to law. Relativity and variability of law 
 were not, for the historical school, one of the terms of an 
 antithesis which could be overcome by a higher synthe- 
 sis ; they did not represent a secondary aspect or a fleet- 
 ing image — as it were — of the true object. They 
 were thought to contain the ultimate and invincible 
 truth, the most general principle of the scientific explana- 
 tion of law. Disregarding the maxim that a philosopher 
 sees the problem begin at the point where it ends for 
 others, the historical school accepted as the solution 
 what was, for others, a question difficult of solution 
 and a motive for speculation. It is true that a rigid and 
 profound knowledge of the principle of relativity induced 
 this school to accept it as their highest canon. The 
 mark of distinction between the work of this school and 
 earlier attempts of a similar kind (with the simple excep- 
 tion of Vico's) lies in the abandonment of the extrinsic for 
 the intrinsic conditions of positive law. This it shows 
 by recognizing that law is not in so close a relation with 
 climate and physical conditions of time and place as with 
 the psychical state of the people, whose conditions it 
 reflects. It places the original and enduring source of 
 law in popular consciousness, and shows how law neces- 
 sarily encounters and fuses with all other elements of 
 culture in it.^^ We do not wish to enter here upon a 
 
 ""These phenomena, — law, language, customs, government — 
 have no separate existence, there is but one force and power in a 
 people, bound together by its nature; and only our minds give them 
 separate existences. What makes it a single whole is the common 
 conviction of the people, the like feeling of inner necessity, to which 
 
§37] HISTORICAL SCHOOL 51 
 
 discussion of this, nor of any doctrine of the "historische 
 Schule' ' at this point ; '° but in connection with our subj ect 
 we must point out that it gave a strong impulse to the 
 study of the phenomenal reality of- law. Though the 
 negative philosophical conclusions arising from its 
 methods (for sometimes historicism, as Gabba points 
 out," is but "a sceptic sc.hool more or less disguised under 
 a new name") must be disproven (as we will do in a 
 logical place) ,'^ one claim of merit cannot be denied it — 
 that in its work it showed more effectually than was ever 
 shown before the need of studying law in relation with 
 other forms of social life- . The penetration into the 
 common scientific base of the principle that law is an 
 integral part of the life of a people, indissolubly inter- 
 penetrant with all elements of its activity and culture, 
 and of necessity, therefore, transfusing with them,'' 
 
 all attribute a contingent and arbitrary origin." These words by 
 Savigny, in "Vom Beruf unserer Zeit fur Gese'tzgebung und Rechts- 
 wissenschaft" (1814; 3 ed., Heidelberg, 1840, p. 8), contain the 
 fundamental thought of all the historical school. 
 
 ^ Del Vecchio touched upon the principal faults of this school in 
 "II sentimento giuridico," and deals with them again in Cap. X, 
 p. 85, post. Cf., for a criticism of this school from another point of 
 view, Berghohm, "Jurisprudenz und Rechtsphilosophie," p. 480 
 et seq. 
 
 '^ "Alcuni piu generali problemi," I Serie, p. 21. 
 
 ^ See Cap. X, p. 85, post. 
 
 39 Savigny wrote a clear exposition of the inevitable and constant 
 evolution of law in connection with the successive moments in the 
 life of every people. "This organic involution of law with the 
 life and character of people develops with the ages, and in this it 
 resembles language. As in the latter, so in law, there can be no 
 instant of rest, there is always movement and development. For 
 all the progress of mankind including the development of law is 
 governed by the same power of internal necessity as simple phe- 
 nomena. Law grows with a nation, increases with it and dies at 
 its dissolution, and is a characteristic of it." "Vom Beruf unserer 
 
52 LAW AND HISTORICAL CONDITIONS [ Ch. VI 
 
 is above all due to this school. It laid the foundation 
 for a scientific explanation of the fact of the variety in 
 law, although it did not correctly analyze it. The 
 analytical studies and arguments of the philosophy of 
 history from the year 1800 until to-day, far from destroy- 
 ing, have constantly confirmed this principle, reinforcing 
 ' and illustrating it in different ways. Hegeliaii philosophy 
 (wljose relations with the theories of the historical 
 school we have mentioned) has, in general, given an 
 objective tendency to the moral sciences differing and 
 in fact exaggerating the cult of fact and historical growth 
 in its dogmatic pantheism, which is substantially an 
 "a priori" realism.*" 
 
 § 38. Sociology. Comte. The positivism of Comte is 
 founded entirely upon the idea of the necessary correla- 
 tion of every kind of phenomena. And from the neces- 
 sity of considering human facts as governed by laws 
 analogous to those governing all other phenomena, 
 there grew in Comte's mind the concept of a new science 
 or general doctrine of society — Sociology.*! In this 
 
 Zeit," p. 11. For the contradiction between this and the other 
 doctrine of the same school, that Roman law should be accepted 
 by modern nations as normal law, see Ahrens, "Naturrecht oder die 
 Philosophie des Rechts," 6 ed. (Vienna, 1870-71), I Bd., p. 172 et 
 seq. Arnold, in "Cultur und Rechtsleben," clearly outlines the 
 organic connection between law and the other multiplicate forms of 
 culture according to the principles of the historical school. The 
 school of Krause developed this concept. 
 
 ^ For this realistic fundamental significance of Hegelian doctrine, 
 cf. Gabba, "Alcuni piu generali problemi," I, p. 20; Petrone, "La 
 fase recentissima della Filosofia del diritto in Germania," p. 12 et 
 seq., p. 92 et seq. 
 
 ^ See esp. "Cours de philosophie positive," Lecture 48; "Carac- 
 t^res fondamentaux de la methode positive dans I'^tude rationelle 
 des phenomenes sociaux," Vol. IV, pp. 287-470. From the idea 
 of a consensus or "fundamental solidarity between all divers social 
 aspects," Comte deduced the necessity of studying social reality as 
 
S381 SOCIOLOGY 53 
 
 regard we can say that no reform of method, no matter 
 how stringent, suffices to effect a new science. For this 
 a specific object and content is necessary, to distinguish 
 it from all other pre-existing sciences. Now the study — 
 even the synthetic study — of human facts is as old as 
 human thought; it was not introduced "ex novo" by 
 sociology. The only distinctive mark of sociology is 
 its objective treatment of human facts as phenomena 
 naturally determined and connected in their develop- 
 ment. 
 
 § 39. Sociology. Spencer. The question of the pos- 
 sibility and object , of sociology now in controversy 
 exceeds the proper limits of our subject and cannot 
 be treated as incidental to it^ We will here also dis- 
 regard the philosophical meaning, which is generally 
 attributed to the historical and genetic study of social 
 facts, postpdning it to a later chapter.^* In this place 
 we will merely grant what, in fact, all modern sciences 
 have demonstrated, namely, that there are infrangible 
 bonds between legal institutions and the conditions of 
 existence, which are realized and understood more or 
 less consciously by every people, or its major part, in 
 every moment of its life. With a variation in these 
 
 a single unit both in static and dynamic regards: "Since social 
 phenomena • are so deeply connected, their real study can never 
 rationally be separated; whence arises a permanent necessity, as 
 unavoidable as direct, of always considering diverse social aspects 
 simultaneously, whether social statics or dynamics are under con- 
 sideration" (p. 352). C "The true general spirit of dynamic sociology 
 consists in conceiving of each consecutive social state as the neces- 
 sary result of the precedent and the indispensable cause of the 
 subsequent state. Its object, therefore, in this regard, consists in 
 the discovery of constant laws governing this continuity, whose 
 sum determines the fundamental advance of human development";;' 
 (pp. 365-66). 
 
 •2 Cf., esp., Cap. X, p. 85, post. 
 
54 LAW AND HISTORICAL CONDITIONS [Ch.VI 
 
 conditions and with divers phases of gerieral social 
 development, a corresponding change in law must be 
 effected. This concept of the inevitable historical 
 relativity of law is confirmed by modern biologists. 
 Darwin, who received inspiration for his biological 
 discoveries from Malthus' treatise on population, showed 
 how such discoveries in their turn ejtplained certain 
 developments of social life. But Spencer deserves 
 the credit of clearly formulating the connection between 
 the two kinds of research, transposing the criteria 
 of the conditions of existence and the laws of adapta- 
 tion to environment, and those of evolution from the 
 field of organic to that of superorganic or social facts. 
 Historical movement came, therefore, to be understood 
 and explained in a new light, as the progressive adapta- 
 tion of human society to environment. The connection 
 of rules of conduct with objective conditions of existence 
 was also recognized in a dynamic sense, making the 
 development of social life appear as a necessary and 
 coherent development of cosmic evolution ; whence, a long 
 series of discoveries in the analysis of the social function 
 of law and the factors determining its evolution according 
 to these new criteria. 
 
 § 40. Comparative Law. The historical analysis of 
 law was accompanied by a great extension in research, 
 of which it was both the cause and effect. Different 
 times and nations were studied, which up to that time 
 had escaped examination because they were thought 
 unworthy of it.^' The comparison of the legal institutions 
 
 *> The historical school of law was not free from this prejudice, 
 for in its worship of Roman law it severely restricted its scope and 
 failed to grasp the importance of ethnographical comparison. On 
 the contrary, ThibaiJ wrote, "Our history of law, to be truly prag- 
 matical, must include the legislation both of ancient and modern 
 countries. Ten good lectures on the jurisprudence of the Persians 
 
§40] COMPARATIVE LAW '55 
 
 of various peoples grew so rapidly that juridical ethnology 
 is now considered a distinct science. Its vast design is 
 far from being fully realized, but still it is undeniable 
 ±hat the comparative study of the various races, especi- 
 ally in their first stages of juridical development, has 
 thrown no little light upon the genesis and later develop- 
 ment of law. The analogous progress in the sciences of 
 social facts has contributed also to the advance of his- 
 torical knowledge of law. Comparative philology greatly 
 helped discoveries of prehistoric juridical facts (especially 
 in the splendid work done by Leist). Even more im- 
 portant, in its consideration of the intrinsic coefficients 
 of law, was the aid of the economic studies, which, in 
 giving rise to the discussion of method, bore rich fruit. 
 The conflux of these various currents-necessarily resulted 
 in partial contradiction, since the different starting- 
 points were necessarily reflected in the final conclusions 
 reached concerning the same object. It is not surprising 
 that those who, following Darwin and Spencer, took a 
 biological point of view of human society gave its organic 
 conception an exclusive and perhaps erroneous meaning. 
 This also explains, if it does not justify, the excessive 
 predominance given by the economic school to the eco- 
 nomic element in the determination of social structures. 
 
 and Chinese would awaken more true juridical thought than a hun- 
 dred on 'some wretched technical point, such as the basis of the 
 Laws of Decedent's Estates from Augustus to Justinian." ("Civil- 
 istische Abhandlungen," 1814, p. 433.) Even more recently, while 
 admitting the value of comparative jurisprudence, some authors 
 wanted to restrict it to civilized people. Thus, for example, Walter, 
 "It is well worth while to compare the existing laws only of civilized 
 nations." "Naturrecht und Politik im Lichte der Gegenwart," 
 2ed. (Bonn, 1871), § 19. In these latter days with the study of 
 the "Naturvolker," the other extreme has been reached, which is 
 criticized by Lasson, "System der Rechtsphilosophie," Pref., p. x; 
 and Vanni, "Lo studio comparative delle razze inferiori nella 
 Sociologia contemporanea" (Perugia, 1884). 
 
66 LAW AND HISTORICAL CONDITIONS [Ch.VI 
 
 § 41. Relativity of Law. Conclusion. But these par- 
 tial divergencies do not prevent the modern studies of 
 society and law from leading to a common end, which 
 contains their general results and supplies the funda- 
 mental methodical canons to be applied in their pursuit. 
 They are (to epitomize the general principles whose 
 doctrinal genesis we have outlined) first of all, the 
 concept of the interpenetration of all social facts, so that 
 it is impossible, for example, to study the law of a given 
 people in a given time apart from all the other subjective 
 and objective conditions of its life. *-Then comes the 
 concept of the natural determination of social facts, so 
 that the appearance and duration of an institution are 
 explained in relation not so i^uch to its ideal and abstract 
 rationality as to the actual presence of vital forces capable 
 of forming and maintaining it (we may call it the principle 
 of sufficient historical reason), v- And lastly, there is the 
 concept of development or growth (to which everything 
 in life is subject), which proves that law has a life and 
 must transform in time with the modifications of the ' 
 conditions of existence, with which it is connected. 
 The true constancy of the historical changes of law is 
 found in its relation to the other elements of social life. 
 "The positive law of a people at a definite time is always 
 the inevitable product of the history of its ethnico- 
 raorphological constitution and the life-condition^ under 
 which it is formed." ** This passage by Post c^n be 
 accepted as the epitome of the modern historical con- 
 ception of law, which admits the natural relativity and 
 instrumentality of law itself.*^ However grave and 
 
 **Post, "Bausteine fur eine allgemeine Rechtswissenschaft auf 
 vergleichend-ethnologischer Basis," ,1 Bd. (Oldenburg, 1880), p. 71. 
 
 « "If law," writes Post, "is a result of the actual collective life of 
 anethnico-morphological construction, and we see such in progressive 
 development, it goes without saying that the content of law must 
 be a continually changing one. In fact, according to the type of 
 
§41] RELATIVITY OF LAW 57 
 
 prejudicial to an abstract determination of the concept 
 of law such an admission may seem, it is none the less 
 inevitable if one professes an unconditional respect for 
 the reality of facts, whatever may be their significance 
 and consequences. Only on this condition an idealistic 
 philosophy, which does not recognize that facts mark the 
 limii of the human mind, can trust itself to a firm founda- 
 tion, without laying itself open to the old criticisms, 
 wherein lies the greatest strength of empiricism in general 
 and of positivism in particular. The historical relativity 
 of law must be, and is to-day, admitted by all who have 
 grasped the meaning of scientific objectivity.*^ Consider- 
 ing this principle as accepted, therefore, we will proceed 
 to its consequence in relation to our theme. 
 
 ethnico-morphological organization, in which the law arises, and 
 the conditions of existence under which it develops, the law must 
 be somewhat different at all times and among all peoples, and, too, 
 it must be recognized as law" ("Bausteine," 1 Bd., p. 60). Bruns 
 has given typical and comprehensive formulae on this subject: "The 
 different national laws, which govern single nations, are not absolute 
 but singfe changing phenomenon in the great current of history, and, 
 in general, therefore, where an historical development of national 
 life takes place, law must be included as an actual part of its con- 
 ditions. • As every nation, so must every age have its own distinct 
 law. The changes which enter into the social and spiritual life of a 
 nation must effect alterations and improvements in its laws." "Ge- 
 schichte und Quellen des romischen Rechts," § 1. To the same 
 effect, see inter alios, Lor. v. Stein, "Gegenwart und Zukunft der 
 Rechts- und Staatswissenschaft Deutschlands" (Stuttgart, 1876), 
 pp. 97, 135 et seq.; Ihering, "Der Zweck im Recht," I Bd., 3 ed. 
 (Leipsic, 1893), p. 435 et seq. 
 
 "^'When the conditions of the life of a people change and its needs 
 are altered," writes one of the masters of the spiritualistic modern 
 philosophy of law, "their positive law is modified and transformed. 
 The different grades of people's culture have different ways of deter- 
 mining what is just; such determination is realized in positive law." 
 Filomusi-Guelfi, "Enciclopedia giuridica," p. 47; cf. his "La codifi- 
 cazione civile e le idee modertte che ad essa si riferiscono" (Rome, 
 1887), p. 13 et seq. 
 
58 CONSEQUENCES AND LIMITS [Ch.VII 
 
 CHAPTER VII 
 
 CONSEQUENCES AND LIMITS OF THE 
 RELATIVITY OF LAW 
 
 RECOGNITION OF HISTORICAL VARIETY AND APPARENT 
 IMPOSSIBILITY OF AN UNVARYING DETERMINATION OF 
 LAW. — EXCESSIVE RELATIVISM AND REALISTIC CON- 
 FORMITY IN INSTITUTIONS. — PROGRESSIVE UNIFICA- 
 TION OF LAW. — VALUE OF THIS PRINCIPLE "PER SE" 
 AND IN THE PRESENT STUDY. 
 
 § 42. Modern Denial of Law as a Unit Fact. The 
 conclusion, which at first seems inevitable from the 
 facts established up to this point, is that a universal 
 objective definition of the concept of law is impossible. 
 If law is not a quiescent reality, but constantly changes 
 with the mutable conditions of life and culture, how 
 can we hope to confine it in a universally acceptable 
 definition? History properly contains not law but as 
 many laws as there are social conditions. The criterion 
 of justice is not fixed and immutable, on which, as by 
 categorical necessity, without distinction of time or 
 place, equal institutions and decrees can be uniformly 
 based, but assumes matiy shapes, varying with the deter- 
 mining conditions. The logical definition of an object 
 presupposes it a unit, — that it is always equivalent to 
 itself. Now the only constant factor to be found in the 
 historical life of law is that it is not an entity but a 
 relation, as we have shown. Not law "in se" but only its 
 relation to its real bases can be said to be immutable 
 and absolute.' The historical variety of law, which 
 
 1 Cf. Vanni, "Filosofia del diritto," p. 61. 
 
§42] MODERN DENIAL OF LAW 59 
 
 was primarily considered as a simple fact controlled by- 
 law, has, thanks to scientific progress (as outlined in 
 our last chapter), assumed the true and proper significance 
 of a law itself. It no longer represents a mere "datum" 
 of experience, but rational necessity or will. So, by a 
 cruel irony of thought, the long-sought unity dissolves 
 in the act of grasping it; the criterion which compre- 
 hends and dominates the whole juridical reality seems 
 to result in the impossibility of uniform conception. 
 If we regard the character of modern speculation about 
 law, we find that it does not tend so much to the dis- 
 covery of its substance as to the narration of its history 
 and the description of its function. Giving up all 
 attempt to discover an objective essence in law, the 
 philosophy of to-day defines it almost exclusively as 
 a term of a relation and a means for the attainment 
 of certain ends (such as social protection, preservation, 
 development). . This is one of the causes of the charac- 
 teristic vagueness of recent fundamental notions of law. 
 It is true that this seems the inevitable corollary of the 
 propositions already proven, which show the need of an 
 historical view of law. Once recognizing the infinite 
 and necessary diversity of the historical configurations 
 of law, how can we escape the conclusion which Post, 
 for example, has drawn, that "a constant idea of law 
 is nonsense"?* 
 
 § 43. Modern Denial of Law as a Unit Fact is the Result 
 of Anti-idealistic Views. There is no doubt that this 
 conclusion is favored implicitly or explicitly by the 
 anti-idealistic trend which prevails to-day. The denial 
 of a universal and objective idea of law is in fact only an 
 example of the present denial of all ideology. Comte 
 found a metaphysical residuum in the idea of law, which 
 made him as suspicious of it as he was of the causal 
 
 « Post, "Bausteine," I Bd., p. 60. 
 
60 CONSEQUENCES AND LIMITS [Ch.VII 
 
 idea in other fields. And, as Comte's aversion to 
 metaphysical ideas is the part of his thought most 
 propagated and encouraged by modern schools, we can- 
 not marvel that the idea of law, with its traditional 
 characteristics of absoluteness and universality, has been 
 attacked and made the object of all the objections 
 which are directed against the metaphysics of the past 
 in general, until the idea, which Plato considered the sun 
 of the spiritual universe, has come to be considered in 
 our, day as the stronghold of mental prejudice and 
 superstition. This excess of anti-philosophical reaction 
 is undoubtedly the reason why, in the fury of destroying 
 the ideological postulates of , the older doctrines, their 
 proofs resulting from the objective studies of facts are 
 forgotten. We have already pointed out ' the number of 
 cases common to the laws of .various peoples, through 
 which the older school profited by intuition. The modern 
 studies, by whose light the variety in the forms of life 
 and the difference according to time and place of both 
 men and nations are more clearly seen, have shown with 
 equal clearness that there are deep-rooted similitudes 
 and continuous analogies, and even true and actual 
 equalities of principle and institutions, among various 
 peoples in different ages. We can proclaim with cer- 
 tainty that what Cicero called the "insignis humani 
 generis similitudo" * is always clearly shown by the 
 customs and laws of all races. Now, after the latter- 
 day studies, based on biological ideas of conduct, there 
 is less justification than ever for holding that life has not 
 fixed conditions determined by its essential functions, 
 which necessarily result in uniform elements of activity 
 and thought in every individual and society." 
 
 » Cf. Cap. IV, p. 14, ante. 
 * "De Leg.," Lib. I, par. 11. 
 
 ' The testimony of Post on this point, founded on his vast investi- 
 gations in ethnographical jurisprudence, is invaluable. He states 
 
§44] PROOF OF LAW 61 
 
 § 44. Proof of Law as a ' Unit Fact. This uniform 
 substratum, which Vico called "the common mind of 
 the nations," is, "per se," sufficient to stay the course 
 of scepticism,^ the goal of those who, erroneously dogma- 
 tizing the proper principles of the historical method 
 and erring in their application, feel bound to find nothing 
 in phenomena but a constant inconsequent flow.' 
 It is the common substratum which gives scientific 
 meaning to comparative study. In other words, it 
 renders the product of their respective data scien- 
 tifically legitimate and conclusive. It is not mere 
 chance which leads the greatest masters of comparative 
 jurisprudence to point out with special care^the common 
 bases found in the laws of various peoples. Only 
 from this community of base can we undertake the 
 highest object of this science, that is, the co-ordyiation 
 of all the juridical formations in a system, so that they 
 can be considered as phases of a universal and sub- 
 stantially homogeneous historical movement.^ I From 
 
 "that there are a number of similar legal customs among different 
 peoples and in different ages, which are based on similar human 
 nature and on similar conditions of existence." "Bausteine," Bd. I, 
 p. 64, and cf. p. 14 at passim. 
 
 8 With this point ol view, Rousseau confuted Montaigne, "fimile," 
 Lib. IV, p. 340 See also, for many true observations -on this sub- 
 ject, Janet, "L'unite morale de I'esp^ce humaine," in "Revue des 
 deux mondes," Vol. LXXVII, 1868, pp. 892-931. Cf. Schiattarella, 
 "L'idea del diritto nell' Antropologia, nella Storia e nella Filosofia" 
 (Florence, 1880), I. Also, Tissot, in his "Introduction historique 
 k r6tude du droit" (Paris, 1875), proposes to show the fundamental 
 unity of human nature throughout the variety of juridical history. 
 
 ' Against the concept of absolute mutability, which is incompatible 
 with science, see Spir, "Recht und Unredht," 2 ed. (Leipsic, 1883), 
 Cap. I. 
 
 'This special character distinguishes the ethnographico-com- 
 parative method from the historical in a strict sense. Cf. Post, 
 "Einleitung in das Studium der ethnologischen Jurisprudenz" 
 
62 CONSEQUENCES AND LIMITS [Ch.VII 
 
 the synthetic consideration of the history of law we can 
 make an induction of the greatest importance, which 
 increases the value of the particular similarities (which 
 we have shown analytically); this is the induction of 
 the progressive unification of law, shown in the tendency 
 among all peoples to co-ordinate their laws and institu- 
 tions. The causes of this important fact are manifold, 
 because of its relation to many phenomena. In its most 
 profound significance, it is referable to the intrinsic 
 development of human knowledge, which is always 
 tending towards the universal, and the recognition of 
 the equality of man.' In its external and concrete 
 
 (Oldenburg, 1886) : "Ueber die Aufgaben einer allgemeineti Rechts- 
 wissenschaft" (Oldenburg, 1891); "Grundriss der ethnologischen 
 Jurisprudenz" (Oldenburg, 1894-95); and his other works cited 
 hitherto; Bernhoft, "Ueber Zweck und Mittel der Vergleichenden 
 Rechtswissenschaft" in "Zeitschrift fiir Vergleichende Rechts- 
 wissenschaft," I Bd. (Stuttgart, 1878), pp. 1-38; Hildenbrand, 
 "Ueber das Problem einer allgemeinen Entwicklungsgeschichte der 
 Rechts und der Sitte" (Graz, 1894); Kohler, "Ueber die Methode 
 der Rechtsvergleichung" in "Zeitschrift fiir das Privat- und 
 offentliche Recht der Gegenwart," Bd. XXVIII, 1901, pp. 273-84; 
 "Rechtsphilosophie und Universalrechtsgeschichte," "Die Rechts- 
 philosophie der XX Jahrhunderts" in "Deutsche Juristen-Zeitung," 
 IX, 1904, pp. 27-34; Del Vecchio, "SuU' idea di una scienza del 
 diritto universale comparato," 2nd ed. (Turin, 1909; Germ, transl., 
 "Die Idee einer vergleichenden universalen Rechtswissenschaft," in 
 "Archivfur Rechts- und Wirtschaftsphilosophie," Bd. VII, pp. 2-3, 
 Berlin, 1914). 
 
 ' This clarifying principle is not, as some believe, a mere ethical 
 demand or metaphysical postulate; it has been constantly proved 
 by examination of the historical development of law, which has 
 shown that personal protection, originally reserved to members of 
 a certain ethical or tribal group, and denied to foreigners, has been 
 gradually extended to a larger circle, until for certain purposes it 
 includes all mankind. Vide Petrone, "La Filosofia del diritto al 
 lume deir idealismo critico," p. 439 et seq., where the testimony of 
 Darwin on this point is collected. See also, Tarde, "Les transforma- 
 tions du droit," 2d ed. (Paris, 1894), p. 59 et seq.; Caiellani, "La 
 dottrina platonica delle idee e il concetto di society internazionale" 
 
5441 PROOF OF LAW 63 
 
 relations, it is the effect of the necessity which forces 
 groups of men, as they modify their conditions of life 
 in order to escape from their primitive isolation, to 
 contract new and more active reciprocal relations. 
 These complex relations, which comprehend the exchange 
 of things (commerce) as well as of ideas, naturally lead 
 to the formation and progressive development of inter- 
 national law, which in turn exercises a strong influence 
 on the development of national law. 
 
 § 45. Co-ordination of Laws. The consequence is 
 that the general and constant elements of law tend 
 to prevail over the particular and occasional. The 
 substitution of human for national concepts (upon which 
 ancient law was moulded) is one of the essential signs of 
 civilization. "The national character" of law, the slogan 
 of the historical school,*" is a sign of incomplete develop- 
 ment. It predominates in the first stages of juridical 
 evolution, but loses its importance as the latter advances. 
 And if it does not become valueless it is so modified as 
 to allow of the formation over and above all particular 
 national laws of a vaster complex unity or superior 
 ethico-juridical organism, founded on universal condi- 
 tions of human existence." The uniformity of the 
 
 (Turin, 1898), in "Studii giuridici dedicati a F. Schupfer." Cf. Del 
 Vecckio, "L'evoluzione dell' ospitalitil" in "Riv. ital. di Soc," VI, 
 1902, Fasc. II-III. 
 
 " Cf. on this point, Stahl, "Die Philosophie des Rechcs," Bd. II, 
 Lib. II, Cap. IV. 
 
 " This concept, of which traces can be found in Stoicism, was 
 cleariy outlined by Kant, and empirical researches have only con- 
 firmed it. So the idea of human progress, against whose dogmatic 
 aspect a reaction only partly justified had taken place, as we have 
 said (cf. § 15, ante), is again accepted, though in a more strictly 
 scientific guise. We now generally admit that the state of perfect 
 harmony, which ancient philosophy supposed to have existed in 
 primordial days, is on the other hand the end to which humanity 
 tends by infinite paths. 
 
64 CONSEQUENCES AND LIMITS [Ch.VII 
 
 laws of various peoples is not, therefore, merely static, 
 but what is more important, dynamic and progressive 
 
 The doctrine of a cosmopolitan law ("jus cosmopoliticum," 
 "Weltbiirgerrecht") as the necessary goal of the course of mankind 
 was held by Kant, besides in the writings cited ante, in "Met. Anf- 
 gangs. d. Rechtslehre," Zw. Th., Dritt. Abschn., and "Zum ewigen 
 Frieden." This doctrine, which Schelling also supports in "System 
 des transcendentalen Idealismus," p. 686 et seq., 591 et seq., is fol- 
 lowed by Hegel, notwithstanding the different character of his system, 
 as far as his conception of the State as an entity will permit. Vide 
 "Grundlinien der Philosophie des Rechts," §§ 330-360; "Encyclo- 
 padie der Philosophischen Wissenschaften," §§548-552; "Philosophie 
 der Geschichte" at the end. Hegel states that the history of the 
 world is the development of the idea of freedom, and places the 
 authority of the universal spirit over the laws of separate States. 
 This authority is shown in history, which constitutes, according 
 to a known formula, the tribunal of the world. But Hegel does not 
 admit a true law in the relations between States, Vide, on this point, 
 Lasson, "Prinzip und Zukunft des Volkerrechts" (Berlin, 1871); 
 "System der Rechtsphilosophie,'' §§36, 37. Filomusi-Guelfi thought 
 it possible to make a full juridical co-ordination, within the confines 
 of the Hegelian theory, that is, an all-powerful association of nations 
 which would not lose their distinct individuality by entering it. Vide 
 "Enciclopedia giuridica," p. 705 et seq.; cf. p. 51 et seq., p. 676 et 
 seq. In confirmation of this we may recall that BluntscMi, inspired, 
 as is well-known, by Hegelian thought, held that humanity tended 
 to the formation of one State, in which alone the State-idea would 
 be fully realized. This is, in substance, the thought of Kant. See 
 "Lehre vom modernen Staat," Erst. Th., "Allgemeine Staatslehre," 
 6 ed. (durchges. von Loeming, Stuttgart, 1886), Lib. I, Cap. II; 
 "Die Bedeutung und die Fortschritte des modernen Volkerrechts" 
 (Berlin, 1866), p. 63 et seq. Cf., also, Trendelenburg, "Naturrecht 
 auf dem Grunde der Ethik," 2 ed. (Leipsic, 1868), §§ 218, 235; 
 Miraglia, "I principii fondamentali dei diversi sistemi di Filosofia 
 del diritto e la dottrina etico-giuridica di G. W. F. Hegel" (Naples, 
 1873), p. 201 et seq. 
 
 Among the modern positivistic doctrines which can be adduced 
 to prove the progressive ethico-juridical co-ordination of mankind, 
 that of. Spencer deserves particular notice. After showing that 
 historical progress represents "the progressive adaptation of human- 
 ity to the social state," Spencer takes up the condition of "perfect 
 
§45] CO-ORDINATION OF LAWS 65 
 
 as well. The idea of the just tends to fix its content, 
 assuming always a meaning more purely and universally 
 human. Here, too, historical reality endeavors to har- 
 monize with reason; facts approach little by little what 
 is revealed in the consciousness as an immediate need. 
 
 § 46. The Unity of Law not Provable by its Content. 
 If we could not oppose anything but similarities in the 
 
 adaptation," and deduces therefrom a code which he calls "absolute 
 ethics," which "fornaulates the method of life of a man fully adapted 
 in a fully developed society." "The Data of Ethics," §106. Absolute 
 ethics prevail more and more over relative or provisional ethics 
 as the gradual process of adaptation is fulfilled. Ethico- juridical 
 ideas and sentiments, at first varying, become "uniform and per- 
 manent, because the conditions necessary to complete social life are 
 uniform and permanent." "The Principles of Psychology," § 524. 
 This doctrine has much truth in it, but lacks precision and corres- 
 ponds badly to the premises of the Spencerian philosophical system. 
 Cf. Vanni, "Sist. di Spencer"; Anzilotli, "La scuola del diritto 
 naturale"; G. Vidari, "Rosmini e Spencer" (Milan, 1899), Pt. II, 
 Sec. II; Juvalta, "La dottrina delle due Etiche di H. Spencer" in 
 "Rivista filosofica," Anno VI, Vol. VII, 1904. Cf. also Del VeccMo's 
 note in the "Riv. ital. di Soc," Anno VI, 1902, p. 666-673. 
 
 The progressive diminution of national and particular elements 
 in the juridical institutions of various nations, giving place to a 
 larger historical fact, was admitted by Vanni, "Prime linee di un 
 programma critica di Sociologia,'' p. 66. "Sist. di Spencer," p. xxi, 
 "Lezioni" p. 237. Cf., on the analogies in the law of advanced 
 nations, Austin, "Lectures on Jurisprudence, or the Philosophy of 
 Positive Law," 5 ed., revised by Campbell (London, 1885), p. 1077, 
 at passim. Carle, who, in his "Genesi e sviluppo delle varie forme di 
 convivenza civile e politica" (Turin, 1878), had laid stress on the 
 gradual increase in human groups, by which "humanity was always 
 growing" in the forms of law (p. 37), states later "that a system of 
 law is to-day forming before our eyes, like the extension of the 
 ancient tribal law under the hands of the Romans." "La Filosofia 
 del diritto," p. 239, n. 2; cf. p. 381 et seq.; cf., too, Leist, "Ueber die 
 Entwicklung eines positiven gemeinen Rechts in der civilisirten 
 Menschheit" (Basel, 1846); "Die realen Grundlagen und die Stoffe 
 des Rechts" (Jena, 1877), p. 172 et seq.; Zitelmann, "Die Moglich- 
 keit eines Weltrechts" in "AUgemeine Osterreichische Gerichts- 
 
66 CONSEQUENCES AND LIMITS [Ch.VII 
 
 content of law to the negative arguments of empiricists, 
 the possibility of a universal definition of the concept 
 would be far from assured ; for, by the side of these simi- 
 larities and identities, inequalities and contradictions 
 are found in its historical manifestations. Nor would 
 the fact that the latter are disappearing, making way 
 for a more perfect uniformity, justify thefr elimination 
 from scientific examination, for all existing facts, how- 
 ever transitory and of whatever value in respect to a 
 criterion of another order, must be equally considered 
 and included in any definition which hopes to be truly 
 objective and universal. Let us repeat here what we 
 have already said on the subject of natural law:" the 
 idea of natural law is in fact connected with that of a 
 "human world-wide law," which can be described in 
 terms of historical evolution. We admit the value of 
 such ideas and believe them well-founded in their proper 
 sphere, but we must distinguish diverse scientific de- 
 mands. We are now seeking a type, a paradigm in the 
 Platonic sense, a supreme criterion to weigh diverse 
 positive laws. We do not want to determine the last 
 stage of its evolution, but to find theorrini-comprehensive 
 idea which includes in itself all facts, showing its common 
 essence. If such an essence exists, it cannot be founded 
 on coincidences and similarities, which, however exten- 
 sive, represent only one part of the reality of law or only 
 one phase (even if it is the highest and most perfect) 
 of its course, but must be referable to something fixed, 
 constant and universal. We have noted the gravest 
 
 zeitung'' (Vienna, 1888), Th. 25-27; Ludwig Stein, "Die soziale 
 Frage im Lichte der Philosophie," 2 ed. (Stuttgart, 1903), p. 124 
 et seq.; Del Vecchio, "II fenomeno della guerra e I'idea della pace," 
 2nd ed. (Turin, 1911; German Transl., "Die Tatsache des Krieges 
 und der Friedensgedanke," Leipsic, 1913). 
 " Cf. Cap. Ill, p. 14, ante. 
 
§46] THE UNITY OF LAW 67 
 
 doubts (caused by a perception of the historical nature 
 of law) of the possibility of such a definition. If the latter 
 is by its nature conditional and relative, how can a fixed 
 and universally true definition of it be given? How 
 can a necessarily common element be found in what 
 is of necessity varied? The answer to these questions 
 must show the impossibility of definition, unless — and 
 this is a point of capital importance for our theme — 
 all the proofs of the historical relativity of law obtained 
 by an examination of facts concern only its content, 
 and have to do only with the internal changes and 
 concrete implications of various judicial propositions. 
 It is clear that the only statement that can be properly 
 predicated upon historical facts is that the logical 
 definition of law cannot be gotten from the content of 
 juridical experience. . Thus far we agree perfectly with 
 Post." Now, what if the essence of law is entirely 
 reducible to its content, that is, to the material of 
 separate juridical propositions? And, if this material 
 is bound "de facto" to the multiplicate tides of history 
 and alters with them, will it be possible to find elsewhere 
 an "ubi consistam" for determining the immutable 
 essence of law? This we must determine in the following 
 chapters.. 
 
 " "It can be seen from these examples . . . that the content of 
 distinct statutes is not that from which the nature of law can be 
 ascertained." "Der Ursprung des Rechts," p. 18. 
 
68 FORM AND CONTENT OF LAW [ Ch. VIII 
 
 CHAPTER VIII 
 
 FORM AND CONTENT OF LAW: THE POSITION 
 
 OF THE PROBLEM IN THE THEORY 
 
 OF KNOWLEDGE 
 
 LOGICAL UNITY AND ACTUAL MULTIPLICITY. — THE 
 LOGICAL UNIVERSAL AS FORM. — THE PROBLEM OF 
 KNOWLEDGE IN ITS FUNDAMENTAL RELATIONS. — 
 CRITICISM AND POSITIVISM. — METAPHYSICAL CHARAC- 
 TER OF , IDEAS. —FUNDAMENTAL PRESUPPOSITIONS IN 
 THE APPLICATION OF PHILOSOPHICAL IDEAS TO LAW. — 
 LOGICAL AND ACTUAL DETERMINATION. — CONCEPT 
 AND IDEAL. — CRITICISM OF DEONTOLOGICAL DEFI- 
 NITIONS. 
 
 § 47. Abstract Unity of Law. We have gone into 
 far fields in search of what lies in our own thought, where 
 alone we can hope to find it.i The fixed point, the 
 constant basis and germ of the conceptual determination 
 of law and the proof of its possibility, lies in the fact that 
 we give immediate recognition to the quality of juridical 
 propositions no matter how different and varied they may 
 be. The idea of the variety of historical legal mani- 
 festations actually proves the assumption of a common 
 form, for we could not speak of juridical evolution if 
 we did not first accept a certain abstract unity as com- 
 mon to all its phases, in whose regard a continuity of 
 process was apparent.^ We do not find the true .unity 
 
 1 "Noli foras ire, in te ipsum redi, in interiore homine habitat 
 Veritas." Augustine, "De Vera Religione," Cap. XXXIX. 
 
 = Kant gives a strict proof of this principle in general, "Krit. d. 
 rein. Vernunft," "Transscend. Analytik.," II Buch, 2 Hauptst., 3 
 Abschn., 3, A; "Grundsatz der Beharrlichkeit der Substantz," pp 
 180-185. 
 
§47] ABSTRACT UNITY OF LAW 69 
 
 of law either in the multiplicate data of juridical history 
 or in determinations of ideal justice imposed or based 
 on such data. Such unity is only shown by the logical 
 universal of law, that is, by the form of its idea. This 
 form is not exhausted in the conteilt of law and is 
 immanent in respect to its variance, as is proved psycho- 
 logically by the fact that we include diverse and even 
 contradictory propositions in the single category of 
 law. What these propositions have in common is the 
 essence of law, the sense or formal quality of juridical 
 propositions. - 
 
 ,- § 48. Process of Scientific Thought. The essence of 
 science lies in uniting the multiplicity of phenomena by 
 conceptual ties. Scientific knowledge is systematic by 
 nature, and system is possible only through the concepts.' 
 The crowning glory of Greek philosophy is the discovery 
 and application of this truth. The advance from the 
 sensible particular to the intellectual universal is, accord- 
 ing to Socrates, the dialectic process which contra- 
 distinguishes and makes true science possible. Socrates, 
 however, did not develop the theory of the univer- 
 sal to the full, and only availed himself of the process, 
 which we would to-day call a process of abstraction, in 
 certain fundamental ethical problems. He can, therefore, 
 
 'J;'The life of all science is founded on the collection of an endless 
 variety of apparent phenomena under comparatively few abstract 
 concepts, forming a system by which we can get all phenomena 
 within, one mental grasp, to make the past clear and determine 
 the future." Schopenhauer, "Die Welt als Wille und Vorstellung," 
 "Kritik der Kantischen Philospphie" (ed. by Grisebach), 1, p. 578. 
 Cf.,inthissense,thejust considerations of Petrone in his " Contributo 
 air analisi dei caratteri differenziali del diritto" in "Riv. ital. per le ' 
 sci. giur.," Vol. XXII, 1897, "There is no unity of concept, there 
 is no scientific knowledge in the rigorous sense of the word, where 
 an immutable, essential, and necessary element cannot be abstracted 
 from the processes of mutation, contingency, and growth" (p. 347-8). 
 
70 FORM AND CONTENT OF LAW [ Ch. VIII 
 
 strictly be called the founder of ethics. But his great 
 disciple developed the principle of the universal as the 
 condition of scientific objective knowledge and made 
 it the basis of a full conception of the world. Plato 
 believed that the A,oyos was the subjective term of an 
 equation, whose objective term was the elSos or iSax, 
 the only absolute reality. As there is a perfect correlation 
 between these terms, the concept has a full objective 
 value. But Plato places the reality -of the iSea in a 
 transcendental order, of which the sensible world offers 
 only a defective image; whence it follows that the con- 
 cept is not entirely reflected in the objects of experience. 
 It is equal to the idea and transcends, like it, all phe- 
 nomena.' This gives rise to Aristotle's criticism: that 
 not admitting the x"'P'^e"' of ideas — their separation 
 from phenomena — he posits essence as immanent in 
 the distinct reality of things. Aristotle thinks a con- 
 cept an equal subjective term corresponding to objective 
 essence — ■^ Kara Xoyov ovo-ta ; but Xoyos here has naturally a 
 meaning different from that given it by Plato. It is 
 equivalent to things (being made equal to their essence) 
 and not, as Plato said, equal to the idea, which is beyond 
 things. 
 
 § 49. Conceptual Abstraction. It is with Aristotle, 
 therefore, that conceptual abstraction begins to exercise 
 a distinctly logical function in the economy of thought. 
 Logic and^ metaphysics were confused in the Platonic 
 system, because the concept in it did not correspond 
 so much to reality as to the idea of the true. Aristotle, 
 however, drew a distinction (which is not an absolute 
 separation) between these sciences* and assigned to 
 the concept its proper ofifice of objectively synthesizing 
 
 * On the relations, not always clearly determined, between logic 
 and metaphysics in Aristotle, see Schwegler, "Geschichte der Philoso- 
 phie," new ed., revised by Stern (Leipsic), p. 133 et seq. 
 
§49] CONCEPTUAL ABSTRACTION 71 
 
 the real and representing its essential and constant 
 nature, t The theory of the concept as formal unity 
 was so perfected by Aristotle that all attempts in later 
 ages to pursue and elaborate his work have led not 
 to true corrections and advantageous developments 
 but to mere supersubtleties and artificialities, to some 
 of which (it is but fair to say) Aristotle opened the door 
 by his ambiguity, uncertain terminology, and partial 
 contradiction in doctrine.^ The substance of his 
 doctrine (which it is necessary merely to mention here) 
 is that the formal concept shows the imnianent unity 
 of the multitude of things, while the material or content 
 constitutes its plurality.®- The objective existence and 
 value of the Xoyos was really the central idea of all 
 Greek classic philosophy. Then the discussion did not 
 lie around its existence, but the relation between logical 
 entities and particular sensible things. 
 
 § 50. Realism and Nominalism. This discussion, as 
 is well-known," reappeared in the Middle Ages. Questions 
 
 'On this proposition, read Veberweg, "System der Logik und 
 
 Geschichte der logischen Lehren," 6 ed. by J. B. Meyer (Bonn, 
 
 1882), p. 150 et seq. See also the posthumous work of Rosmini, 
 
 "Aristotele esposto ed esaminato" (Turin, 1857), for profound critical 
 
 . considerations of this subject. 
 
 ' - 6 " ''Oa-a apLOfi-a TroXXa, vXrjV exa. Eis yap Xoyos Kal 6 dvros 
 iroXXcSv OLOV avBpiairov, SwKpari^s Se e«," Aristotle, "Met.," XI, 8, 
 1074a. Schwegler, in his edition of the "Metaphysics," comments 
 on the passage, "Form is the principle of unity, material the basis 
 and possibility of plurality. As form or concept is the basis, so all 
 men are one (that is, exist as man in the formal sense), although a 
 number of examples of man or concrete men exist. Thus it is only 
 matter which gives rise to distinction, and makes actual plurality 
 possible." Cf. also, "Met.," VI, 8; VII, 7; IX, 2; et passim. 
 
 ' Cf. Windelband, "Gfeschichte der Philosophic," 2 ed. (Tubingen, 
 1900)', p. 222 et seq., and the fundamental work by Prantl, 
 "Geschichte der Logik im Abendlande," Vol. IV (Leipsic, 1855-70). 
 Cf., also, Rosmini, "Aristotele esposto ed esaminato," p. 15 et seq. 
 
72 FORM AND CONTENT OF LAW [ Ch. VIII 
 
 arose whether the universals were "ante rem" the 
 Platonic conception) or "in re" (the Aristotelian 
 conception). Up to this time the great common prin- 
 ciple of the objective validity and reality of the universals 
 was followed, but with the discussion of this question, 
 nominalism grew in direct opposition to realism, whether 
 of Platonic or Aristotelian form. Its doctrine was, that 
 the concepts had no actual existence, that only particular 
 and sensible objects are real;* "universalia sunt nomina, 
 universalia post rem." ' 
 
 § 51. Conceptualism. Conceptualism (founded by 
 Abelard), distinct from nominalism, though agreeing 
 with it in its denial of the extrasubj active existence of 
 universals, attributed a psychological (and not merely 
 nominal) existence to them. Concepts, in this doctrine 
 which rapidly supplanted the others, were the mental 
 reflection or "a. posteriori" synthesis of sensible data. 
 
 § 52. Innate Ideas. The ontological question of 
 the objectivity of universals tended to become genetic. 
 And the problem of the origin of ideas was suddenly 
 brought before the new philosophy. The doctrine of 
 innate ideas had a model of systematic construction 
 in Platonism, but the fixing of the human mind as the 
 centre of speculation (which is characteristic of modern 
 
 ' [The mediaeval nominalists, as can be seen from this synopsis, 
 correspond to the modern realists. Care should be taken to avoid 
 confusion from this terminology. — Translator.] 
 
 ' We must point out that there are many steps between these 
 opposite doctrines. Thirteen different opinions held in the llOO's 
 on this point are well known. Cf. K. Fischer, "System der Logik 
 und Metaphysik oder Wissenschaftslehre,'' 2d ed. (Heidelberg, 
 1865), § 49. Save for individual, though important, variations, 
 Platonic realism was represented by Anselmo of Aosta (of Canter- 
 bury), William of Champeaux, and Bernardo of Chartres; Aris- 
 totelian realism by Albertus Magnus, Thomas Aquinas, and Duns 
 Scotus; nominalism by Roscellinus and later by Occam and others. 
 
5 52] INNATE IDEAS 73 
 
 philosophy) prevented the new metaphysicians of the "a 
 priori" from accepting the absolute objective in the 
 classic sense. They, therefore, attributed a certain sub- 
 jective quality to the supreme categories of reason. 
 For Plato the problem was of joining the ideas (abso- 
 lute reality) with knowledge; for modern philosophy 
 the question is reversed. It would explain the relation 
 of knowledge to reality. Psychogenetic research (over- 
 looked by Platonism, in which ontology ruled supreme), 
 assumes a fundamental importance in the modern age. 
 And this research must be pursued all the more actively — 
 for logic's sake — by a school which proposes to prove 
 the empirical origin of ideas, that is, to show that their 
 formation is due to a process of accumulation and 
 re-elaboration of sensible data. Yet, such a study, how- 
 ever ingeniously conducted and however refined in 
 method, is inadequate to give a full explanation of the 
 logical character of ideas, for necessity and universality 
 are elements foreign to experience, but understandable by 
 reason and necessary to certain operations of the human 
 mind. On the other hand, the principle of innate ideas 
 cannot escape serious objections. I The marvellous prog- 
 ress in experimental science, more than any dialectic 
 argument, urges every rationalist to the construction 
 of a new theory of knowledge, which will allow an internal 
 synthesis of the elements of essence and growth.* 
 
 § 53. Kant. The critique of knowledge in the 
 Kantian system proposes to clarify the relations between 
 the"" necess9,ry and'" the contingent, between the universal 
 and the^ particular, between th^results of reason and the 
 -data of experience. Without denying any of these 
 apparently contradictory and Irreconcilable terms, this 
 critique portrays their relations "inter se" and suggests 
 an hierarchical system such as is required by the human 
 mind in its determinate capacity. Kant saw clearly 
 
74 FORM AND CONTENT OF LAW [ Ch. VIII 
 
 that the problem of knowledge did not consist in the 
 discovery of a relation of succession among its various 
 elements, but in an architectonic conception assigning 
 to each its proper place in a logical and not temporal 
 order, according to its proper office and value. He 
 regarded the gnoseological function of the "'a priori" in 
 this respect in a new sense — to explain logically the 
 possibility of knowledge he started from its actuality, 
 shown indubitably in some sciences, and afterwards 
 considered its conditions,, separating those of form from 
 those of content. To the formal elements, he ascribed — 
 as Aristotle had done before him though in a somewhat 
 different spirit '" — all of the necessary and universal 
 in knowledge, while he made the particular and contingent 
 constitute the material elements or content, given by 
 experience. But these empirical elements must, never- 
 theless, be conceived of or weighed within those forms. 
 They have, therefore, within themselves the imprint of 
 something which transcends them, inasmuch as the con- 
 dition of their experience is at the same time the con- 
 dition of experience in general, the potential synthesis 
 and "a priori" limit of all possible experience. This is 
 the great principle which vanquished nominalism '"and 
 conceptualisnj once and for all. Every empirical datum 
 has within itself the reason for its transcendentality ; and 
 this consists in the logical form of its conception, which 
 comprehends, besides it, all possible experience of the 
 same kind. The Kantian system, appearing as a 
 higher synthesis of the philosophies, then struggling 
 together, seemed destined to establish a lasting harmony 
 
 '" Roughly speaking, as appears from what we have already said, 
 Kant refers to knowledge what Aristotle directly attributes to 
 essence; he considers under consciousness what Aristotle places in 
 the external world. For difference in terminology, dependent 
 hereon, see Masci, "Logica" (Naples, 1899), p. 78 et seq. 
 
§ 53 ] KANT 75 
 
 and co-ordination of purpose among them. This cer- 
 tainly was the purpose of its founder. Disagreements, 
 however, soon reappeared, deep and wider than ever; 
 for each of the two tendencies, believing itself strength- 
 ened by the proofs of criticism and relying on different 
 parts of Kantianism, advanced more ardently their 
 opposite systems, joining the motives of their ancient 
 tradition with those which the Kantian critique seemed 
 to have offered. 
 
 § 54. Positive Philosophy. The most uncompromis- 
 ing and exaggerated empiricism opposed the new and 
 vigorous growth of rationalistic metaphysical conceptions, 
 the latter guided by the directive principle and im- 
 plicit premises of the "Kritik," the former invoking its 
 limitative conclusion of the cpnditionality of knowledge. 
 'The so-called positive or empirical philosophy, which 
 had subscribed to the banishment of the transcendental, 
 thought to find in the Kantian proposition that the 
 limit of theoretical knowledge is marked by that of 
 possible experience — an argument in its favor — and 
 proclaimed itself the rightful heir of the ' ' Kritik. ' ' Especi- 
 ally now, when a demand for fundamental revision has 
 been made by the various schools opposed to positivism, 
 its approximation to the result of Kantian philosophy 
 has become a generally accepted fact. Yet this approxi- 
 mation is based upon an error, whose full consequence 
 it would be difficult to determine, but which is one of 
 the most serious and pernicious in the history of phil- 
 osophy. By it, actual experience is substituted for possible 
 experience, that is, the accidental for the necessary, a 
 fact for its law. The limit of actual experience is but 
 experience itself; that of possible experience is the 
 regulative principle superimposed over experience. The 
 purpose of Kant's "Kritik" is to determine the elements 
 which, transcending experience, render it possible. 
 
76 FORM AND CONTENT OF LAW [ Ch. VIII 
 
 Modern positivism recognizes nothing in experience 
 which is not given by experience, and is, therefore, a 
 pure and simple negation of the "Kritik." 
 
 § 55. Precedence of the Concept is Logical. For our 
 part, holding the dialectic principle, which suggested to 
 Kant the transcendental correlation between category 
 and intuition, form and matter, let us distinguish expe-i 
 rience from its condition, which is the element of uni- 
 versality given us with every single fact of experience, 
 but which at the same time transcends it, forming a 
 potential logical centre for an indefinite number of other 
 experiences. Let us call this element (following Aris- 
 totelian and Kantian tradition) the form, or we can call 
 it the concept, if we mean by this word not the sum or 
 empirical equivalent of a number (no matter how large) 
 of data, but their essence, universal, superior, and 
 logically anterior to every particular example or applica- 
 tion. The question of the origin of the concepts is in 
 no wise prejudiced by this, as might at first seem. • The 
 relation of priority between the concepts and the objects 
 comprehended by them is (let' us repeat it) logical and 
 not temporal. . A specific rule of existence governs 
 logical forms and ideas in general, by which they are 
 freed from historical conditions of growth and the actual 
 effect of causality. No fact can influence an idea, 
 although it may affect its presentation in the empirical 
 world, that is, the essence conceived and realized is 
 subject to the natural laws of eventuality. Considered 
 apart, an idea is not subject to the flight of time but is, 
 by nature, without its jurisdiction, and so one cannot 
 speak of its origin in a strictly historical sense. We 
 see affirmations of ideas, not ideas themselves born. We 
 must consider ideas co-ordinated as to their essence, 
 whereby connections between them will be established 
 not according to precedence of historical appearance, but 
 
§65] PRECEDENCE OF CONCEPT 77 
 
 with regard to their proper intrinsic sense and value — 
 such is the logical order or system. : All this does not 
 mean that a concept as a psychological fact, that is, as it 
 appears in the consciousness, cannot be posterior to the 
 existence and perception of the particular objects in which 
 it is realized. But, although the presence of such objects 
 is. usually the occasion and means for the subjective 
 revelation of the concept, and a factor in the explanation 
 of its psychological genesis, it is not the cause of its 
 logical significance, which lies beyond the limit of its 
 psychic birth. As little by little it forms in the con- 
 sciousness, it shows a retroactive force, which is revealed 
 as the extra- temporal ("a priori") condition of every 
 possible object of its kind. This is a brief statement 
 of the parallelism between ideas and facts, in which we 
 believe. The ideal moment of every concrete object is 
 that which forms it in its essence ("forma dat esse rei") ; 
 it has a Universal logical value in this: that while it is 
 the condition of being for that object, it is likewise the 
 (Condition of an indefinite nuhiber of similar objects. .. The 
 ultimate base of science lies in this universality of logical 
 "forms, because reality is knowable only through the 
 concepts, and every concept is universal by nature' 
 
 § 56. Confusion of Logical and Actual Determination. 
 Before taking up the application of these principles to 
 law, we must add a few words concerning fundamentals. 
 Idealistic philosophical tradition has confused the logical 
 universal, which we have just explained, with other 
 matters of speculation, which should be kept distinct. 
 As we have shown, the universal is the logical condition 
 of the particular: it does not follow from this that there 
 is any causal relation between the universal and the 
 particular, as if, for example, the former produced the 
 latter or generated it by dynamic force. Such an 
 hypothesis adds a creative value to the universal not 
 
78 FORM AND CONTENT OF LAW [ Ch. VIII 
 
 implied by its nature. To change a logical form into 
 an efficient force is a metaphysical expedient, which, 
 advantageous though it may be to a certain school, can 
 in no wise be justified by the independent intrinsic 
 demands of thought. The transcendentaUty of the for- 
 mal concept in respect to definite objects is purely 
 logical, not dynamic or causal. A concept does not 
 influence things or generate existence, but only con- 
 stitutes their sense and logical definition. The real 
 cause of a fact can only be another fact. Logical force 
 is "per se" but the sign of a possible existence. Thus 
 we on this point give up both the Platonic and Hegelian 
 conception of ideas. The universal form (Aoyos) does 
 not produce its actualization (or birth) in the world, 
 nor is that its aim. The logical form gives essence, not 
 existence. The two principles of determination should 
 not be confused, as Leibniz saw clearly in making his 
 distinction between the truth of reason and of fact, and 
 placed beside the principle of contradiction in the logical 
 order, that of sufficient reason in the scheme of fact.^' 
 
 § 57. Confusion of Concept and Ideal. Another 
 principle often confused with the logical universal is the 
 ideal of perfection. This identification, too, has its 
 origin in Platonic doctrine, where the "idea" is not only 
 the logical universal and the transcendental cause of all 
 existence but at the same time the supreme model and 
 
 1' See Leibniz, "Monadologia," § 31 et seq. We must remember 
 in this connection the Aristotelian distinction between formal 
 (etSos, TO Ti rjv aval) and efficient causes (KivqTiKov, oOcv ij apxl] 
 TTJ'i Kiv^creo)S, TO Sia Tt); which causes or principles, together 
 with the final cause (tcXos, to ov evexa) and the material cause 
 (y\rj, TO ii ov) , form the four determining points of his whole system. 
 Vide "Met.," I, 3; cf. "Phys.," II, 3. We may note, however, 
 that, according to Aristotle, the first three are reducible to one (cf. 
 "Phys.," II, 7) ; so the single antithesis of form and matter (whence 
 the concept of motion) remains fundamental. 
 
$57] CONFUSION OF CONCEPT 79 
 
 archetype to which all objects tend as they approach 
 perfection. By giving this meaning to the "idea," 
 two logical functions, equally legitimate and necessary 
 but diverse, are confused — the descriptive, which traces 
 the external limits of a species or class, and the valuative, 
 which establishes an internal gradation of objects in the 
 same class.: Such confusion leads to a deontological 
 definition of objects, in so far as in designating their 
 class regard is had not to that which the objects possess 
 in common but to the most perfect possible mode of 
 their existence, that is, to that which they ought to be 
 according to a teleological reason assumed as a norm. 
 The ideal is substituted for the concept in its proper sense. '^ 
 But such grouping of diverse functions in a single dialectic 
 instrument results in reciprocal harm; the distinction of 
 the strictly logical criterion from the deontological is 
 doubtless the result of scientific progress. It is obvious 
 that the logical form must be absolutely equal to all the ob- 
 jects of the species which it determines. Its objectivity 
 lies in this "ratio indifferentiae" (to quote the Stoics), so 
 that it may comprehend equally the various contents 
 of different exemplars and represent them only in 
 what is identical and essentially common. The formal 
 criterion of definition cannot, however, without failing 
 in its purpose, serve as a means of comparative valuation 
 among various exemplars of the species which it defines. 
 This would destroy the similarity of their content, which 
 is, as we have said, the condition and proof of the 
 
 " "We must distinguish a definition which is given of an object 
 which is seen, which is actual, from a definition of what the object 
 ought to be, which expresses not so much its concept as its ideal. 
 Herein lies the difference of most men's definitions of one and the 
 same thing. It is the cause of endless disputes." Frauenstddl, 
 "Briefe uber natiirliche Religion" (Leipsic, 1858), p. 94. Cf. 
 Durkheim, "Les regies de la methode sociologique," 2 ed. (Paris, 
 1901), p. 49 et seq. 
 
80 FORM AND CONTENT OF LAW [ Ch. VIII 
 
 objective validity of the concept. The need of intrinsic 
 valuation is independent and in no wise affected by the 
 definition. . The adoption of a single principle for both 
 purposes leads inevitably (as is seen in Platonic ideology) 
 to the incongruity of not recognizing things unless in a 
 certain grade of essence, determined by their partici- 
 pation in the universal idea which transcends them. 
 Here, objective truth is sacrificed to preconception. 
 The truth is that the essence of an object is logically 
 perfect and complete, and by it it is classified and there 
 is no gradation possible in regard to it. The par- 
 ticipation of every existing object in its concept must 
 of necessity be entire, because otherwise there would 
 be diverse concepts. The gradation, or estimation 
 of worth and value must be made by some other criterion, 
 different from that determining the uniform essence of 
 the species. And what is shown best and most perfect 
 by this valuation will not differ in the least, in a logical 
 respect, from what is shown worst and most imperfect, 
 since, by hypothesis, both extremes partake equally of the 
 essence of the species. 
 
§58] FORMAL DEFINITION 81 
 
 CHAPTER IX 
 
 VALUE AND SIGNIFICANCE OF THE LOGICAL 
 FORM OF LAW 
 
 JURIDICAL PROPOSITIONS AS MATERIALIZATIONS OF 
 THE LOGICAL FORM OF LAW. — "QUID JURIS" AND "QUID 
 JUS." — JURIDICAL EXPERIENCE AND ITS LIMIT OF 
 POSSIBILITY. 
 
 § 58. Formal Definition of Law, In view of what 
 we have proved so far, we can state without fear of 
 equivocation, that an objective and universal defini- 
 tion of the concept of law must have reference only 
 to its form, in other words, to the logical type, which is 
 necessarily inherent in every case of juridical experience, 
 because it is the sign of the possibility of such experience. 
 By an intrinsic law of thought, the apparent contra- 
 diction between the plurality of juridical propositions 
 and the unity of the formal concept is resolved into a 
 true and indestructible inference. Unity is implied 
 and not destroyed by the multiplicity; thus, the single 
 category of law is the condition of the multiplicity of 
 juridical cases; its stability is the basis of their temporal 
 career. An admission that the content of law is mutable 
 forces upon us the recognition of something constant, 
 which allows the reference of the mutability to a common 
 substratum and its formation into a concept. This 
 substratum is precisely the logical form of law, in which," 
 all cases of juridical experience coincide, however they 
 may differ in content.^ It is proper here to show the 
 
 * Without anticipating the ethical discussion (Cf. Chap. X, p. 85, 
 post) we can note merely that the specificness of juridical phe- 
 nomenon is recognized by the positivists themselves (or the most 
 
82 VALUE OF THE FORM [Ch. IX 
 
 value of this form according to the general principle 
 heretofore outlined. 
 
 § 59. Every Juridical Proposition is a Materialization 
 of the Logical Form of Law. Every separate juridical 
 proposition is a materialization of the logical form of 
 law or an application of the latter to a definite content. 
 The content, subject to indefinite actual variation, is 
 accidental in respect to the form, though no juridical 
 proposition can be sustained as such unless it follows 
 the logical form of law, which is so independent of matter 
 or particular content that it may be found equally in 
 intrinsically contradictory propositions. 
 
 § 60. The Logical Form of Law is More Comprehensive 
 than the Sum of Juridical Propositions. It is not para- 
 doxical to state in this sense that any distinct datum 
 logically transcends itself because it bears the imprint 
 of a universal form, which renders it possible as well as 
 an infinite number of others of the same kind. The 
 logical form of law is found in every juridical proposition, 
 but is not exhausted in every one of them nor in their 
 sum. It determines absolutely the sense of a juridical 
 proposition, and indicates "pure ac simpliciter" what 
 it intends to affirm in a judgment of right or wrong. 
 Without enunciating any such judgment or attributing 
 the predicates of justice or injustice to any given object, 
 the logical form only outlines the proper qualities of a 
 judgment of that kind. The universality of the formal 
 
 consequent of them), for without admitting this, no science or phil- 
 osophy of law would be possible. Cf. Fragapane, "Delia Filosofia 
 giuridica nel presente ordinamento degli studii" (Rome, 1899), p. 27. 
 Romagnosi, who in spite of the sensible bases of his ideology could 
 reach the greatest abstract heights, thought that "the idea of 
 juridicity" had "perpetual attributes" and defined it as "the com- 
 plex of those circumstances and relation, which result in one thing 
 being law." "Introduzione alio studio del diritto pubblico univer- 
 sale," 1 184. 
 
S60i LOGICAL FORM 83 
 
 concept is founded on this, which makes it capable of 
 conlprehending diverse objects, still preserving its unity 
 of signification.^ 
 
 § 61. "Quid Juris" and "Quid Jus." The different 
 juridical propositions answer the question, "quid 
 juris?" But, as Kant saw clearly,' this is a very dif- 
 ferent question from that of "quid jus?" It is logically 
 anterior. The answer to this means the determination 
 of the formal conditions of the judgment of rightness, 
 that is, the conditions which are the common synthesis 
 of all juridical propositions whatever their content. 
 Hence, the concept of law cannot be immediately given 
 to us by experience, which "per se" offers us only par- 
 ticular and concrete juridical propositions. Juridical 
 
 2/. Stuart Mill, in "A System of Logic" (Vol. I, p. 172), thus 
 states the problem: "The question, What is justice? is, in other 
 words. What is the attribute which mankind means to predicate 
 when they call an action just?" . . . "To which the first answer is, 
 that having come to no precise agreement on the point, they do not 
 mean distinctly to predicate any attribute at all." This, to tell 
 the truth, is not acceptable. Because men do not agree in their 
 recognition of objects to which they attribute a quality is no rea- 
 son for holding that they have not an exact concept of the quality. 
 So the fact that men, as Mill says, do not "agree sufficiently with 
 one another as to the particular which they do or do not call just," 
 does not signify that the sense of this term is multiplicate. It is the 
 presupposition of the identity of value of this term which causes 
 actual disagreement, for otherwise there would be only a question 
 of equivocation. Romagnosi, in an analogous case, infers the 
 necessary existence of a principal and common idea from the vari- 
 ous uses of the word "law." "Vedute fondamentali sull' arte 
 logica," Lib. II, Cap. IX. Vide, also, Hegel's reasoning of the 
 unity of philosophy in the variety of philosophies, "Ueber die 
 Geschichte der Philosophie," 2 ed., 1 Th., p. 30 et seq. 
 
 ' "Met. Anfangs. d. Rechtslehre," p. xxxi et seq. Hobbes 
 before Kant had drawn attention to this distinction, "Ne quisque 
 disserem de cujuscumque civitatis legibus speciatim, id est, ne 
 quae sunt sed quid sint leges dicerem." "De Cive," Praef., in fine. 
 
84 VALUE OF THE FORM [Ch.IX 
 
 experience is such only in virtue and in function of the 
 logical form of law, and is therefore a "posterius," con- 
 ditioned and consecutive in respect to the latter. , To 
 refer to the experience of law to deduce its concept, to 
 attempt to construct the latter from the data of the 
 former is a true paralogism. The most to which a 
 simple examination of such data and an historical exam- 
 ination of law can lead is a generalization of juridical 
 experience "secundum principia generalia non univer- 
 salia," but! the abyss between generality and logical 
 universality is too deep for any material accumulation 
 or quantitative process to bridge. The distinction 
 between possible and actual experience is — as we have 
 said — not one of quantity, by which something is greater 
 or less, but essentially one of quality, because possible 
 experience is the principle of rational order which expresses 
 the "a priori" limit of experience, — in other words, its 
 condition, the law which governs and transcends it. 
 The determination of possible experience means the 
 determination of a form or category, which, found in 
 empirical cases, is in the logical order prior and superior 
 to them. It cannot be derived from such cases, there- 
 fore, no matter how increased in number, because they 
 also imply a presupposition. It is this presupposition 
 which guides us in our historical consideration of law 
 and directs our collection of empirical data. It is the 
 form, ideally fixed and freed from the changes of time 
 which enables us to identify law in the variety of its 
 actualizations and to follow its course in history. With- 
 out reference to this purely logical datum, corresponding 
 to the immutable nature of the object, juridical expe- 
 rience would not be such nor would it have unity of 
 signification; without the form which gives it essence, 
 law would not be law. 
 
(621 MODERN RESEARCH 85 
 
 CHAPTER X 
 
 LOGICAL FORM OF LAW OPPOSED TO 
 JURIDICAL EMPIRICISM 
 
 ATTITUDE OF DIFFERENT SCHOOLS IN REGARD TO 
 THE LOGICAL FORM OF LAW. — CLASSICAL LEGAL 
 PHILOSOPHY. — DOGMATIC HISTORICISM. — EMPIRICAL 
 HISTORICISM AND THE CONFUSION OF SCIENCE AND 
 PHILOSOPHY. — KANT AND JURIDICAL EMPIRICISM. — 
 INSUFFICIENCY OF THE HISTORICAL AND POSITIVE DOC- 
 TRINES IN RESPECT TO PHILOSOPHY OF LAW. — CONCEPT 
 OF LAW IN THE IDEOLOGY OF POSITIVISM. — HISTORICO- 
 GENETIC METHOD AND ITS LOGICAL BASIS. — IDENTI- 
 FICATION OF THE DATUM AND FUNCTION OF THE 
 FORMAL CONCEPT IN EXPERIENCE. — EMPIRICAL RECOG- 
 NITION OF LAW AS AN "A POSTERIORI" PROOF OF THE 
 APPLICABILITY OF THE CONCEPT. — RETROSPECTIVE 
 QUALITY OF THIS RESEARCH. — LOGICAL PRIORITY OF 
 FORM. 
 
 § 62. Modern Research and the Formal Concept of 
 Law. In the preceding pages* we have outlined the 
 contributions which the more general current of con- 
 temporaneous thought has given to the knowledge of 
 phenomenology or empirical content of law. We have 
 seen thatil modern observation, explaining the reasons 
 for the diversity of institutions in connection with 
 their real coefficients, has made a true and marked 
 scientific progress, inasmuch as it has inaugurated the 
 historical view of positive law, which antecedent juridical 
 philosophy lacked.; At this point in our work we should 
 weigh these studies by another standard, that is, by 
 
 1 Cf. Cap. VI, p. 32, ante. 
 
86 LOGICAL FORM OF LAW [Ch.X 
 
 their applicability not to the historical content but to 
 the logical form of law. In other words, we should 
 examine the attitude of modern schools in relation- to 
 the formal concept of law. Such an examination opens 
 the door to the clarification of the philosophical basis 
 and character of the concept. 
 
 § 63. Classical Juridical Philosophy and the Formal 
 Concept of Law. Classical juridical philosophy generally 
 admitted the objectivity of universals, and recognized 
 that the concept of law, being founded in reason, did 
 not depend on positive legal institutions but surpassed 
 and dominated them. This philosophical tradition can 
 be traced directly to Plato, who, in accordance with 
 his fundamental doctrine, taught that the general vision 
 of justice, over and above the particular different objects 
 to which the predicates of just or unjust apply, forms 
 the condition of juridical knowledge, contradistinguished 
 from mere opinion.^ 
 
 § 64. Natural Law and the Formal Concept of Law. 
 We must point out, however, that the purely logical 
 concept of law was generally prejudiced by its almost 
 constant confusion with the analysis of other elements 
 of the philosophical theory of law. The schools of natural 
 and rational law erred especially in not distinguish- 
 ing (as they should) between logical and ethical or 
 deontological demands. They have more than once 
 tried to solve these two distinct problems by a single 
 
 "Vide esp. the last chapters of the fifth book of the "Republic," 
 where the antithesis between yvoJo-ts and 8o& is made clear 
 with particular attention to its relation to law: "tous apa iroKXa. 
 KoXa ^ew/iej/ous, avTo 8e to KaA.ov ju.^ opSvras p,-qh' aX\(o cir'dvTo 
 ayovTL Swafjievovi eTrccrflat, kol iroXXa SiKaia, aurd Sc to SoKatov ft-ri, 
 Kal iravTa outo), Soid^tiv <j>'^<TOiJia' airaj/Ta, ■yt'yv(iJ(rK£tv 8e uiv So^d^ov- 
 cnvovSiv." "Rep.,"Lib.V, Cap. XXII, 479 E. Whoever sees only 
 the concrete cases and fails to see the universal idea of law, would 
 be, in Plato's mind, ^iXo8o|os and not <^tXotro^os. Cf. ibid., 480. 
 
§641 NATURAL LAW 87 
 
 doctrine. In seeking the logical qualities of law, they 
 attempt to establish its ideal paradigm, or principle, 
 to. use an ambiguous word. The relation between 
 such principle and positive legal institutions was 
 variously described, but, as the principle implied a 
 definite though perhaps very general content, that is, 
 a maxim of justice whose effectivation was sought, so 
 it necessarily showed a tendency to oppose this philo- 
 sophical determination of law to those already realized 
 in existing historical institutions. ' But, it is clear that 
 while the opposition of an ideal to empirical reality is 
 the legitimate expression of a valuative and deontological 
 need, the ideal itself could not then equal the reality, 
 that is, coincide with it and define it logically, so as to 
 fulfill the function of a concept.' 
 
 § 65. Phenomenism and the Formal Concept of Law. 
 There could not fail to be a reaction against this method, 
 which in a blind obsequiousness to pure reason deliber- 
 ately disregarded the mass of empirical data (as if the 
 exact comprehension of such data were not the highest 
 duty of reason). This reaction began about 1800, and 
 has continued and grown under various guises until the 
 present time. The followers of the new school at first 
 tried with audacious dialectic force to make the ideal of 
 law consist in historical reality, thus identifying the terms 
 of the tfaditional antithesis, which, of course, continued 
 to exist in the mind. On one hand, a theoretical concept 
 of history arose, which considered it "a priori" as the 
 revelation of the juridical absolute; on the other hand, 
 for the same reason, the value of this absolute was 
 reduced and the office of rational speculation about law 
 was lessened, and restricted to empirical data. - Whoever 
 looks carefully can see that the mantle of the most 
 transcendental idealism covered a supine realism in such 
 
 » Cf . i 67, ante. 
 
88 LOGICAL FORM OF LAW (Ch.X 
 
 a philosophical scheme, and the secret spirit of empiricism 
 that was hidden in the doctrine was destined soon to 
 predominate and burst forth, destroying the shell of 
 the idealistic formula. From the "a priori" identifica- 
 tion of reason with fact to the assumption of fact as 
 principle is but a step, and an inevitable one. In fact 
 the most severe phenomenism succeeded the dogmatic 
 cult of the ideal. We have already noted how abstract 
 speculation generally gives place to concrete, and deduc- 
 tion to induction.* This advance, with the advantages 
 of the historical studies of law, would have been abso- 
 lutely legitimate and rich in results, if it had been based 
 on a distinction of the duties and methods of the science 
 and philosophy of law. Science, to attain its ends, 
 should be freed from dogmatic theories, imposed upon 
 it by a defective ideology. Only when so freed can 
 it ^extend and improve the study of positive law, 
 and complete the examination of its relations and real 
 elements with absolute objectivity. But, as in every 
 reaction, phenomenism passed all bounds. The empir- 
 ical theory of law, in attacking a certain philosophy, 
 made war on philosophy in general. And, having lost 
 the sense of hierarchical equilibrium between philosophy 
 and science, it nourished the illusion of forming, with 
 its own data, not only a science but a philosophy — in 
 substance, the destruction of the latter. It endeavored 
 to explain the ultimate essence of law, or at least as much 
 of it as man could grasp, by a simple phenomenological 
 study, as if juridical phenomenology could find in its 
 own breast the principle and conditions upon which 
 it logically depends and which are the object of phil- 
 osophy. 
 
 § 66. Kant and ike Formal Concept of Law. The 
 empirical or positivistic reaction overthrew all that 
 
 * Cf . { 42, ante. 
 
§66] KANT 89 
 
 which precedent speculation-had established as universal. 
 And, as the various schools of natural or rationalistic 
 law had confused the' ideal of justice and the' formal 
 concept of law in one principle, so the reaction eliminated 
 both because of a metempirical element common to them, 
 and did not distinguish between function and essence. 
 The deduction of law, even as a logical unit, from pure 
 . reason seemed a dangerous and absurd proposition to 
 the new schools, but they had no doubt that it, as well 
 as the content of law, could be ascertained by a process 
 of inductive generalization from a study of empirical 
 data. Kant foresaw the danger arising from this kind 
 of empiricism in juridical philosophy. He had already 
 overcome empiricism in general philosophy by criticism ; 
 and demanded recourse to pure reason as the indispensable 
 method to be followed in the doctrine of law as well as 
 elsewhere. He denied expressly that this method could 
 only be founded on a basis of experience. In a passage 
 in "Metaphysische Anfangsgriinde der Rechtslehre," 
 he writes,. "What is law? When this question does not 
 fall into tautology, but refers to a universal solution of 
 what is the rule for every country and every age, it 
 throws the jurists into as much confusion as the chal- 
 lenging summons 'What is Truth?' throws the logicians. 
 What is lawful, 'quid sit jiiris,' that is, what the .laws 
 are on a given point at a given time, can easily be told ; 
 but what law is, that is, the universal criterion by 
 which right can be distinguished from wrong, 'justum 
 et injustum,' remains hidden, unless empirical principles 
 are left far behind, and the sources of the judgment are 
 sought in pure reason (although individual laws can 
 serve as a useful guide) in order to form the ground- 
 work for possible empirical legislation. A simply em- 
 pirical scheme of law, like the wooden head in the fable 
 of Phsedrus, is a head, beautiful to look upon, but 
 
90 LOGICAL FORM OF LAW [Ch.X 
 
 which' has, alas! no brains!"^ In thus sketching 
 almost incidentally the critique of juridical empiricism, 
 Kant did not and could not have intended to refer to it 
 as a doctrine that was systematized or largely followed. 
 The mere historical consideration of law, whose insuffi- 
 ciency he felt so strongly, had hardly begun to be advanced 
 as a principle of a philosophical order opposed to ration- 
 alism. It was later that it acquired favor, even greater 
 than that of empirical theories over general philosophy 
 in Kant's time, or else he would have alluded to it in his 
 critique. In respect to philosophy of law in particular, 
 empirical criticism would not then have answered any 
 immediate need. He did not, therefore, think it neces- 
 sary, as he very probably would have thought now, to 
 introduce it "ex professo," and in his treatise on law 
 he goes on without further comment to give the supreme 
 principle, that is, the "a priori" maxim of the rational 
 juridical system. He does not really oppose the then 
 dominant concept of the duty of the philosophy of 
 law. The questions which were vital in his genera- 
 tion were those concerning the nature of the juridical 
 principle: — the origin and ultimate purpose of law and 
 of ethics in general — these questions Kant answered 
 according to his system, as everyone knows. But no 
 school then held that philosophy of law was confined 
 to historical reconstruction, according to data of 
 
 " "Met. Anfangsgr. d. Rechtslehre," p. xxxi et seq, "Einleitung 
 in die Rechtslehre," § B. Hegel, too, said that the concept of law 
 must be given by philosophy to jurisprudence, so that, in the Hege- 
 lian concept, jurisprudence not only supposes philosophy, but 
 forms a part of it. "Science of law is a part of philosophy — as 
 part, it has its fixed starting-point, which is the result of what 
 was anterior, and of what offers a so-called proof of it. The con- 
 cept of law therefore is put without the science of law, its deduction 
 is foreign and is accepted as given." "Grundlinien der Philosophic 
 des Rechts," § 2. 
 
§66] KANT 91 
 
 exterior observation. The whole spirit of the "Kritik," 
 not only in the part concerning practical reason and 
 more especially in the "a priori" deduction of the juri- 
 dical imperative, but in the theoretical part as well, where 
 it teaches the abstraction of the logical condition govern- 
 ing experience from experience itself and fixes the im- 
 mutable foundation of science in this power of synthesis, 
 is everywhere opposed to this doctrine, which, then in 
 a state of formation, was destined soon to assume such 
 powerful proportions. 
 
 §67. "Historische Schule" and the Formal Concept 
 of Law. In fact the conclusions of the Kantian critique, 
 regarded from one point of view alone, served as an 
 apologia for the new forms of empiricism. What took 
 place in general philosophy was repeated in the phil- 
 osophy of law.* While the juridical thought of Kant 
 was strictly followed by the school of the "Vernunft- 
 recht," it was at the same time upheld by Gustave 
 Hugo, the founder of the "historische Rechtsschule," 
 who declared that he was a follower of Kant in his 
 exclusion from the theory of law of all that which is not 
 founded on experience.^ This, as appears from what 
 we have said already, was a grave error, which can, 
 however, be explained by the fact that Hugo paid but 
 little attention to a large part of Kant's works, and none 
 to his principles. In fact there can be no doubt that the 
 revolution of methods effected by the historical school 
 of law was brought about by doctrinal and political 
 motives very different from those which inspired Kant 
 with "Zum ewigen Frieden" and "Metaphysiche Anfangs- 
 
 « Cf. § 63, ante. 
 
 ' Cf., for historical data on this subject, Landsberg, "Kant und 
 Hugo' ' in ' 'Zeitschrif t fur das Privat- und offentliche Recht der Gegen- 
 wart," Bd. XXVIII (1901), III, IV Heft. Landsberg, however, 
 does not show the error noted in the text. 
 
92 LOGICAL FORM OF LAW [Ch.X 
 
 griinde der Rechtslehre." ^ The work of the new 
 school was restricted, as we have already pointed out,' 
 to sketching the formation of positive law. Omitting 
 every deduction of a rational nature, the concept of law 
 was not studied as a true and proper logical entity, but 
 was only considered in its concrete manifestations, 
 that is, as shown in the data of experience. And while 
 a higher principle, the "Volksgeist," was made to control 
 its manifestations, it was both vague and indefinite,'" 
 and was at the same time the foundation for all formation 
 of culture. So the logical unity of law was deprived 
 of all specific base, and, so to speak, drowned in the tide 
 of historical reality. As a result of these insufficient 
 premises, the concept of law was finally "pure ac sim- 
 pliciter" affirmed by the historical school as a postulate 
 which it could not resolve into its proper elements. 
 Attempts at defiiiition according to canons of the school 
 resulted in mere tautology." The impossibility of 
 obtaining in history a knowledge of the universality of 
 law, and, therefore, of its concept, was recognized and 
 used' as an argument against the "historische Rechts- 
 schule." '^ Notwithstanding this serious defect, the 
 
 ' For the true forerunners of the historical school, see Stahl, 
 "Geschichte der Rechtsphilosophie," Book VI, p. 548 et seq; Berg- 
 bohm, "Jurisprudenz und Rechtsphilosophie," I, p. 187 et seq.; 
 Landsberg, "Geschichte der deutschen Rechtswissenschaft," III 
 Abth., I Halbband (Munich, 1898), p. 496 et seq. 
 
 ' Cf. § 41, ante. 
 
 ID Vide the fine analysis of the character of the "Volksgeist," by 
 Miceli, "Studi di Psichologia del diritto," I, p. 66 et seq.; Gierke, 
 "Naturrecht und deutsches Recht," p. 9. Cf. Del Vecchio, "II sen- 
 timento giuridico," 2nd ed. (Turin, 1908). 
 
 " For example, Puchta's definition, "Law is a common convic- 
 tion existing in juridical society." "Pandekten," 12 ed. (Leipsic, 
 1877), § 10. 
 
 " "The historical school gave in the last analysis no answer to 
 the question, 'What is law?' An appeal to juridical history has 
 
§67] "HISTORISCHE SCHULE" 93 
 
 fundamental thought of the school continued to be 
 generally received even after the school's decline, which 
 has not had, therefore, as essentially renovative a signifi- 
 cance in juridical philosophy as if it had been caused 
 by the development and prevalence of contrary directive 
 ideas. The decline, on the other hand, was the result 
 of the penetration of most of the school's teaching into 
 the common consciousness, and of the consequent failure 
 of the polemics which were the immediate cause of its 
 strength." But the reasons of the downfall of Hegelian 
 philosophy necessarily banished the dogmatic elements, 
 
 no value here. It shows in particular what Roman or Teutonic 
 law is, but not law in general." BluntschH, "Der Rechtsbegriff" 
 (1858), republ. in "Gesammelte kleine Schriften," I Bd. (Nordlingen, 
 1879), p. 5. Geyer wrote to the same effect, "The historical science 
 of law can make clear only what positive law is. The comparison 
 of the laws which govern nations (or mankind) cannot be a deduc- 
 tion of law from the data of other historical circumstances and forms; 
 it can only be a generalization." "Philosophische Einleitijng in die 
 Rechtswissenschaft" in "Encyklopadie der Rechtswissenschaft" of 
 Holtzendorff, 4 ed. (Leipsic, 1882), p. 6; cf . p. 46. We may also refer 
 to an Italian legal philosopher, "History by itself can only .show 
 the applications of law, not its idea, which lies without all experi- 
 ence. History shows law and un-law equally, and woe to him 
 who has recourse to it alone for the principles or bases of law!" 
 B. Poli, "SuUe opere di Vincenza Gravina," in "Saggi di scienza 
 politico-legale" (Milan, 1841), p. 138. Cf. also Frisco, "Principi di 
 Filosofia del diritto suUa basi dell' Etica" (Naples, 1872), p. 27. A 
 strong proof of the insufficiency of historical analysis for the deter- 
 mination of the concept of law was given by Krause in his posthu- 
 mous work, "System der Rechtsphilosophie," edit, by von Roder 
 (Leipsic, 1874), p. 19 et seq. Cf., among the more recent criticisms 
 of historicisni in the philosophy of law, Schuppe, "Die Methoden der 
 Rechtsphilosophie," in "Zeitschrift fur vergleichende Rechts- 
 wissenschaft," Bd. V (Stuttgart, 1884), p. 209-274; Stammler, "Ueber 
 die Methode der geschichtlichen Rechtstheorie," in "Festgabe zu 
 B. Windscheids 60. jahrig. Doctorjubil." (Halle, 1889), pp. 3-63. 
 "Cf. Bluntschli," Die neueren Rechtsschulen der deutschen Juris- 
 ten"in "Hall. Jahrbucher," 1839, 2d ed. (Zurich, 1862), p. 27 et seq. 
 
94 LOGICAL FORM OF LAW [Ch.X 
 
 which gave the historical school, in spite of party pole- 
 mics," a destiny of its own; hence the abandonment 
 of certain formulae, held intangible before, and now 
 recognized as too restricted and absolute — at all events 
 unnecessary. 
 
 § 68. Transformation of the Historical School. The 
 more apparent characteristic elements of the school in 
 this way fell off, but there remained — much freer 
 in its larger field — that which had constituted the 
 original motive and secret strength of the school — 
 its empirical spirit. In it the empirical spirit was pre- 
 sented as in a kind of metaphysical wrapper. Born in 
 an age of philosophy, as the opponent of the "philoso- 
 phische Schule," the historical school had a certain 
 philosophical character, and in spite of lack and vice 
 of principle it introduced some speculative elements 
 into the conception of law. When these began to 
 disappear under the influence of increasing anti-meta- 
 physical tendencies, the school lost its specific nature 
 and seemed spent while it was actually only trans- 
 formed. 
 
 § 69. Positivism and the Formal Concept of Law. His- 
 toricism then advanced a strictly empirical program, 
 under the leadership of dogmas not of "the historical 
 revelation of the idea" but of "positive philosophy," which 
 had grown up in England and France. Real experience 
 taken as the test and limit of knowledge — observation 
 
 Savigny recognized finally that the work of the historical school was 
 completed and that, therefore, it had no excuse for further existence 
 as a school. Vide, his "System des heutigen romischen Rechts," I 
 Bd. (Berlin, 1840), Preface, p. xiiiet seq.; cf. Stintsing', "F. C. von 
 Savigny," (Berlin, 1862), p. 52 et seq.; Bekker, "Ueber den Streit 
 der historischen und der philosophischen Rechtsschule" (Heidelberg, 
 1886), p. 11 et seq. 
 
 "For these polemics, which implied no fundamental difference, 
 cf. SHntiing, "F. C. von Savigny," p. 47 et seq. 
 
§69] POSITIVISM 95 
 
 of facts placed before the ideas to which the facts cor- 
 respond in such a way as to deprive the ideas of any 
 character of principle — such were the methodic fun- 
 damentals more or less recognized and expressed by the 
 new positivism. With observation restricted to positive 
 law, and the existence of any other law denied (by 
 the manifestly paralogistic reason that history — the 
 science of positive law — -could only show positive law), 
 this study began, following the course of the historical 
 school, to retrace the concrete elements of the process of 
 the formation of institutions. At this point we must 
 concern ourselves more with the' external part of the 
 study or what it excludes than with the internal part or 
 what it includes, because, strange to say, the philosophical 
 character of the positivist school lies chiefly in its nega- 
 tions and limitations. 
 
 § 70. The Immediate Effect of Positivism in Juridical 
 Philosophy. The immediate consequence of the preva- 
 lence of positivism in juridical philosophy was the 
 deliberate abandonment of the problems of the intrinsic 
 nature of law, which philosophy had dealt with through- 
 out its history and which naturally arose again in every 
 man's mind. All the great traditions of juridical 
 philosophy were thus broken. The study of the just 
 "in se," which had been its object from the days of 
 Socrates and Plato, was declared a mental error, and the 
 metaphysical needs of reason in respect to the "bonum 
 et justum" were left as unsatisfied propositions. From 
 this sprang the lack of proportion and the divergence 
 between the science and conscience of law, by which the 
 former showed itself incapable and reluctant to explain, 
 let alone systematize (as would seem its proper function), 
 the logical and ethical data of the latter. Because the 
 philosophy of law so destroyed and perverted its own 
 nature, it is to-day reduced to a state of muteness before 
 
96 LOGICAL FORM OF LAW [Ch.X 
 
 the legislative and political reforms which are every- 
 where being realized, and must be a simple spectator 
 of the progressive changes in justice, which it ought to 
 control. 1* 
 
 § 7L Systematic Negation. Positivism makes a sys- 
 tematic denial of the concept of law as a datum of pure [ 
 reason. By the exclusion of this datum, in homage to 
 dogma, attempts are made to show the possibility of a 
 departure from every logical "a priori" in the historical 
 
 '* And, yet it is evident that the positivist programmes, accepting 
 the reality of experience as their only principle, are insufficient 
 for the solution of the practical or deontological problems in their 
 attempt to establish a law which ^transcends reality and precedes and 
 imposes itself thereon. We know that some positivists have made 
 ingenious attempts to avoid this result and to attribute a prac- 
 tical function to the empirical philosophy of law. Some have gone 
 so far as to admit the phrase "natural law" again, adding, however, 
 that the only true (?) law is the positive. We note this movement, 
 which to our way of thinking, betrays the underlying inconsistency 
 of the doctrine, for we do not believe that elasticity of formulae 
 can cure a contradiction of principle. 
 
 Fragapane, in closer agreement with positivist doctrine, held 
 that no true and proper practical function belongs to the philosophy 
 of law. This apparently negative conclusion is the only one possible, 
 if we accept the premises. Vide Fragapane, "Obbietto e limit! della 
 Filosofia del diritto," Vol. II, Cap. IV. See also, in various senses 
 on the same point, Merkel, "Ueber die Verhaltnis der Rechtsphilo- 
 sophie zur 'positiven' Rechtswissenschaft und zum allgemeinen Teil 
 derselben" in "Zeitschrift fiir das Privat- und offentliche Recht 
 der Gegenwart" Bd. I, 1874, and then in "Gesammelte Abhand- 
 lungen aus dem Gebiet der allgemeinen Rechtslehre und der 
 Strafrechts," I Halfte (Strassburg, 1899), p. 291 et seq.; Stamm- 
 ler, "Ueber die Methode der geschichtlichen Rechtstheorie," p. 20 et 
 seq.; "Wirtschaft und Recht," p. 169 et seq.; Vanni, "La funzione 
 practica della Filosofia del diritto considerata in se ed in rapporto 
 al socialismo contemporaneo" (Bologna, 1894); "Filosofia del 
 diritto," §§ XII, XIII; Carle, "La Filosofia del diritto" I, p. 420 et. 
 seq.; Groppali, "La funzione pratica della Filosofia del diritto" 
 in"Riv. Filos.," Anno VI, Vol. VII, 1904, Fasc. IV-V. 
 
5 711 SYSTEMATIC NEGATION 97 
 
 examination of law. The reasoning may be outlined as 
 follows. Our juridical knowledge has its principle and 
 base in that which constitutes law in the objective world. 
 Law is naturally an historical fact. Its actualization in 
 given times and places is the original reality from which 
 all ideation is derivative, a "consecutivum." The 
 presence of this reality leads human thought to discern 
 and fix in some way that which in fact is pre-existent 
 to it. Psychical formations arise slowly. In this 
 process the empirical perception of the particular is a 
 "prius." The gathering of many similar data generates 
 a complete image in the mind. The stronger and more 
 lasting impression is made by, common elements, while 
 the divergent particularities are elided. Then the 
 concept or idea of the "genus" is formed from the com- 
 mon elements. It has no value as a principle and has 
 no objective existence. Such a belief (of course, in the 
 positivist sense) is a mental illusion. To conceive of 
 essence as a rational scheme would mean placing the 
 authority of a copy, necessarily imperfect and warped, 
 over the basic reality of the original. To increase our 
 knowledge of law (to follow the logic of positivism), we 
 should not re-examine the concept of law, as we already 
 have, and go over theoretical elements already too well 
 worn, but should refer to the living source and study law 
 in its various historical phases in relation to its deter- 
 mining conditions and functions. In this way we can 
 correct and complete the definition of the concept 
 itself according to the true requirements of science, 
 as historical observation reveals to us its actual character. 
 The rudimental and irreflective process, which we men- 
 tioned above, by which the perception of similar data 
 generates in the mind a typical or medial representation, 
 is here repeated scientifically with a full knowledge 
 of the end and a greater richness of means or of matter 
 
98 LOGICAL FORM OF LAW [Ch.X 
 
 for study. What we find common to all the juridical 
 phenomena which we examine can be ascribed to the 
 generic idea of law, while the work of examination will 
 of necessity lead us to rectify any partial or mistaken 
 conception which we may have had. Dogmatic pre- 
 conceptions will dissolve in the crucible of experience 
 and the elements founded on the historical reality of law 
 will appear. These are the arguments of the new 
 positivism, which would substitute historical examina- 
 tion, including genetic and comparative research, for 
 idealogical speculation even in the analysis of the concept 
 of law. 
 
 § 72. Criticism of the Positive School of Law. There 
 can be no doubt that one of the chief sources of juridical 
 science lies in the data of experience. The discovery 
 of the historical content of law by pure speculation 
 would be impossible, and every prejudice which tends 
 to restrict the study of facts or diminish' the objectivity 
 of conclusions should be held illegitimate." For this 
 reason the correction of the traditional methods, which 
 confused empirical with ethical or rational research, was 
 necessary and salutary. But, when juridical historicism 
 or positivism, exchanging the terms of science for those 
 of philosophy, treated external observation as some- 
 thing simple and primary and held that the data of 
 experience formed the principle of the idea of law, and 
 that this idea was itself the result of a series of observa- 
 tions which were made without any mental form or 
 logical aid, it fell into one of those paralogisms which 
 
 " For special precautions necessary in the study of social facts, 
 see, besides such systematic treatises as "A System of Logic," Vol. 
 II, Bk. VI, by J. Stuart Mill, and "The Study of Sociology," by 
 Spencer, the essay by Gabba, "Alcuni piii generali problemi," esp. 
 Vol. I, Lect. III-VI; Vol. II, Lect. IV; a.nd Fragapane, "II problema 
 delle origini del diritto," p. 113 et seq.; "Obbietto e limiti della 
 Filosofia del diritto," Vol. II, p. 85 et seq. 
 
§ 72 ] CRITICISM 99 
 
 reveal the organic inconsistency of a system, and are a 
 sure sign of a disregard of the principles of general 
 critical thought. Critical thought teaches that the 
 world, as our representation, is only a function of knowl- 
 edge, which is essentially the organ of ideas, and that this 
 lofty point of view should not be lost under an accumula- 
 tion of empirical data, no matter how large. The world 
 always remains to be considered as a supergrowth from 
 knowledge, arid yet, as such, is subordinate to the ideal 
 determinations in which it is exercised. 
 
 - § 73. The Reality of Law Depends Logically on its 
 Ideal Form. So _the reality of law logically depends 
 upon its ideal form. Observation of fact, no matter 
 how extensive, cannot exceed or dispense with this 
 form. The reason for the dependence of reality upon 
 form is not in fact quantitative but logical, and, in 
 the' proper sense, transcendental. By an intrinsic neces- 
 sity of thought, law is not law except by virtue of the 
 ideal form which determines it, and nothing can be 
 known as law except in relation to form itself. To state 
 that knowledge of empirical data is possible without 
 and independent of the concept of law, and that this is 
 formed by the collecting of like examples, is the same 
 as holding that the data themselves lack "in se" the 
 determination which we find in them and have, so to 
 speak, an alogical existence. Nor is this all ; because, 
 for this statement to be true, we would have to suppose 
 that juridical data could pass as such into knowledge, 
 without receiving any conceptual imprint. Thus, objec- 
 tive alogicism should be upheld in the subjective order as 
 knowledge without having any quality of subjectivity, as 
 a conception without a concept, which is contradictory. 
 The fact is, however, that the data of juridical experi- 
 ences are such not through arbitrary nomenclature, but 
 because of a certain essential character which forms 
 
100 LOGICAL FORM OF LAW [ Ch. X 
 
 their specific nature and which is the logical form of 
 law. Only with this character in mind can we recognize 
 juridical data. Their identification thus made consists 
 in our recognition of the universality of form, which is 
 common to the entire species, in a particular content. 
 
 § 74. Genesis of Positivism. If the student can 
 collect and compare the laws of different peoples and 
 study their life from tliis point of view, "sub specie 
 juris," or, as it were, trace the juridical profile of 
 history, which cannot be a mere accident; he, the 
 student of law, should already possess, at least in 
 germ, the idea to guide him in the choice of data, and 
 should know universal law to help him in his gathering 
 of particular law." If, however, after qompleting his 
 research, he forgot the principle which guided him in it, 
 and the original logical intuition which alone enabled 
 him to recognize law as uniform in this and that fact, he 
 would then suffer from the illusion of having obtained 
 his idea from the facts themselves, whereas in fact he 
 recognized it. He would then attribute a synthetic mean- 
 ing to the analytical work of historical examination. 
 He would think he had gotten by such a study not 
 only the particular character of different juridical 
 examples but also the formal concept, which preceded 
 his work and made it possible. This illusion is the 
 result of the tendency which the human mind mani- 
 fests to skip the natural order of knowledge, treating 
 
 " Cf. Schuppe, "Die Methoden der Rechtsphilosophie"; "Rechts- 
 wissenschaft und Rechtsphilosophie" in "Jahrbuch der internation- 
 alische Vereinigung f iir vergleichende Rechtswissenschaft," 1 Jahrg., 
 I Abt. (Berlin, 1895), p. 217 et seq.; Stammler, "Ueberdie Methode 
 der geschichtlichen Rechtstheorie" ; "Wirtschaft und Recht," 
 p. 12 et seq., p. 495 and note 171; Petrone, "La fase recentissima 
 della Filosofia del diritto in Germania," esp. p. 181 et seq.; Barlo- 
 lomei, "Lineament! di una teoria del giusto e del diritto," Pt. I 
 (Rome, 1901), Cap. VIL 
 
574] GENESIS OF POSITIVISM 101 
 
 secondary and derivative cognition as original and auton- 
 omous. Thus it is that practice mocks theory, experi- 
 ence logic, and physics metaphysics. The appearance 
 of reason, which can be formed in this substitution, comes 
 only from the fact that sometimes subordinate cogni- 
 tions have acquired a latent imprint from principles, 
 which they then disown. They can only do without 
 them in appearance to the extent to which they have 
 assimilated them . From such mental insubordination and . 
 ingratitude (which is really an inconsequence in method) 
 comes the modern empirical science of law, heralded 
 as a philosophy. To say that the concept of law exists 
 only in what is given by experience is to deny a principle 
 while relying on its results, because law could not be 
 determined by experience if its concept was not first 
 averred and applied in experience. 
 
 § 75. Logical Antecedence of Concept. The logical 
 antecedence of concept in respect to fact is discredited 
 by the temporal" sequences of fact. This is not the 
 question, nor does the answer lie in the recognition of 
 gradual historical development. No one denies that 
 the empirical development of law is accomplished by 
 almost imperceptible steps. But the question really 
 is whether the concept of law is determined by the 
 happening of what represents it, that is, by the series 
 of juridical facts, or whether these facts, for the very 
 recison that they are juridical, are not logically determined 
 by the concept. Surely it is one thing to follow the 
 process by which a certain fact grows and is accom- 
 plished, and a very different thing to define the logical 
 nature of that fact or the concept to which it corre- 
 sponds. The logical determination allows a recognition 
 of growth, but does not grow itself. Whoever, for ex- 
 ample, builds a house does not thereby make its concept 
 with it (which is anterior to and independent of such 
 
102 LOGICAL FORM OF LAW [Ch.X 
 
 construction), but only applies and furthers it. In the 
 same way, the concept of law is not created in the crea- 
 tion of the fact wherein it is given concrete existence. 
 It is not a consequence of such realization, but, in fact, 
 a primary and universal condition of this reality, which 
 is only an episodical and contingent application of it.** 
 The problem is not one of genetic research. It is philo- 
 sophical, not scientific, and cannot be resolved by his- 
 torical examination. Such examination has not (strictly 
 speaking) the concept of law for its object, but only 
 its various empirical examples; that is, not its pure 
 logical form, but its concrete and particular actualiza- 
 tions. We can call upon history in vain to teach us 
 what law is. It can only tell, and in fact constantly 
 keeps on repeating, where, when and why its particular 
 guises appear. An anterior notion of the object of the 
 research is indispensable, however, both for a compara- 
 tive as well as a genetic study.'' Only by applying the 
 concept of law can we know when reality begins to 
 present its characteristics; only by means of the con- 
 cept can we recognize the primary and rudimental 
 
 " Contingent, of course, only in respect to the concept, in which 
 it is capable of an indefinite number of diverse applications. In 
 respect to concrete reality or natural order we cannot speak of 
 contingency, for every fact is causally determined. "In rerum natura 
 nullum datur contingens, sed omnia ex necessitate divinae naturae 
 determinata sunt ad certo modo existendum et operandum." Spin- 
 oza, "Ethica," Prop. 29. Cf. Dilihey, "Einleitung in die Geistes- 
 wissenschaften," p. 494 et seq. Vide, also, § 60 of the text, ante 1; 
 and Part III, Ch. II. 
 
 " This is the meaning of Descartes' maxim, "According to the 
 laws of the true logic the question, if such a thing exists, must be 
 preceded by the question of what it is." "Meditations, R6ponse 
 aux premieres objections." Cf. Sigwart, "Logik," I Bd., p. 381. "The 
 question whether a concept fully determined by logic answers a 
 complex object is first determinable when a concept of it is had 
 and when it can be compared therewith." 
 
§75] LOGICAL ANTECEDENCE 103 
 
 qualities of juridical phenomenology, and ascribe them 
 mentally to their proper logical order. , Our work in this 
 branch of study, too, is therefore based on the formal 
 concept. This does not mean, however, that it can be 
 found fully developed in reason from the start. As 
 law is realized in history by degrees, so its notion is 
 developed in the subjective mind by a slow process of 
 development.*" Here, however, we should be careful 
 not to fall in error. The formal concept of law is 
 implied in the knowledge of any juridical fact whatso- 
 ever, but at first it is confused with the perception 
 of the accidental elements which form the content of 
 special cases. The universality of the concept cannot 
 be found except by degrees, as it is abstracted and freed 
 from the different particularities of the cases under 
 consideration. It is not fully understood except by a long 
 cognitive process, and after the step from the acci- 
 dental to the essential, from the sensible to the 
 intellectual, has been taken. In this process, too, the 
 examination of historical data plays an important part.. 
 But it is only the occasion or means of recognizing and 
 distinguishing reflectively the logical form which gov- 
 erns this branch of knowledge from the beginning and was 
 latent in its lowest degrees. ' Empirical data, no matter 
 how diverse in content, are learned or conceived of in a 
 uniform way (as phenomena of law). This is what leads 
 us to distinguish the common conceptual form from the 
 
 ™ Kant's doctrine, which we have referred to (n. 5, p. 3), must be 
 kept in mind here, and can be compared with Vico's thought: "As 
 some eternal seeds of truth are buried in us, which from youth are 
 constantly cultivated until with age and discipline they develop into 
 the clearest scientific cognitions, so in mankind the eternal seeds of 
 justice were buried at the Fall, which constantly from the infancy 
 of the world with the development of the human mind in its true 
 nature, have grown into demonstrable maxims of justice." "Scienza 
 nuova" (1st ed.), Lib. II, Cap. IV. 
 
104 LOGICAL FORM OF LAW [Ch.X 
 
 various content. The concept which is recognized by 
 abstraction is, therefore, actually applied from the 
 first perception of such data. And all the successive 
 discoveries, although aided by experience and in a cer- 
 tain sense founded on it, have their true base in the 
 original logical synthesis. We must always keep clearly 
 in view the anterior conditions which have determined 
 the homogeneity of the conception and made it possible. 
 § 76. Anterior Identification of Empirical Manifes- 
 tations of Law. When, therefore, we consider juridical 
 phenomena in history and try to obtain the concept 
 of law from their data, we are in actual fact relying 
 on our anterior identification of them. We cannot get 
 away from this identification, which is the true motive 
 and foundation of all posterior reflection. Let us fol- 
 low analytically the original synthetic process; let us 
 determine in regressive fashion the elements and condi- 
 tions which have formed our conception of juridical 
 experience. Every recognition of the juridical nature 
 of a phenomenon has, in this sense, a retrospective char- 
 acter. In other words, it presupposes the formal con- 
 cept of law and is implicitly based thereon. Hence, in 
 every case, the form which gives its definite quality to 
 juridical reality, and is subjectively manifest in our 
 identification of it, is a true logical "prius." What the 
 essential elements of this identification are becomes 
 clearer, as we have said, when we advance by a process 
 of abstraction from empirical knowledge to a piHre formal 
 conception. In this process , historical studies can be 
 of aid, inasmuch as they are an "a posteriori" proof of the 
 applicability of the concept. Genetic studies are par- 
 ticularly fitted for such service, for they show at what 
 point certain facts of historical evolution acquired ;a 
 juridical sense or nature. The logical form of law is 
 here subjected to a crucial test, because the observer 
 
§76] ANTERIOR IDENTIFICATION 105 
 
 can see what the modifications are, whose presence 
 shows the character of law, and whose absence entails 
 its loss. But here, too, it is a question of a posterior 
 and retroactive application and exercise of the con- 
 cept of law, which is not originally taught by the phe- 
 nomena under examination, but is only suggested by 
 them and recognized when they conform to it. A 
 genetic examination, in fact, offers us only an oppor- 
 tunity to go over reflectively the primal and immediate 
 identification^ which necessarily precedes it.^* 
 
 §77. AllLaw isEgually Universal. Fully developed 
 historical law (that of the progressive nations) cannot 
 be substituted for the idea of the pure form of law. 
 The recognition that law presents itself fully developed 
 with all its essential characteristics' in a certain evolu- 
 tionary stage is, for the reasons we have already given, 
 an application of the concept of law, which is, in this 
 case too, presupposed and not originally discovered. 
 Furthermore, the so-called fully developed or differen- 
 tiated law does not offer the concept of law in its integ- 
 rity, but only represents it in a certain concrete state. 
 Thus the law of progressive nations is only a particular 
 
 " This is true also in the case where historical observation leads to 
 the correction of an acquired notion. As the abstraction of the 
 formal elements is not completed, elements may be included among 
 the qualities by the concept, which belong to the content of the exam- 
 ples studied, but which are only common by chance. In such a case a 
 more extended experience, showing examples of the same order 
 which lack these accidental qualities, makes it clear that the concept 
 does not depend on the^i^ In: this way the first notion is corrected, 
 and a step taken towards the true formal definition, which is then 
 found within the term of gnoseological process. In this correction, 
 however, we cannot fail to see that new examples are recognized as 
 juridical, though their content is diverse. The original and funda- 
 mental proof is the recognition of the identity of the species. 
 This shows the error of the empiricists in believing that reality can 
 be opposed to concept as something distinct and primary. 
 
106 LOGICAL FORM OF LAW [ Ch. X 
 
 configuration and phase of juridical evolution, which 
 other configurations and phases will succeed (as others 
 have preceded). Its only universal element is its logical 
 form which, however, as it comprehends all juridical 
 reality potentially, is not and can not be equal to any 
 single case. There is but one means to attain and 
 define logically the true universality of law: to leave 
 the contingerjcy of content for the necessity of form, 
 which is necessary because it constitutes the conceptibility 
 of law, and therefore is common to all possible cases «of 
 experience. It is not true that the formal concept is 
 an imperfect and biased copy of concrete and sensible 
 things (as the logic of the empiricists holds). On the 
 contrary, things themselves give only a partial view and 
 passing representation of the concept, which is the essence 
 of law, and which is found in its completeness only in 
 pure reason. The fact of the psychological genesis of 
 the concept is not in opposition with this principle. 
 Leibniz teaches that we must learn our innate ideas ;^^ 
 this means that little by little what has been virtually in 
 our knowledge from the beginning discloses itsfelf . What 
 is the conclusion psychologically is the beginning onto- 
 logically, and the subject can reach the object adequately 
 only by these two extreme terms, i Truth does not 
 begin at the moment of its recognition, and, to use a 
 classic simile, the law of equality of the radii governs 
 before the circle is drawn. So the logical form of law 
 is a primary datum of reason, notwithstanding that its 
 slow manifestation in knowledge.follows, parallel with the 
 development in history of the reality which corresponds to 
 it. Its objective anteriority is proved by the nature of 
 the process of cognition, which, as we have shown in 
 our analysis, takes place in relation to this form^' 
 
 « "Neue Abhandlungea tiber den menschliche Verstand," Lib. 
 I, §§23-27. 
 
i78] SCIENCE OF POSITIVE LAW 107 
 
 CHAPTER XI 
 
 LOGICAL FORM OF LAW: CONCLUSION. CRIT- 
 ICAL AND COMPLEMENTARY NOTES 
 
 GENERAL LOGICAL DEMAND OF SCIENCE, AND OF 
 JURISPRUDENCE IN PARTICULAR. — FORMAL CHARAC- 
 TER OF LAW AND "ALLGEMEINE RECHTSLEHRE." — 
 PHILOSOPHICAL MEANING AND OBJECTIVE VALUE OF 
 
 FORM. CRITICAL DELUCIDATIONS. — CONCEPT OF LAW 
 
 AS FORMATIVE POWER. — CONCEPT AND IDEAL OF 
 LAW. 
 
 § 78. Science of Positive Law. The principles of 
 method, which we have sketched so far, are in marked 
 contrast to others, very widely diffused to-day, whose 
 insufificiency we have attempted to prove. We may 
 say, however, that the disagreement lies in the logical 
 disposition of the problem and the conception of the 
 fundamental principles more than ih anything else. The 
 effective development of all programs and the par- 
 ticular deduction and researahes in law led necessarily 
 to this: that the ideological needs, which we have con- 
 sidered and made into a principle, have a great weight 
 even if they are given no recognition in methodic declara- 
 tions. This is not surprising. . Science cannot succeed 
 with the recognition of the objectivity of concepts; 
 every scientific activity is inevitably based on a system 
 of ideal values, as a principle for the determination of 
 the facts within its field. And whoever denies the 
 priority of logical forms in his program is inconse- 
 quent in his development of them, or is discredited in 
 their application. This is so fundamental an error (the 
 
108 LOGICAL FORM OF LAW [Ch.XI 
 
 belief of obtaining the concept of law from the data of 
 experience) , that it does not belong to the students of 
 positive law alone but to certain philosophers as well, 
 who, from a false idea of the science, invert the natural 
 sequence of its principles. This statement may prevent 
 the confusion of the positive or historical science of law 
 (which is entirely legitimate as a science) with that his- 
 toricism which heralds itself as philosophy.- Our criti- 
 cism is directed only against the latter. Its conclusions, 
 which tend to affirm the necessity of the logical form of 
 law as the universal quality in all examples of juridical 
 experience, respond to the legitimate needs of the 
 positive science of law better than the systems which 
 assume such data (the object of this science) from its 
 underlying principle, thus depriving it of the base 
 which it logically needs and confining it to an endless 
 circle of inconsequences. If science in general is pos- 
 sible only when based on conceptual forms (and Trende- 
 lenburg was right in writing, 'in science you cannot 
 legitimately lack a concept"),* it is much more true 
 of jurisprudence, which by its peculiar nature is con- 
 stantly called upon to co-ordinate, systematize and 
 weigh separate facts according to universal logical 
 principles.^ Abstraction is a logical proces3 more familiar 
 
 1 "Die Definition des Rechts," p. 85. 
 
 2 Hence it is that a certain philosophical quality is not foreign 
 to the mental habit of a true jurist, as was shown by Peuerbach, 
 "Ueber Philosophie und Empirie in ihrem Verhaltnisse zur positiven 
 Rechtswissenschaft" (Landshut, 1804), p. 49 et seq., and by SWck- 
 hardt, "Die Wissenschaft des Rechtes oder das Naturrecht in Ver- 
 bindung mit einer vergleichenden Kritilc der positiven Rechtsideen" 
 (Leipsic, 1825), Preface. The words of Ulpian on this question 
 are well known (Dig. 1, 1, i.). For the philosophical elements in the 
 juridical doctrines of the Romans, see Sokolowski, "Die Philosophie 
 im Privatrecht" (Halle, 1902). On the other hand, the empiricist's 
 diffidence towards what Comte calls "the eminently metaphysical 
 
§78] SCIENCE OF POSITIVE LAW 109 
 
 to jurists than to any other class of scientists;' the dog- 
 matics of law do not advance regularly except through 
 the analysis of the concepts in their formal element.* 
 
 class of jurisconsult" is significant. On the logical activities of 
 jurists, see Trendelenburg, "Naturrecht," §§ 71-83; Arnold, "Cultur 
 und Rechtsleben," Bk. II, Cap. Ill; Gierke, "Die Grundbegriffe des 
 Staatsrechts und die neuesten Staatsrechtstheorien" (Tubingen, 
 1874); p. 5 et seq.; Rumelin, "Juristiche BegrifFsbildung" (Leipsic, 
 1878); Schein, "Unsere Rechtsphilosophie und Jurisprudenz" 
 (Beriin, 1889), 11 Theil; Wundt, "Logik," II Bd., II Abth., p. 659 et 
 seq., p. 577etseq.;S/z6ocfter,"UeberRechtsbegrifIe," (Beriin, 1900). 
 
 ' Here arises a danger of the abuse of abstraction in jurisprudence 
 (Cf . Gierke and Schein, loc. cit. in n. 2, p. 109, supra) and the need of 
 equity as a corrective. See Lasson, "System der Rechtsphilosophie," 
 §§ 25, 40. Cf. Miceli, "Sul principio di equiti" (Prato, 1904). 
 
 * Pachntann, "Ueber die gegenwartige Bewegung in der Rechts- 
 wissenschaft" (Berlin, 1882), p. 40 et seq., has clearly distinguished 
 these special and quasi-technical needs of the juridical from those 
 of the economico-social sciences. The relativity of the two 
 sciences has been so emphasized as to produce a deplorable con- 
 fusion to the special harm of jurisprudence. Neither Lor. v. Stein 
 nor Ihering, the principal founders of the sociological reform of 
 jurisprudence, have been able to avoid this confusion. Lor. v. Stein, 
 for example, begins a mistaken course in a fundamental concept, 
 afBrming that the science of law is the science of the forces which 
 cause law. "Gegenwart und Zukunft der Rechts und Staatswissen- 
 schaft Deutschlands," p. vii; cf. p. 12, 116 et seq., 132 et seq. ■ See 
 Pachmann, contra, loc. cit,, supra. Ihering's many exaggerated 
 statements about the end and interest of law are well known (cf. 
 Part II, Chap. VI, post). We must remember, too, that at an earlier 
 date an exclusive consideration of the content of law led to the denial 
 of jurisprudence as a science. Vide Kirckmann, "Die Werthlosig- 
 keit der Jurisprudenz als Wissenschaft" (Berlin, 1848). The argu- 
 ments advanced in support of this thesis are reducible to an 
 exaggerated twisting of the doctrines of the historical school. 
 Against the opinion of Kirchmann, vide Retslag, "Apologie der 
 Jurisprudenz" (Berlin, 1848) ; Stahl, "Rechtswissenschaft oder Volks- 
 bewusstsein?" (Berlin, 1848). Cf. also, Kuntze, "Der Wendepunkt 
 der Rechtswissenschaft" (Leipsic, 1856). The scientific necessity 
 of abstracting the formal phase of law from the economic or social 
 
110 LOGICAL FORM OF LAW [Ch.XI 
 
 § 79. Philosophy of Law. While all the principal 
 juridical concepts were subjected to rigorous analysis 
 by this method, the fundamental concept of law itself 
 was almost forgotten.* The reason for this lay in the 
 fact that the analysis of the concept of law is a problem 
 of an essentially philosophical nature and requires ele- 
 ments not at the disposal of the positive science of law. 
 Jurists, therefore (more mindful here than elsewhere 
 of the sentence "omnis definitio in jure periculosa") , are 
 wont merely to touch upon such analysis and do not 
 attempt accurate definition,' while philosophers have 
 considered law according to their ideals , and have thus in- 
 jected into their determination of its concept principles 
 and postulates which should have been kept distinct. 
 
 § 80. "Allgemeine Rechislehre" and the "Analytical 
 School." The need of a formal analysis of the concept 
 of law has not been felt of late years. This is espe- 
 cially true of Germany, where, obeying an internal 
 necessity of the several juridical sciences (those of penal, 
 ecclesiastical, or constitutional law), a school has been 
 formed to construct a general theory of law ("allgemeine 
 Rechtslehre") by a critical revision of the elements 
 common to the different branches of jurisprudence.' 
 
 phase in general has been clearly shown in our day by the ex- 
 cellent works of Simmel and Stammler, also by the critics of 
 the "allgemeine Rechtslehre," which we will treat in § 81, post. 
 
 ' "It is certainly strange that jurists who have determined so 
 many formal concepts — of contract, servitude, wills, forfeitures and 
 penalties — have studied the chief concept, that of law, only in its 
 concrete and not in its formal force." Lotmar, "Der unmoralische 
 Vertrag" (Leipsic, 1896), p. 2. 
 
 ' Cf. Cap. I, p. 1, ante, and RUmelin, "Eine Definition des 
 Rechts," p. 318 et seq. 
 
 ' Merkel, at the head of this school, has tried to give its pro- 
 gramme a philosophical basis. Vide his article "Ueber das Ver- 
 haltnis der Rechtsphilosophie zur 'positiven' Rechtswissenschaft 
 
§80] ANALYTICAL SCHOOL 111 
 
 This school (analogous in many respects to the English 
 "Analytical School of Jurisprudence")* has been success- 
 ful in explaining not a few points in dogma by empha- 
 sizing certain of the less well defined parts of the science. 
 But, in regard to the fundamental problem of the logi- 
 cal nature of law, it clearly shows the vice latent in its 
 origin — the lack of a philosophical base. The jurists of 
 the "allgemeine Rechtslehre" show a lack of knowledge 
 of the problem bef6r,e them in their treatment of the 
 concept of law, and limit it in various ways looking 
 to the particular purpose of their study. Exclusively 
 interested in systematizing positive law, they have 
 generally given this phrase its most restricted meaning 
 as that existing in a certain place at a certain time.' 
 
 und zum allgemeinen Theil derselben'' and his other works included 
 in the posthumous edition "Fragmente zur Sozialwissenschaft" 
 and "Gesammelte Abhandlungen aus dem Gebiet der allge- 
 meinen Rechtslehre und des Strafrechts," Vol. Ill (Strassburg, 
 1898-99), and especially "Elemente der allgemeinen Rechtslehre" 
 published in "Encyklopadie der Rechtswissenschaft" of Holtzen- 
 dorff, 5 ed. (Leipsic, 1890), republished in "Gesammelte Abhand- 
 lungen,'' Zw. Halfte (Strassburg, 1889); cf. also his excellent 
 "Juristische Encyklopadie," 3 ed. (Berlin, 1904). The other most 
 noteworthy works of this school are Binding, "Die Normen und ihre 
 Uebertretung" (Leipsic), I Bd., 2 ed., 1890; II Bd. 1877; Bierling, 
 "Zur Kritik der juristischen Grundbegriffe" (Gotha, 1877-83); 
 "Juristische Prinzipienlehre" (Freiburg, 1894-98); Than, "Rechts- 
 norm und subjectives Recht" (Weimar, 1878). Cf. Bergbohm, 
 "Jurisprudenz und Rechtsphilosophie,'' p. 25 et seq., p. 94 et seq. 
 
 8 For the teaching of this school, see especially Austin, "Lectures 
 on Jurisprudence as the Philosophy of Positive Law." Cf., for the 
 other authors of this school, Bergbohm, "Jurisprudenz und Rechts- 
 philosophie," p. 12 et seq.; Vanni, "Maine," p. 36 et seq. 
 
 'Fragapane was right in saying that "the expression, positive 
 law, considered as opposed to the other classical phrase, natural 
 law, cannot have the same meaning for a lawyer that it has for a 
 philosopher or truly cultured jurist. For the philosopher, positive 
 law is the law which has enjoyed a concrete existence in some 
 
112 LOGICAL FORM OF LAW [Ch.XI 
 
 They do not attempt a universal synthesis, but only an 
 empirical collection or generalization restricted to cer- 
 tain data of a transitory historical peric J, or of a special 
 matter.'" Such limitation can be consonant with the 
 immediate and particular ends of certain juridical sciences 
 but not with a philosophy of law, even if it be under- 
 stood in a positive sense. 
 
 § 81. Criticism of "AUgemeine Rechtslehre." In this 
 respect the criticisms made by Petrone against -."the 
 degradation of phenomenology in dogmatics and juridi- 
 cal logic" are fully justified. He has correctly pointed 
 out that what the "allgemeine Rechtslehre" has called a 
 concept is usually only a generic formula or sign of a 
 number of particular things, and not the idea of a 
 
 place at some time, while for the lawyer, positive law is actual 
 existing law. ..." "Delia Filosofia giuridica nel presente ordina- 
 mento degli studi," p. 33. Cf. Del Vecchio, "Positive Right" (in 
 Law Magazine and Review, May 1913). 
 
 '» Than confesses this in his preface to "Rechtsnorm und sub- 
 jectives Recht," p. vi (which is one of the best works of its kind), "I 
 will take no care to show that the said concept within the boundaries 
 which I have fixed is always reflected in the Roman comprehension 
 of law. What I attempt ... is only that the phenomena of our 
 modern life enforce the conception of law of the kind, which I seek." 
 "Meine Arbeit gilt dem Rechte der Gegenwart." Other writers 
 have used Roman law for the foundation of their study; still others 
 have tried to generalize the juridical concepts of the "more ad- 
 vanced" nations. Cf. § 77, ante. Many have limited their study 
 to private law; some, on the other hand, have dealt only with 
 public law. Attempts have not been entirely lacking, however, 
 in the bosom of the "allgemeine Rechtslehre" itself, to define the 
 fundamental concept in a more comprehensive and systematic man- 
 ner, with regard to purely formal elements. Vide Bierling, "Juris- 
 tische Prinzipienlehre," esp. Bd. I, Intro. Cf. among others, who 
 do not properly belong to the school, .Sc)iM^/)e, "Grundziige der Ethik 
 und Rechtsphilosophie" (Breslau, 1881); "Der Begrifl des subjek- 
 tiven Rechts" (Breslau, 1887); Stammler, "Wirtschaft und Recht"; 
 "DieTheoriedes Anarchismus" (Berlin, 1894); "DieLehre vomdem 
 richtigen Rechte" (Berlin, 1902). 
 
5 811 CRITICISM 113 
 
 substance common to them and belonging objectively to 
 all the species.ii Terminology should not be allowed to 
 lead us into error here. No word is understood in so \/ 
 many ways as the word form.^^ Even in law the dis- 
 tinction between formal and material elements is far ^ 
 from clear." Rarely is this distinction made with a 
 full sense of its significance and consequences; rarely, 
 in other words, is it based on a true critique of knowl- 
 edge. This critique shows, as we have said before," 
 that the form' cannot be obtained from the material, 
 for it is objectively and subjectively its condition. It 
 follows that the formal concept of law cannot be 
 
 " Vide Petrone, "La fase recentissima della Filosofia del diritto 
 in Germania," p. 139 et seq.; cf. p. 21 et seq. 
 
 " Cf. Cohen, "Kant's Begrundung der Aesthetik" (Berlin, 1889), 
 p. 233 et seq. 
 
 " Departing from the special applications of the distinction be- 
 tween matter and form (for example, in the theory of laws) in modern 
 law, we may note that the formal unity of the concept of law, in 
 contradistinction to the variety of its content, is often recognized 
 even by followers of pure phenomenism. For example, Tarde, in 
 "Les transformations du droit," p. 13, writes, "The idea of law, no 
 matter how different its content, is formally the same in all places 
 and ages." So Bergbohm admits that "purely formally, the idea of 
 law is always and everywhere the same," and he distinguishes 
 between the content ("Rechtsinhalt") and the form of law ("Rechts- 
 form"). "Jurisprudent und Rechtsphilosophie," pp. 73 et seq., 543 
 et seq. Ihering distinguishes the form of law from the content, 
 meaning the simple external signs by form. Vide "Der Zweck 
 ira Recht," I Bd., p. 435 et seq. In this sense CogUolo states that 
 "law is a form which can cover divers contents." "Saggi sopra 
 I'evoluzione del diritto privato" (Turin, 1885), p. 12; cf. "Filosofia 
 del diritto privato," 2 ed. (Florence, 1891), p. 27 et seq. Lor. v. 
 Stein in "Gegenwart und Zukunft der Rechts und Staatswissenschaft 
 Deutschlands," p. 88 et seq., speaks of the concept of law's twofold 
 content, part changeable, part eternal. The distinction, which is not 
 developed with sufficient clearness, corresponds, however, in the 
 last analysis to that between formal and material elements of law. 
 
 " a. I 69, ante. 
 
 c/ 
 
114 LOGICAL FORM OF LAW [Ch.XI 
 
 coherently held except by those who admit the priority 
 and metaphysical nature of concepts. '^ All who have 
 
 " MiragUa expresses himself clearly on this point. "The idea of 
 law is not reducible to a simple mental sum of definite and distinct 
 actual properties. There is in it, as in every universal idea, a series 
 of necessary elements and relations, that bare experience cannot 
 furnish, because it is by nature contingent and particular." "Filosofia 
 del diritto," Vol. I, p. 208. Filomusi-Guelfii, in "Del concetto del 
 diritto natur.," p. 39 et seq., and in "Enciclopedia giuridica," p. 36 et 
 seq., 50, 122, teaches with great insight that the idea of law is not 
 exhausted in experience, that is, in positive law, of whose formation 
 it is a presupposition. It is remarkable that Ardigb, although start- 
 ing from different principles, admits that over and above positive 
 law there is an infinite natural or potential law. "Infinite in the sense 
 that it is a power interminable in its series and forms of development. 
 An indistinct power fitted for self-determination in distinct facts 
 of law, which are realized constantly and endlessly, as natural facts 
 in general are realized by nature's inexhaustible force." "Socio- 
 logia" in "Opere filosofiche" (Padua, 1897), Vol. IV, p. 174. Cf. 
 "La Morale dei positivisti," "Op. filos.," Lib. II, Part. Ill, Cap. I. 
 
 Lasson has shown and explained the necessity of considering law 
 in its conceptual form as well as in its manifold historical content. 
 "In the variety of the phenomenal, which, measured according to 
 the standard of the actual by all historical proofs, still has in itself 
 the element of chance, it is necessary to distinguish the contingent 
 from the essential. We must find what is common in the endless 
 differences in the history of legal forms and note the common frame 
 in all the thousand variations and abnormalities of law. Then even 
 the most out of the way and unusual legal forms will still fall within the 
 field of law and will be included among the essentials of the concept 
 of law." "System der Rechtsphilosophie," p. 415; vide, also, p. 195. 
 He assigned to philosophy of law the duty of determining the concept 
 of law which should be an Ariadne's thread in the labyrinth of positive 
 juridical decisions (p. 415). Philosophy of law, has, therefore, its 
 beginning in the idea of law (p. 19). After such a statement we can 
 but marvel that Lasson states in another place that the concept of 
 law can be gathered from mere experience. "Our beginning lies 
 in empirical data" (p. 193). The contradiction is explained by a 
 reference to Hegelian dialectics, which inspired Lasson. They hold 
 that the idea and historical fact substantially coincide, and the 
 phenomenal reality of law cannot get away from the idea, which 
 
§811 CRITICISM 115 
 
 to-day undertaken the philosophical restoration of law 
 as opposed to the fallacious doctrines of empiricism have 
 more or less firmly made such an admission. This 
 kind of critique is closely connected with the "return 
 to Kant," which is one of the characteristic notes of 
 modern thought and which would be even more fruitful 
 if Kantian thought were always properly understood 
 and developed. 
 
 § 82. Form and Content Constitute a Unit. The 
 recognition of the objectivity and logical priority of the 
 form signifies the acceptance of the fundamental methodic 
 condition for the theory of law in general. Certainly this 
 theory has other objects besides the determination of the 
 formal elements. The notion of the form must be made 
 integral by that of the content, which in its turn demands 
 a two-fold study, empirical and speculative, for the 
 content of law can be empirical or rational (positive or 
 not positive). So the elaboration of the content of 
 law belongs in part to philosophy and in part to juridical 
 science, while the study of the form, which is applied 
 in both branches and constitutes their common basis, 
 is the exclusive object of philosophy. The logical syn- 
 thesis of potential experience has, however, its primary 
 and necessary complement in the actual analysis of 
 experience. The historical development of law can 
 neither be deduced from nor explained by its form 
 alone. To be fully understood, this development must 
 be studied not only in its immanent aspect and in its 
 
 is immanent in it. Experience here conveys a special meaning, 
 equally different from the Kantian and the positive sense, rendering 
 it possible to invoke it as a principle, merely affirming the absolute 
 objectivity of the idea, which is expressed by it. The fundamental 
 demand, which we have shown above, is however, here too, much 
 more respected than it may seem from some aspects of the doctrine. 
 But the dangers of the confusion of two terms, one superior to the 
 other cannot be hidden. 
 
116 LOGICAL FORM OF LAW [Ch.XI 
 
 very identity and continuity but also in its. divers con- 
 crete coefficients and the effective causes of its various 
 phases. If the purely logical determination of form 
 necessarily remains distinct, it would be unjust hot to 
 admit its importance, and entirely erroneous, in order to 
 remedy its supposed defect, to confus^e it with studies of 
 a different object and nature. More should not be 
 asked of a principle than it can give. The determina- 
 tion of content should not be sought in that of form. 
 This distinction between the two principles does not 
 lessen but insures their respective values. The formal 
 concept of law cannot be called a sterile truth because 
 it does not imply '-'per se" some concrete legal proposi- 
 tion. If it did it would lose its universality and cease 
 to be formal. The study of form is sterile when it is 
 understood as a denial "of that of content; that is, 
 when in place of distinguishing the two studies, one 
 is sacrificed to the other. But, understood in the 
 proper sense, formal determination not only does not 
 hinder the pursuit (either ideal or empirical) of content, 
 but aids it and defines the presupposition upon which 
 it would otherwise be unknowingly based. The study of 
 form would be sterile and empty, however, if it were 
 reducible to a simple nominalistic abstraction or an arbi- 
 trary generalization without an objective correspond- 
 ence." If there were no other possibility, every analysis 
 or conceptual elaboration would lose air value in reality.' 
 But criticism dissolves and dissipates this fallacy of 
 ^ancient and modern scepticism and shows that form 
 is the very essence of the object. Thought, there*- 
 fore, in referring to pure form, deals with essence." 
 
 " The doctrines of Taine should be recalled in this regard. "De 
 I'intelligence," 4th ed. (Paris, 1883); cf. Ribot, "L'evolution des 
 idees g^nerales" (Paris, 1897). 
 
 " In popular language form and substance are opposite terms, 
 considering the first as a synonym of accidental or external appear- 
 
§82] FORM AND CONTENT 117 
 
 We are far from believing in formalism, the myopic 
 and barren cult of extrinsic element, to the harm of i 
 the real substratum. When we speak of form, we 
 mean the "forma substantialis" : the substance of law f 
 is what its formal - concept shows.'* This substance 
 is, of course, neither visible nor tangible, but it is no 
 less real for the lack- of such qualities. Like every 
 universal concept, it is evidenced in reality by an indefi- 
 nite series of distinct examples, and is reduced to unity 
 only in the supreme degree of our knowledge or in pure 
 reason. 1' 
 
 ance. In philosophical terminology,, on the other hand, as we have 
 said (cf. Cap. VIII, p. 68, ante) form connotes substance and is 
 opposed to content, which means the phase of mutability and 
 growth. 
 
 " Here we must remember the distinction between nominalistic 
 and realistic definition shown by Aristotle, "Anal. Post.," II, 7, 
 92 b; II, 10, 94 a, fully developed by the Scholiasts, and then given 
 various meanings by modern philosophy. Vide, "Vocabulaire 
 technique et' critique de la philosophie" in "Bulletin de la soci6t6 
 frangaise de philosophie" (Paris, 1904), voc. "Definition." The 
 realistic definition ("quid rei"), also called to-day, essential, has 
 reference to the intrinsic nature of the object and attempts to explain 
 its possibility of existence. Cf. Kant, "Krit. d. rein. Vernunft," 
 (ed. Hartenstein) p. 228 n. and esp. p. 523 et seq. ("Transcendentale 
 Methodenlehre," I Hauptst., I Abschn.) 
 
 " The consequence of this is that the reality of the universals 
 is necessarily hidden from him who trusts entirely to the Senses. 
 In this way, De Maistre, relying on an old sophism, denies the existence 
 of man in general. "The Constitution of 1795, like all its elder 
 brothers, is made for man. Now, man does not exist in the world. 
 I have seen, in my life, Spaniards, Italians and Russians, and I even 
 know, thanks to Montesquieu, that there are Persians, but as to 
 man, I declare that I have never come across one in my life; if he 
 exists, I don't know it." "Considerations sur la France," Cap. VI. 
 It is not difficult to reply to this nominalism, which hides super- 
 ficiality of thought in cleverness of phrase, that without the universal 
 concept of man it would not be possible to recognize that Spaniards, 
 Italians and Russians are all men. Bluntschli wisely points out. 
 
118 LOGICAL FORM OF LAW [Ch.XI 
 
 § 83. Criticism of Hegelianism and "gestaltende 
 MacU:' If the mistake is made on one hand of depriv- 
 ing the concept of law of its quaHty of principle, until it 
 is left but little more than an empty phrase, it is equally 
 wrong to attribute elements and properties to it which 
 do not belong to it, until it is confused with principles 
 of an entirely different order. And in this latter case a 
 critical revision is necessary, because the exaggerations 
 of metaphysics, by provoking reactions from empirical 
 phenomenism, lend it an appearance of legitimacy. In 
 conformity with the general principles which we have 
 laid down,2» we must firstly do away with the equivoca- 
 tion which places an active power, "gestaltende Macht," 
 within the concept of law. This is a cardinal point 
 in the hypothesis of Hegelianism, which tried to establish 
 the relation between thought and reality, and subject 
 
 "If science should not first know the one common basis of all 
 nationalities, the nature of man, then she never coul(J understand 
 the simply modified nature of a people." "Die neueren Rechts- 
 schulen der deutschen Juristen," p. 63. Similar observations can be 
 found in Eberty, "Versuche auf dem Gebiete des Naturrechts" 
 (Leipsic, 1852), Pt. I, and in Schuppe, "Die Methoden der Rechts- 
 philosophie," p. 232. We must remember that the capacity of the 
 senses is more limited than that of reason. "To establish gratuit- 
 ously the principle that what our sense cannot imagine our reason 
 cannot grasp, and from this gratuitous anticipation to derive that, 
 therefore, universal and abstract ideas do not exist, is a false method, 
 it is starting with a prejudice, subverting facts to it, dictating law 
 to nature instead of sagaciously understanding and interpreting it." 
 Rosmini, "Nuovo saggio sull' origine delle idee," 6th ed. (Intra, 
 1875-7), Sec. V, § 401. "It is not sense," Bruno taught, "which 
 sees the infinite . . . and whoever tries to grasp the infinite through 
 his senses is like a man who tries to discover substance and essence 
 with his eyes, and denies what he cannot see, or denies the very 
 substance and essence of objects which he does see." "De I'infinito 
 universo e mondi," Did. I. The germ of this doctrine can be found 
 in Plato. Cf. §§ 62, 66, ante. 
 2».Cf., I 56, ante. 
 
§83] CRITICISM OF HEGELIANISM 119 
 
 and object, not by the royal road of criticism, so master- 
 fully shown by Kant (in the second preface to his 
 "Kritik der reinen Vernunft") but by a simply dogmatic 
 identification of the antithetic terms. HegeHan ideal- 
 ism, in alternate sentences (as Petrone said)^^ assign- 
 ing the immanence and eternity of being to phenomena 
 and the mobility and contingency of phenomena to 
 being, fused both ideas into a single principle which is, 
 or would be, both at the same time. Consequently, 
 in Hegelian doctrine, the concept of law would be the 
 cause of the reality of law, the generating motive of its 
 existence in the empirical world .^^ 
 
 § 84. Distinction of Logical and Real Determination. 
 To distinguish the logical from the real determination 
 is, however, one of the elementary canons of criticism. 
 What is logically true may not be existent but only 
 possible.^' So the formal concept of law denotes the 
 simple possibility of its existence, and would exist even 
 if, as Rosmini held, the conditions of its real experi- 
 ence were lacking.''* The conclusion is that reality 
 cannot be guessed from the concept, nor can the former 
 
 '' "La fase recentissima della Filosofia del diritto in Germania," 
 p. 8. 
 
 22 Vide Hegel, "Grundlinien der Philosophie des Rechts," Intro, 
 et passim. Cf., also, Lasson, "System der Rechtsphilosophie," 
 where there is a complete and sympathetic reconstruction of Hege- 
 lian thought on this subject. 
 
 *' For this principle, which was thoroughly developed by Kant 
 (Cf. "Krit. d. rein. Vernunft," p. 436 et seq.), see Rosmini, "Nuovo 
 saggio sull' origine delle idee," Sec. V, §§402-8. 
 
 " "We exclude from the idea of law in general, not only the 
 concept of society, but also that of actual coexistence — possible 
 existence is enough for us. We believe that the idea of law would 
 exist if there were but one single individual of the human race, 
 because he could consider himself in a hypothetical relation with 
 some fellow beings." Rosmini, "Filosofia del diritto," 2ded. (Intra, 
 1865), Vol. I, p. 146, n. Leibniz reasoned analogously: "Doctrina 
 
120 LOGICAL FORM OF LAW [Ch.XI 
 
 be considered as an effect of the latter. There is no 
 causal relation between them; neither one is the cause 
 or effect of the other. In order that law may enter 
 empirical reality, and take on a body as a phenom- 
 enon, it has need of an efficient force or sufficient 
 historical motive. The plurality and complexity of 
 such forces and motives are what produce and explain 
 the diversity of the content of the law.^ To attribute 
 to the formal concept, which constitutes the conditions 
 of the identity of law, the genesis of the content, which 
 is various, is to make the concept self-contradictory, 
 and inexplicable. 
 
 § 85. Concept and Ideal oj Law. Undue confusion 
 arises also on another point concerning the formal 
 determination of law, and demands an explanation, 
 fortunately one easily deducible from our conclusion 
 already established. The concept of law is confused 
 with its ideal, in other words, the reason, which should 
 constitute its content, is substituted for its logical form. 
 
 juris ex eorum numero est quae non ab experimentis sed definitionibus 
 nee a sensuum sed rationis demonstrationibus pendent et sunt ut 
 ita dicam juris non facti. Cum enim consistat justitia in congruitate 
 ac proportionalitate quadam, potest intellegi justum aliquid esse, 
 etsi nee sit qui justitiam exerceat nee in quern exerceatur, prorsus ut 
 numerorum rationes verae sunt, etsi non sit nee qui numeret nee 
 quod numeretur." "Juris et iEqui Elementa," edit, by Mollat, 
 "Rechtsphilosophisches aus Leibnizens ungedruckten Schriften" 
 (Leipsic, 1865), p. 24. 
 
 ™ "The content of law," so writes Bergbohm, "is determined by 
 so many forces, that it is never complete nor can it be condensed in 
 an exhaustive universal category. The rubrics of moral convic- 
 tion and religious belief, of the underlying bases of human nature 
 and of political purposes, of necessity and reason, of security against 
 the abuse of power, and of provision against human frailty, even 
 doubled and tripled, fall far from including the sum of motives by 
 which men in reality have given and will give other content to 
 law." "Jurisprudenz und Rechtsphilosophie," I, p. 544. 
 
§85] CONCEPT AND IDEAL 121 
 
 Consequently, many so-called definitions of law corre- 
 spond only to a certain particular system or concep- 
 tion of the purposes of law, and are far from containing 
 (as a true definition should) the essential points common 
 to all possible examples of the object. All the ideals of 
 proportion, protection, liberty and well-being, which the 
 human mind has always affirmed in respect to law, are 
 transformed by the various philosophers intp so many 
 definitions of law." It is evident that in taking such 
 action these philosophers have not regarded law purely 
 and simply, but its intrinsic foundation, the principle of 
 its justificatioui and the duty it is called upon to fulfill. 
 This branch of study is, of course, legitimate and neces- 
 sary. But it presupposes the intuition of the logical form 
 of law, since its object is to assign it a definite content, 
 answering one purpose, perhaps the most rational.*' 
 The concept of law (to be true to pure form), however, 
 must be, as we have seen, indifferent and neutral to all 
 juridical principles whatever they are, and not identify 
 
 *" Cf., in proof of this, Baumstark, "Was ist das Recht?" (Mann- 
 heim, 1874); Riimelin, "Eine Definition des Rechts"; Trendelen- 
 burg, "Die Definition des Rechts," in which many of the most 
 celebrated philosophical definitions of law are cited. 
 
 " This observation is applicable also to those determinations of 
 law which, in enunciating a maxim or ideal principle, are intended 
 to regulate in a certain way the intent or will, and in this sense 
 are called formal. In fact, however, such determinations restrict or 
 specify the content of law in some way, and do not comprehend all 
 its possible guises. This, the Kantian formula that law is "the sum 
 of conditions, in which the free will of one restricts the free will of 
 his fellow only so far as is necessary for the universal existence of 
 freedom" (in "Met. Anfangsgr. d. Rechtslehre," p. xxxiii), is 
 not a definition in a strict sense (cf. Ueherweg, "System der Logik," 
 S§ 60-62), but a rational principle which had the value of an ideal 
 in Kant's mind. All cases of juridical reality are excluded by such 
 a 4efinition in which the law of equal liberty is not actualized. It is 
 a deontological or antonomastic definition. Cf. § 67, ante. 
 
122 LOGICAL FORM OF LAW [Ch.XI 
 
 itself even with the one which on an internal scale 
 is shown to be the highest and best. A correspondence 
 to the formal concept takes place always when a juridical 
 proposition or principle is given, whether it is positive or 
 not, whether it approximates the ideal or not.^' The defini- 
 tion of a genus by its highest species gives a "denominatio 
 a posteriori," which is logically a true "fallacia fictae 
 universalitatis," that is, a denial of the connotation of 
 the whole genus. 
 
 § 86. Correspondence of Positive Law to the Ends of 
 Social Life. This was the error of old juridical specu- 
 lation, which failed to make a full analysis of the formal 
 characteristics of law, and it arises again in a modern 
 guise when the correspondence of positive law to the 
 ends of social life is asserted "a priori." This method, 
 which leads to such teleological definitions as Ihering's, 
 covers a confusion between the logical concept and 
 
 8 According to the doctrine olLasson ("System der Rechtsphiloso- 
 phie," p. 415), the ideal, on the contrary, should be what most 
 corresponds to the concept. We cannot agree with Rumelin 
 ("Eine Definition des Rechts," p. 324) in saying that a definition 
 of law should not consider equally the laws of different peoples, 
 but should offer a test, by separating what deserves the name of 
 law from what does not. Even Trendelenburg ("Die Definition des 
 Rechts," p. 87) understands the definition as a test to weigh law. 
 We can but repeat our earlier arguments against this. Cf . Bierling, 
 "Zur Kritik der juristischen Grundbegriffe," 1 Th., p. 163 et seq.; 
 Wallaschek, "Studien zur Rechtsphilosophie," p. 96 et seq.; who, 
 as most writers of the "allgemeine Rechtslehre," err chiefly in exclud- 
 ing non-positive law from their concept. 
 
 The distinction between concept and idea was observed and 
 used in respect to the State by Bluntschli, "Allgemeine Staatslehre," 
 p. 14. Jellinek has an analogous doctrine and contradistinguishes 
 the "idealer Typus" from the "Durchschnittstypus." Vide "Das 
 Recht des modernen Staats," Vol. I, "Allgemeine Staatslehre" 
 (Berlin, 1900), p. 31 et seq. 
 
§86] CORRESPONDENCE 123 
 
 ethical exigency, as we have shown." To say that law 
 "assures conditions of social existence or development," 
 or some like thing, is to state an exigency in respect to 
 law which it will be able to fulfill more or less per- 
 fectly, but which is certainly not its logical definition. 
 A juridical proposition does not cease to be juridical 
 because it does not promote happiness. This "praesum- 
 tio juris et de jure," that positive law is always equal 
 to its rational motive, is in substance a way of escaping 
 the true and proper deontologic problem by an inaccu- 
 rate optimistic generalization of experience.^" An adora- 
 tion of facts has superseded that of ideas in our day. 
 The new dogmatism is no better than the old. As the 
 idea of law used to be modelled according to a purely 
 ' ideal type even in antithesis to reality, so now an attempt 
 is being made to determine it by some example or 
 
 » Cf. § 67, ante. 
 
 '" It is true that Ihering, with Vanni and others, are wont so to 
 insist upon the relativity of the concepts of "social utility" and "of 
 the conditions of existence" as to free themselves almost from this 
 criticism. See Ihering, "Der Zweck im Recht," I Bd., p. 433 et 
 seq.; Vanni, "Maine," p. 44 et seq.; "Filosofia del diritto," p. 53 
 et seq. No matter how varying and ambiguous such concepts are 
 made, even until their objective significance is destroyed, the 
 equivocation we complain of remains. In the first place, it cannot 
 be admitted that the formation of juridical institutions is con- 
 stantly determined by what is or is supposed to be the most useful 
 to society (for special interests can prevail); in the second place, 
 it can be shown that the motives and ends of law are not law itself. 
 To the variety of historical ends and motives corresponds, as we 
 have said above, the variety of content, while the unity of form 
 remains. Vanni has elsewhere recognized that the logical concept 
 and ethical exigency of law are objects of two studies. See "La 
 Filosofia del diritto in Germania e la ricerca positiva," in "Riv. 
 ital. per le sci. giur.," Vol. XXII (1896), p. 90; "II diritto nella 
 totality dei suoi rapporti e la ricerca oggettiva" (Rome, 1900), in 
 "Rivista italiana di Sociologia," Anno IV, Ease. I, p. 9; "Lezioni," 
 p. 61. 
 
124 LOGICAL FORM OF LAW [Ch.XI 
 
 motive not essential to reality itself, which is insuffi- 
 cient for the expression of its universal nature.;; Criti- 
 cism has shown that the essence of law is constituted by 
 pure form alone, which appears in reason as concept, 
 and is distinguished as such from content, which may be 
 empirical or transcendental. This demonstration lays 
 the basis of subsequent research and by marking its 
 limits assures its legitimacy. 
 
PART II 
 THE CONCEPT OF LAW 
 
 CHAPTER I 
 
 HUMAN ACTS ARE SUBJECT TO JURIDICAL 
 CRITERIA 
 
 JURIDICAL CRITERIA APPLY TO ACTS. — ANALYSIS OF 
 ACTS. — NON-APPLICABILITY OF JURIDICAL CRITERION 
 BECAUSE OF A DEFICIENCY OF THE PHYSICAL OR PSY- 
 CHICAL ELEMENT. 
 
 § 87. The Juridical Criterion. The psychological fact 
 upon which this inquiry is based is the perception of 
 right and wrong, that is, the process of reason by which 
 we determine the quality of justice or injustice, right or 
 wrong, conformity or non-conformity to law.* A question 
 is juridical if it furnishes material for a judgment of this 
 kind.* We are about to consider the logical value and 
 
 ^ "To distinguish the just from the unjust" is the original logical 
 operation to which both the spontaneous manifestations of every 
 mind and the technical elaborations of writers and interpreters of 
 law are reducible; "Justitiam namque colimus .... aequum ab 
 iniquo separantes, licitum ab illicito discernentes," to quote the 
 words of Ulpian, speaking of the works of the jurisconsults (Dig. I, 
 1, i). -Jurisprudence, in the broadest sense is defined as the science 
 of the just and the unjust. Dig. I, 1, x. 
 
 » With regard to this fundamental idea, Seneca defined law as 
 "justi et injusti regula" ("De Beneficiis," IV, 12), which definition 
 (found also in the passage of Chrysippus, cited in Dig. I, 3, ii, where 
 law is called Kavuv SiKoiiov KaX dStK<i>v) is applicable to every kind of 
 
126 HUMAN ACTS [Ch.I 
 
 significance of this criterion, and with this in view we 
 will first consider to what objects it can be applied. 
 
 § 88. The Juridical Criterion Applies to Acts. Jus- 
 tice is not a universal criterion; all nature cannot be 
 weighed juridically. Physical facts have no relation to 
 justice. This does not denote that they are ignored by 
 law, but only that they are not, of themselves, objects of 
 possible juridical judgments. A phenomenon cannot 
 be legal or illegal except in reference to subjective will. 
 Only those acts (using the word in its widest sense) 
 which show a subjective element' can be juridically 
 weighed.: It is well here to note, however, that nega- 
 tive factors play an important part in the general con- 
 cept of action.* 
 
 § 89. Analysis of Acts of which Conduct Consists. 
 Admitting, as all do without question, that the juridical 
 criterion is applicable to acts alone and that only acts 
 can be treated as conforming or not conforming to law, 
 the question of the extent of its applicability arises: 
 Is it applicable to all acts or only to those of a certain 
 kind or class? In order to answer this question we must 
 consider the essential elements of action, and see if the 
 
 juridical norm and proposition, whether expressed in the form of a 
 la* or not. We may add that a juridical criterion can be contained 
 in several propositions. In the latter case they are logically joined 
 and should be treated as forming a single whole. This is more 
 clearly shown by the theory of juridical norms and their classifica- 
 tion. Cf. § 93, post. 
 
 'Schmalz gives a more accurate definition, "Action is a change in 
 essence, brought about by its proper energy." "Die Wissenschaft 
 des naturlichen Rechts" (Leipsic, 1831), p. 14. 
 
 • Given an agent, abstention is not a simple non-happening, but 
 an element characteristic of dction and thus has within it a posi- 
 tive quality. To quote Rosmini, "Subjective control over action 
 gives the determination to omit an act, which could alter or disturb 
 ethical relation; whence, a virtual exercise of will may be found in 
 apparent inaction." "Filosofia del diritto," Vol. I, p. 132. 
 
§89] ANALYSIS OF ACTS 127 
 
 distinctions and limitations which exclude a large part 
 of human conduct from the jurisdiction of law are well 
 founded. ' Two elements are needed to constitute action : 
 the subjective will and its extrinsification or objective 
 manifestation. 6 The first coefficient is of the psychic 
 order, the second of the physical. John Stuart Mill 
 goes so far as to say that, "An act is not one thing, but 
 a series of two things, the state of mind called volition, 
 followed by an effect. The volition or intention to pro- 
 duce the effect is one thing; the effect produced, in 
 consequence of the intention, is another thing; the two 
 together constitute the action."' ' Mill in this instance, 
 perhaps for the sake of clearness, represents one thing as 
 two. The relation between the psychic and physical 
 elements is not one of simple succession. They inter- 
 penetrate; and the act is the result of their inter- 
 penetration. An act does not consist in two things or 
 two objectively distinct entities. It is one thing, but 
 its unity has a double aspect, being at the same time a 
 fact of nature and of will.' There cannot be an act 
 
 ' Cf. Bierling, "Juristische Pritizipienlehre," II Bd., p. 47. Vide 
 also Vanni, "Lezioni," p. 115. 
 
 •/. Stuart Mill, "A System of Logic," Vol. I, p. 59. 
 
 ''Schopenhauer gives the subject deep consideration in "Die 
 Welt als Wille und Vorstellung," § 18. "Acts of will and physical 
 acts are not two distinct things joined in a causal chain; they do 
 not stand in a relation of cause and effect, but are one and the same, 
 except that one is immediate and the other is extrinsic. Physical 
 action is nothing more than the objectivation of will action." There 
 is a substantial unity and primary relation between a man's will 
 and his acts, which cannot be resolved into the relation of cause and 
 effect: provided we do not conceive of the causal relation as analo- 
 gous to our concept of action or by the application of the latter. 
 To hold the relation of the will to its acts as causal is equivalent to 
 saying that will acts upon its acts, which is arguing in a circle, like 
 all "ignotum per ignotius" arguments. Galluppi saw this and 
 said, "We must regard acts or the efficiency of the agent as simple 
 
128 HUMAN ACTS [Ch.I 
 
 without a phenomenon, because an act is a relation which 
 presupposes an objective and concrete element. But a 
 phenomenon is not an act unless it has a subjective 
 factor, and represents a movement of will. 
 
 § 90. No Distinction between External and Internal 
 Acts. The popular division of acts into external and 
 internal has, therefore, no real value. Every act is both 
 external and internal, because without psychic content 
 a phenomenon cannot be attributed to an agent and is 
 not, therefore, an act; and, without extrinsification a 
 movement of will cannot be an act, because nothing, 
 even in the psychic order, can exist in fact without 
 correlation or a point of tangency with the external 
 world. So, whatever the peculiarities which distin- 
 guish one kind or class of acts from another, the dif- 
 ference cannot lie in the complete lack of either the 
 psychical or physical element; for, on such an hypothesis, 
 the definition would not be met and the class, thus 
 definedi would constitute a "contradictio in adjecto/'i? 
 The question of the applicability of law is involved in 
 this, for it is clear that the application of a juridical 
 criterion cannot be extended to acts, described "sic et 
 simpliciter" as internal or external, since the criterion 
 must find both elements in every act. 
 
 § 91. Two Current Theories of the Limits of the Appli- 
 cation of the Juridical Criterion to Acts. Looking at the 
 two current theories on this subject, we find the scope 
 of law restricted because of a deficiency of one or the 
 other of the above elements. There are acts which, 
 either by a deficiency of the psychic (internal) coeffi- 
 cient or of the physical (external) coefficient, are said 
 
 and indefinable," since otherwise we must admit an "act of acting" 
 and so on "ad infinitum," without knowing where to stop. "Filosofia 
 della volonta," Part I, Cap. VI, § 68. [Cf., also, Leibniz, who spoke 
 of the will to will, and so on, "ad infinitum.'" — Tr.] 
 
§91] TWO CURRENT THEORIES 129 
 
 to be without juridical value, that is, without legal 
 significance. Let us examine separately the cases thus 
 presented and consider the basis and weight of the 
 points involved. 
 
 § 92. Non- Applicability of the Juridical Criterion 
 because of a Deficiency of the Psychic Element. The fact 
 that law, in weighing acts, takes account of the degree 
 of the perceptive and volitive power of the agent is such 
 an elementary truth that we need not pause to prove it. 
 The question before us here is whether or not a mini- 
 mum of perception or will is enough to bring an act 
 within the sphere of law; in other words, are there acts, 
 which , because of deficiency of the psychic coefficient,, 
 cannot be subjected to juridical valuation? The gen- 
 erality of this proposition makes it usually a moral not 
 a legal question. Perhaps it is on this account that 
 jurists have disregarded it or introduced into it doc- 
 trines which need correction in legal application. Moral- 
 ists divide acts into two classes, depending upon whether 
 or not they are preceded by deliberation and accom- 
 panied by knowledge of their end. The first class con- 
 sists in voluntary and imputable acts; the second in 
 those which are involuntary and non-imputable. Some 
 authorities, in order to emphasize the importance of 
 this classification, exclude the entire second class from 
 the category of acts.^ Terminology matters little here 
 
 ' "In the strict and philosophical sense of the word, a man's 
 acts are those which he has conceived and willed. Such is the 
 meaning given this" term in morals, where no act is imputed except 
 to a voluntary agent. But where there is no question, of moral 
 imputation the word takes on a broader meaning and many facts 
 are called a man's acts, which he never conceived or willed. From 
 this point of view, acts are divided into voluntary, involuntary and 
 mixed." Reid, "Essays on the Intellectual Powers of Man," 
 Essay III, Pt. 1, Cap. I. Hegel upheld this restrictive definition. 
 "Grundlinien der Philosophic des Rechts," §§ 113-120. Cf. Spa- 
 
130 HUMAN ACTS [Ch.I 
 
 as elsewhere, if the variance of usage is not the cause or 
 effect of uncertainty and error. Absolutely involun- 
 tary acts do not exist, since acts, as we have said, are 
 conceivable only in relation to will. The two concepts 
 of will and act are essentially correlative. The latter 
 implies the former. We can define will as the primary 
 and irreducible principle of subjective being which 
 develops in the world of the senses.'^ Its development 
 
 venta, "Studi suU' Etica di Hegel" (Naples, 1869), republished by 
 G. Gentile under the title of "Principii di Etica" (Naples, 1904), 
 Cap. IV, §|2-4. "Certainly all that can happen through the 
 activity of an agent, every modification or change in external exist- 
 ence, if so understood can be his fact, a fact belonging to him. 
 But all these facts are not acts of his. He recognizes and has the 
 right to recognize as his only those results which he has known and 
 willed — that he has intended" (p. 117). 
 
 An analogous conception lies in the older doctrine which distin- 
 guishes human acts from acts of man. Thomas Aquinas explains 
 this distinction: "Actionum quse ab homine aguntur illae solas 
 proprie dicuntur humancB quae sunt propriae hominis in quantum 
 est homo. Differt autem homo ab aliis irrationalibus creaturis in 
 hoc quod est suorum actuum dominus. Unde illae solae actiones 
 vocantur propriae humancB quarum homo est dominus. Est autem 
 homo dominus suorum actuum per rationemet voluntatem: undeet 
 liberum arbitrium esse dicitur facultas voluntatis et raiionis. Illae 
 ergo actiones proprie humanm dicuntur quae ex voluntate deliberata 
 procedunt. Si quae autem aliae actiones homini conveniant, possunt 
 dici quidem hominis actiones sed non proprie humana cum non 
 sint hominis in quantum est homo." "Sum. Theol.," 1st, 2d, Quaest. 
 1, Art. I. This conception is the basis of Puffendorfs definition: 
 "Per humanam actionem intelligimus non quemvis motum a facul- 
 tatibus hominis procedentem; sed ilium duntaxat, qui provenit ac 
 dirigitur ab iis facultatibus quas humano generi prae brutis Creator 
 O. M. attribuit; nempe qui velut pralucente intellectu ac decernente 
 voluntate suscipitur." "De Officio Hominis et Civis," Lib. I, Cap. I, 
 §2; cf. "De Jure Nature et Gentium," Lib. I., Cap. V, § 1. The Thom- 
 isticdoctrine of human action can be still seen, for example, in the work 
 of Frisco, "Metafisica della Morale" (Naples, 1865), p. 118 et seq. 
 
 ' Ancient psychology treated will as a rational tendency towards 
 the good and subordinate, therefore, to intellect. Vide Thomas 
 
§ 92 1 NON-APPLICABILITY 131 
 
 varies in form, because will changes with the degree of 
 perception from the blindest instinct to the most deliber- 
 ate knowledge. And yet its differences and distinc- 
 tions rest on a substantial unity. Will, like life itself, 
 is one and continuous in all its manifestations.^" 
 
 § 93. Resistance as Action. Personality and subjec- 
 tive will are revealed in definite extrinsifications. 
 Conduct " is always imputable.'^ An exception to this 
 
 Agiiinas, "Sum. Theol.," 1, Quaest. LIX, Art. I; 1st, Quaest. 
 LXXXVII, Art. 4: "Actus voluntatis nihil aliud est quam inclinatio 
 quaedam consequens formam intellectam"; cf. 1st, 2d, Quaest. VI pr.; 
 Quaest VIII, Art. I. So, too, was will defined by Rosmini as "the 
 power which urges man to a known good" ("Antropologia in ser- 
 vigio della scienza morale," Lib. Ill, Sec. II, Cap. II), "or as the 
 virtue which man has to cling to a known object," "Psicologia," 
 Pt. II, Lib. II, Cap. X. This concept is generally abandoned by 
 modern psychologists, who, far from admitting a precedence or pre- 
 dominance of intellect over will, tend to find in the latter the basic 
 fact of all psychic phenomenology ; and that, too, independently of 
 the metaphysical thesis of voluntarism {Schopenhauer). Cf. Villa, 
 "La Psicologia contemporanea" (Turin, 1899), Cap. V, particularly 
 p. 441 et seq. 
 
 •" This definition of will and its connection with the intellect is in 
 accord with the principle of the unity of psychic processes, which 
 is a fundamental precept of psychology, as we will see in its proper 
 place, § 94, post. 
 
 '1 Conduct is the syntjiesjs of activity at a given moment. It has 
 many aspects which can be considered separately as acts, provided 
 that they have sufficient characteristics to show a separate phase 
 of will. This is the reason that facts of a physiological order, 
 which man has in common with other beings of the organic world, 
 representing, so to speak, the lower side of his nature (for example, 
 respiration) are not generally considered as acts in the true sense. 
 They are more accurately elements involved and developing in 
 acts, and may, therefore, be included in the general connotation 
 of activity. This definition solves a difficulty which has caused 
 many errors and disputes. 
 
 '2 This concept of imputability, which is the broadest, is also 
 the best, because everything is imputable to an agent, of which he 
 
132 HUMAN ACTS [Ch.I 
 
 principle, however, is found in acts done under the influ- 
 ence of some extrinsic force or physical violence.'' This 
 exception must be carefully watched, however, as it often 
 lies in appearance only. The passive subject of another's 
 will does not act, but is the instrument or object of 
 another's acts. His will is usually active in the oppo- 
 site sense, as resistance. The fact that a man is sub- 
 jected to violence does not constitute "per se" an act 
 on the part of the victim, but is a negative factor or 
 argument "a contrario" to show positively his actual 
 conduct. In order to do this intelligently, we must 
 weigh the quality and quantity of resistance.'* Also 
 in such case, therefore, the fundamental coherence of 
 act and will is not lacking. A true exception to the 
 general rule of imputability should be made, however, 
 if we consider as involuntary every unconscious act. 
 In fact, some schools hold that as will depends on 
 knowledge, where the latter is lacking or defective 
 there can be no will. But this thesis, a result of 
 extreme intellectualism, is based on a false idea of will 
 and does not bear analysis. It is not his act, but its 
 consequences, that the agent's will does not embrace 
 because of a lack or defect in his knowledge. The 
 office of the practical mind is to foresee the effect of 
 acts. Prescience of the effect gives the agent a knowl- 
 edge of the value of the end, and thus extends his will 
 and deliberation to it. Only when the end is clearly 
 
 is the author. Of the more restrictive meaning of imputability we 
 treat below in the text. 
 
 "For the various possibilities of this kind, see the distinctions 
 made by Berner, "Strafrecht," § 91. 
 
 " The case of moral violence is, of course, different, for, although 
 it may lessen the significance of the act which it brings about, it 
 does not prevent it being imputable to the agent, who effects it, 
 that is, to him who "coactus voluit." Cf. Green, "Lectures on the 
 Principles of Political Obligation" (London, 1901), p. 36. 
 
§93] RESISTANCE AS ACTION 133 
 
 perceived does an act show the fully developed per- 
 sonality and reflect the full rationality of the agent. 
 And it is only under these conditions that an act is 
 imputable in the strictest sense. '^ If knowledge of the 
 end is lacking or in any way defective, the act suffers 
 a loss psychologically, and, being less intimately con- 
 nected with the agent, has less juridical value. J This 
 much is sure, but it must not blind us to the fact that 
 acts, although to different degrees, always represent^ an 
 extrinsification of subjective personality, that is, a 
 movement of will sufHcient to give them their specific 
 character and distinguish them from purely objective 
 facts of the physical order, thus rendering them sus- 
 ceptible to juridical valuation. The mistake which 
 leads to the exclusion of acts improperly called involun- 
 tary, not only from law but from morals, is based upon 
 
 '' This highest kind of imputability is employed when it is a 
 question of punishment. The requisites of penal liability are deter- 
 mined by the peculiar nature of punishment. Simmel gives an 
 accurate outline of this topic when he says that "an individual can 
 be held responsible and liable when the punitive reaction of his 
 deed affects hiin, whether it be corrective, deterrent or what not." 
 "Einleitung in die Moralwissenschaft," II Bd., p. 213. Cf. the 
 observations of Merkel, "Rechtliche Verantwortlichkeit" in "Gesam- 
 melte Abhandluflgen aus dem Gebiet der allgemeinen Rechtslehre 
 und des Strafrechts" (Strassburg, 1899), especially at p. 889 et seq. 
 From this comes the necessity of defining imputability in a par- 
 ticular way in penal science and legislation. Such need is remedied 
 also by help of a system of gradations. Cf. Filomusi-Cuelfi, "Delle 
 condizioni che escludono o diijiinuiscono I'imputabiliti" (Rome, 
 1875). This is, however, a clear proof of what it is of importance 
 for us to note here, that penal imputability and liability form but 
 a subdivision of imputability and liability in general. For the 
 various spheres of liability in general, cf. Lasson, "Sittliche Verant- 
 wortlichkeit," in vol. "Zeitliches und Zeitloses" (Leipsic, 1890) 
 p. 164 et seq. The distinctions of Carrara should too be remem- 
 bered, "Programma del corse di diritto criminale," Parte Generate, 
 Sec. 1, Cap. I, esp. § 8. 
 
134 HUMAN ACTS [Ch.I 
 
 a hasty and false determination of the question, which 
 fails to discover that an agent is the author of all his 
 acts, although the fullness of his rational being is not 
 exercised therein. "The actual control which an agent 
 has over his own conduct" (to quote Rosmini) governs 
 his omissions; and "a fortiori" his unconsidered acts, 
 or those wherein knowledge is lacking, are imputable 
 to him and susceptible of valuation. The psychological 
 conditions of the agent naturally sh6uld be considered 
 and calculated in judging acts from a juridical stand- 
 point. Defects found can entirely alter the resultant 
 judgment, but cannot destroy the logical possibility of 
 the judgment itself. Thus, lack of intent, any of the 
 many forms of mistake, immaturity, or deficiency of 
 mind, and, in general, any psychic anomaly can produce 
 or destroy particular legal results or normal effects. 
 But such circumstances do not make an act indiffer- 
 ent to law; they do not prevent an act from being 
 necessarily either in conformity or non-conformity to 
 law. Some of these circumstances may destroy the 
 punibijity of an act which would normally be punish- 
 able, or avoid some of its effects in civil law. But we 
 must note that punibility is only a consequence of an 
 illegal act'* and enforceability is only a consequence of a 
 legal act. The latter remains legal (and not prohibit- 
 atile) even if inefficient as a source of obligation." And 
 
 " Cf. Brugi, "Istituzioni di diritto civile italiano" (Milan, 1905), 
 §26. 
 
 " It can be seen from this that civil liability has specific condi- 
 tions which differentiate it from imputability and liability in gen- 
 eral. In order to determine whether an act is juridical (either in 
 conformity or non-conformity to law) we need only to connect it 
 with an agent. In other words, the general concept of imputability 
 is sufficient. But there are other requisites in order to subject an 
 agent to a determinate obligation as a consequence of some legal 
 or illegal act, which creates conditions of legal liability in the strict 
 
§93] RESISTANCE AS ACTION 135 
 
 conversely, an act which constitutes a crime remains 
 contrary to law (and prohibitable), even if psychic in- 
 firmity protects its author from punishment. The juridi- 
 cal valuation remains in both cases.'* In conclusion, 
 on this point we may assert that, as no act can be abso- 
 lutely external, so no act can, because of a failure of 
 the psychic coefficient, be excluded from juridical con- 
 sideration. 
 
 § 94. An Act Cannot Lack Extrinsification. Let us 
 now take up the limitation of the applicability of the 
 juridical criterion because of a lack of the physical ele- 
 ment, that is, because of the internal nature of some 
 acts, i According to a widespread theory (referable to 
 Thomasius and Kant) , acts developing entirely within 
 the realm of consciousness should be excluded "a priori" 
 from juridical valuation. This theory contains elements 
 
 sense. Such liability, in its turn, can be divided into civil and 
 criminal. Criminal liability can only be derived from illegal acts 
 (though not from every illegal act). Civil liability results from 
 l^gal acts, as in the case of obligation "ex contractu." Some 
 authorities apply the word "liability" only to obligations arising from 
 illegal acts; but, even accepting this terminology, the logical rela- 
 tion of ideas remains, of course, unchanged. Cf. Merkel, "Ele- 
 mente der allgemeinen Rechtslehre," § 22, n. 6-7; Rocco, "La re- 
 sponsabilit^ dello Stato nel diritto processuale penale" (Turin, 1904), 
 § 5, p. 18 et seq.; Forti, "Contributi alia teorica della responsabilitcl 
 della pubblica amministrazione," in "Studi e question! di diritto 
 amministrativo" (Turin, 1906), p. 182 et seq. 
 
 " There is also a juridical valuation, when, in order to permit 
 self-defense, an act normally illegal is declared legal. Here, however, 
 as is clear, it is a question of a true juridical right which overcomes 
 an illegality, and not one of a mere removal of a penalty for an 
 illegal act, which remains illegal. The practical consequence of this 
 is that it is illegal to oppose an act of self-defense, though it is 
 legal to hinder an agent lacking mental power to know his act 
 wrong. The act in question is unpunishable in either case, but in 
 the first (self-defense) it is legal, and in the second (lack of men- 
 tality) it is illegal. Herein lies the difference. 
 
136 HUMAN ACTS [Ch.I 
 
 of truth but involves serious misconceptions which must 
 be overcome. In the first place, what are internal 
 acts? If we mean events of the spiritual order without 
 any tangency with the concrete world, that is to say, 
 an act without an objective fact, we express an idea not 
 only fantastic but self-contradictory, as we have already 
 seen." Nothing can happen except in the physical 
 world. Every act which includes a happening neces- 
 sarily implies an element of the physical order. Clearly 
 an idea, considered "per se" as a purely logical value, 
 is without any characteristic of reality and lacks all 
 physical condition. But an idea is one thing and 
 ideation is another. The latter is the process by which 
 the former is produced in consciousness and by which 
 it is developed as a physical fact.^" Ideas are acts only 
 in this latter sense; this means that not ideas "per se," 
 but only the fact of their psychological elaboration or 
 empirical gestation, properly constitute action.. This 
 fact (like all others) has empirical conditions of develop- 
 ment and all the concrete characteristics of reality. 
 There is, therefore, in this respect, no distinction between 
 mental and physical, internal and external acts. Thus 
 thought (which would furnish a typical case of internal 
 action) has an external aspect, and, as it were, a cor- 
 poreal existence as a psychological fact. It consti- 
 tutes an actual extrinsification of the being of the thinker 
 and an effective manifestation of his life. In its object 
 and content thought passes the bounds of concrete 
 existence. It is "per se" something more than concrete 
 existence. In its psychological actuality and its quality 
 of fact it has, however, an empirical nature and is 
 part of concrete reality. We find in it all the character- 
 istics which contradistinguish every other form of 
 
 " Cf . § 89, ante. 
 » Cf. § 55, ante. 
 
§94] EXTERNAL ACTS 137 
 
 activity. It is here of special importance to remember 
 that the act of thinking (like every other act) implies an 
 exercise or movement of will. To place acts of intellect 
 over against acts of will (as the classical school did) ^' 
 requires that the indestructible link between (intel- 
 lect and volition) be ignored. This link exists beyond 
 the peradventure of a doubt, as is shown by psycho- 
 logical analysis. The old theory of faculties, which 
 divides the human mind into ideation, feeling and 
 willing is, or at least should be, cast aside forever."^ 
 Hegel emphatically points this out. "One must not 
 imagine that one part of man thinks and another wills 
 and that he carries thought in one pocket and will in 
 another, for this is an idle fancy. "^' We must admit 
 that in thinking man acts, and that his will is active, 
 for psychic being is not formed of many parts mechani- 
 cally joined but constitutes a single whole, which enters 
 into every activity.^* A distinction between external 
 
 '' Cf. Rosmini, "Antropologia in servigio della scienza morale," 
 Lib. Ill, Sec. II, Cap. II, p. 350 et seq. 
 
 ^ Cf. Villa, "La Psicologia contemporanea," p. 442 et seq., where 
 can be found practically identical opinion's on this point by Hoff- 
 ding, "Psychologic in Umrissen," Sully, "The Human Mind," 
 Jodl, "Lehrbuch der Psychologie," and Baldwin, "Handbook of 
 Psychology." 
 
 ^^ Hegel, "Grundlinien der Philosophie des Rechts," § 4, p. 33. 
 We do not, however, follow Hegelian intellectualism inasmuch as it 
 conceives will as "a special kind of thought." Cf. § 92, ante. 
 
 ^* "The faculties of willing, feeling, thinking, etc., cannot properly 
 be said to be its (the spirit's) parts, for it is the same spirit that 
 enters fully in willing, fully in feeling, fully in thinking, etc." 
 Thus, Descartes, "Meditation sixieme" p. 120, ed. Charpentier (Paris, 
 1844), with the object of showing that spirit unlike the body, is 
 indivisible. This doctrine of the indivisibility of spirit must logically 
 lead to a belief in the unity of psychic life. And yet the superla- 
 tively intellectualistic character of Descartes' psychology prevents 
 such a conclusion. For, with its conception of spirit as a "res 
 cogitans" ("chose qui pense") it cannot reduce all psychic functions 
 
138 HUMAN ACTS [ Ch. I 
 
 and internal action has been based on the fact that some 
 acts immediately affect the senses, while others escape 
 unnoticed. The latter are, in general, the intellectual 
 acts and those which are called "acts of internal will" 
 (purgpses). These are thought to be excluded by their 
 nature from the realm of law. "Cogitationis poenam 
 nemo patitur."^^ Some jurists, not satisfied with 
 this differentiation, deny absolutely that there are 
 internal acts.^^ They exclude them by definition as 
 lacking physical exteriority.^' Practically all are of 
 this opinion who believe that acts are the effect of 
 antecedent psychic activities, for it is clear that in 
 such a doctrine psychic activity (the formation of a 
 proposition) is not an act.^^ To demonstrate the error 
 of this belief, we will repeat some conclusions which we 
 have already stated. Acts cannot be separated from 
 their psychic elements or factors, but must contain them 
 as essential parts. The psychic element is the subjective 
 part of activity. It is a quality of action. It is not an 
 antecedent fact. When a psychic fact (ideation, purpose 
 
 to such a concept. Cf. "Meditation deuxieme,"p. 72 et seq., "Medi- 
 tation troisieme," p. 79 et seq. One result of such extreme intellec- 
 tualism, which prevented Descartes recognizing the unity of psychic 
 life, was the absolute separation of corporal facts from those of the 
 mind. Cf., on this point, his treatise, "Les passions de Time," 
 1st part, § 16 et passim. 
 
 2= Ulpian, Dig. 48. 19. 18. 
 
 ^ For example, Austin, who at first followed Bentham's ("Prin- 
 ciples of Morals and Legislation," p. 70) distinction of internal and 
 external acts, later modified his teachings and wiped out the class 
 of internal acts, for he came to the conclusion that it was not proper 
 to consider mental facts as acts. "Lectures on Jurisprudence, or the 
 Philosophy of Positive Law," 4th ed., p. 433; 6th ed. (London, 1885), 
 Vol. I, Lect. XIX, p. 420 (cf. p. 365 et seq.). 
 
 >" This restriction is the exact counterpart of the one applied to 
 acts, on the ground that they lack the psychic element. Cf . § 92, ante. 
 
 28 Cf. Stmrt Mill, "A System of Logic," Vol. I, p. 59. 
 
§94] EXTERNAL ACTS 139 
 
 or deliberation) has an existence distinct in time, 
 that is to say, it precedes the eventual execution, which 
 may be expected, then it necessarily attains for itself a 
 correspondence in the concrete life of the agent. It then 
 is an actual explication of energy and has a physical 
 side. It then fully satisfies the definition of an act.^* 
 
 § 95. Non- Applicability of the Juridical Criterion 
 Because of a Deficiency of the Physical Coefficient. As 
 we therefore cannot admit an absolute division, let us 
 see if a minimum of perceptibility in certain acts which 
 normally do not affect the senses constitutes a lack so 
 fundamental as to eliminate them from the field of law. 
 This question, it seems to us, should be answered in the 
 negative for many reasons. The thesis that the activity 
 of thought is impenetrable or unknowable by nature is 
 not well founded. It can remain concealed more easily 
 than any other form of activity, but it is not necessarily 
 secret. It is revealed and recognized in many ways, 
 also without words, even when an effort at concealment 
 is made. The fact that thought is secret is a mere acci- 
 
 ^ It is worth our while to note that the contrary opinion, upheld 
 by Austin (vide note 26, p. 138, ante), is denied by Campbell, who 
 writes, "It is difficult to see why 'cogito' should not be classed as 
 an act, just as 'curro' or 'haurio.' There seems to be no generic 
 difference between the act of taking up a book to banish an impor- 
 tunate thought and the process of entering (without external aid) 
 upon some mental exercise (e.g., a problem in geometry) for the 
 same purpose." "Lectures on Jurisprudence, or the Philosophy of 
 Positive Law," 4th ed., Lect. XVIII, p. 427, n. 21. Campbell 
 further shows that Austin, in excluding psychic facts from the con- 
 cept of action, is inconsistent. "The author elsewhere (p. 469), 
 implicitly recognizes meditation as an act: further (p. 470), while 
 he regards the conviction produced by evidence as a case of physical 
 compulsion, he recognizes that non-belief may be blamable if the 
 result of insufficient examination, refusal to examine, etc. The 
 process of examination is therefore the object of a duty, and hence, 
 according to his own analysis, it is an act. (Pp. 350, 378, 406.) 
 
140 HUMAN ACTS [Ch.I 
 
 dent, not an essential characteristic. Now, it is axio- 
 matic that other acts (even external) can remain hidden 
 without affecting, in any way, their juridical quality. 
 Whenever a juridical character is attributed to an act, 
 it is based on the act being known. Thus, when it is 
 said that an act of thought is not punishable, reference 
 is had manifestly to a known act of thought, for other- 
 wise the statement is senseless.'" Psychic acts, there- 
 fore, cannot be differentiated on the ground that they 
 are unknowable, but only because even when known 
 they are not generally punishable at law. Does this 
 fact show their indifference or non-existence in the eyes 
 of the law? This is the crux, but the explanation 
 cannot be doubted. As we have already said, punish- 
 ment is only a particular result which in certain cases 
 follows a prohibition.'' As thoughts are generally not 
 forbidden, they are not generally punishable. What 
 is not forbidden constitutes the legally permissible. 
 Thoughts, therefore, represent a branch of the legally 
 permissible; an activity in conformity to law, not 
 something foreign or indifferent to it. This is not an 
 idle or foolish distinction. It involves consequences of 
 the greatest importance. If the statement of the 
 indifference of law to internal acts is accepted, it is 
 not possible to conceive freedom of thought as a right,''' 
 
 ^"Grotius stated this in substance, "Actus mere interne, etiamsi 
 casu aliquo, puta per confessionem subsecutam, ad nolitiam aliorum 
 perveniant, puniri ab hominibus non possunt." "De Jure Belli ac 
 Pacis,'' Lib. II, Cap. XX, § 18. Cf. Roguin, "La regie de droit" 
 (Lausanne, 1889), p. 44. — If the maxim "cogitationis poenam nemo 
 patitur" refers to secret thoughts it is absurd, because not thought 
 alone, but every act whatsoever, is unpunishable as long as it is 
 hidden. 
 
 " Cf. § 93, ad fin., ante. 
 
 '2 We must recognize, however, that Fichte, after making an 
 absolute distinction between external and internal acts and limiting 
 
§95] NON-APPLICABILITY 141 
 
 while it is treated "^as such by positive law which 
 recognizes and protects it. Thus, especially in past 
 ages, the limitations imposed upon freedom of thought 
 (particularly in the punishment of certain religious 
 beliefs) prove in the clearest, way that, insofar as it is 
 allowed, it is not disregarded by law but has a true and 
 proper juridical significance. - The statement, therefore, 
 that law does not notice psychic acts is untrue. Neither 
 can it be corrected by merely adding that law takes 
 psychic acts into account only in their extrinsification. 
 That is true in general, and we will consider the reason 
 for it later, but it does not touch the point in question. 
 Though law, when considering acts, moves from the 
 physical, yet it touches the psychic side. This is enough 
 to disprove the above statement. If an act is not "per 
 se" apparent, it will have some ultimate manifestation 
 which may even be a distinct act- — as the "confessio sub- 
 secuta" of Grotius — by which it will enter the concrete 
 world for juridical valuation. But this valuation really 
 refers to the first act and not to its subsequent mani- 
 festation, which in such a case is only a means of ascer- 
 taining the former .'' A juridical judgment can be, and 
 
 the applicability of law to the former, was logical in his deduction 
 that there was no right to freedom' of thought. "The scope of law 
 includes only what lies in the exterior world; what is not the result 
 of causality but lies in the interior spirit is governed by other norms — 
 those of morals. Law, therefore, has nothing to do with freedom 
 of thought, conscience, etc. For these internal acts there are rules 
 and norms, but they are not those of law." "Grundlage des Natur- 
 rechts" (Jena, 1796), pp. 63-64. He is logical, we repeat, in 
 respect to his premise, which, however, is bad. Others are guilty 
 of a different error, in admitting a right to freedom of thought while 
 denying the applicabililiy of law to internal acts. 
 
 '^ And yet, inasmuch as the manifestation of a thought con- 
 stitutes a separate and independent act, it too can be the object of 
 a juridical valuation. Thus, the right of freedom of thought is not 
 the same as the right to free expression of thought. The latter, 
 
142 HUMAN ACTS [Ch. I 
 
 ustially is, based on physical data, but its object is always 
 an act, that is, a fact whose psychic element must be 
 taken into consideration. Those who exclude internal 
 acts from the realm of law, to be consistent, should 
 disregard motive and intent in external action. In 
 fact, explicit affirmations of this have been made.'* But 
 this is contrary to historical usage and rational analysis. 
 Law can never be unaffected by the "animus" or psychic 
 element of an act. Its importance is shown in every 
 
 historically distinct from the former, was more limited and 
 restricted. Furthermore, its various forms were differentiated 
 according to the different methods of expression (whence, censorship, 
 special laws governing freedom of speech, etc.). The distinction 
 between the right of freedom of thought and that of the free expres- 
 sion of thought naturally loses importance as the latter right is con- 
 stantly more broadly construed until it approximates the former. 
 This does not destroy the distinction in question, however, which can 
 be seen whenever one act constitutes the revelation of a prior psychic 
 act. In such a case, there is material for two distinct judgments or 
 juridical valuations, one of the act of revelation and one of the act 
 which it reveals. These two judgments are not necessarily similar. 
 The thought may be licit, while its manifestation may be illegal. The 
 contrary can also be true; for example, the confession of certain 
 belief or criminal plan is legally enforceable, and such thoughts are 
 prohibited, but their confession or revelation is a legal necessity. 
 
 '^ For example, Kant does not merely state that juridical duties 
 are those in whose regard external legislation is possible ("fiir 
 welche eine aussere Gesetzgebung moglich ist"), "Met. Anfangs. d. 
 Rechtslehre" p. xlvii, that is, such as can be controlled from 
 without. (For this interpretation, see Fricker, "Zu Kants Rechts- 
 philosophie" (Leipsic, 1885), p. 9 et seq.) But he holds that legis- 
 lation has for its object only the externality of acts ("das Recht 
 liberhaupt nur das zum Objecte hat, was in Handlungen ausserlich 
 ist") id., p. xxxvi. This is a very different thing, and means that 
 the psychic element has no legal value. In this Kant goes further 
 than Thomasius, who made a more moderate distinction between law 
 and morals; ("Fund. Jur. Nat. et Gent.," Lib. I, Cap. IV, §§ 74r-77, 
 87-91). Indeed, the Kantian theory of the legal sphere seems too 
 essentially external and is juridically wrong. 
 
§95] NON-APPLICABILITY 143 
 
 branch of law. The weight given to intent in contract, 
 and to the psychic state in the determination and imposi- 
 tion of criminal penalties and the distinction of bona fide 
 purchasers from others are examples of this. Further- 
 more, increased attention to psychic factors is char- 
 acteristic of juristic progress. As law is based on 
 and interpenetrates life, it cannot disregard any of 
 its essential elements, and in weighing human acts 
 should not disregard the spirit which effects them. 
 The supposed limitation of law to the exteriority of 
 action is a preconception of some philosophers, but 
 is not in accord with the true or actual state of law, and 
 is no longer credited or applied by jurists. Even those 
 who in general statements lend credence to it, and seem 
 to recognize a division of acts into external and internal, 
 and the restriction of law to the former, are found 
 on closer examination to withdraw from the position.'^ 
 , Schopenhauer says that an error is not entirely 
 overcome until its source is shown. We must apply his 
 theory especially here where the error is widespread and 
 often treated as a fundamental truth. The followers of 
 natural law have a definite practical object in view in 
 holding that law does not regard psychic acts, or, in 
 general, the interiority of action. It is to prevent the 
 State's exercise of 'coercion over intimate individual 
 beliefs and to insure that sphere of liberty which until 
 now has been threatened by religious persecution. They 
 would guarantee the inviolability of thought by showing 
 that it is the absolute and distinctive property of every 
 man of which he is in exclusive possession by nat- 
 
 ^ For example, Green at first states the principle that "nothing 
 but external acts can be matter of obligation," but afterwards, upon 
 deeper study, he is convinced that "much besides external action is 
 involved in legal obligation." "Lectures on the Principles of Political 
 Obligation," pp. 34 and 35. 
 
lU HUMAN ACTS [Ch.I 
 
 ural right. This was the historical meaning of the 
 doctrine, which, therefore, had a political side.'^ And 
 with this r&ume in mind, it is easy to see the origin 
 of the equivocation, until recently so widespread, con- 
 cerning the limits of the applicability of law. Its 
 original meaning was not that the activity of thought 
 was irrelevant or non-existent in the eyes of the law, 
 but merely that it was not legally punishable. It meant 
 only the legal recognition of freedom of thought as a 
 private right. The whole dispute, therefore, was within 
 the field of law. There was no discussion as to whether 
 freedom of thought entered the juridical sphere or not, 
 but only whether it was legal or illegal. It is unfor- 
 tunate that the question was put as if it were a problem 
 of separating law and morals in the abstract, while 
 in fact it was only one of modifying the content of 
 positive law in order to give citizens legal freedom.^ 
 TThus, an express legislative declaration of the freedom 
 of thought was not necessary (it would have been diffi- 
 cult of attainment at the time it was needed), and the 
 State's implied recognition of it by a cessation of perse- 
 cution served the same purpose. The vindication of a 
 right assumed in this case the form of a limitation of 
 law. This conception, which, in supposing a right 
 without a controlling norm, is contrary to the most ele- 
 mentary juridical logic, could easily give rise to the 
 opinion that the ap^HcabiHty of law could be judged 
 from the sphere of its penalties,'^ as well as the other 
 mistaken beliefs about the nature of law and its rela- 
 tion to morals, of which we have already spoken. In 
 
 '" Vide Spinoza, "TractatusTheologico-Politicus," Cap. XX, which 
 is of capital importance here. 
 
 ^ That legislation can exert a direct influence upon human action 
 only through penalties is Bentham's notion, "Principles of Morals 
 and Legislation," Cap. XII (ed. Dumont, vol. I, p. 37). 
 
§ 95 ] NON-APPLICABILITY 143 
 
 substance, a demand of natural law or a juridical ideal 
 of determinate content became a basis of legal theory. 
 The equivocation lies in the proposition that law cannot 
 invade psychic life and is by its nature indiiferent to 
 developments within the consciousness^ A concrete pos- 
 tulate of justice and a deontological necessity (that the 
 State should not limit freedom of conscience) are 
 meant by this statement, but it is ambiguous and 
 seems to indicate a logical necessity, a characteristic 
 and essential part of legal theory, and as such has been 
 introduced into the definition of law. tThe belief grew 
 that the distinction between morals and law could be 
 made on grounds of punibility, which, however, is only 
 a sign of the distinction between right and wrong. In 
 restricting in one particular the connotation of crime, 
 the whole field of law was thought to be restrictedJ 
 The truth of this can be seen at a glance. If law was 
 so limited by its nature that it could not penetrate the 
 mind, if internal motives of the spirit were, as was 
 claimed, beyond juridical consideration, why did Kant 
 and Thomasius, to say nothing of the others, so care- 
 fully work out and so bitterly uphold their political 
 doctrines in this regard? Why should they have been 
 forced to place a rational limit on the prohibitive powers 
 of the State to respect and protect freedom of con- 
 science, if it were not possible to attack this right by 
 statute? It is clear that on such an hypothesis freedom 
 of conscience would have no need of defence against the 
 State, and the struggles throughout centuries for such 
 a right, as well as the philosophical theories which 
 sprang from them, would have been meaningless. The 
 truth is that these doctrines were not so strenuously 
 advanced and championed because they stated a new 
 proposition, but in order to obtain positive recognition 
 of an old and well-founded juridical principle (of natural 
 
T^ 
 
 146 HUMAN ACTS [Ch.I 
 
 law). No point of differentiation in the logic of law 
 was shown. ^Psychic facts and the psychic element in 
 acts have been, and will continue to be, the object of 
 juridical consideration, although, as we have said, only 
 when shown in action. The reform sought and won lay 
 in substituting one juridical value for another ; in exchang- 
 ing an illegal for a legal qualification. It in no way 
 went beyond the sphere of law. In conclusion, we 
 refute the opinion that law has a more restricted sphere 
 of application than morals ^* or is in any wise limited 
 to a single part of action. It may be admitted that 
 many acts are juridically possible, that is, permitted 
 by law, which are forbidden by morals, without affect- 
 ing the agreement since this does not show that such 
 acts are not regarded by law. Thus the simplest law 
 implies a right to respect and protection^ This is why 
 a juridical valuation is possible and of practical effect 
 even in those cases where it results in no concrete 
 obligation or prohibition. This is the case with psychic 
 activity in general, and the so-called internal acts. 
 Thus, there can be no limitation of the applicability 
 of law to human acts on the ground of a "minimum" of 
 the psychic factor and we must recognize the possi- 
 bility of a juridical valuation of every act. 
 
 ^ Bentham expressed this belief concisely when he said that 
 morals and law had the same centre but not the same circumference. 
 "Principles of Morals and Legislation," Cap. XII. 
 
§ 96 1 DIFFERENCES 147 
 
 CHAPTER II 
 NATURE OF THE JURIDICAL CRITERION 
 
 LAW IS EXTERNAL. — LAW IS VALUATIVE. — LAW IS 
 BILATERAL. — JURIDICAL AND NATURAL LAW. — LAW 
 IS NOT FORCE ALONE. — MORALS AND LAW. 
 
 § 96. Differences between Legal and Moral Criteria. 
 In the first chapter we have shown the general char- 
 acter of the juridical criterion, namely its applicability 
 to all acts. In this particular, law does not differ from 
 morals; the difference, as we shall discover, lies more 
 in the point of view than in the object. 
 
 § 97. The Juridical Criterion Must Lie in Variable 
 Qualities. Let us take as proven the principle that the 
 juridical criterion is applicable to all acts, and that the 
 determination of justice or the separation of the just 
 from the unjust is always possible. It follows as a 
 corollary that the criterion must furnish a means of 
 distinction between acts. It cannot, therefore, be any 
 component of the concept of action. In other words, 
 a quality common to all acts cannot logically form the 
 basis of juridical judgment. Force, for example, is 
 such an element which, as a condition of every phe- 
 nomenon, is found necessarily in every act. 
 i § 98. Juridical Value. By its purely formal property, 
 the concept of law belongs to the category of values. 
 Conformity to law means something different from 
 physical or potential physical existence. It is supra- 
 existential. The specific function of law is the separa- 
 tion of one act from another. The simple physical fact 
 or possibility of existence, being common to both the 
 
148 THE JURIDICAL CRITERION [Ch.II 
 
 just and the unjust, is not such a distinctive or differen- 
 tial factor as can be the basis of any juridical proposi- 
 tion, for a judgment of what is just should constitute 
 a rational principle for the gradation of facts. If a 
 given act is accomplished, its physical possibility alone 
 is proven. The question of its legality or juridical possi- 
 bility is undetermined. That facts are logically subor- 
 dinate to law means that a judgment of what is just is 
 necessarily one of value, synthetic and not analytic in 
 respect to empirical cognition of the reality. Law does 
 not depend upon application to or connection with the 
 phenomenal order. Law has a logical existence even 
 when it is transgressed and its ideal nature is thrown 
 into greater reUef by the physical fact of infringement, 
 because the violence opposed to it does not destroy .1!^ 
 ~ § 99. Laws of Nature and Juridical Law. From 
 what has been said we can see how the meaning of the 
 word "law" varies with the object of its application. 
 Natural laws, as syntheses of the realities of experi- 
 ence, must conform to fact. If a fact breaks a natural 
 law, the law has no value and, for that matter, cannot 
 be law. Juridical law, on the other hand, is a model 
 to be followed. It does not get its truth from phe- 
 nomena, but tends to import it into them by realization 
 through the will of an agent. If it is empirically broken, 
 it does not cease to be of value in its own sphere and 
 to act as a principle of practical reason.* Its truth 
 
 ' Vide Rosmini on this point,i'When a man's rights are oppressed 
 by brute force, then he is looked upon with extraordinary interest 
 by his fellows, his rights appear to burn with unwonted brilliance, 
 and to triumph because they escape the action of violence, as if 
 they were immortal and beyond all material power, which cannot 
 touch them, but is excluded from the lofty and spiritual sphere 
 Where law reigns.";: "Filosofia del diritto," Vol. I, p. 126. 
 
 ^Brini writes, '"If a putative law of nature is broken, it is no 
 law, for we recognize and know laws of nature only in reality: 
 
J 991 LAWS OF NATURE 149 
 
 can be impinged by another law but never by a fact, 
 which as such is subordinate, even if it infringes or vio- 
 lates the law.^ 
 
 t § 100. Juridical Law. Thus it is that the possibility 
 of transgression is a presumption and mark of juridical 
 law. The logical function of law is, as we shall see, the 
 establishment of a distinction between possible alter- 
 native acts, permitting some and forbidding others. 
 This is a proof that, while in the natural order, law is 
 essentially non-infringible and cannot be conceived of 
 as possible of violation, the idea of violability or of 
 wrong is an integral part of juridical lawjf 
 
 § 101. Right and Wrong. The correlation of the 
 two opposite extremes has long been noted and has 
 led many to believe that the idea of right was posterior 
 and subordinate to that of wrong. Chrysippus wrote: 
 "Quo enim pacto justitiae sensus esse posset nisi essent 
 injurise? Aut, quid aliud justitia est quam injus- 
 titiae privatio?"' Grotius defined right in a similarly 
 negative way.* But Schopenhauer has insisted more 
 than any other authority upon this point of view, hold- 
 ing that the concept of wrong is original and positive, 
 while that of right is derivative and negative.* Yet this 
 is going too far, and leads to the conversion of an 
 undeniable truth into a paralogism. It is true that right 
 
 a legal rule can be infringed, and it remains law notwithstanding 
 all illegality. It may be realized, but its quality of law does not He 
 in realization. It is as essentially ideal as a law of nature is real."J 
 "Pandekten," § 18. 
 
 3 Cf. AulusGeUius, "Noctes Atticae," VI, I. 
 
 * "Jus hie nihil aliud quam quod justum est, significat, idque 
 negante magis sensu quam ajenle, ut jus sit quod injustum non est." 
 "De Jure Belli ac Pacis," Lib. I, Cap. I, § 3. 
 
 5 Vide Schopenhauer, "Die Welt als Wille und Vorstellung," 
 Buch IV, § 62; "Ueber die Grundlage der Moral," § 17; "Parerga 
 und Paralipomena," II Bd., Koeber's edition, § 122. 
 
150 THE JURIDICAL CRITERION [ Ch. II 
 
 is the absolute negation of wrong, and that there can 
 be no right except in antithesis to a possible wrong. 
 ' "Rights involve the possibility of wrong, a condition of 
 fact for which the law makes provision."" If the pos- 
 sibility of violation were eliminated, law would not 
 have (as we have seen) any real and logical function, and 
 so could not be conceived. It is true that law grows "in 
 grazia della sua violabiliti," ^ so the presence of wrong 
 is a constant stimulus to the growth of right. Juridical 
 perception grows active when rights are attacked. The 
 modifications and progr^ess of legal institutions cor- 
 respond to the disturbing influences which they meet 
 in the development of social life. ^ The life of law lies 
 
 • Puchta, "Cursus der Institutionen," § XI, 8 ed., p. 16. 
 
 ' Petrone, "Contributo all' analisi dei caratteri differenziali del 
 diritto," p. 353, n. 1. 
 
 8 On the function of wrong in the historical evolution of law, see 
 the accurate observations oiLasson, "System der Rechtsphilosophie," 
 §44. On this subject, Wallaschek writes "that men usually begin 
 the establishment of law when they can no longer depend on the 
 spontaneous occurrence of certain acts." "Studien zur Rechtsphil- 
 osophie," p. 70. This may be true in general, but it does not mean, 
 as Wallaschek thinks, that legal progress is accompanied by moral 
 regress: "Generally in the life of the State the growth of jurispru- 
 dence accompanies a decay of moral purposes, which men attempt to 
 strengthen by a corresponding development of the legal organism." 
 The progress of jurisprudence is marked by greater complexity and 
 intensity of social relations. The increase of points of contact 
 between work and man necessitates new forms of legal protection. 
 But with increased complication and intensity, social life does not 
 become less moral. The new manifestations of wrong are accom- 
 panied by an increase of laws. The latter represent the more general 
 practice, while the former are the exceptions. The historical argu- 
 ment which Wallaschek advances to sustain his thesis seems entirely 
 without foundation. "On this subject we can say that the people 
 whose morals from the beginning of their history until its highest 
 point of development were the most wicked — namely, the Romans — 
 have a full and complete jurisprudence, while the Germans with their 
 
§101] RIGHT AND WRONG 151 
 
 in a struggle against wrong, and can be understood 
 only in correlation with this antagonistic opposite, 
 which shows the resistance of social reality to the appli- 
 cation of law. But, on the other hand, it is none the 
 less true that wrong is not conceivable "per se," but 
 only in contradistinction to right. Both ideas are 
 interdependent and complementary, and suppose a 
 common base — the juridical criterion. If it is true that 
 right is merely the negation of wrong, it is likewise 
 true that the latter is in its turn the negation of the 
 former. Their antithesis implies co-ordination. °J For 
 how can we define wrong, tort, or "injuria," except by 
 recourse to right, the legal, or "jus?" "Injuria ex eo 
 dicta est, quod non jure fiat; omne enim quod non jure 
 fit, injuria fieri dicitur." So Ulpian gives the defini- 
 tion ;!" and no force of dialectics can escape this logical 
 necessity, which forbids the antecedence of the idea of 
 wrong to that of right, because this would imply, in the 
 last analysis, the infringement of a right which does not 
 exist. - Historically, we generally find that the fact of the 
 violation is anterior to the law governing right, but 
 this violation has no juridical significance, and can never 
 constitute a wrong, tort or "injuria," except when a 
 definition is accepted, which applies to the correspond- 
 ing right.^' The disturbance of a state of fact can be 
 
 high morals are lacking in juristic law." (Loc. cit.) But even 
 admitting (what does not seem to us admissible) that the Romans 
 always have been greatly inferior to the Germans in morals, still it is 
 ridiculous to attribute the Roman superiority in law to the alleged 
 moral inferiority. 
 
 ' Read Fichte's profound demonstration of this logical principle 
 in general in "Wissenschaftslehre," and cf. Schwegler in "Geschichte 
 der Philosophie," p. 367. 
 
 10 Dig. 47. 10. 1. pr. 
 
 u The origin of Schopenhauer's error lies in the ambiguity in the 
 concept of infringement (Verletzung), vide n. 5 p. 149, ante, and cf. 
 RUmelin, "Eine Definition des Rechts," p. 330. 
 
152 THE JURIDICAL CRITERION [Ch.II 
 
 the first movement toward the determination of a 
 hitherto unrecognized right. But only at the moment 
 that such a determination is given, the disturbance 
 becomes a wrong. J So the invasion of another's sphere of 
 personality (which according to Schopenhauer constitutes 
 the positive idea of wrong prior to that of right) is a 
 violation in a juridical sense only when the sphere 
 itself has been conceived and determined as a right. '^ 
 - It is absurd to speak of the precedence of ideas, which 
 are correlative by nature. The determination of right 
 and wrong are simultaneous, inasmuch as they form 
 logically one thing.4 
 
 " § 102. Positive Law is a Fad. When the insepara- 
 bility of the ideas of right and wrong is accepted (the 
 latter being but the physical violation of the former), 
 it is evident that fact has not for itself an absolute jurid- 
 ical value. The way is thus open for an important 
 statement. Positive law as the expression of existing 
 rights is a fact. The establishment of juridical norms, 
 in customs or as statutes, is an act of man. Hence it is 
 that positive law is subject to a juridical criterion, or, to 
 be more exact, to reason. It is always possible to form a 
 judgment on positive law analogous to that which law 
 forms on any act. Actual norms are not necessarily just. 
 
 12 On this score we can observe that even the Roman maxim, 
 "neminem laedere," implies a criterion which it does not give and 
 which should determine where a wrong toward another begins. Only 
 with this determination made does the maxim acquire a true 
 juridical meaning; then, however, it places also a positive limit on 
 rights ("qui jure suo utitur neminem tedit") and thus has an affirma- 
 tive as well as a negative value. A somewhat similar observation 
 can be made of another legal principle, "suum cuique tribuere," 
 for this is mere tautology and not a juridical proposition until the 
 "suum" is determined. Read the minute criticism of this and 
 other tautological moral principles by Simmel in "Einleitung in die 
 Moralwissenschaft," I Bd., p. 50 et seq. 
 
§102] POSITIVE LAW IS A FACT 153 
 
 The question of their justice is open, for they are not 
 absolutely justified by their mere existence. The juridical 
 criterion, therefore, is not empirical; '' the requirement 
 of justice remains superior to positive law. Its 
 necessity — not positive — is natural and logical, i 
 I> § 103. Positive Law. The distinctive mark of posi- 
 tive legal determinations is the fact that they are fol- 
 lowed in practice and are generally observed and obeyed. 
 The weight given them in reality constitutes their posi- 
 tivity. In a given case there cannot be discordant 
 legal principles. The same facts cannot conform to 
 more than one legal principle. Positive law, therefore, 
 naturally works into a system, and forms a coherent 
 unit which does not admit of contradictory elements. 
 Any principle which does not conform to it is "de 
 facto" excluded from it, that is, does not exist as posi- 
 tive law. Of this result there can be no doubt, but 
 does it change the logical nature of the principle?! Is a 
 juridical maxim, when not actualized, less juridical? 
 Whoever entertains this belief, and states that law has 
 only positive existence, is guilty of a serious error, trans- 
 ferring the laws of physical existence into the order of 
 ideas. In phenomenal reality (let us repeat) only one 
 of two discordant juridical principles can be applied, 
 but in logic such incompatibility does not exist and both 
 principles preserve their own being and definite signifi- 
 cance, independent of their phenomenal consequences, 
 t Actualization, which is phenomenal, does not touch or 
 alter the logical substance of an idea; wherefore, also 
 an unactualized principle is juridical by nature if it is 
 declarative of a criterion of action, which marks in some 
 manner a distinction between right and wrong..^ 
 
 " Cf. Filomusi-Guelfi, "Del concetto del diritto naturale,'' p. 39 
 et seq.; "Enciclopedia giuridica," 1905, §15; Carle, "La vita del 
 djritto," p. xli; "LaFilosofia," § 135. 
 
154 THE JURIDICAL CRITERION [Ch. II 
 
 ' § 104. Present Day Genesis of Positive Law. Con- 
 sidering things objectively, it is evident that by the 
 side of positive legal valuations there are others entirely 
 analogous in individual consciousnesses. To deny this 
 is to restrict deliberately the consideration to a single 
 moment in the life of law (which is particularly rep- 
 rehensible in a school making pretense to realism) i-^ 
 It would be erroneous, too, to suppose that mental juridi- 
 cal determinations are mere fancies, unconnected and 
 without influence on the determination of law. The 
 truth is that there are deep, multiplicate, and permanent 
 relations between them. iThe forrnulse of positive law 
 are rooted in the juridical precepts of individual minds, 
 and constitute a certain synthesis or medial even if 
 inadequate expression of those precepts."^^ The part 
 which propositions in the individual consciousnesses 
 play in the positive or empirical genesis of law is shown 
 clearly by the manner in which historical changes take 
 place. They are generally preceded or determined by a 
 similar change in juridical beliefs. These beliefs become 
 positive as soon as they have reached a certain degree 
 of social weight so that they are enforced by the dom- 
 inant power. But they do not arise at that moment. 
 They were affirmed long before and have come to their 
 position by a series of spontaneous and almost imper- 
 ceptible steps. Sometimes a juridical proposition, upheld 
 only by a few men, must long lie dormant and overcome 
 powerful obstacles before taking its place in positive 
 law. In this case, too, juridical thought is clearly anterior 
 to its concrete actualization.^" ^Whoever, therefore, con- 
 siders the juridical testimony of the mind as an imitative 
 repetition or reverberation of norms positively actualized, 
 inverts the real sequence. Above all, we must remember 
 
 " Read, on this point, Del Vecchio, "II sentimento giuridico," 
 p. 12 et seq. (2d ed., p. 16 et seq.) 
 
§104] PRESENT DAY GENESIS 155 
 
 that the reform of legal institutions (and their develop- 
 ment likewise) would not be possible unless the human 
 mind had the faculty of determining rules of justice 
 independent of and prior to them and even, if occasion 
 arises, contrary to them.J This jurisdiction, which 
 judgment exercises autonomously over objects already 
 treated by positive law, and even over positive law itself, 
 is a continuing proof of the principle which we have 
 upheld in another way, that is, that law by its nature is 
 superior to fact, forming in respect to the latter a 
 criterion of ideal valuationJJ 
 
 t § 105. Law is not Force Alone. Our observations 
 hitherto show the logical vice of the theories which 
 hold that right is might. This equation has' been often 
 and variously stated. Plato and the Sophist, Thrasi- 
 machus,'^ enunciated it. Hobbes and Spinoza described 
 (as everyone knows) a state of nature in which right 
 was limiteci only by physical strength. But their 
 object was to show that the concept of law has no true 
 application save in a state of society, and that out of it 
 there can be no difference between the just and unjust. 
 So even their doctrines, based on this fundamental 
 denial, really prove our claim, that law can only be 
 thought of as a logical differentiation of force."* The 
 
 16 In the first book of the "Republic," p. 338 et seq. "I state 
 justice is nothing else than what is pleasing to the strongest." 
 Callicles held a similar theory in "Gorgias." Cf. the comparative 
 and critical analysis by Petrone in "Le nuove forme dello scetti- 
 cismo morale e del materialismo giuridico," p. 131 et seq. 
 
 " Hobbes (vide especially "De Give," Cap. I, § lOet seq.) after stat- 
 ing that "Natura dedit unicuique jus in omnia," outlines in detail 
 the consequences of this thesis, writing: "effectuseius juris idem pene 
 est ac si nullum omnino jus exstiterit.'' "Injustitia erga homines 
 supponit leges humanas, quales in statu naturae nullae sunt." An 
 analagous observation can be made in regard to the doctrine of 
 Spinoza. Vide, especially, "Tract. Theol. Polit.," Gap. XVI and 
 
156 THE JURIDICAL CRITERION [Ch.II 
 
 alleged "right of might" has, moreover, been the object 
 of much debate." Some authorities combat it by 
 recourse to good sense and general knowledge. '^ But 
 they, like nearly all the rest, base their denial on some 
 moral thesis." Romagnosi is the author of a criticism 
 chiefly founded in logical 'By its categorical nature, 
 
 "Tractatus Politicus," Cap. II. In accordance with the pantheistic 
 character of this system, Spinoza states in principle, "Naturam abso- 
 lute consideratam jus summum habere ad omnia quae potest," and 
 deduces therefrom that men have rights commensurate with their 
 physical power, "quamdiu sub imperio solius naturae vivere con- 
 siderantur." The distinction between the just and unjust can 
 exist only in our reason and not in the eternal order of nature. 
 Such a distinction would be effectively produced only since men, 
 constituting society, agree together to restrain certain appetites and 
 direct their own acts "ex solo rationis dictamine." And Spinoza 
 concludes that only in a state of society can an act be held wrong, 
 "injuria non nisi in statu civili potest concipi." This shows that 
 Spinoza thought that right was relative to human and not to natural 
 laws; wherefore the "summum jus" proclaimed in respect to the 
 order of nature has no real significance and is equivalent to an abso- 
 lute lack of rights. 
 
 " For the diverse meaning of this formula, see Lasson, "System 
 der Rechtsphilosophie," p. 229 et seq. 
 
 " Vide, for example, Rosmini, "Filosofia del diritto," Vol. I, p. 126. 
 "Common sense teaches and may always teach that law is some- 
 thing different from force; thus this same common sense is apt 
 to distinguish between might and right." Trendelenburg, "Natur- 
 recht," p. 11. "Simple force can never be law. The right of 
 might is contrary to universal belief." 
 
 "See Rosmini, "Filosofia del diritto," p. 89. "Force shows only 
 necessity; law and duty comprehend free-will, which is alternative." 
 Trendelenburg, "Naturrecht," p. 10. "This belief makes law subser- 
 vient to the will of the strongest, and thus it was a constant incen- 
 tive to war and motive for wrongdoing." 
 
 " In his "Assunto primo della scienza del diritto naturale," 
 § XIX, Romagnosi is precise in sayingJl"The idea of law implies 
 conformity to the moral order of reason. On the contrary, not only 
 just but unjust acts enter the sphere of the so-called law of might, 
 which has no regard for norm, law or regulation. The predication 
 
§105] LAW NOT FORCE ALONE 157 
 
 the thesis we have just advanced governs those theories 
 too, which consider law as the immediate effect 
 or result of the pjay of sociaj forces.^^ Social forces 
 are thought by many authorities to be entirely eco- 
 nomic. They would base juridical institutions, "not on 
 the so-called general development of the human mind, 
 but on the material relations of life."^^ Yet even 
 admitting that law enters the concrete world as the 
 expression of the will of the dominant force or a trans- 
 formation of physical power, still the principle remains 
 secure that a true juridical criterion cannot be sub- 
 jected to every expression of force so that every pos- 
 sible act appears just. If it were so, it would have no 
 logical function and would not be a juridical criterion. 
 We cannot agree, therefore, with Ihering's statement that 
 the belief in the distinction of right from force in early 
 law is an error caused by the illusory projection of modern 
 ideas into the past. If it is true, as Ihering says, that 
 
 of law, which essentially includes a controlled force and excludes 
 by definition all violence, is opposed to the arbitrary use of force. 
 The law of the strongest is, therefore, both morally absurd and a 
 contradiction in terms. 'VS Rousseau states the same convictions in 
 "Du contrat social," Lib. I, Cap. Ill, .'Force is a physical power; 
 but I do not see how morality can be affected by it. To bow to 
 force is an act of necessity, not of will. It may even be an act of 
 prudence. In what sense can it be a duty? If obedience is not 
 forced, there is no obligation to obey. It is clear that this word 
 law adds nothing to force; it means here nothing at all."4 
 
 2' In this regard, see the theories of Gumplowicz, Lingg, Strieker, 
 etc., who, though differing among themselves, all sound a material- 
 istic note. Vide also. Carle's critical consideration of this concep- 
 tion, "La Filosofia del diritto" p. 75 et seq. 
 
 22 Cf. Preface, "Zur Kritik der politischen CEkonomie" by Karl 
 Marx. Here, we can say, is epitomized the programme of the school 
 of historical materialism or economic determinism. For a criti9ism of 
 thisconcept, see Petrone, "UnnuovosaggiosuUaconcezione material- 
 istica della storia," in the"Rivista internazionale di scienze sociali," 
 Vol. XI, 1896, pp. 551-560. 
 
158 THE JURIDICAL CRITERION [Ch. II 
 
 the ethical position of law in the world of to-day is 
 "the final result of a long process of evolution, and 
 does not represent its beginning" ;^^ if, in fact, it is proved 
 that violence played a large part in the development 
 of law in the ancient world, still it is true that, in so far 
 as the use of force was considered legitimate, it was 
 recognized as conforming to a principle to which it 
 was always logically subordinate and from which it got 
 its juridical value.^* ^ If we suppose a condition of facts, 
 in which violence is accepted "per se," independent of 
 any correlation to a criterion, on such a hypothesis it 
 would in no sense be a law. Thus, there is another 
 confirmation of the fact that the judgment of what is 
 just must be a principle distinct and superior to that 
 which determines physical possibility. Conformity to 
 law is a metempirical quality conferred upon an act by its 
 participation in a system of values. :* 
 •^ § 106. Ethics. To define specifically this quality, 
 that is, the proper meaning of juridical values, we 
 must first consider practical values in general. In other 
 words, we should have as a basis an ethical principle, to 
 which we can refer all values and norms of action. 
 Such a principle is objectified in reality in a multitude 
 
 " See Ihering, "Der Zweck im Recht," 1 Bd., p. 247. The fre- 
 quency of such illusions cannot be denied. It was noticed by Vice. 
 More recently it has been insisted upon by Maine in his "Disserta- 
 tions on Early Law and Primitive Custom," and "Ancient Law." 
 But we may point out the possibility and even frequency of the 
 converse error, which treats that as accidental and relative to par- 
 ticular existent circumstances, which, by logical necessity and the 
 nature of things, is in some way eternal. 
 
 ^ Even Ihering finally admits this in his description of the way 
 in which law is born of force:'"Force sets for herself a limit which 
 she respects, she recognizes a norm to which she will conform, and 
 this self established norm is law." -- "Der Zweck im Recht," p. 245. 
 Ci.Stintzing, "Machtund Recht" (Bonn, 1876); Merkel, "Recht und 
 Macht," in "Gesammelte Abhandlungen," I Halfte, pp. 400-428. 
 
§ 106 ] ETHICS 159 
 
 of particular determinations, whose sum is a system of 
 regulations. Every system has, however, an internal 
 coherence which shows the unity of its fundamental 
 principle. This unity is a "sine qua non" of any 
 research whose object is to make clear the distinctions 
 and relations iamong the various categories composing 
 the system. Under any ethical system whatsoever 
 which contains a universal standard of action, there is 
 always a double order of judgments and values, because 
 acts can be considered from two points of view. In the 
 first place, given an ethical principle, there always arises 
 a distinction between the various acts which every man 
 can do. Among the various subjective possibilities 
 which are to be weighed, one alone will be found con- 
 forming to the principle, and all others must be con- 
 trary to it, as they will be found incompatible with the 
 one.-3 At any given instant, an agent's conduct ^^ should 
 tend to the fulfillment of the act determined to be 
 necessary and to the omission of those incompatible 
 with it, although they are physically possible. The 
 quality of an act is always relative to the circumstances 
 of the agent. The ethical principle so applied estab- 
 lishes positive and negative orders of necessity, which 
 constitute moral duty. tBut the same principle gives 
 rise to another kind of valuation of acts. Human' acts 
 can be treated not only as we have just treated them 
 (subjectively) but objectively as well, that is, not treating 
 the agent in relation to his own acts but in relation to 
 those of other agents. The quality of compatibility 
 is then different. The interference has an objective 
 not a subjective form. Prevention, not omission, is 
 here actually and logically opposed to acts. What 
 conforms to principle/ in this sense is not what can- 
 not be omitted, but what is not inhibitable. A 
 
 26 Cf. § 92 and 93, ante. 
 
160 THE JURIDICAL CRITERION [Ch.II 
 
 limitation is placed on the action of other agents. The 
 ethical principle thus tends properly to institute objective 
 co-ordination and is shown in a double series of possi- 
 bilities and impossibilities of action. t 
 
 § 107. Fundamental RelationBetween Morals andLaw. 
 Objective ethical co-ordination includes the considera- 
 tion of Tightness. The two fundamental modes of 
 weighing acts, which constitute the ethical categories 
 of morals and law, come from the same principle accord- 
 ing to different methods of application.^^ An act 
 which, subjectively regarded, appears ethically necessary 
 of commission or omission, objectively is ethically pos- 
 sible or not in inverse ratio to its impedibility. The 
 unity of principle is shown in the series of relations, 
 which include both ethical forms. What is ethically 
 subjectively necessary is always ethically objectively 
 possible. If this were not so, an inhibition would be 
 possible by one agent to a possible act of another, both 
 acts being governed by the same principle, which would 
 then be self-contradictory, and, therefore, without 
 power to direct action. Likewise, what is not ethically 
 possible is never ethically necessary. In the same 
 system, an act cannot be inhibitable on one hand and 
 demandable on the other. *■ There is a fundamental 
 relation in every case between the two forms of ethical 
 
 '' We might note here that no other form than these is possible 
 for valuation of acts. Other conceptions of diverse significances are 
 improperly considered as ethical categories analogous to those of 
 morals and law. For example, custom is the fact of the observance 
 of certain norms, either moral or juridical, but is not a special kind 
 of norm. Decorum or convenience (defined by Thomasius) is a special 
 criterion, which in its translation into precepts assumes necessarily 
 the form of one or the other of the two categories. Religion is the 
 complex of beliefs or dogmas which can serve as a basis for a system 
 of determination of conduct, but this system, though so constituted, 
 consists however in moral and juridical determinations. 
 
§107] OBJECTIVE ETHICS 161 
 
 valuation. It is expressed by the universal maxim: 
 What is duty is always lawful, and thai cannot be duty 
 which is not lawful. It is evident that the reverse is not 
 true, because ethical necessity cannot be inferred from 
 ethical possibility, as the latter can be inferred from the 
 former. An act being ethically possible, that is, in con- 
 formity with law, means only that the ethical principle 
 does not prohibit it, not that it requires it. The deter- 
 mination of the lawful is not that of duty. What is law 
 is not "per se" moral. And yet the possibility shows the 
 boundaries within which the agent should of necessity be 
 restricted. Jf It does not follow when an act is ethically 
 possible (in conformity to law) that it is a duty, but con- 
 sidering all the ethical potentiality of an agent, that is, 
 all the acts which the law permits him to do, it follows 
 that he must necessarily choose one of those acts. The 
 concept of ethical necessity or duty is thus limited 
 objectively. This is duty in a juridical sense. It shows 
 the limit of everyone's possibilities but has its necessary 
 correlative in the potentialities of others. 
 t- § 108. Morals and Law are Always in Accord. The 
 elements of all the phases of law which constitute its 
 concept are found in this logical nature of it.jf But, 
 before taking up their phases in detail, we must first point 
 out one thing to make clearer what we have said already. 
 'Since the relation between the two forms of ethical valua- 
 tion, moral and juridical, is determined "a priori," no 
 case can be found in experience which disregards either 
 of them, although there seems sometimes at first blush 
 an incongruity (as Paulsen says) , so that what is morally 
 right and necessary is legally prohibited.^' Now, we 
 must first admit that nothing prevents one ethical prin- 
 
 " See Paulsen, "System der Ethik," 6th ed. (Stuttgart, 1903), 
 II Bd., p. 166 (Cf. p vi) and 171. Cf. Sidgwick, "The Elements of 
 Politics," 2d ed. (London, 1897), Cap. XIII, especially p. 204 et seq. 
 
162 THE JURIDICAL CRITERION [Ch.II 
 
 ciple from being empirically incompatible with another, 
 so that the simultaneous observation of both is impos- 
 sible. An act, therefore, can appear necessary both of 
 commission and omission, and inhibitable and neces- 
 sary according to the principle taken as a measure of 
 value. But such decisions are based on the principle 
 in which they arise and could not be compared unless 
 they had a common basic principleJi To determine 
 the relations between different ethical values, we must 
 refer to some single system, logically determined by a 
 single principle, and disregard all values attributable 
 to the object by other principles. With this under- 
 stood, it is clear when the objective possibility of an 
 act is denied by a principle, its subjective potentiality 
 cannot be affirmed by the same principle. In other 
 words, what is contrary to law cannot be held moral. 
 Whoever affirms the morality of an act thereby recog- 
 nizes an ethical principle which implies its legality, 
 that is, its possibility of objective co-existence.JJ Because 
 of the logical relation (which we have already shown) 
 between the possible and the necessary, and because a 
 principle whose object is the control of action cannot 
 be impossible of actualization, therefore unattainable, 
 which, in respect to an ethical principle, would be a 
 true "contradictio in adjecto." t The truth of the 
 alleged antinomy between morals and law is this: that 
 an act can be the object of diverse judgments; and it 
 can be weighed by individual criteria, different from 
 those moulded in positive institutions. The antinomy 
 does not exist between morals and law, but between 
 different ethical criteria; all of which, duly applied, 
 would give rise to a harmonious system of juridical 
 values, and within every system the logical relations 
 established would remain firm. We must remember, 
 therefore, that morals and law are correlated ethical 
 
§108] MORALS AND LAW 163 
 
 categories, presupposing a common base. Attributing 
 to law a degree of certainty or strength different from 
 that of morals is a constant source of error. Ahrens 
 makes this mistake when he says that "moral pre- 
 cepts are absolute, invariable, and independent of time 
 and place, while legal precepts or juridical decrees are 
 relative and variable. "5? Such a disparity is in con- 
 trast with the formal nature of the relation between 
 morals and law. Whoever holds a duty absolute 
 must recognize the law governing its effectuation as 
 absolute in its turn. In like manner, whoever admits a 
 natural law, that is, a system of juridical demands 
 founded on simple human nature, cannot fail to admit 
 corresponding natural duties. The same degree of cer- 
 tainty and naturalness enters morals and law. Who- 
 ever, therefore, denies the existence of natural law, 
 should reach, to be consistent, an analogous denial of 
 morality and duty JJ 
 
 I § 109. Distinction between Morals and Law. The 
 juridical criterion differs from the moral, as we have 
 said, by its logical position. Juridical consideration 
 means treating an act as part of the external orders 
 interacting with the acts of other agents.^' The 
 juridical value of an act is not self -determinative; it 
 lies in its harmonization and co-ordination with others. 
 The logical function of law exerts its influence where a 
 collision between the acts of two or more agents or an 
 antithesis between two or more wills is possible, and 
 tends to promote objective ordination among them. The 
 moral criterion, on the other hand, supposes an antith- 
 esis between two or more possible acts of the same 
 agent and tends to settle internal strife, that is, to 
 
 28 Ahrens, "Naturrecht oder die Philosophie des Rechts" (Vienna, 
 1870-71). I Bd., p. 311. 
 » Cf, Petrone, "Contributo," p. 340 et seq. 
 
164 THE JURIDICAL CRITERION [Ch.II 
 
 establish a subjective ethical order. ;a From this come 
 the diverse elementary characteristics, which delimit 
 the proper spheres of each. 
 
 § 110. Law is External. Juridical valuation begins 
 with the external side of human action, because it is in 
 the external field that the objective interference between 
 the conduct of two or more beings arises, and, therefore, 
 it is there that the demands for limitation arise. 
 But juridical valuation from the external side neces- 
 sarily embraces the internal or psychic element, without 
 which its object would in no wise be an act.'" The 
 moral criterion is differently applied, because its pur- 
 pose is to settle the opposition and interference which 
 take place within the internal consciousness of one 
 agent, and to show which of various possible acts he 
 must chose as conforming to principle. £ A moral judg- 
 ment, therefore, is applicable to motives, and regards 
 the acts resulting therefrom, while a juridical judgment 
 is based on external phenomena and from that view- 
 point determines the motive and internal life of the 
 agent .'1^ 
 
 § 111. Law is Bilateral. Another consequence of 
 the logical nature of law is that its decrees are bilateral. 
 The purpose of law is, as we have said, to establish a 
 correlation between two or more agents, resulting in 
 a balance of definite powers and duties. It is not a 
 
 "> Cf. Cap. I, ante. 
 
 " This explains how a moral judgment is exercisable pre-eminently 
 over the agent himself, while law is concerned more properly with 
 others. The former takes an internal point of view, the latter one 
 that is external. One can only judge of another's morality by 
 placing one's self ideally or fictitiously in his place. One judges of 
 one's rights by taking another's point of view and considering one's 
 self objectively. Hence the dangers and difficulties, always recog- 
 nized, of a moral judgment "in causa aliena" and of one that is 
 juridical "in causa propria." 
 
sill] LAW IS BILATERAL 165 
 
 question, as it seems at first glance, of two distinct acts, 
 of two propositions, separate or connected only acciden- 
 tally or artificially, but of one act, of a single proposi- 
 tion, which is essentially complex and reciprocal. The 
 possibility, on one side, equals the necessity on the 
 other. Each term finds its meaning and scope in the 
 other. What is legally possible is, because of its possi- 
 bility, legally enforceable. tEnforceabihty is not a super- 
 added or complementary element, but is the logical 
 essence of law itself.^ The characteristics here theo- 
 retically deduced exist as historical realities; they are 
 phenomena. It could not be otherwise, because the 
 juridical nature of a phenomenon lies in its corres- 
 pondence with this formal type. By the perception 
 of this type we can grasp the juridical aspect of reality 
 and observe how the logical factors implied by the con- 
 cept of law develop therein and assume concrete exist- 
 ence. The study of positive law, being subordinate to 
 this primary knowledge, can, however, help in the process 
 of analysis by giving particular examples and explana- 
 tions. We will have recourse to it in the following 
 pages, wherever in the treatment of the various phases 
 or logical characteristics of law we have occasion to 
 recall those experiences, in which they are shown in their 
 real application and development. 
 
166 IMPERATIVE QUALITY OF LAW [Ch-III 
 
 CHAPTER III 
 IMPERATIVE QUALITY OF LAW 
 
 GENESIS OF LAW. — IMPERATIVE QUALITY OF LAW. — 
 TRADITIONAL CLASSIFICATION". — IMPERATIVE, PROHIBI- 
 TIVE AND PERMISSI\-E NORMS. — EXPLICATU'E NORMS. 
 
 '§112. Law is Based Upon Ethical Co-ordination. Our 
 observation up to this point has shown us that law in its 
 essence requires a relation between several individuals, 
 so much so, that no juridical value can be attributed to 
 the conduct of an agent which does not have reference 
 to some other agent's conduct. This conclusion defines 
 the fundamental sphere of law. No juridical criterion 
 is possible except where there is a number of individuals 
 whose respective acts meet and encoimter each other 
 on common ground.^ The phenomenal appearance of 
 law is, therefore, co-extensive with the establishment 
 of a system of ethical co-oidination of reciprocal rights 
 and duties. The orign of law lies in the objective 
 determination of the correlated interests and obliga- 
 tions of various individuals. By this we do not mean 
 to fix the historical moment, but only the "a priori" 
 condition of the recognition of the phenomenon of law. 
 
 - § 113. Genesis of Law. To give the principle which 
 forms the essence of a concept is entirely different from 
 showing the beginning of its concrete realization. The 
 
 ' i'The concept of law is the conception of a relation between 
 rational beings. It exists, therefore, only on the condition that 
 such beings are thought of in relation to each other."J! Pichte, 
 "Grundlage des Xaturrechts," I, p. 53. Cf. Petrone, "II diritto nel 
 sistema della Filosofia deUo spirito" (Naples, 1906), p. 21 et seq. 
 
1113] GENESIS OF LAW 167 
 
 former may be determined when the lack of historical 
 data renders the latter impossible. Thus, however far 
 back we trace the development of life, we cannot find 
 the moment when law first appeared. Some system of 
 ethical thought, perhaps rudimentary and ill-defined, is 
 found in every stage of human life. Historical research 
 does not show men before they lived together. And 
 even in the primitive forms of collective life, some 
 policy regulative of behaviour is found, which forms a 
 system of law* in relation to the sentiments of the 
 individuals who compose the aggregate, and adapted 
 to the nature of surrounding circumstances. J Nor could 
 it be otherwise, since without a connecting link of this 
 kind, that is, without a system of mutual assistance, no 
 
 2£"We find positive law existing among all peoples who have 
 entered the stage of documentary history. Its origin must be 
 anterior to this period." Thus writes Savigny in his "System des 
 heutigen romischen Rechts," adding, "General law arises in an 
 invisible way and cannot be referred to an external event or definite 
 moment." Here the tendency of the historical school to make a 
 mystery of the genesis of law is very marked, i On this score, see 
 Puchta, "Cursus," § XIII at seq. ; and for its criticism, cf. Thering, 
 "Der Kampf um's Recht," 14 ed. (Vienna, 1900), p. 10 et seq.; 
 Fragapane, "II problema delle origini del diritto," p. 152 et seq. 
 While later studies, especially those of Bachofen, Maine, Post, Leist, 
 Morgan, Lubbock, McLennan, Tylor, Spencer, Kohler and their 
 followers, have thrown some light on the oldest antiquity and 
 enlarged the horizons of the historical school, yet no one can be said 
 to have shown an absolutely pre-juridical or pre-social state of evolu- 
 tion. tPetrone distinguishes justice from law, calling the latter a 
 crystallization or historical precipitate of justice. .See Petrone, 
 "Contributo," p. 361 et seq.;J This process by which law grows 
 constantly more technical, articulate, and reflective in form must 
 at any rate be considered as a change in degree, not in nature. 
 Thus Vanni thinks that the essential elements of law are found 
 implicitly or in germ even in the rudimentary forms. See Vanni, 
 "Maine," § 6, p. 64 et seq. 
 
168 IMPERATIVE QUALITY OF LAW [ Ch. Ill 
 
 real community of life among men could be conceived.' 
 r Juridical determinations are first shown "rebus ipsis et 
 factis," that is, by general usage. Subsequently, they 
 are upheld by isolated judgments in particular cases* and 
 then solemnly transformed into rational formulae, or laws 
 in the strict sense of the word. But always, even when 
 laws are introduced in some other way than the usual 
 one above indicated, the will appears which sustains and 
 posits the juridical idea.^ The system of juridical 
 
 ' "The idea of justice," writes Carle, "develops in man when he 
 comes in contact with other men, and can be called the architectural 
 idea of human society." "La vita del diritto," p. 510. He re- 
 enforces this belief in his other work, "La Filosofia del diritto," 
 p. 120 et seq., where he writes that "society is natural to man and 
 law coeval with human society." 
 
 * The first belief of Maine was that decisions were anterior to 
 custom (vide "Ancient Law," Cap. I). The untenability of this 
 opinion, held nevertheless by many good authorities, appears mani- 
 fest because to uphold it, it would be necessary to admit that there 
 was an age in which it was customary for the members of society to 
 submit their reciprocal relations to a judge. And this fact of 
 recourse to a judge, then, would have constituted a juridical custom. 
 A decision always represents a. "posterius," or something which 
 removes a doubt or settles a dispute, which has come as an excep- 
 tion in the ordinary course and the spontaneous changing relations 
 of life. While it is undeniable that j udicial decisions play a principal 
 part in the later development and elaboration of custom, yet it is 
 none the less true that custom represents the first historical datum. 
 That the oldest decisions originated in pre-existing custom, from 
 which they were in substance deduced, was moreover explicitly 
 acknowledged by Maine in his later works. "These sentences or 
 themistes are doubtless drawn from pre-existing custom or usage." 
 "Dissertations on Early Law and Custom," p. 563. Vanni pointed 
 this out in "Maine," p. 68. For the primitive forms of juridical 
 sanction, see the treatise of Fragapane, "II problema delle origin! 
 del diritto," especially p. 205 et seq. 
 
 'This element of will is usually called "general." It must be 
 admitted that the formation of a norm supposes a "minimum" of 
 general consensus even outside the field of customary law. The 
 
§113] GENESIS OF LAW 169 
 
 propositions and ideas, upheld by the dominant social will, 
 constitutes what is said to be the positive law of a people.^ 
 § 114. Genesis of Juridical Ideas. The existence of 
 will cannot be doubted when law is declared by legisla- 
 tive act, but it must be acknowledged even when law is 
 tacitly expressed by custom. We must be careful, 
 indeed, not to fall into the error of believing that a 
 practice long followed will "per se" create a legal prin- 
 ciple. The simple fact of constant uniformity of action 
 cannot create law but can only be a means of reveal- 
 ing the popular will. Custom only indicates law.' 
 
 faculty of legislative bodies to affirm their own will as the will of 
 the State is referable as a rule to a certain psychological adhesion 
 of the citizens. Cf. Than, "Rechtsnorm und subjectives Recht," 
 p. 1, n. 4. If, however, the predicate of generality can be said to 
 correspond to a natural characteristic of the origin of law, it can in 
 no legitimate way be held as an essential part. Neither is it always 
 true that the legislature is a simple organ for the transmission of 
 the popular will and "concentrates in itself," as Savigny says in his 
 "System des heutigen romischen Rechts," § 13, p. 63, "the spirit, 
 sentiments, and needs of the nation," nor is the vigor of juridical 
 institutions which do not correspond to the general beliefs of those 
 subject to them inconceivable. Cf. Rotleck, "Lehrbuch der Ver- 
 nunftrechts und der Staatswissenschaften," 1 Bd., 2 ed. (Stutt- 
 gart, 1840), p. 71; Beseler, "Volksrecht und Juristenrecht" (Leipsic, 
 1843), p. 76 et seq.; Bruns, "Das heutige romische Recht" in 
 "Encyklopadie der Rechtswissenschaft" of Holtzendorff, 4 ed. 
 (Leipsic, 1882), p. 396. What is essential for law is only a will to 
 affirm it. The fact that the will is determined by psychological 
 and natural conditions, as we have shown, does not prevent its 
 existence being self-affirmed nor that the existence of will marks 
 the decisive moment in the establishment of law. The substitu- 
 tion of motives or the real object of the will for the will itself is 
 one of the most frequent and serious errors in the study of law, 
 as we will have to point out in Cap. VI, p. 207, post. 
 
 ' This conforms to the Roman concept, explained in the known 
 sentence (Dig. 1. 3. 32. 1.): "Nam quid interest suffragio populus 
 voluntatem suam declaret, an rebus ipsis et factis?" See also Dig. 
 1. 3. 35 and 36, The historical school deserves credit for recognizing 
 
170 IMPERATIVE QUALITY OF LAW [ Ch. HI 
 
 Upon the establishment of a scheme of legal maxims or 
 ideas, the will tends to develop and maintain a social 
 order in which individual acts of commission and omis- 
 sion will be reciprocally compatible. This juridical 
 co-ordination " is not, however, the immediate object 
 of the will, which is always directly referable to the 
 agent by whom the conduct is effected and the realiza- 
 tion of the order is demanded. Will can refer only to an 
 act, either of the subject self or of another.* 
 
 that custom is only revelation of popular will. Cf. Pttchta, "Das 
 Gewohnheitsrecht" (1828-37); "Cursus," § XII et seq.; "Pandek- 
 ten," 12 ed., §§ 10-12. In the last book he says specifically, 
 t "The basis of the existence (of customary law) lies in its quality of 
 direct popular belief, its practice makes it visible. Habit, custom, 
 'usus,' or 'consuetudo,' is not the source of customary law, but 
 the outward shape in which it is embodied.'!; And Savigny ("Syst.," 
 5 12, p. 60) admits that "custom is a sign of positive law, but not 
 its original cause." But he adds that in certain cases it can be a 
 "concurrent cause," inasmuch as it is an effective element. The 
 later writers have generally followed the opinion that custom is a 
 mark of law, not law itself. Some, however, have emphasized its 
 importance as productive of norms, inasmuch as it "per se" origi- 
 nates juridical convictions. Cf. Windscheid, "Pa.nd.," §15, n. 2. It 
 is certain, however, that until such a conviction, "opinio necessi- 
 tatis," has arisen, the fact has no juridical value. Cf. Vanni, 
 "Delia consuetudine nei suoi rapporti col diritto e colla legislazione" 
 (Perugia, 1877); Miceli, "La forza obbligatoria della consuetudine 
 giuridica" (Perugia, 1899); Filomusi-Guelfi, "Enciclopedia giuri- 
 dica," § 20 et seq. 
 
 ' Cf. Merkel, "Elemente der allgemeinen Rechtslehre," § 1. 
 
 ' See on this point Bierling, "Zur Kritik der juristischen Grund- 
 begriffe," Zw. Th., p. 342; "Will can affect the future conduct of 
 the agent or of another, and this other, in the case of the will of 
 man, can be either a rational being or, under certain conditions, an 
 animal. Will apparently directly affecting the- control of action 
 (using this word as differing from the principle of activity) always 
 regulates the activity which effects the act, whether it be the 
 agent's or another's." In accord, see Schuppe, "Der Begriff des 
 subjektiven Rechts" (Breslau, 1887), p. 15 et seq. 
 
§115] IMPERATIVE CHARACTER 171 
 
 f § 115. The Imperative Character of Juridical Norms. 
 Inasmuch as juridical propositions express a need 
 of the commission or omission of an act, they deter- 
 mine the acts of several agents in a correlative sense. 
 They are, then, norms to be followed. An impera- 
 tive quality is inherent in the nature of law. Cicero ' 
 pointed out the "jubere" and "vetare" as essential 
 to every juridical proposition.! And while Modestinus 
 adds the "permittere" and "punire" to the "imper- 
 are" and "vetare,"'" we must remember that penal 
 laws are imperative because they command the inflic- 
 tion and submission to a penalty," and furthermore 
 because punishment presupposes the violation of a 
 definite command (implied by every penal law).'" As to 
 the "permittere," we will see in a subsequent paragraph,'' 
 how are to be explained the so-called permissive laws.'* 
 Thon '^ explains the general imperative nature of juridi- 
 
 » See Cicero, "Pro Flacco," VII, § 15, "De Leg.," II, Cap. 4, § 8, 9. 
 
 " Modestinus, Dig. 1. 3. 7. 
 
 " Read on this point Mar cade, "Spiegazione teorico-practica del 
 codice Napoleone," Vol. I (Naples, 1871), p. 31. "Imperare," 
 includes "punire," because law does not punish or inflict a penalty, 
 but makes such an order. 
 
 " Cf., Cap. V, p. 193, post. 
 
 " Cf. § 121, post. 
 
 " Modestinus in another passage (Dig. 44. 7. 52. 6.) gives the 
 meaning of juridical norms as "quae fieri praecipiuntur vel fieri pro- 
 hibentur." Similarly, Chrysippus defined law "praeceptricem quidem 
 , faciendorum, prohibitricem autem non faciendorum." "IIpocrTaTtKov 
 IJtev S>v TTOiiftkov airayopevTiKov Se S>v ov iroiiyriov." (Dig. 1. 3. 2.) 
 Samgny writes concerning the statement of Modestinus cited in 
 the text that "the four cases are to be understood as the simple 
 enumeration of effects of law and not as a basis of classification." 
 "Syst.," § 16. 
 
 i*See Thon, "Rechtsnorm und subjectives Recht," "The whole 
 law of a community is only a complex of imperatives," p. 8. 
 
172 IMPERATIVE QUALITY OF LAW [Ch. Ill 
 
 cal norms by saying that in every juridical maxim 
 there is an implied "Thoushalt" or "Thou shaltnot/'^^ 
 Even if the legal command or prohibition does not 
 appear externally as such, and if it is discoverable only 
 by the consequences of an infringement, nevertheless 
 there must be an imperative or "praeceptum legis."" 
 
 § 116. Non-Juridical Statutes. Bierling,'* in this 
 regard, points out that no one can deny that many laws 
 contain propositions which lack not only all juridical 
 form but also all imperative meaning. But we cannot 
 conclude from this that there are juridical propositions 
 which are not imperative, for the non-imperative proposi- 
 tions (as historical statements, etc.,) found in law are not 
 juridical. ^^ 
 
 § 117. Classical Division of Juridical Norms. In 
 order to grasp fully the imperative nature of law, 
 let us now consider particularly the classification of 
 juridical norms. According to the so-called classical 
 
 " Than, "Rechtsnorm und subjectives Recht," p. 2. 
 
 ","The function of law," wrote Romagnosi, "is not to teach or 
 discuss nor to advise or counsel, but to order the commission or 
 omission of an act. The action of law has been recognized in all 
 ages as obligatory and imperative."" "Assunto primo della scienza 
 del diritto naturale,'' § XXIX. Ihering, "Geist des romischen 
 Rechts," Zw. Theil, Zw. Abth. (Leipsic, 1875), p. 358, agrees with 
 him, "The regular form in which law appears in statutes is impera- 
 tive, that is, as a direct practical form of command or prohibition. 
 Law may or may not have, however, an imperative form. It is 
 not important. The imperative lies in the idea or thought. The 
 verb "is" in statutes always conveys a necessity. For example, 
 "This action is barred in two years," means "must be barred." 
 Cf., too, "Der Zweck im Recht," I Bd., p. 330 et seq. 
 
 ^Bierling, "Zur Kritik der juristischen GrundbegrifFe," Zw. Th., 
 p. 16 et seq., 344 et seq. 
 
 " Canon law and the more ancient forms of legislation are often 
 in this state. Cf. Maine, "Dissertations on Early Law and Primitive 
 Custom." 
 
5117] CLASSICAL DIVISION 173 
 
 view, law is.divided into three classes, imperative (or pre- 
 ceptive)v^ohibitive ancN^Jermissive.^" There would be, 
 therefore, some juridical norms reducible to commands or 
 prohibitions, and others that grant liberties or powers. 
 
 § 118. Thol's Classification of Juridical Norms. A 
 deeper consideration of the subject, however, led Thol 
 to introduce a new classification. ^^ PJe divided juridical 
 norms intdJf ositiveV^egative ancJ^plicative ("berech- 
 tigende," "verneinende" and "begrilfsentwickelnde"). 
 
 Vrlis first class includes the three classical divisions. V The 
 second is composed of those which deny or limit the 
 applicability of other norms to certain states of fact. 
 
 5/The explicative develop a concept or declare more 
 minutely what has been established by other norms. 
 This classification is accepted in substance by Wind- 
 scheid,^^ who states that "not all legal norms contain a 
 
 ™See, for example, Gliick, "Pandekten," I, § 14. Savigny pointed 
 out that one flaw in this theory is its limitation to law. It should also 
 apply to custom. (Vide "Syst.," § 16). Brinz, who follows the tradi- 
 tional classification (vide "Pand.," § 18) holds: "This division marks 
 the imperative, prohibitive, and permissive," but avoids its conse- 
 quent fault by applying it to all objective law. — There is, moreover, 
 a fourth class, composed of dispositive (called also suppletive or 
 indicative) norms intended to supply volition, where the agent has 
 left some relation in an indefinite state. Savigny formulated this 
 concept ("Syst.," § 16). He was followed by Warnkonig, "Juris- 
 tische Encyklopadie" (Erlangen, 1853), p. 31 et seq.; Windscheid, 
 "Pand.," § 30, and note 1. Cf. Lasson, "System der Rechts- 
 philosophie," pp. 423 and 426. The other norms in contradistinc- 
 tion are called absolutely obligatory, coercive, or enforceable. But 
 in fact dispositive or suppletive norms, if applied, are within 
 their field no less obligatory than the others. This bi-division has, 
 therefore, only a secondary value and the questions concerning the 
 imperative nature of law to which it could give rise can be better 
 answered according to the other criteria of classification, which 
 we will consider. 
 
 » TUl, "Einleitung in das deutsche Privatrecht" (1851), §§ 33-36. 
 
 22 Windscheid, "Pand.," 5 27. 
 
174 IMPERATIVE QUALITY OF LAW [ Ch. Ill 
 
 command or prohibition," and then follows Thol's divi- 
 sion, yet holding that permissive norms do not form a 
 class of their own but "in fact are either imperative, 
 prohibitive or negative." 
 
 § 119. Explicative Juridical Norms. As the third 
 class of explicative or declarative^' norms, however, are 
 enacted by the legislature, they always include a com- 
 mand; that, for example, such a word should have 
 such a meaning. Bierling, in arguing this point,^* dis- 
 tinguishes clearly between the philological explanation 
 of a word and the declaration that it shall be used in a 
 certain sense. While there is no imperative character 
 in the first case, there is in the second, which is the case 
 of legislative definition. In fact, in legislative defini- 
 tions, the will of the legislature is exercised over the 
 judiciary, commanding the latter to understand and 
 apply certain terms with a definite sense and meaning.^ 
 Others have followed different reasoning to arrive at the 
 same conclusion that explicative norms are preceptive 
 or prohibitive, thus denying any intrinsic difference in 
 the nature of the three so-called classes. ^ What, in fact, 
 can explicative norms be (it is asked), unless (as the 
 name implies) they are explanations of other norms? 
 They are not self-dependent, but rely upon the norms 
 
 ^ We can cite as example, "In criminal law, next of kin ('prossimi 
 congiunti') means . . ." (Art. 181, Cod. Pen. Ital.). "Trees are 
 realty (immobili) until detached from the soil" (Art. 410, Cod. Civ. 
 Ital.) "The purchase of material or merchandise for the use or 
 consumption of the vendee is not an act of trade" (Art. 5, Cod. di 
 Com. Ital.). ["In all criminal prosecutions, the accused hath a 
 right to be heard" (Art. I, § 8, Const. Penna.). — Tr.] 
 
 '^"ZuT Kritik der juristischen Grundbegriffe," Zw. Th., § 133, 
 p. 25 et seq. 
 
 *5 Cf., especially, Ihering, "Der Zweck im Recht," I Bd., p. 334 
 et seq. 
 
§119] EXPLICATIVE NORMS 175 
 
 which they qualify, being either part of them ^^ or their 
 more specific repetition.^' The dependent norm has, 
 of course, the same logical necessity and imperative force 
 as the underlying law. Both of these lines of reasoning 
 are correct. They are interchangeable. We can con- 
 clude, therefore, that the theory of the general impera- 
 tive nature of law suffers no exception in the explicative 
 class.- 
 
 § 120. Negative Juridical Norms. It is easy to see, 
 too, that the so-called negative norms, which form the 
 second class, contain true and real commands because, 
 on one hand, they enforce the recognition under cer- 
 tain circumstances of the abolition of some preceptive 
 or prohibitive norm (either in whole or in part),^* and, 
 on the other, because owing to this it is always pos- 
 sible, as Thon points out, to convert them into one 
 of the latter.^* Thus these norms, like the explicative, 
 always have the imperative character of a juridical 
 proposition. 
 
 § 121. Permissive Juridical Norms. The most dififi- 
 cult question is over permissive laws. In many cases 
 it is clear that a permissive form is used in place of an 
 imperative, signifying a true and real command or pro- 
 
 "^ Such is Thon's concept in "Rechtsnorm und subjectives Recht," 
 p. 347, n. 51. "They (the explicative laws) are properly but parts 
 of others." So Merkel, in "Elemente der allgemeinen Rechtslehre," 
 1, § 4, n. 46., "At the same time it has not been sufficiently observed 
 that the explicative laws are throughout parts of prohibitive laws, 
 and only so far as they have this property do they possess legal 
 significance." 
 
 " This is Schuppe's opinion, "Der Begriff des subjektiven Rechts," 
 p. 17, et seq. 
 
 28 See Bierling, "Zur Kritik der juristischen Grundbegriffe," Zw. 
 Th., §§ 130, 135. 
 
 2' See Thon, "Rechtsnorm und subjectives Recht," p. 347, n. 51, 
 where he says that there is no reason for making a separate class of 
 negative norms. 
 
176 IMPERATIVE QUALITY OF LAW [ Ch. Ill 
 
 hibition. This is the case where the permission has a 
 correlative duty. Windscheid gives as an example,'" 
 "One contracting party can demand of the other the 
 fulfillment of his promise," which is but a different way 
 of saying, "Every promissor must carry out his promise." 
 In other cases, however, the permission does not seem, 
 as in the example given, to be a simple paraphrase of 
 an underlying imperative. Take the permissive right of 
 self-defense, or that which allows a trustee to renounce 
 a trust '' or a gambler to avoid his debt. And so it 
 seems generally necessary to distinguish permissive 
 norms from those of an imperative nature. But this 
 distinction lies wholly in appearance. For when per- 
 missive norms do not directly involve a command or pro- 
 hibition, they always contain a limitation (or negation) 
 on other imperative rules. They are, therefore, nothing 
 but negative norms or a method of their presentation ; and 
 as such they are as imperative as the others of this 
 class. This is no new concept — it is found clearly out- 
 lined in Savigny.'^ In a reference to the old tri-division 
 he says in so many words, "The 'permittere' gains its 
 importance only from its relation to a precedent pro- 
 hibition, which is either abrogated by the permission 
 or limited by an exception." Analogous observations 
 are found in Rosmini, "A positive permissive law would, 
 properly speaking, be only an entire or partial destruc- 
 tion or suspension of an antecedent positive law. Thus 
 it would be a negation, clothed with the external posi- 
 tive forms of law. ' '^ ' If it is true (as is generally admitted) 
 
 8» Windscheid, "Pand.," § 27, n. 7. 
 
 ''■ [The Italian words are "mandatario" (mandatory) and "man- 
 dato" (mandate). A mandate is a bailment, where the bailee con- 
 tracts to perform gratuitous service with reference to the thing 
 bailed. — Tr.] 
 
 ''^Savigny, "Syst.," § 16. 
 
 " Rosmini, "Filosofia del diritto," Vol. I, p. 156, note. 
 
§121] PERMISSIVE NORMS 177 
 
 that all that which is not juridically forbidden is juri- 
 dically permitted, a permissive juridical norm has no 
 reason for existence and is not even conceivable.^i:;' It 
 can only have a meaning in respect to other presupposed 
 commands, whose sphere of application it in some wise 
 limits or restricts. Its office appears most clearly in 
 those cases in which it destroys some doubt concerning 
 the meaning or extent of one or more pre-existing juridi- 
 cal norms, and in those in which it establishes some 
 exception in regard to some especially designated per- 
 son or thing.'* In general, even where the permission 
 seems to have an autonomous nature and to stand by 
 
 "Note under this head the following passage from Puffendorf 
 (copied in substance from Crotius, "De Jure Belli ac Pads," Lib. 1, 
 Cap. I, § IX), in which the difficulty of giving a juridical meaning to 
 permissive norms is squarely met but not overcome, "Eo ipsoautem 
 dum legibus tribuitur vis obligandi, ex numero legum proprie dic- 
 tarum permissiones exclusae intelliguntur. Nam permissio proprie 
 non est actio legis, sed actionis negatio. Quae lex permittit, ilia neque 
 praecepit neque vetat; adeoque circa eadem nihil agit." "De Jure 
 Nat. et Gent.," Lib. I, Cap. VI, § 15. Romagnosi expresses the same 
 thought in his "Assunto primo della scienza del diritto naturale," 
 5 1: "An act permitted is strictly an act neither touched nor ruled 
 upon by law. Legality, which implies necessarily an obligation 
 to do or omit, makes the concept of permissive law absurd." In 
 fact, permissive norms would be absurd if they were independent. 
 On the concept of "lex permissiva," see also Selden, "De Jure Nat. et 
 Gent.," Lib. I, Cap. IV; Thomasius, "Fund. Jur. Nat. et Gent.," Lib. 
 I, Cap. V, §§ 6-8; Barheyrac, in his comment on the above passage 
 from Puffendorf; Burlamagui, "Principes du droit naturel," Pt. I, 
 Cap. X, §§ V-VII; Kant, "Zum ewigen Frieden," 1 Abschn., at 
 the end; Fichte, "Grundlage des Naturrechts," Intro. Ill, and § 7 
 (p. 101). 
 
 ^ Here we must notice the distinction between "jus singulare" 
 which refers to a certain class of persons, things, or relations and 
 special laws or "privilegia," which refer to persons ("constitutiones 
 personales, quae personam non egrediuntur") (Dig. 1. 4. 1. 2.), things, 
 or relations, individually chosen. See Puchta, "Pand.," § § 14, 30, 31 ; 
 Arndts, "Pand.," I, J 23; Windscheid, "Pand.," §§29, 135. 
 
178 IMPERATIVE QUALITY OF LAW [ Ch. Ill 
 
 itself, it can be found always to constitute in fact a 
 limitation on some precedent imperative, to which it 
 really refers. : To return to an example already given, 
 ? when something called self-defense is permitted,'^ the 
 law does nothing more than limit the imperatives 
 which forbid personal injury, by negativing their force 
 in certain cases in which bodily harm may be inflicted 
 to "save one's self or another from actual and wrongful 
 violence." Without reference to the general prohibi- 
 tion of criminal law, this provision would be absurd.''- 
 And likewise in civil law: '.when the Italian Civil Code 
 allows a trustee to renounce his trust,'* it only negatives 
 in that case, under given conditions, the imperative 
 concerning the fulfillment of contracts.'' Thus the legal 
 permission of non-payment of gambling debts pre- 
 supposes a general command to keep agreements.^" If 
 no norm imposes this last obligation, the permission 
 would be superfluous and incomprehensible.^^ 
 ^ § 122. All Juridical Norms are Reducible to Impera- 
 tives. In the end we must hold, as we have said 
 repeatedly, that every juridical proposition tends to safe- 
 guard a possibility of action by the exclusion of other 
 
 »« Cf. Ital. Pen. Cod., Art. 49, n. 2. 
 
 " This is true of private persons as well as of the departments 
 of the State, to both of which the norms refer. The belief that 
 juridical norms affect only the organs of the State was rightly 
 refuted by Merkel, "Elemente der allgemeinen Rechtslehre," 1, 5 6. 
 
 " Ital. Civ. Cod., Art. 1761. 
 
 '9 Ital. Civ. Cod., Art. 1128. 
 
 <» Ital. Civ. Cod., Art. 1802. 
 
 *iSee Than, "Rechtsnorm und subjectives Recht," p. 292 et seq., 
 345 et seq.; Bierling, "Zur Kritik der juristischen Grundbegriffe," 
 Zw. Th., §§ 130, 135; Schuppe, "Der Begriflf des subjektiven Rechts," 
 p. 19 et seq. Many permissive rules in the codes can be explained 
 conceptually by a reference to prior prohibitions; they are, so to 
 speak, historically justified. 
 
§122] ALL NORMS REDUCIBLE 179 
 
 possibilities incompatible with it. From this it follows, 
 as Pernice ** and Merkel *^ have shown, that every 
 imperative juridical proposition contains a permission, 
 and inversely, every permissive jxiridical proposition 
 contains a command.^* Ji Even those who deny that the 
 element of coercion ^' is essential to law admit in gen- 
 eral that, since law controls acts, it must in some manner 
 or form be imperative. The arguments of Zitelmann 
 and Binding are not sufficient to overcome this belief. 
 Although a command or prohibition does not appear 
 in every maxim of law, and although many legal rules 
 are permissive or declaratory in indicative form, yet 
 upon accurate analysis of any juridical proposition there 
 will always be found as a juridical residuum one or more 
 independent or dependent imperatives.*^ 
 
 *2 In "Zeitschrift fiir das privat- und offentliche Recht der Gegen- 
 wart," Bd. VII, p. 478. 
 
 *' "Elemente der allgemeinen Rechtslehre," p. 8; 
 
 ** Thus, for example, the laws establishing freedom of assembly, 
 of the press, of religion, besides abrogating prior prohibitive laws 
 (which implies an imperative value), also imply a command to 
 some State department not to interfere (at all or within certain 
 limits) with the realization of these activities. 
 
 « Cf. Cap. V, post. 
 
 *5 SeeBierling, "Zur Kritik der juristischen Grundbegriffe," p. 289 
 et seq., p. 307 et seq., 334 et seq. Thus can be answered those (for 
 example. Billow in "Archiv fur civilistische Praxis," Bd. XLIV, p. 37, 
 n. 23), who deduce arguments against the theory of the general im- 
 perative nature of law from the existence of dispositive norms especially 
 in the matter of civil procedure. No one denies that many juridical 
 propositions (strictly speaking, all) contain permissions and authori- 
 zations, but it is claimed that these imply or define a command or 
 prohibition, or, in other words, that law can only give a permission 
 on the strength of a corresponding command. The same can 
 be said of the observations of Thai in his "Grundsatze des deut- 
 schen Privatrechts," p. 103, n. 1, where he upholds the utility of 
 permissive norms because it is, he says, "often hard to know what 
 I can do and what I should leave undone." But, it is not the 
 
180 IMPERATIVE QUALITY OF LAW [ Ch. Ill 
 
 § 123. Permissive and Non- Prohibitive Juridical 
 Norms. The question can arise in another form 
 when there is a distinction of permissive and non-pro- 
 hibitive norms. Wach has attempted to make such a 
 distinction." ' He thinks that the absence of a prohibi- 
 tion does not make an act permitted, but that for an 
 act to be permitted it must accord with the positive will 
 of the State; a particular "permissive sanction" or, 
 as he says, "recognition by the State," is needed. The 
 consequence of this would be, as Bierling points out, 
 that while the walk of a prisoner through the prison 
 yard could be called permitted, the walk of citizens 
 along the highway would be neither prohibited nor per- 
 mitted..^ As the practice of moral virtue is in general not 
 especially sanctioned by law, it could not be called per- 
 mitted, but only non-prohibited. This is not only con- 
 trary to the general opinion, but also probably contrary 
 to Wach's thought as well. Should we, therefore, in such 
 cases, speak of recognition on the part of the State? But 
 in what can this consist except in an absence of prohibi- 
 tion? How can permission be given legally except by a 
 negation of prohibition?*' 
 
 existence or importance of permissive norms which is under dis- 
 cussion here, but their logical nature. It has also been pointed out 
 in opposition to the above theory that legislation only sanctions and 
 defines what has been decreed by custom. But, on this score, it is 
 obvious in the first place that if custom is prior to law, it must 
 have an imperative character (for it could not have juridical value 
 if it lacked "opinio necessitatis"). In the second place, we must 
 add (following Bierling) that legal sanction and definition of a custom 
 are not conceivable except where there is a command of future observ- 
 ance of the usage. The imperative exists, therefore, in this case. 
 
 " In the critical review ol Binding's "Die Normen und ihre Ueber- 
 tretung," in "Gerichtssaal," Bd. XXV, p. 443. 
 
 ** See Bierling, "Zur Kritik der juristischen Grundbegriffe," Zw. 
 Th., p. 316 et seq. The plan of Wach's thought is easily under- 
 stood — he does not want law to appear to cloak bad acts, even if 
 
5 124 ] JURIDICAL NORMS CONTROL ACTS 181 
 
 § 124. Juridical Norms Control Acts. In considering 
 the constitution of juridical norms, we must always 
 bear in mind that they do not create the activities 
 of the agents, but merely control the acts instituted by 
 them in the many explications of reality and poten- 
 tiality.*' A norm which simply affirms the existence of 
 
 for some reason it cannot repress them. He writes: "The State 
 does not prohibit much, because it does not find sufficient grounds 
 for penal or other legislation, but it abstains from giving a per- 
 missive sanction. A wrongful act as such is never permitted by the 
 State and is never in accord with the positive will of the State, 
 though it may not be forbidden." But in this statement he (and 
 all those also who share his opinion) attributes a function to law 
 which does not properly belong to it. Not the reality of ethical acts 
 but (as we have shown hitherto and as we will make clearer in the 
 following pages) their possibility in the relations between several 
 agents constitutes the specific nature of law. The ethical charac- 
 terization of law, which is not proper, is, too, one of the errors in Ros- 
 mini's juridical system. The desire not to recognize a law morally 
 bad was the cause of the uncertainties and inconsequences of his 
 doctrine, which are seen in the frequent distinctions and subdivisions 
 (which should make for clearness) between simple and true law, 
 between crude and fully-developed law, between what one has a right 
 to do and what others should think he has the right to do. (Vide 
 "Filosofia del diritto," Vol. I, esp. at p. 140 et seq., 158 et passim.) 
 As we have shown before, we hold that conformity to law does not 
 mean subjective conformity to an ethical principle, but only action 
 in such a relation with an ethical principle, which forbids any act 
 by any other agent which would prevent its effectuation. This 
 freedom from hindrance shows its possibility in the objective 
 ethical order. Hence it is that the legality of an act does not prevent 
 its valuation by a subjective ethical test, that is, by morals "stricto 
 sensu." The criteria of Rosmini and Wach, regarding the special 
 will of the State in special cases, may perhkps be applied to this 
 judgment. But such will cannot be immediately determined from 
 the law, but must, on the other hand, be induced from the reason 
 which produces it, in other words, from the general ethical principles 
 which govern the life of society. 
 
 " It seems that Jellinek, "System der subjektiven offentlichen 
 Rechte," 2d ed. (Tubingen, 1905), p. 47, errs when he states that 
 
182 IMPERATIVE QUALITY OF LAW [ Ch. Ill 
 
 a natural possibility has no juridical significance. Its 
 juridical value is commensurate with its control of 
 physical power, by which certain conduct (commissive 
 or omissive) possible by nature is prohibited. From 
 this the imperative as well as limiting character of 
 juridical norms is seen; what is not counter to them 
 is in accord with them. There is no neutral zone, 
 "tertium non datur." 
 
 "the systemization of law can increase the number of capacities of 
 individuals above that given by nature." For even the most complex 
 juridical relations and specific consequences attributed by law to 
 certain acts can in no case be conceived as anything but explications 
 of natural capacity to act either on the part of the agent himself, 
 whose right is under consideration, or of others whose relations with 
 him are determined by law. Natural capacity cannot be created 
 nor in any way increased by means of juridical norms. 
 
i 125 J THE JURIDICAL SPHERE 183 
 
 CHAPTER IV 
 RIGHTS 
 
 RIGHTS CONSTITUTE THE JURIDICAL SPHERE OF THE 
 INDIVIDUAL. — RIGHTS AND DUTIES. — JURISTIC CAPAC- 
 ITY. RIGHTS ARE BILATERAL. — RIGHTS SHOW THE 
 
 POTENTIALITY OF ACTION. 
 
 § 125. ~ Rights Constitute the Juridical Sphere of the 
 Individuul. jf Now our way is clear to define the concept 
 of rights. Heretofore we have shown that juridical 
 norms, by their imperative nature, affect the natural 
 practical capacity of man, by prohibiting (opposing a 
 contrary will to) certain of his possible acts of com- 
 mission or omission. From this it is clear that while 
 certain acts cease "per tantum" to be possible juridically, 
 the possibility of others, "per ipsum tantum" are re- 
 affirmed and re-enforced. In other words, they have a 
 place in the scheme of rights and constitute an agent's 
 juridical faculty or power.* This faculty is bounded by 
 the existence of norms limiting the acts which are physi- 
 cally possible to an agent. If the norms were done away 
 with, there would be no faculty in a juridical sense. 
 The juridical faculty is usually likened to a circle or 
 sphere, in which an agent is free to act.* As to this, it 
 
 1 Acting within these limits is, however, not only possible but neces- 
 sary (juridical duty). The specific character of this duty cannot 
 appear with full clearness until it is contrasted with that element of 
 claim or ' ' Anspruch, ' ' which one will consider as an essential of law in 
 the text, § 127 et. seq., post. 
 
 ' For example, Merkel, "Elemente der allgemeinen Rechtslehre," 
 I, § 1, 4: "Law creates this order inasmuch as it limits the sphere 
 of action of the members of the community in relation to each other 
 
184 RIGHTS [ Ch. IV 
 
 is important to note that juridical imperatives are gener- 
 ally conditional, that is, they generally require a certain 
 amount of facts for their effective application.' These 
 required circumstances are usually external and physical 
 (chief among which is the requirement of a living agent, 
 which is too obvious to merit especial notice save in the 
 abstract), and refer to certain natural conditions of 
 things, for example, the attainment of one's majority. 
 Others (which are of particular importance in determining 
 juridical relations) consist in expressions or acts of will, 
 either of the agent, to whom the faculty is given, or of 
 some one with whom he is in relation. The actual 
 juridical sphere of an agent varies from moment to 
 moment. And, therefore, if we wish to preserve the classi- 
 cal simile and represent rights in their objective synthesis 
 as a circle or sphere, we must not forget that it is far 
 from being constant and fixed for any given agent, but 
 is of different radii, enlarging and constricting about him 
 with the change of subjective and objective conditions, 
 
 and to the whole." Lasson, "System der Rechtsphilosophie," p. 207, 
 "Legal rules draw a line which must not be crossed; on this side 
 lies the sphere of legal power." Pernice in "Zeitschrift fur das 
 Privat- und offentliche Recht," Bd. VII, p. 474 et seq., "The result 
 (of juridical rules) is always the creation of a sphere, and within it 
 every one is a free practical agent." Thus Pachmann in "Ueber die 
 gegenwartige Bewegung in der Rechtswissenschaft," p. 45, defines 
 rights as "the measure of human freedom in society." 
 
 ' Thus Ihering in "Geist des romischen Rechts," I, p. 57, "This 
 form ("when . . . . then") is the most simple and direct and underlies 
 every legal rule, even when it is not an external feature of it." Cf. 
 "Der Zweck im Recht," I Bd., p. 350. Mso Zitelmann, "Irrtum und 
 Rechtsgeschaft"(Leipsic, 1879), states that every legal maxim is an 
 hypothetical judgment. And yet we must note that this principle 
 has its exceptions, especially in constitutional and administrative law. 
 See Merkel, "Elemente der allgemeinen Rechtslehre," 1, § 3, 3; and 
 especially Binding in "Die Normen und ihre Uebertretung," 1 Bd., 
 p. 124 et seq. 
 
§125] THE JURIDICAL SPHERE 185 
 
 both of which, turn and turn about, affect the applicability 
 of juridical norms. This is true entirely independently 
 of the change which the norms themselves undergo. 
 
 § 126. The First Characteristic of the Juridical Faculty. 
 The juridical faculty or sphere of action at any given 
 moment presents this characteristic: — its content, 
 that is, the whole possible activity or abstention of an 
 agent, untrammelled by juridical imperatives applicable 
 to him, cannot be controlled by another agent without 
 such control * being opposed by the same imperatives 
 by which the first agent's activity was circumscribed. 
 This property is a necessary result of the nature of the 
 juridical faculty or power. It is limited by that activity 
 or abstention which everyone should have under the 
 imperative norms imposed upon him. Whatever, there- 
 fore, is demanded of him, that is, whatever stricter 
 limitations are placed on his positive or negative exercise 
 of activity than those decreed by the existing system of 
 norms, infringes the system. Clearly (as we have said) 
 in certain cases one agent's will can be a basis for the 
 applicability of certain norms to another agent. But 
 as this always arises from the norms themselves, so it 
 finds its limit in them. Now, we can see the character- 
 istic and really constitutive element of juridical faculty, 
 by which it appears strictly connected with the juridical 
 norms. An agent's activity is juridically protected^ to 
 the extent that it is limited. Juridical respect (understood 
 in the broad sense, as including eventual positive claims) 
 is always inherent in every one, and is determined by 
 his rights. Hitherto we have examined the juridical 
 
 * It must be remembered that this word is used only to designate 
 the objective actualization of will incompatible with the others 
 given, 
 
 ^ Cicero was right in the strictest sense of the word, "Legum servi 
 sumus ut liberi esse possimus.'' 
 
186 RIGHTS I Ch. IV 
 
 faculty in both its logical phases, which come, however, 
 from a single causal reason. One (which can be called 
 the internal side of this faculty or right) represents the 
 potentiality of an agent to act in conformity to and 
 within the bounds set by the imperatives. The other 
 (or external side) denotes the impossibility of interference 
 and the power of reaction against it, under the im- 
 perative which gave the first power. 
 
 § 127. Correspondence of Rights and Duties. This 
 correlation, essential to the notion of rights, shows how 
 every right has a corresponding duty.' The claim to 
 
 •So, for example, Merkel says in "Elemente der allgemeinen 
 Rechtslehre," II § 21, "Rights are the power of one man in his rela- 
 tions with others. There is no right to which a legal duty on the 
 part of another does not correspond." Roguin in "La r^gle de droit," 
 p. 76 et seq., expresses the same idea, stating that there cannot be 
 a right without a man duty-bound to submit to it. Bierling is 
 wrong, when he holds in "Zur Kritikder juristischenGrundbegrifFe," 
 Zw. Th., p. 52 et seq., 324 et seq., that there can be liberty "(Diir- 
 fen") or power ("Befugniss") without a claim over another ("An- 
 spruch") and, therefore, a corresponding duty ("Pflicht"). Innoway 
 can a practical power or right be given without the illegality of its 
 interference being determined by the same system. Bierling's 
 examples, however ingeniously chosen, cannot destroy this principle. 
 According to him, the position of the finder of a "res nuUius" could 
 be distinguished from that of an owner, because he would have a 
 simple power or right over the thing without any claim over others. 
 But the truth is that the right to take possession of a "res nuUius" 
 includes the duty on the part of others not to oppose the occupancy, 
 except the case of a previous occupant (in which case it is not "res 
 nullius"). As to the right to use something, represented as existing 
 prior to occupancy, it does not exist in fact, but is based on the 
 implied hypothesis of future occupation, and is referable, therefore, 
 logically and juridically to property, which is acquired thereby. So 
 all Bierling's examples are founded on equivocations. If one speaks 
 generally of everyone's right to lead his life without interference, one 
 limits the right by the definition, and the limit lies exactly where one's 
 acts can be legally opposed by another's. Other obstacles cannot be 
 put in its way, that is, the sphere of one's right cannot be invaded; 
 
8127] RIGHTS AND DUTIES 187 
 
 respect (the German "Anspruch" and Italian "preten- 
 sione") is in fact a part of every right. Its value is seen 
 in different guises and phases which deserve separate and 
 distinct consideration. In the first place, this claim 
 to respect is, so to speak, latent, that is, it enjoys only 
 a potential existence. Until the legal faculty is exer- 
 cised by some one, while no one is deprived of his 
 rights, the protection against possible transgression has 
 no occasion for concrete manifestation.^ When there is 
 a threatened or actual violation of an agent's sphere, his 
 right or the objective strength of his rights effectively 
 opposes the acts of him who threatens or effects the 
 infringement. An actual juridical reaction takes place 
 which can be regulated by new imperatives, presupposing 
 for their applicability the infringement of the first.' 
 The essence and essential object of such reaction is the 
 prevention of the transgression. Where this is not 
 possible, or, being possible, is insufficient, other supple- 
 mentary consequences, in the generally typical forms of 
 indemnification in damages or of penalties, are inflicted." 
 The concrete and technical expression of a claim lies in 
 juridical complaint, that is, in actions ("Klagen"). This 
 is not, however, the only form of the objective demand 
 
 herein lies a true right ("Anspruch"), and, therefore, in this case, too, 
 there is a correspondence between juridical duty and power. Anal- 
 ogous arguments can be adduced for the other cases advanced by 
 Bierling (p. 325 et seq.). 
 
 ' It is hardly necessary to point out that ordinarily the virtual 
 existeno of juridical reason is sufficient to create this respect, upon 
 which it is based, and which exists for other motives besides the 
 fear of punishment. Cf. Filomusi-Gtielfi, "Enciclopedia giuridica," 
 p. 26 et seq., and Cap. V, § 134, post. 
 
 ' There are cases where the juridical reaction against an offense 
 is effected not by the application of new norms but by the sus- 
 pension of others hitherto effective. An example is the law of self- 
 defense. 
 
 » Cf. § 136, post. 
 
188 RIGHTS [ Ch. IV 
 
 of rights in general. In public law particularly, extra- 
 judicial forms of resistance can frequently be opposed 
 to eventual violations. i" Even in private law the 
 violation of certain rights can "per se" produce conse- 
 quences which show in regard to the offense a true and 
 actual juridical reaction against the offender. But, 
 especially in progressive juridical systems, a future 
 remedy generally prevails over the prejudicial pro- 
 tection and potentially upholds it. Thus, with this 
 reservation, actions at law are the typical if not the only 
 expression of rights — their external side." 
 
 § 128. Legal Capacity. An agent's legal faculty or 
 power takes on a particular force when it not only 
 acts thus and so, but lends definite juridical effect to 
 certain acts. In technical phraseology, this is called 
 legal capacity.'* The juridical faculty is not formed by it, 
 but, once formed, is raised, in a certain sense, to the 
 second power. An agent's incapacity to perform certain 
 acts does not "per se" imply that their fulfillment does 
 
 •" Cf., on this point, Orlando, "Teoria giuridica delle guarentigie 
 della liberty," in "Biblioteca di scienze politiche," Vol. V. (Turin, 
 1890). 
 
 " The belief that the right to a remedy is a new right born of the 
 violation of the antecedent right has some historical foundation, 
 especially as regards Roman law. It was upheld by Savigny in his 
 "System," §§ 204, 205. But generally in modern law the remedial 
 right is not considered as the product but as the expression of the 
 antecedent right. This theory, which may be called the dominant 
 theory, has been treated by Windscheid, in "Die Actio des romischen 
 Civilrechts vom Standpunkte des heutigen Rechts" (Dusseldorf, 
 1856), and in his "Pandekten," § 44 and n. 6, also the notes in the 
 Italian translation Vol. 1, Pt. I., p. 680 et seq. See Chiovenda 
 "L'azione nel sistema dei diritti" in "Saggi di diritto processuale" 
 (Bologna, 1904) ; Brugi "Istituzioni di diritto civile italiano," § 31. 
 
 " Ci.Brinz, "Pand.," 1 ed., § 52, p. 175; 2 ed., | 65, p. 211; Bier- 
 ling, "Zur Kritik der juristischen Grundbegriffe," J 147 et seq.; 
 JelUnek, "Syst.," p. 47 et seq. 
 
§128] LEGAL CAPACITY 189 
 
 not lie within his legal sphere. For example, a minor is 
 guilty of no wrong who accepts a loan or enters into 
 any other obligation. So the law, to take the example 
 adopted, decrees in such a case only the invalidity of the 
 act, that is, deprives it of the results it would have had 
 if done by a person of full capacity. Legal capacity, 
 therefore, does not exhaust the concept of rights. It is 
 only a secondary complication or internal differentiation. 
 Our previous remarks are of value, however, in con- 
 sidering its fundamental significance. 
 
 § 129. ^Rights areBilateral-i Thus, in rights the poten- 
 tiality to will or act implies a claim on another, to which 
 he is subjected; in a word, that rights are essentially 
 bilateral is a logical truth, deducible, as we have seen,'' 
 "a priori," and therefore applicable to every form of 
 right. Particular emphasis must be placed on this 
 notion in relation to rights in things as distinguished 
 from rights of obligation. Thus the legal idea of prop- 
 erty, the principal and typical right in things, presents 
 a double aspect. On one hand, the owner as such 
 enjoys the possibility of control of the thing (within the 
 limits established by legal norms), on the other hand 
 (still because he is its owner), he may demand non- 
 interference with his activity expended on it. There 
 is a somewhat widespread belief that the second element 
 is sufficient. Thus, Windscheid states that property 
 rights involve a "siniple prohibition," and that the voli- 
 tive content of rights in property is negative.'* Thon '* 
 
 " Cf. § 111, ante. 
 
 " "Pand.," § 38 and n. 3. Cf., however, § 167 and n. 1, where 
 the force necessary to preserve the negative configuration in opposi- 
 tion to the reality of the relation is evident. We may point out 
 besides that in the earlier editions of his treatise, Windscheid 
 expressed a contrary opinion. See notes of Italian edition (Turin, 
 1902), Vol. I, Pt. I, p. 645 et seq. 
 
 " "Rechtsnorm und subjectives Recht," p. 154 et seq. 
 
190 RIGHTS [ Ch. IV 
 
 develops this view to the full, asserting that property 
 rights consist in a legal prohibition of control over a 
 thing by any save him who has the title. Only after a 
 violation of this right, giving rise to a claim" on the 
 part of the owner, can we speak of his right." But the 
 prohibition of violation or power of reaction against 
 such a possible act is only the external side of a right. '* 
 The right of legal action to prevent violation is given 
 inasmuch as there is the possibility of acting within the 
 limits of law before violation. Both the right in the 
 thing and the right to non-interference are equally 
 essential to the concept of property rights. Both are 
 needed for its true determination, t Those who, following 
 the traditional formula, base the definition on the relation 
 of fact between the owner and the thing, proclaiming 
 
 " Thon's conception that an owner of a right has no claim ("Ans- 
 pruch") before its violation is upheld by reference to rights in 
 things, also by Neuner, in "Wesen und Arten der Privatrechtsver- 
 haltnisse" (Kiel, 1866), p. 153 et seq., and Brim, in "Pand.," 
 2 ed., p. 251 et seq. They affirm in substance that there can 
 be no claim or demand without a definite person on whom it is 
 made. This is, of course, true of an actual claim, but, as we have 
 said, the juridical demand of respect ('^nspruch") has a potential 
 existence from the moment of the creation of the right, of which it is 
 an integral part. In such a sense there is no difficulty in an abstract 
 conception. Cf. Bierling, "Zur Kritik der juristischen Grund- 
 begriffe," Zw. Th., p. 176 et seq. It must be admitted, however, 
 that the eventual violation actualizing this claim gives it the specific 
 form which (as Windscheid in "Pand.," § 43 says) constitutes its 
 personal direction. 
 
 "Schlossmann in "Der Vertrag" (Leipsic, 1876), p. 257 et seq., 
 expresses an analogous doctrine that property is purely negative. 
 "Property rights," he says, "are only the common apparent source 
 of a claim over others concerning the thing itself." Also Bierling, 
 in "Zur Kritik der juristischen Grundbegriffe,'' Zw. Th., p. 181 et 
 seq., makes property law consist in the right of non-violation. 
 
 ■' Cf. Bekker, "AUerlei von dinglichen Rechten" in "Zeitschrift fur 
 vergleichende Rechtswissenschaft," Bd. II, p. 17 et seq. 
 
§129) RIGHTS ARE BILATERAL 191 
 
 the so-called "immediate ownership,"" and those who, 
 restricting the outlook in the opposite sense, reduce their 
 rights to a simple prohibition of interference, are equally 
 in error .i^ 
 
 § 130. Rights Show the Possibility of Action. To 
 make the nature of rights clear, we will add one more 
 observation. ^If rights consist in the power to act 
 without foreign interference, and we so define them, 
 we do not meet the objection which lies in all the defini- 
 tions based on the element of will as actual, that is, on 
 the effective force or control of the will. Such is sub- 
 stantially the theory of Windscheid, who thinks that a 
 right is only a "Willensmacht" or "Willensherrschaft," 
 protected by law.'"' But he does not succeed in over- 
 coming the difficulty which he himself raised, referring to 
 an attack by Thon.^ The substance of rights is inde- 
 pendent of the actual will of the owner or of any mani- 
 festation of will on his part. Whoever is guilty of 
 trespass "quare clausum fregit" violates the landowner's 
 rights, although he has been passive. Whoever does not 
 
 " Contrary to this conception of property rights, which repre- 
 sents property as a claim on things (cf. Neuner, "Wesen und Arten 
 der Privatrechtsverhaltnisse," p. 50 et seq., esp. p. 53) are Kant's 
 observations in his "Met. Anfangsgr. d. Rechtslehre," p. 80 et seq., 
 and those even more concise of Fichte in his "Grundlage des Natur- 
 rechts," p. 53: "It is futile to talk of a right over nature, over 
 grounds, over animals, simply as such, considering only the rela- 
 tion between them and man. The mind exercises a control, but no 
 right over them, for there is no question of law in this relation. 
 When another man and I are interested in one thing at the same 
 time, it is a question of property law, to use the abbreviated phrase, 
 but it should really be called the law of human relations for the 
 exclusive use of one thing." The fundamental truth of these 
 critical arguments has received endorsement in the analyses of 
 subject by Pelrone in the "Contributo," p. 348 et seq. 
 
 M Windscheid, "Pand.," S 37. 
 
 1 "Rechtsnorm und subjectives Recht," p. 220 et seq. 
 
192 RIGHTS [ Ch. IV 
 
 pay his debts violates the rights of his creditors, 
 although they have not demanded satisfaction of 
 their claims. A minor, or anyone under some legal 
 incapacity, has rights regardless of whether he has a 
 guardian." ^^ A man can have a right even without 
 knowing it, Thon added even against his wilUf What 
 we have recognized as essential to rights is not the effec- 
 tive will nor its actual control, but its possibility and 
 therefore the possibility of its control under established 
 norms.^' The example cited proves this.^ 
 
 ^ "Denn diesen (willensunfahigen Rechtssubjekten) sprechen 
 ■wir schon Privatrechte zu noch ehe ihnen ein Vertreter gegeben 
 worden ist," are Thon's exact words. "Rechtsnorm und subjec- 
 tives Recht," p. 220. 
 
 ^Binding, "Die Normen und ihre Uebertretung," II Bd., p. 60, 
 n. 75, thinks it would be more proper to speak of an agent's acts 
 than of his will. The remark is due to the restricted conception of 
 will, which we have shown to be wrong in § 87 et seq., supra. When 
 the word will is given its true meaning, it is synonymous with act. 
 
 ^* In them the possibility of willing in accordance with the content 
 of a right (by means of him who has the right or of his present or 
 future representative) is coextensive with the right. The difficul- 
 ties in the case where he who has the right is under a legal dis- 
 ability is only superficial, for if the will of the trustee or guardian 
 were not considered as that of the cestui que trust or ward, the 
 right would not belong to the latter. It is clear, therefore, that 
 he who has, or is thought to have a certain possibility of willing is 
 necessarily he who has the right. 
 
§1311 LAW IS COERCIVE 193 
 
 CHAPTER V 
 LAW AND COERCION 
 
 ALL LAW IS COERCIVE. — COERCION AND COMPUL- 
 SION. — APPARENTLY UNCOERCIVE LAW. — POSSESSOR 
 OF RIGHT AND WIELDER OF COERCION. 
 
 § 131. Law is Coercive. From our previous study 
 of the nature of the juridical criterion, it can be seen 
 that action is objectively possible to the extent to which 
 it conforms to law. The objective possibility means 
 only freedom from possible prevention, which is the 
 result of juridical approval, while moral approval, by 
 decreeing a corresponding omission, on the other hand, 
 supposes the antithesis. In consequence of this funda- 
 mental concept of rights, juridical possibility is always 
 accompanied by a claim ("Anspruch") against another, 
 that is, the rirfit to demand a positive or negative act 
 on his part in regard to the right itself. If such corre- 
 spondence of reciprocal conduct, decreed by law, is not 
 observed, he who disregards it exposes himself to re- 
 straint, since such restraint lies within the juridical sphere 
 of him whom he has injured. This logical relation exists 
 in every possible case, because it is fundamental to the 
 juridical consideration of human action. Taking acts 
 objectively, that is, opposed one to another by their 
 different agents, no ethical qualification is possible 
 which is not in inverse ratio to restraint. » Law is synony- 
 mous with the juridical possibility of the repression of 
 wrong. In this way the vexed question of juridical 
 coercion should be solved. In other words, it should be 
 recognized that the possibility of enforcing the observance 
 
194 LAW AND COERCION [Ch.V 
 
 of a right is an integral and characteristic part of the 
 right itself Jj From the time when Thomasius pointed out 
 that compulsion was the distinctive factor which distin- 
 guishes the "justum" from the "honestum" and "de- 
 corum," this concept, far from being forgotten, has 
 always played an important part in the theory of law.* 
 Kant confirmed it absolutely, saying: "Law and faculty 
 of constraint are one and the same." ^ Thibaut, follow- 
 ing this concept, gave a simple definition of law:» "Law is 
 that which permits the possibility of coercion." K^ There 
 would be no need of pursuing further the subject of the 
 necessity of compulsion in law were it not that many 
 serious arguments have been advanced against it, par- 
 ticularly by modern jurists. The inexact way in which 
 rights have been conceived is largely responsible for this, 
 and, therefore, we must review these arguments to find 
 their value. 
 
 § 132. Limits of Coercion not a Proof of Uncoercive 
 Law. The first general argument against the essen- 
 tiality of coercion to law is: However extensive the 
 presence of coercion in the juridical field, yet there is 
 always, from the nature of things, a point beyond which 
 its application does not extend. It is co-extensive with 
 the power which exercises it; he who exercises coercion 
 clearly cannot be subject to it. This argument is 
 worthy of attention, because it is directly based on 
 principle. As in retracing the causal chain a point 
 is reached which must be considered as causal but not 
 caused, so in the legal order there must be the rule of 
 avdyKT] <TT7Jvai; the possibility of coercion has limits fixed by 
 nature. "The nature of the supreme power makes it 
 ' Cf. on this point, Stahl, "Geschichte der Rechtsphilosophie." 
 ' Kant, "Met. Anfangsgr. d. Rechtslehre," p. xxxvi. 
 '' Cited by Ihering in "Geist des rSmischen Rechts," Dr. Th., 
 I Abth., p. 317. 
 
§132] LIMITS OF COERCION 195 
 
 unrestrictible," writes Riimelin.* Jhering reasons in the 
 same way, although he holds that compulsion is essential 
 to private law: "At a certain point, in coercion by the 
 State the 'being compelled' must find an end, and then 
 remains only the compelling." ^ Binding writes in the 
 same tenor : "If he who has the monopoly of power ("der 
 Zwangsmonopolist") refuses to exercise it, who can make 
 him? How can a right against the State be enforced?" 
 No one can be said to coerce himself." * These writers, 
 like many others, think only of the juridical position 
 of the sovereign, who, constitutionally inviolable and 
 irresponsible, cannot be compelled to fulfill his duties.' 
 The question, treated broadly, includes the fundamental 
 problem of all public law. Its solution depends upon 
 the conception of the relation between the State and its 
 citizens. The arguments concerning rights on this subj ect 
 are too well known to need comment.' For our purpose, 
 
 * Riimelin, "Eine Definition des Rechts," p. 337. 
 
 « Cf. Ihering, "Der Zweck im Recht," I Bd., p. 327. 
 
 'Binding, "Die Normen und ihre Uebertretung," I Bd., p. 483 
 et seq. Cf. p. 63 et seq. 
 
 ' Cf. besides those cited. Than, "Rechtsnorm und subjectives 
 Recht," p. xi, 7 and 126; Ceyer, "Philosophische Einleitung in die 
 Rechts wissenschaf ten," p. 5, "Undoubtedly juridical duties control 
 even kings (when they are not mere despots), but they cannot be 
 subjected to compulsion." Both writers expressly exclude coercion 
 from the definition of law. This is more strange in Thon, who, as 
 we have seen, is a firm believer in its imperative nature. 
 
 'The prevalent tendency in Germany, the result of Gerber's 
 famous "Ueber ofFentliche Rechte" (Tubingen, 1852), does not 
 favor rights against the State. Laws which guarantee certain 
 rights to the citizens are looked upon as limitations on the power 
 of the State, and political rights (e.g., that of suffrage) are con- 
 ceived of more as public functions than as true rights. But the 
 theory which admits such rights is well represented in Germany and 
 is prevalent in France and Italy. Bibliography, Ranelletti, "Facolti 
 create dalle autorizzazioni e concession! amministrative" in "Rivista 
 italiana per le scienze giuridiche," Vol. XXII (1896), p. 202 et seq. 
 
196 LAW AND COERCION [Ch.V 
 
 however, we can reduce the discussion to the following 
 terms. When can a right against the State or against the 
 supreme coercive power of the community be allowed? 
 We can reach the conclusion that the possibility of 
 coercion is not essential to a right only if we can find 
 such a right existing without the possibility of coercive 
 realization. But, to avoid grave error, we must remember 
 that the discovery in the juridical scale of a point not 
 attainable by coercion has no evidential weight in our dis- 
 cussion. Perhaps at such a point the scale ends, and no 
 one has a further true right, t There is no doubt, however, 
 that the existence of every juridical system is based on 
 a supreme power, by which all the rights in the system 
 are enforced. The result of this is that within the system 
 there can be no right without its recognition^ Let us 
 turn back and now consider rights against the State 
 or against the supreme coercive power of the community. 
 Clearly there is but one alternative; either they will be 
 recognized by the State and a method be provided for 
 their realization, or they will not be so recognized and 
 not be true rights in respect to the State, but a mere 
 demand, the compulsory realization of which would not 
 be in harmony with the system. An extra-le^l claim 
 can never be considered a right. It could only be so 
 considered if it were referable, in the face of the juridical 
 system of the State, to some other system of law or 
 supreme principle, by which it might be compulsorily 
 effected. From this it is clear that the theory we have 
 given cannot lead to an exception to the principle of the 
 
 CI. JelUnek, "System"; Esmein, "Elements de droit constitutionnel 
 frangais et compart," 3 ed. (Paris, 1903), especially p. 377 et seq.; 
 Green, "Lectures on the Principles of Political Obligation," p. 142 
 et seq. : Romano, "La teoria dei diritti pubblici subiettivi" in "Prime 
 trattato completo di diritto amministrativo italiano," Vol. I (Milan, 
 1900), pp. 108-220; Giese, "Die Grundrechte" (Tubingen, 1905). 
 
§132] LIMITS OF COERCION 197 
 
 essential coerciveness of law.* Let us now consider the 
 special example chosen by the writers we have quoted, 
 that is, the juridical position of the sovereign. Abstract- 
 ing from the various circumstances and from the meaning 
 of the responsibility of the ministers in relation to the 
 irresponsibility of the crown, this dilemma arises: Either 
 the law which sanctions the inviolability of the sovereign 
 works independently of the laws which impose obligations 
 on him , or it is effective only while the latter are observed 
 and his inviolability is really subordinate to his duties. 
 Accepting this second thesis (of which we find many clear 
 examples both in abstract political theories and in posi- 
 tive historical constitutions), all the logical characteristics 
 of law are present, the claim, potential or latent until the 
 satisfaction of the right, would appear in the moment of 
 its violation. The principle of the coercibility of law 
 would have an exact application. Or else, taking the 
 first thesis (which is the opinion of the writers quoted) and 
 admitting that the inviolability remains despite broken 
 obligations, the conclusion is plain : norms, which impose 
 unenforceable obligations, whose eventual disregard 
 cannot be legally opposed, have as legal imperatives^" 
 
 'Binding, in "Die Normen und ihre Uebertretung," I p. 487 
 misses the crux of the question when he writes, "The State has not 
 only a right but also a duty to punish, but this duty is incoercible." 
 This would be in point if such an office of the State were a judicial 
 duty or if it were the object of a claim ("Anspruch") on the part of 
 anybody. If this is denied (as it is by Binding himself) the juridical 
 duty to punish is denied. The same answer may be made to the 
 other arguments of the same writer. A German citizen, he says, has 
 a right to protection in foreign lands; if the State refuses to protect 
 him, who can coerce it? This isa "petitioprincipi"; if the State can 
 refuse to protect him, he has no right to protection. If the refusal 
 is illegal, that is, if it is against a law of the State, which gives a 
 citizen a right to protection, his right would be enforceable by the 
 means given by the law. 
 
 "• Kant reached this conclusion, which is the only logical one, 
 Thon, Binding and Geyer to the contrary notwithstanding. He 
 
198 LAW AND COERCION [Ch.V 
 
 no value. We may further point out that an inter- 
 mediate condition is possible when the king, while pre- 
 serving his inviolability, has his sphere of action so 
 determined by law that within certain limits it is juridi- 
 cally possible by means of other organs of State to resist 
 or oppose his eventual transgressions of his duties. This 
 is the system of constitutional monarchies, in which the 
 king has imperfect juridical duties " — imperfect in that 
 the means to prevent the transgression are indirect or 
 lacking.^ In all events, the correlation between the two 
 terms remains uncontrovertible; whenever there is a 
 right, there is the juridical exigency of non-interference. 
 § 133. The Fact that the Possessor of the Right does 
 not Exercise the Coercion "in Propria Persona" is not a 
 Proof of the Uncoerciveness of Law. Another argument 
 against the coercive nature of law (directly connected 
 with the one just refuted) is based on the fact that the 
 possessor of a right does not generally enforce it him- 
 self.i' The State does this by one of its departments. 
 But it is obvious in the first place that the question of 
 who exercises the coercion has nothing to do with the 
 matter before us. What we are considering is that the 
 right is enforced and that it shows its effectiveness by 
 coercion. In certain cases, where public authority can- 
 not intervene in time, the victim of aggression can defen^ 
 himself. That these cases of private protection, which 
 were so frequent in primitive regimes as to be the rule,^* 
 
 expressly affirmed that the head of a State has no juridical duty, 
 and there can be no legal resistance to his illegal acts. "Met. 
 Anfangsgr. d. Rechts.," p. 203 et seq. 
 
 " Cf. § 137, post. 
 
 " Cf., on this point, Jellinek, "System," p. 349 et seq. 
 
 i» Vide Holder, "Pand.," § 4, p. 18 et seq. 
 
 " Cf., on this point, Bernhoft, "Ueber die Grundlagen der Rechts- 
 entwicklung bei den indogermanischen Volkern" in "Zeitschrift fiir 
 vergleichende Rechtswissenschaft," II Bd. (Stuttgart, 1880), espe- 
 cially p. 285 et seq. 
 
§133] COERCIVE PRINCIPLE OF LAW 199 
 
 have disappeared one by one so that in progressive 
 juridical systems they have become exceptions to the 
 general rule, is due to the increase of legal protection. 
 It seems an error to say that a citizen cannot compel 
 the State to interfere to protect his rights, which can only 
 be enforced by means of the State. iWhat is a right 
 except the power to demand of the State what it recognizes 
 as such? How can we make two rights of what is really 
 only one, whose recognition includes enforcement by the 
 State? We can alsoa^mit that in tlie positive order of 
 things the organs of State can sometimes wrongfully 
 refuse to recognize claims. But, as legality in a deter- 
 minate system is subject to such recognition, the legality 
 disappears when the recognition is denied, and so the 
 act cannot be a fully developed right and lack means 
 of self-assertion. Clearly a citizen cannot coerce the 
 judiciary into a recognition and enforcement of his 
 right, but, let us repeat it once more, such recognition 
 is presupposed when, in a positive system, a right is 
 spoken of.'* 3 From this we can conclude that this 
 second objection, like the first, has no weight in weaken- 
 ing the position of the coercive principle of law. 
 
 § 134. Spontaneous Observance is no Proof of the 
 
 Uncoerciveness of Law. The argument against the coer- 
 
 civeness of law, which we will now examine, differs 
 
 entirely from the last two. It is not only upheld by 
 
 16 "A right in its true sense,'' writes Carle in "La Filosofia del 
 diritto," I, p. 87 et seq., "cannot be drawn from one of its 
 opposing terms, and therefore neither the Declaration nor the 
 Plea or Answer show it in its integrity. The Opinion of the judge, 
 chancellor or referee expresses it more accurately. The plaintiff 
 and defendant have rights, one to bring suit, the other to defend 
 it, but neither has a right to a judgment in his favor. The law is 
 expressed by the judgment, as the price in a sale is shown by the 
 agreement of vendor and vendee, and not by the excessive demand 
 or shabby offer." 
 
200 LAW AND COERCION [Ch.V 
 
 good authorities, but the principle upon which it relies 
 is certainly true. £ Law is by its nature a vital force and 
 as such dominates the wills of those subjected to it, but 
 its realization is not always mechanical. Psychological 
 coercion is as effective as the physical. And where it is 
 sufficient, the true ends of law are better attained and 
 realized by it. Indeed, when in the majority of cases 
 one cannot count on spontaneous obedience, it cannot be 
 said that a system of law really exists. The increasing 
 adaptation of men, moreover, to conditions of social 
 co-existence leads us to imagine a future state in which 
 laws will always be obeyed and respected for themselves, 
 without need of coercion. And yet, in such a case they 
 would nevertheless be laws.i Such in substance are the 
 reasons advanced by Merkel,'^ which were followed, at 
 least partially, by Ahrens," Trendelenburg,*^ and Bier- 
 ling." i In fact, no one can deny that legislators favor 
 spontaneous obedience. And the origin of law in custom 
 shows that it is a natural characteristic of law.^ But this 
 does not meet the real difficulty of the. question, for it 
 does not consider the true terms. What we must fix our 
 attention on is this: Is a possibility of physical reac- 
 tion against the infringement inherent in a right? That 
 law is always violable is a point not to be lost sight of, 
 and one which we have already deduced as essential in 
 our earlier analysis of juridical criterion.^" The ques- 
 tion of the coerciveness of law is properly reducible to 
 
 " Merkel, "Elemente der allgemeinen Rechtslehre," I, Cap. I, 
 §7. 
 
 " Ahrens, "Naturrecht," I Bd., § 37, p. 310. 
 
 ^ Trendelenburg, "Naturrecht," §46. Trendelenburg and Ahrens 
 hold that coercion is a secondary or derivative element of law. 
 
 ^"BierUng, "Zur Kritik der juristischen Grundbegriffe," Erst. Th., 
 p. 139 et seq. Cf. his "Juristische Prinzipienlehre," III Bd. (Tubin- 
 gen, 1905), "Storung und Bewahrung des Rechts." 
 
 so Cf., § 100, etc., ante. 
 
§134] SPONTANEOUS OBSERVANCE 201 
 
 the question of whether coercive repression can in 
 every case be juridically opposed to a possible violation. 
 If the right is respected, such repression is not exer- 
 cised. In a social state, where justice is spontaneously 
 realized, the threat of coercion would be a dead letter. 
 So to-day the efficacy of the norms is often shown with- 
 out the use of coercive means; but all this, while true, is 
 foreign to our discussion. Until the discussion is not based 
 on the hypothetical violation of law, the proposition of 
 coercion is badly stated and cannot be solved. Of course 
 a juridical norm or statute "would not cease to be such, 
 even if the mechanical means of enforcement were gen- 
 erally unnecessary,"^^ but this is far from proving such 
 norm or statute uncoercive, for the fact upon which the 
 use of coercion depends is omitted from the hypoth- 
 esis.°2 i If a juridical system could be described or 
 imagined which did not allow the prevention or repres- 
 sion of possible violations of rights, only then could we 
 be said to have proved that the coercive element is not 
 essential to the concept of law.^-X 
 
 ''^Cf. il(ferJfee/,"ElementederallgemeineiiRechtslehre," 1, Cap. I,§ 7. 
 
 22 For the same reason Binding is wrong in thinking that property 
 rights in general are not coercive, except when coercion is required 
 because of violation: "Not property rights, but only the claim of the 
 owner against the detainer or wrongful possessor for damages is 
 enforceable." "Die Normen und ihre Uebertretung," p. 488, n. 3. 
 Of course here, as in all other cases, an effective use of coercion 
 cannot be made before an act of violation, but the possibility of 
 coercion is coincident with the right. 
 
 2' On this point Schuppe points out with accuracy, "There is 
 clearly a right, even when a universal constant belief in the necessity 
 of such or such rules of business gives no opportunity for its enforce- 
 ment or prohibition, and in a certain sense even when those in 
 interest lack the accidental power to prevent its violation. But there 
 is clearly no right when there is no belief in the faculty (allowable- 
 ness) to prevent the violation." "Die Methoden der Rechtsphiloso- 
 phie," in "Zeitschrift fiir vergleichende Rechtswissenschaften," Bd. 
 V, p. 272. Cf., also, WaUasdiek, "Studien zur Rechtsphilosophie," 
 p. 82 et seq. 
 
202 LAW AND COERCION [Ch.V 
 
 § 135. Compulsion and Coercion. In place of com- 
 pulsion, let us speak only of coercion in our inquiry. 
 The choice of one or the other term is of itself of no 
 moment, save that their distinction marks a diversity 
 of concept, which must be kept clear. What is the 
 precise meaning of the statement that coercion is an 
 essential element of law? If we mean that there is no 
 right whose infringement does not give rise to an act of 
 physical resistance, we are wrong. A law may be violated 
 and meet no compulsory opposition, without affecting 
 the principle under discussion. This principle, to put it 
 briefly, or rather to repeat briefly what has been said, 
 is only this :t Where there is right, there is necessarily 
 in the same juridical system the possibility of compulsory 
 enforcement of its respect. Properly, therefore, not com- 
 pulsion, but coercion, that is, possibility of enforcement, 
 is essential to law. 5 This must be clearly understood 
 before we take up the following objection to our thesis. 
 
 § 136. Impossibility of Effective Coercion no Proof of 
 Uncoerciveness of Law. t-It is common sense that if the 
 will of the legislature tends to the observance of juridical 
 norms, then, where observance does not occur spontan- 
 eously, it can hardly be obtained by force. Seldom can 
 legal protection be quick and strong enough to prevent 
 the infringement of a norm. Nine times out of ten coer- 
 cion comes too late. And before the indestructibility of 
 fact, law, as every other power in nature, must bow^^ 
 "Quod factum est infectum fieri- nequit." This argu- 
 ment seems even stronger in its attack on our thesis 
 when it is considered in its application to concrete cases. 
 By such application, the great number and variety of 
 obstacles in the way of legal coercion are shown. Take 
 the following examples. The rights of a creditor are 
 of no avail against an impecunious debtor. A criminal 
 becoming insane during trial cannot answer for his 
 
5136] IMPOSSIBILITY NO PROOF 203 
 
 crime, or once condemned to death, can murder without 
 fear of punishment for his later crimes. A traveller in 
 a deserted spot vainly claims his rights of his despoilers. 
 A witness cannot be forced to testify, nor can a con- 
 tractor be forced to carry out his contract (if it involves 
 personal skill) .^* There are two classes of cases (as can 
 be gathered from the examples given) in which effective 
 legal coercion is impossible. In the first are all those 
 in which law cannot act directly but must be satisfied 
 with compensation, that is, by imposing a civil or criminal 
 penalty as a consequence of the transgression.^^ In the 
 second are those cases in which not only direct coercion 
 
 ^ Some of these examples are discussed by Binding in "Die Normen 
 und ihre Uebertretung," I Bd., p. 489. Cf., too, MarcadS, "Spiega- 
 zione teorica-practica del codice Napoleone," Vol. I, p. 29. 
 
 ^5 A penalty imposed for the violation of a statute cannot, as Than 
 says in "Rechtsnorm und subjectives Recht," p. xi, be regarded 
 as coercing its observance. It presupposes the happening of what 
 the statute decreed should not happen. See on this point. Binding, 
 "Handbuch des Strafrechts," 1 Bd. (Leipsic, 1885), p. 155 et seq., 
 and "Die Normen und ihre Uebertretung," 1 Bd., p. 35 et seq., and 
 at p. 45 where he writes, "The norm precedes, it is clear, the penal 
 law, which marks a transgression of it with a penalty or declares it un- 
 punishable." He also restates, in company with ancient writers (cf. 
 Hobbes, "De Cive.," Chap. XIV, § 6 et seq.; Puffendorf, "De Jure 
 Nat. et Gent." Lib. VIII, Cap. 3), the similar formula of Feuerbach, 
 "Betrachtungen fiber dolus und culpa" in "Bibl. fiir peinliche 
 Rechtswissenschaft," II, p. 207 et seq, "Thou shalt not will nor do 
 this. This is the primary form of every prohibition, which binds 
 every citizen absolutely and directly." To the same effect, HeimSe 
 in "Gerichtssaal," Bd. XIII, p. 426, "Every penal statute may be 
 from one point of view characterized as a threat against the failure 
 to observe another and earlier law." Cf. Bierling, "Zur Kritik der 
 juristischen Grundbegriffe," Erst. Th., p. 145, "Every penal law 
 presupposes a norm, whose infringment is the terms of the use of the 
 law." Cf., also, his "Juristische Prinzipienlehre," III Bd., V Abschn.; 
 Schuppe, "Der Begriff des subjektiven Rechts," p. 21; Merkel, 
 "Elemente der allgemeinen Rechtslehre," I, § 5. Lasson, "System 
 der Rechtsphilosophie," p. 537, contra. 
 
204 LAW AND COERCION [Ch.V 
 
 is impossible but compensation as well. Now, we can 
 show the true meaning of legal coercion. The claim 
 that compulsion is an essential characteristic of law can 
 be destroyed by a single example in which violation is 
 not followed by an effective reaction. But such a claim 
 has nothing in common with our thesis. It is contrary 
 to it in fact. Not actual compulsion but potential 
 coercion is essential to law. Not restraint but the power 
 to restrain, or the right of coercion, is necessarily a part 
 of every law, always dependent, however, upon violation^ 
 Although, therefore, circumstances or accidental causes 
 of any nature may obstruct the repressive force of 
 law, or even render supplementary or compensatory 
 damages impossible,^^ the possibility of juridical reaction, 
 which exists immanently in and because of every right, 
 is not destroyed. As the non-existence of a right cannot 
 be inferred from its violation, so the lack of reaction 
 against violation does not weaken the principle that 
 what is contrary to a law is always combatable by that 
 law in some way or another. Notice, we wrote by that 
 law. If it were not right to oppose a violation in some 
 way by hypothesis, it would not be a juridical right 
 which was transgressed. Right and the juridical 
 possibility of reaction against wrong are, therefore, two 
 parallel and inseparable and even partially equivalent 
 concepts, the second being only the first considered in 
 its external phase.^' 
 
 § 137. Apparently Uncoercive Classes of Law no 
 Proof of Uncoerciveness of Law. There remains but 
 
 ^' In such arguments, Bekker, in "Zeitschrift fur vergleichende 
 Rechtswissenschaft," I, p. 110 et seq., "Pand.," § 18, p. 47, n. e., 
 finds the grounds for his general objection. He holds that the legal 
 machinery cannot be sufficiently perfected to protect rights abso- 
 lutely. 
 
 " Cf. § 126, ante. 
 
§137] UNCOERCIVE CLASSES OF LAW 205 
 
 one more argument to be overcome :L certain juridical 
 spheres seem to lack the element of coercion. The first 
 and largest of these is international public law. In 
 private law, the "leges imperfectse" and the so-called 
 natural obligations are examples. But, after all we 
 have said, a very few words will clear up this point. 
 In reference to international public law, it is well known 
 that jurists doubt if it is law in the true sense. Lasson 
 denies absolutely that the relations between States have 
 a truly juridical character.^^ The question really is 
 whether such a system of norms exists between States, 
 that their violation implies and gives a right of coercion. 
 It seems that such a system exists, although not yet 
 quite definite and we believe that we have here an 
 example of law in the process of formation.^*J But apart 
 from this, remembering that the juridical possibility of 
 the use of coercion is not subordinate to its physical 
 practicability, the correspondence is shown even here. 
 Nor could it be otherwise, seeing the necessity of the con- 
 cept upon which it is founded. c-The solution of the other 
 case is easy. It is evident that when a juridical system 
 restricts the use of coercion within certain limits in a 
 given relation, it restricts the right as well. Take the 
 
 ^ Cf., Lasson, "System der Rechtsphilosophie," p. 394 et seq., 
 and especially "Princip und Zukunft des Volkerrechts" (Berlin, 
 1871). 
 
 2' This theory, founded especially on the analogy of the present 
 condition of international law with the primitive stages of national 
 law, is upheld by Post, who defines international law as a law 
 "which is becoming" ("ein werdendes Recht"). See "Bausteine," 
 §§48,50,72. Vanni, "Maine," holds the same opinion. Cf. Del 
 Vecchio, "II fenomeno della guerra e I'idea della pace," 2nd ed. 
 (Turin, 1911; German transl., "Die Tatsache des Krieges und der 
 Friedensgedanke," Leipsic, 1913). 
 
 [On the subject of international law, its origin, its modern form 
 and development, cf. p. 70 et seq., Miraglia, "Comparative Legal 
 Philosophy," § 96.— Tr.] 
 
206 LAW AND COERCION [Ch.V 
 
 case of gambling debts. "Here," says one, "is an uncoer- 
 cive juridical obligation, for a suit cannot be brought." 
 But what does this prove except that the creditor's right 
 is restricted to a voluntary payment? The argument 
 against the "leges imperfectae" is analogous.'" There can 
 be no doubt that legislative dispositions which establish 
 a command or prohibition and give no coercive reaction 
 against violation are not true juridical norms, and do not 
 constitute true rights.^ > 
 
 '" "Imperfecta lex est," writes Ulpian, "quae vetat aliquid fieri 
 et si factum sit, nee rescindit nee poenam injungit ei qui contra legem 
 fecit." "Ulpiani Fragmenta," ed. Teubner (Leipsic, 1886), p. 568. 
 
 8' We have already pointed oUt in the text, § 116, that the exis- 
 tence in laws and statutes of propositions which have no juridical 
 essence is generally uncontradicted. 
 
§138] OBJECT OF LAW 207 
 
 CHAPTER VI 
 LAW AND INTERESTS 
 
 THE OBJECT OF LAW. — IHERING'S DEFINITION OF 
 LAW. — RIGHTS AND UTILITIES. 
 
 t § 138. Object of Law. What we have shown so far 
 proves that law by its nature has a practical function. 
 Its determinations, rendering the conduct of several 
 agents compatible, tend to form a system or harmony in 
 society. This harmonious co-ordination of life is not 
 only abstractly .outlined, but effected and imposed by 
 law.j; The juridical imperative, whose diverse aspects 
 we have examined, is co-extensive with the will that 
 forms it.' ^ In respect to every juridical proposition or 
 institution, therefore, we should seek the purpose, more 
 or less clearly conceived, and the will which gave it its 
 origin and existence. In the most general philosophical 
 sense, the end of anything is formed by its fully 
 developed essence (so Aristotle in his "Metaphysics"), 
 hence the end or scope of law can be said to be its essence, 
 that is, the ethical co-ordination of the social life. In 
 this sense all juridical propositions and institutions 
 have an equal quality of finality.,. The formation of a 
 system, the assignment or guaranty of a certain sphere 
 of activity to an agent so that his acts harmonize and 
 do not conflict with those of others — in a word , the pacific 
 compromise of freedom among men living together — 
 such are the teleological characteristics found in every 
 system of law, inherent, in fact, in its concept J [But 
 if not content with this definition of the concept itself, 
 we seek the concrete motives and objects which have 
 
 ' Cf. Cap. Ill, p. 166, ante. 
 
208 LAW AND INTERESTS [Ch.VI 
 
 been the causes of the laws, and the specific needs and 
 advantages which have guided the formation of law in 
 its historical course, treating the objects and ends not as 
 a principle of logical determination but as real and effec- 
 tive determining elements, we must disregard the unity of 
 the concept and consider the multiplicity of the contin- 
 gencies of legal growth and the diversity of positive legal 
 formulse.Ht Since law arises "usu exigente et humanis 
 necessitatibus," an historical reason, as the real founda- 
 tion of every institution, will show why law developed 
 thus and not otherwise, t Under the form of command 
 or guaranty which protects a right, an active force or 
 concrete exigency of life can be found. But the analysis 
 of such forces and needs, which give the various content 
 of law, cannot be equivalent "per se" to its form, in 
 which its true universality lies. 5 
 
 i § 139. Ihering's Definition of Law. Everyone knows 
 what care is used in modern times in the study of the 
 actual coefficients of law. The relativity of positive 
 law to the psychological and material conditions of life 
 receives every day more certain confirmation. There 
 can be no doubt that every institution, no matter how 
 apparently unconnected with the real development of 
 the life of the people who formed it, is always in some 
 way related to it. The fact that the object of custom 
 and law is not discernible at first glance, and is some- 
 times unknown to the men who are bound thereby, 
 does not affect the actual existence of such an object, 
 which scientific analysis must explain. Tradit^imi, like 
 instinct, diminishes and obliterates the sense of purpose^ 
 but, to borrow a phrase of Vico, "the constant and public 
 facts of nations" have always a practical function and 
 reason for existence, which make a teleological explana- 
 tion possible. There can be no doubt of the admissi- 
 bility of such a study. I-The disagreement begins with 
 
§139] THERING'S DEFINITION OF LAW 209 
 
 the attempt to formulate its results into a definition 
 of the essence of law; that is, with the substitution of a 
 generic definition of the ends sought by law for the 
 declaration of the logical characteristics, which properly 
 constitute its concept. The attempt to overcome or 
 escape such logical deductive research, by the induction 
 of the various teleological relations of law from condi- 
 tions of human existence, was doubtless due to real pro- 
 gress made in this branch of science; but this does not 
 justify it, when it passes its natural boundaries. We will 
 examine briefly the question of such method of deter- 
 mining the definition of law. J Let us take Ihering's doc- 
 trine as the most advanced and authoritative of this 
 school ? L Ihering defines law as ' 'the guaranty of conditions 
 of society in the form of coercion."' In another place 
 he says, "law is the complex of the conditions of 
 existence of society guaranteed by the external power 
 of the State."* But there is a marked difference 
 between these definitions, for in one, law is the guaranty 
 and in the other, the thing guaranteed. Bierling, be- 
 cause of this, says that Ihering's two definitions cancel 
 one another.^-^CWe may note that a similar antinomy 
 
 2 For general criticism of Ihering's doctrine, see Petrone, "La 
 fase recentissima della Filosofia del diritto in Germania," p. 46 et 
 seq. Cf.,too, Pachmann, "Ueberdiegegenwartige Bewegung in der 
 Rechtswissenschaft," p. 33 et seq.; Kiihnast, "Kritik moderner 
 Rechtsphilosophie" (Berlin, 1887), p. 25 et seq.; Aguilera, "L'idee 
 du droit en AUemagne" (Paris, 1893), p. 227 et seq.'; Bougli, "Les 
 sciences sociales en AUemagne" (Paris, 1896), p. 103 et seq. 
 
 ' "Die Sicherung der Lebensbedingungen der Gesellschaft in 
 Form des Zwangs," "Der Zweck im Recht," I Bd., 1877, p. 434. 
 Cf., 3 ed., 1893, p. 443. 
 
 * "Recht ist der Inbegriff der durch ausseren Zwang d. h. dutch 
 die Staatsgewalt gesicherten Lebensbedingungen der Gesellschaft," 
 "Der Zweck im Recht," 1 ed., p. 499; cf. 3 ed., p. 611. 
 
 ' So Bierling writes in his critical review of Ihering's work, pub- 
 lished in "JenaerLiteratur-Zeitung,"Jahrg. 1878, p. 415, and referred 
 to in "Zur Kritik der juristischen Grundbegriffe," 11 Bd., p. 59 et seq. 
 
210 LAW AND INTERESTS [Ch.VI 
 
 is found in the way Ihering defines rights: "Rights," 
 he says, "are legally protected interests,"^ but, he adds, 
 right is "the juridical security of enjoyment," or the 
 "auto-protection of interests."^ There is a lack of 
 clear analysis here for an object protected is very 
 different from protection itself. *j;^n all these diverse 
 definitions, however, there is an effort to introduce into 
 the definition the element of scope or purpose, which 
 is thought by Ihering to be the origin of all law.' 
 But a subtle equivocation is hidden in this general 
 thesis. Of course, no juridical norm or institution can 
 arise without an object or reason; in this we agree 
 heartily with Ihering that law has a teleological quality; 
 but this does not in the least imply a possibility of dis- 
 covering a single object for all juridical institutions or 
 norms of all times and of all peoples. The variety of 
 the phenomenal content of law shows a real diversity 
 of criteria, and therefore of the needs and purposes 
 which have a concrete realization in law. It is fallacious, 
 therefore, to attempt to fix the universal object of law, 
 unless one means by this phrase merely the ideal which 
 law should aim to attain according to a particular con- 
 ception, and does not care to comprehend the whole of 
 
 « "Rechte sind rechtlich geschiitzte Interessen," "Geist ties 
 romischen Rechts," III Th., 1 Abth., p. 328. 
 
 '"Die rechtliche Sicherheit des Genusses, — der Selbstschutz des 
 Interesses." "Geist des romischen Rechts," III Th., 1 Abth., p. 338. 
 
 * This was noted by r/son, "Rechtsnortn und subjectives Recht " 
 p. 219. 
 
 Cf. "Der Zweck im Recht," Preface. "The fundamental idea 
 of the present work is that Purpose is the creator of the entire law." 
 (p. viii). "All that belongs to the field of law was born of its purpose 
 was willed by the end to be attained; all law is purpose-begotten 
 though the separate individual intentional acts may lie so deeply 
 buried in the past that men cannot discover them." "Der Zweck im 
 Recht," 1 Bd., p. 442. 
 
5139] THERING'S DEFINITION OF LAW 211 
 
 the historical data, or unless one is content in this latter 
 respect with an approximate, incomplete and generic out- 
 line, which has the appearance but not the substance 
 of a definition. Every teleological formula, declared as 
 universal, is in some part discordant with reality. For 
 example, there is no proof that in all ages and places the 
 authors of laws have had but one purpose, "the preserva- 
 tion and development of society. "^"-2 The concept of 
 "conditions of existence," upon which Ihering bases the 
 essential reason of law, is extremely ambiguous. It can 
 lead to an optimistic conception of the social r6gime, 
 which is false to the most elementary critical sense, or it 
 may be identified with any realizable end and, having 
 no precise significance, lose the teleological quality which 
 one is trying to define. Ihering wavers between the 
 various meanings of his formula. He sometimes finds 
 himself in the difficult position of explaining that the 
 most oppressive juridical institutions, clearly suggested 
 by special or class interest, are for the good of all." 
 On the other hand, taking all eudemonological meaning 
 from the words "conditions of existence," he explains 
 them as including all that which can be the object of 
 any aspiration whatsoever. i'' 
 
 § 140. Criticism of Ihering' s Definition of Law. 
 Furthermore, even if we accept Ihering's belief that "the 
 
 " This thesis is as unacceptable as the one opposed to it, according 
 to which in no case are the originators of a law moved by the desire 
 of the common good but always by particular interests. 
 
 ""The advantage of definite constraint over the indefinite." 
 Ihering, "Der Zweck im Recht," I Bd., p. 554. 
 
 " "The pleasures and utilities on which man's life is conditioned, 
 . . . embrace all that may be the object of human struggle and aspira- 
 tion. The question of the conditions of existence either of the 
 individual or the State is a question of national or individual educa- 
 tion." "Der Zweck im Recht," p. 444 et seq. See also how Ihering 
 justifies the prohibition of incantations and sorceries, p. 448 et seq. 
 
212 LAW AND INTERESTS [Ch.VI 
 
 guaranty of the conditions of existence of society" is a 
 sufficient formula to determine the actual purpose of law, 
 we must still look to see whether a definition of law is 
 given hereby. Is the determination of purpose always 
 equivalent to that of means? With a definitiori of the 
 function is that of the functioning organ always given? 
 No one would give an affirmative answer to this question, 
 put thus generally. X Even Ihering, speaking of juridical 
 institutions in another work, had to distinguish the teleo- 
 logical from the bntological definitions, and to show that 
 the former is insufficient of itself. We will give this 
 passage in full so great is its importance.?' "A defini- 
 tion gives the essence of the thing. But what is its 
 essence? Can it be its purpose? So it would seem, 
 for the practical mission which it has to accomplish con- 
 tains the general motive by which it exists, which makes 
 it as it is and not otherwise. It is, in a word, its logical 
 key. We certainly do not attempt to deny the impor- 
 tance and indispensability for the understanding of 
 the end (not only from the point of view of the philoso- 
 phy of law, but from a practical standpoint as well), 
 but we contend that juridical theory cannot found itself 
 on the purpose in order to give definitions"; and a few 
 pages later he writes: "We understand by purpose some- 
 thing opposed to content, something higher and above the 
 institution, which is but a means for its attainment." 
 This accurate reasoning sounds like an opponent of 
 Ihering's earlier statements. It is curious to see that Bier- 
 ling reasons in exactly the same way: "We must not be 
 deceived by the popular tendency to believe that the sub- 
 stance of a thing is contained in its object. No matter 
 how important the knowledge of one is for the understand- 
 ing of the other, certainly the purpose of any thing or its 
 function in conformity with it cannot be the thing itself. 
 
 " "Geist des romischen Rechts," Zw. Th., Zw. Abth., p. 364. 
 
41401 CRITICISM 213 
 
 A definition of means can certainly not be completed 
 by the designation of the end they serve." In another 
 place Bierling writes: "Insurance against burglary and 
 fire is the object of a safe-deposit box, but a definition 
 of it is certainly not contained in these words." In say- 
 ing this we do not mean to condemn the propositions 
 that "law is the guaranty of the interests of men," or "a 
 safe-deposit box is good protection for valuable papers," 
 but mean only that such propositions do not satisfy 
 the logical demands of a scientific definition.'* J Analo- 
 gous criticisms can be made of Ihering's concept of 
 rights, which he bases, as we have seen, on the element 
 of interest. By interest he means the entire content of 
 utility; everything, whether of pecuniary value or not, 
 which can be useful to man; as he expresses it, "all that 
 can be of service to us."'^ Here, too, Ihering's concept 
 is so vague that it throws no light on the object which it 
 attempts to define. Its vagueness prevents its being a 
 scientific definition.'^ If utility can be so broadly 
 defined, no right could be unrelated to it. And it is 
 clear that this utility is of legal consideration, when 
 law recognizes the correlated possibility to will or act 
 by the man to whom the utility is allowed.jr "Cer- 
 tainly," writes Windscheid," "a juridical system con- 
 
 " Cf. note 5, p. 209, ante. 
 
 " Vide Ihering, "Geist des romischen Rechts," Dr. Th., Erste 
 Abth., p. 329 et seq. 
 
 •' The different meanings of the word "interest" are given by 
 Rousseauin his "Letter" on the question, "S'il y a une morale demon- 
 tree, on s'il n'y en a point," in Vol. VII of his "CEuvres" (Paris, 
 1839), p. 322 et seq. Pachmann, in "Ueberdie gegenwartige Bewe- 
 gung in der Rechtswissenschaft," p. 49 et seq., especially p. 53 et 
 seq., points out that the concept of interest, as understood by Ihering, 
 corresponds to none of the various meanings which the word has 
 in jurisprudence. 
 
 " Windscheid, "Pand.," § 37, n. 3. 
 
214 LAW AND INTERESTS [Ch.VI 
 
 cedes rights only for the purpose of satisfying the inter- 
 est of him to whom it concedes them, yet the purpose 
 of the concession is not part of the definition of rights." 
 "A right can be looked upon as the means of making a 
 present or future enjoyment possible, but, even if it is so 
 regarded, a right is not the enjoyment" — as a garden, 
 which is an object of the owner's enjoyment, is not 
 the same as the hedge which assures the owner his 
 enjoyment.'^ 
 
 c § 141. Rights and Utilities. If every right is related 
 to an utility (and no one understood this better than the 
 Roman jurisconsults, whose fundamental ideas on this 
 subject are splendidly illustrated and developed by 
 Vico and Romagnosi) it is evident and undeniable (even 
 Ihering himself did not deny it) that not every utility 
 forms the material of a right. There are indisputably 
 certain interests essential to life which are incapable 
 of juridical protection. Ihering is right in criticising 
 Krause's school for failing to make such a distinction,^' 
 and acknowledges that some conditions of existence 
 are foreign to law, "ausserrechtliche Lebensbedingun- 
 gen."^'' Even where legal protection is actually possible, 
 it is by no means true that there are as many rights as 
 there are interests protected. J The latter, particularly 
 in the field of public law, are indefinite in number, as 
 can be seen by a glance at the administrative organs 
 of State. "Every protection given to a public utility," 
 writes Jellinek,2i "necessarily protects an indefinite num- 
 ber of private utilities without constituting rights." 
 Ihering, let us repeat, agrees with this statement. And, 
 
 " Than, "Rechtsnorm und subjectives Recht," p. 219. 
 
 " Ihering, "Geist des romischen Rechts," 1 Bd. § 71. 
 
 20 Vide Ihering, "Der Zweck im Recht," I Bd., p. 452. "Geist 
 des romischen Rechts," § 61. 
 
 ^'■JelUnek, "System," p. 44. 
 
§141] RIGHTS AND UTILITIES 215 
 
 in consideration of it, he must introduce a new element 
 as a correction of his definition of rights. It is neces- 
 sary for the existence of a true right that "its possessor 
 be entitled to the protection of his interest." This leads 
 us to the second definition of rights ("Selbstschutz des 
 Interesses") to which we have referred. ^^ Here real 
 progress is made toward the exact determination of 
 the concept. By the side of the inconsistent idea of 
 ifitgreif , put the will of Wgi who can take the initiative 
 ("die Initiative ergreifen") for the protection of the 
 content of his rights. It is well to note that in this 
 amended definition Ihering implicitly renounces his 
 argument that a definition of rights based on interest 
 would be preferable to one referring to will or action. 
 Formerly, in fact, he had stated ^ that the element of 
 will was not enough to define rights, because rights are 
 legally conceded even Lo those who are legally incapable of 
 acts of will; but interests, that is, the content of utility, 
 exists also in the absence of will and is, therefore, the 
 essential element. And yet, with the correction just given, 
 under the pressure of fact and the logic of nature, he 
 makes a new decision and holds that the characteristic and 
 necessary element of rights lies in the possibility given 
 the agent of "taking the initiative" for their protection 
 by a practical expression or affirmation of will. He even, 
 therefore, feels called upon to show the necessity of repre- 
 sentatives in certain cases to act for those who have 
 rights.^ To what, then, does the proposed inversion 
 or substitution of concept come? IWhy insert in our 
 thesis that a right lies in interest rather than in the will 
 controlling it, if we must recognize this will on one side 
 under the penalty of not conforming to reality, although 
 
 « Cf. § 139 and n. 7, ante. 
 
 " Vide Ihering, "Geist des romischen Rechts," p. 321 et seq. 
 
 "Vide Ihering, "Geist des romischen Rechts," p. 339 et seq. 
 
216 LAW AND INTERESTS [Ch.VI 
 
 we deny it on the other? The "initiative" of him who 
 has an interest for its protection is identified by Ihering 
 (treating particularly of private rights) with anaction at 
 law. There is no doubt that a suit is an effective protec- 
 tion of an interest, and an interest must exist before it 
 can be concretely sustained by suit. But this does not 
 mean that an action is founded directly on the interest 
 itself, and that it serves no immediate purpose of its own. 
 If an action protects the enjoyment of an interest or utility, 
 it is only the secondary effect of the recognition of the 
 juridical will of the agent, by which a definite course of 
 conduct is imposed upon others. This is the proper result 
 of legal processes, in which, therefore, the formal phases 
 of the objective interference in individual conduct are 
 shown. Right makes the content of a utility possible, 
 but it is not constituted by this content. The enjoyment 
 or advantage attainable by the exercise of a power, or in 
 entering a relation, is in respect to the juridical signifi- 
 cance of this power or faculty a "consecutivum." Kant 
 saw this clearly and wrote: "In this reciprocal interplay 
 of will, purpose — the material of will — takes no part. 
 Purpose is the motive which prompts the undertaking; 
 it does not affect the relation created by the wills. For 
 example, it is not a question of whether a business con- 
 tract is profitable, but only as to the form in relation 
 to the interplay of the two wills."^ If in general a 
 utility corresponds to every right, the reason for this is 
 that act or will is determined only in view of certain 
 ends, butlas the object of the will is not the will itself, 
 so the interest is not the right.^^ The former has its 
 
 2' Kant, "Met. Anfangsgr. d. Rechtslehre," p. xxxii et seq. 
 
 25- Everyone agrees with Lasson, "System der Rechtsphilosophie," 
 p. 454, "In every right there are involved property, possession, 
 power, capacity, title and relationship, which have a use and con- 
 tain an interest. That which has no use and contains no interest 
 
§141] RIGHTS AND UTILITIES 217 
 
 principle and condition in the latter. In this respect it 
 may be said that right is the social condition of interest, 
 or the possibility of actualizing it in relation to others.J 
 This conclusion brings us back to the fundamental view 
 deduced and developed in the earlier chapters. 
 
 § 142. Conclusion as to the Concept of Law. What is 
 the result of our study in its last analysis? Have we 
 shown the existence or content of legal maxims? No, 
 for in that case our earlier proposition ^ would not 
 be true, and the juridical principle which we have 
 advanced, whatever it may be, could not have a uni- 
 versally apodictic significance, nor could it be a defini- 
 tion, since another principle conforming to some part 
 
 cannot constitute a right." But it does not follow from the fact 
 that a right always involves an interest that a right is an interest. 
 In fact it disproves it. Recently Jellinek's intermediate or con- 
 ciliatory opinion, which holds that both will and interest enter 
 into the definition of law, has received favor. "Will and interest 
 are necessarily commingled in the concept of right," "System," p. 44. 
 Jellinek first (1892) wrote, "A right is an utility or interest protected 
 by the recognition of man's will-power. "J The emendation of 
 Ihering's doctrine is noteworthy, and yet insufficient. It is very 
 true, as Jellinek writes, that "man cannot will absolutely, but 
 must will something, as he cannot simply see, hear, feel or think, 
 but must have a content for perception or abstract conception." 
 But let us repeat it, from the fact that will must have an object, 
 it does not follow that will is that object. For example, one must 
 see and hear something (and cannot simply hear or see) and yet 
 it does not follow that sight and hearing are the same as the thing 
 seen or heard. l^A right is the possibility of willing something in 
 correlation with the will of others, but it is neither the object, 
 which can be willed nor the motive of the will. Jellinek seems to 
 have altered his views, for, in his second edition (1905), the state- 
 ment first quoted is substituted by one in which the element of 
 interest enters only in the second place. "A right is the will-power 
 of man applied to a utility or interest recognized and protected by 
 a legal system."^ 
 » See Part I, ante. 
 
218 LAW AND INTERESTS [Ch.VI 
 
 of legal phenomenology would be possible. What we 
 have shown is only the form of the idea of law, or that 
 which necessarily appears in every juridical phenomenon 
 or proposition as a designating and requisite factor. 
 The certainty of our conclusion comes from this very 
 limitation of our study, because if a form is deter- 
 mined which represents in a definite way the conceiva- 
 bility of phenomena, it must necessarily correspond to 
 every case in experience without possible exception. 
 ^ The concept which we have advanced and analyzed 
 may be given as follows: Law is the objective co-ordina- 
 tion of possible acts among men, according to an ethical 
 principle which determines them and prevents their 
 interference. Such is the logical scheme of law, such the 
 rational unity which includes the multiplicate variety of 
 juridical criteria. This unity is purely architectonic (to 
 borrow a word from Kant), because it is not produced 
 by elements accidentally presented but formed by a design 
 of reason itself. 3 
 
PART III 
 
 THE CONCEPT OF NATURE AND THE 
 PRINCIPLE OF LAW 
 
 CHAPTER I 
 PRELIMINARY CONSIDERATIONS 
 
 PHILOSOPHICAL NEED OF REFERENCE TO A UNIVER- 
 SAL. — PHILOSOPHICAL DOUBT AND POPULAR CER- 
 TAINTY. — PROGRESSIVE ORDER OF THE GRADES OF 
 KNOWLEDGE. — RELIANCE ON THE PARTICULAR AS A 
 PRE-PHILOSOPHIC STAGE. — LOGICAL CONDITION OF 
 SCEPTICISM. 
 
 ' § 143. Philosophical Need of Reference to a Universal. 
 Philosophical problems arise when thought, based on 
 the mass of separate data of particular and immediate 
 appearances, begins to refer them to a single principle, 
 which shows their fundamental umty and renders a 
 harmonic and integral vision of the universe. The same 
 conception of the universe or nature is philosophic in 
 this sense, that it supposes and indicates the need born 
 in the human mind of an absolute unification of the 
 multiplicity and variety of phenomena, according to some 
 criterion.' Philosophy does not consist, however, in a 
 
 ' What distinguishes the idea of this great whole, called the uni- 
 verse, from that of chaos? Is it the idea of the real existence of the 
 
220 PRELIMINARY CONSIDERATIONS [Ch.I 
 
 simple sum or agglomeration of separate data. A man is 
 not a philosopher because he has the greatest knowledge 
 of phenomenal reality, or because he has made discoveries 
 in that field, but because he has subjected sensible data 
 to a new elaboration and considered it from a higher 
 point of view with a new meaning — the universal and 
 absolute meaning — of something perhaps already known 
 in its relativity and particularity. Philosophy is, there- 
 fore, a form of knowledge essentially distinct from every 
 other by its specific quality and nature, jj It is the duty 
 of a philosopher, as Schopenhauer said,^ not so much 
 
 elements which the universe contains? No; for we can conceive 
 of these same real elements existent but unformed and- discordant, 
 which can constitute the idea of chaos. In what, then, does the 
 distinction lie? In the idea of the ordered and harmonic disposition 
 of existent things and forces by which a single animated and active 
 whole arises. The idea of this system of things and forces, united 
 to the idea of secret and energic order, with which it animates and 
 preserves, renovates and guides everything, is called nature." Romag- 
 nosi, "Vedute fondamentali suU' arte logica," Lib. II, § 753; of. 
 I 754, p. 280 et seq. 
 
 C 2 "As a general rule it is not the observation of rare and hidden 
 phenomena through experimental research which makes for the 
 discovery of important truths, but the observation of appar- 
 ent and every-day phenomena. And so the problem is not so 
 much to see what no one has yet seen, as to think that which no 
 one has yet thought of what everyone sees. It belongs, therefore, 
 rather to the philosopher than to the physicist. "J Schopenhauer, 
 "Parerga und Paralipomena," II Bd., p. 111. "It can even be said 
 that the work of philosophy is to study usual and everyday affairs 
 and the universal; on the contrary, the scientific specialist studies 
 rare and strange phenomena and makes their reference to universal 
 or to known data his problem." Schopenhauer, "Einleitung in die 
 Philosophic," ed. by Griesebach, p. 28. Cf. on the philosophical 
 problem in general, Martinetti, "Introduzione alia metafisica," I, 
 (Turin, 1904), Cap. I; Dilthey, "Das Wesen der Philosophic" in 
 "Die Kultur der Gegenwart," Vol. I, VI Abth. (Berlin, 1907), 
 pp. 1-72; Paulsen, "Die Zukunftsaufgaben der Philosophic,"' ibid., 
 pp. 389-422. 
 
§143] PHILOSOPHICAL NEED 221 
 
 to extend his outlook to hidden and rare phenomena 
 as to think unusual thoughts about what is visible to all. 
 § 144. Philosophical Doubt and Popular Certainty. 
 • It is an ancient truth that philosophical problems begin 
 where popular certainty ceases. Where common opinion, 
 based on immediate evidence or undiscussed tradition, 
 stops, there the methodic doubt of the philosopher 
 arises and begins its great and subtle work J This doubt 
 is more acute and pointed where the corresponding 
 popular belief seems clear and obvious. 
 
 § 145. Grades of Knowledge. The passage from a 
 lower to a higher form of knowledge is generally shown 
 by this, that what is a datum for the former is a problem 
 for the latter. The interpretation of one fact can be 
 made in different grades. An explanation can be incom- 
 plete and insufficient without being false. The resolu- 
 tion .of one doubt can give rise to a greater. So, by its 
 nature, shown in the order of its processes, the human 
 mind is somehow impelled to advance in knowledge. 
 The early and rudimental forms of knowledge are "per 
 se" an appeal to, or better still an anticipation or pre- 
 sentiment, obscure but persistent, of other more perfect 
 and adapted forms. They demand and, in fact, import 
 in themselves an ulterior elaboration, which explains 
 them and gives them their full meaning. Thus thought 
 acquires, one by one, relations and criteria better adapted 
 and fitted to a right conception of the world. The lower 
 grades of knowledge are superseded little by little. In 
 such an advance the human spirit celebrates its triumph, 
 which is in fact the triumph of truth. 
 t. § 146. Reliance on the Particular is Pre-philosophical. 
 A primary attitude or grade of thought ' is known by 
 
 ' By speaking of priority and development, we do not mean that 
 one attitude of thought can exist free from all others, because the 
 real unity of the human mind is so constructed that even the highest 
 
222 PRELIMINARY CONSIDERATIONS [Ch. I 
 
 this: that separate data of experience are considered 
 individually as independent. The series of external and 
 internal events is presented as broken and divided, since 
 it is formed by a merely fortuitous succession. There is 
 no intrinsic order, nor necessary objective or subjective 
 synthesis. In a word, the reference of data to a common 
 higher principle, by which they can be rectified and given 
 value,^ is lacking. :f 
 
 principles of which it is capable are found in germ and in some way 
 are shown from the dawn of knowledge. (Cf., on this proposition, 
 the observation of Lotee, "Mikrokosmus," III Bd. 4 ed. [Leipsic, 
 1888], p. 185 et seq.) The ascending order of stages must not be 
 understood in a strictly temporal sense. The separation of the 
 distinct functions and attitudes of the mind is always abstract, 
 representing in sequence what is a complex development in reality. 
 * Such is the characteristic attitude of the primitive mind in 
 regard to natural phenomena. This was perceived and synthesized 
 by Vico in "Scienza nuova," Lib. II, "Delia Metafisica poetica," 
 2d ed. by Ferrari, p. 162 et seq.; and his intuitions correspond in 
 substance to what modern studies have shown. (Compare them, 
 for example, with the data collected by Spencer, "The Principles of 
 Sociology," Part I, Cap. VII-XVI, XXIV, etc.) For the nature of 
 early mythological imagination, see, too, Lotze, "Mikrokosmus," III 
 Bd., p. 185 et seq. Ardigo in "Pietro Pomponazzi" in "Op. Filos.," 
 Vol. I (Mantua, 1882), p. 25, wrote: I" At first men thought of phe- 
 nomena as isolated and as the immediate results of the capricious 
 determinations of mysterious agents of supreme power." Also 
 "the concept of nature as a universally accepted and rigorously 
 scientific concept is quite modern'' (loc. cit.).^ We must remember, 
 however, that the tendency to a monistic conception of the world is 
 of an early origin, as is clearly proved, for example, by ancient 
 Ionic and Eleatic philosophy. "Greek philosophy," writes WindeU 
 band, "is born as an answer to the demands of natural sciences and 
 to questions concerning tj^WK, that is, concerning the everlasting 
 being in which phenomena take place." "Geschichte und Natur- 
 wissenschaft," 3 ed. (Strassburg, 1904), p. 14. For the ancient 
 Greek concept of <^ij(ns, see Maine, "Ancient Law," p. 63 et 
 seq. "In its simplest and most ancient sense, nature is precisely 
 the physical universe looked upon as the manifestation of a prin- 
 ciple." In general, it can be said that the concept of nature arises 
 
S147] LOGICAL CONDITION 223 
 
 § 147. Logical Condition of Scepticism. This attitude 
 of thought is, therefore, properly pre-philosophical and, 
 we may add, pre-sdentific. Only in one case does it 
 acquire a philosophical character, and that is when it is 
 consciously opposed to another attitude looking to a 
 rational comprehension of the world. Its meaning in 
 this case is purely negative, and only as a negative 
 philosophy can be advanced a speculation, which recog- 
 nizes merely the particular and contests its reducibility 
 and deducibility in respect to the universal. Such is the 
 logical condition of scepticism, which on this point 
 coincides with that of popular realism. But the realist's 
 reliance on the particular differs in being an episode or 
 phase of development, not a deliberate renunciation 
 or refusal to advance like the sceptic's. It is an infe- 
 rior phase of the cognitive process, far from being 
 definite and fixed, and but a prelude to ulterior phases, 
 betraying a secret aspiration and disposition for them. 
 ^Scepticism, too, although under the guise of denying the 
 solution of problems, which are the object of philosophy, 
 fulfills effectively (as he who studies it carefully can see) 
 the duty of restating the problems "ab initio," urging 
 a new and closer examination of their terms. „s; 
 
 with the beginning of philosophical speculation and is inseparable 
 therefrom. 
 
224 PRINCIPLE OF CAUSALITY [Ch.II 
 
 CHAPTER n 
 
 PRINCIPLE OF CAUSALITY AND MECHANICAL 
 CONCEPTION OF NATURE 
 
 CO-ORDINATION OF PHENOMENA ACCORDING TO A 
 CAUSAL CRITERION.— "a PRIORITY" OF SUCH CRITERION 
 — ITS LIMITS. — COMPLEMENTARY POSTULATES. — IM- 
 POSSIBILITY OF ASCERTAINING VALUES BY IT. — "EVEN 
 THE UNNATURAL IS NATURAL." — IDEA OF FINAL 
 CAUSES AND THE PHYSICAL SCIENCES. — MECHANICAL 
 DETERMINISM AND THE DENIAL OF TELEOLOGY, ESPECI- 
 ALLY IN THE DOCTRINE OF SPINOZA. — UNIVERSAL 
 VALIDITY OF THE PRINCIPLE OF CAUSALITY. 
 
 ' § 148. Co-ordination of Phenomena According to the 
 Causal Criterion. A true systemization and theoretical 
 elaboration of empirical data result when such data 
 are co-ordinated and reduced under a causal concept. 
 By such elaboration every phenomenon is treated not in 
 its singularity, but in its relation with some precedent 
 phenomenon, which is considered as having necessarily 
 determined it. Thus a chain is formed between all 
 phenomena, in the form of necessity, which connects all 
 phenomena in a continuous and uninterrupted series. So 
 every fact, conditioned in respect to a precedent fact, 
 is at the same time the condition of a subsequent fact. 
 And in this double quality of a cause and effect every 
 phenomenon enters as an element in the scheme of 
 universal reality. The criterion of causality permits and 
 establishes, therefore, a primary synthetic vision of 
 nature as an order made necessary by the sequence of 
 all phenomena.," Further reflection shows that if this 
 
§148] CO-ORDINATION 225 
 
 criterion is applied in experience and begins to be manifest 
 in experience, it is not, however, a derivative of it, but 
 is an intrinsic necessity of thought and a function of 
 intellect.' I We actually know "a priori" that every phe- 
 nomenon (including future phenomena) must have a 
 cause. We know this with absolute certainty, without 
 having proved it by all possible cases, that is, without 
 knowing the causes of all phenomena. We have a princi- 
 ple in this belief which is greater than the evidence of all 
 experience, for experience is particular, and the most it 
 can show is that a definite phenomenon has a definite 
 cause, not that all phenomena must necessarily have 
 causes.^ Our strictly scientific concept of nature as an 
 ordered uiiity or mechanical equation of phenomena is 
 founded precisely on the "a priori" certainty, that is, 
 on the universal validity, which we attribute to the causal 
 principle. In this sense Kant was right in affirming that 
 the intellect is the legislator over nature, and that with- 
 out intellect there would be no nature. '4 
 
 ' Empiricists who interchange these two positions and believe 
 that all that which is found in experience is derived from it would 
 do well to meditate upon Kant's words in the Introduction to the 
 "Krit. d. rein. Vernunft."» The difference between critical idealism 
 and empiricism does not lie in the fact that the latter accepts and 
 the former rejects the aid of experience, but in their diverse con- 
 cepts of experience,? 
 
 ' The causal principle is distinguished from all natural laws 
 by its quality of universal logical postulate, as Wundt pointed out 
 in "Ueber den Begriff des Gesetzes" in "Philosophische Studien," 
 Bd. Ill (1886), pp. 201, 206. The study of separate empirical 
 laws relies on this principle and is governed by it. 
 
 ' "The order and regularity of phenomena, which we call 'nature,' 
 we ourselves bring about, and we should not be able to find 'nature' 
 in these phenomena if we ourselves or the constitution of our minds 
 had not originally put it there." "Thus mind is not merely afaculty 
 which makes rules according to the agreement of phenomena; it is the 
 very legislative power of nature ; in other words, without the mind 
 
226 PRINCIPLE OF CAUSALITY [Ch.II 
 
 § 149. Causal Criterion is External, Explaining Neither 
 Beginning Nor End. If the causal principle is legitimate 
 scientifically, and is, furthermore, the presup_£Osition 
 of every scientific consideration and research, the limita- 
 tion of its value for the interpretation of nature comes 
 from its own qualities. In the first place it is evident 
 that it only applies to phenomena, and, moreover, is only 
 relative and external. A phenomenon can be explained 
 by it only through reference to another phenomenon, 
 which in its turn calls upon a third, and so on indefinitely.* 
 ~ The causal criterion allows, therefore, a notion of reality 
 as a series, but does not give its beginning or end. Not 
 the beginning; because weighed in such scales, that is, 
 as a phase in the scheme of successive phenomena, a 
 beginning would have no cause: not the end; because 
 
 there would be no nature at all, or rather, no synthetic unity of the 
 multiplicity of phenomena." Kant, "Krit. d. rein. Vernunft,'' 1 
 Ausg.jp. 125et seq.,134etseq, ed. by Kehrbach. Cf. "Prolegomena," 
 § 15. Similarly Fichte wrote in "Die Bestimmung des Menschen," 
 III Bd., ed. by Kehrbach, p. 96, "Nature, in which I am active, is not 
 a strange entity, without consideration of my existence, into which I 
 can never enter. It is formed by my thought and must be in accord 
 with it." 
 
 * "According to the conception of mechanical nature, everything 
 exists through another thing, and has its result in a third." So 
 Fichte in "Das System der Sittenlehre" (Jena, 1798), p. 144, wrote 
 in opposing "the principle of substantiality" to "the principle of 
 causality." Vide ibid., p. 152. The extrinsic and relative character 
 of the mechanical theory of nature was thoroughly illustrated by 
 Lotze, who, in referring to it, wrote in "Mikrokosmus," I Bd., p. 55, 
 (cf. p. 422 et. seq., 448 et seq.) : "Things do not exist of themselves 
 but are brought forth in their changing forms by varying circum- 
 stances, and this we call their life, without being able to explain by 
 what unity this vortex of events going on side by side is internally 
 fused into a whole. This reproach — of putting together externally 
 as in a mosaic pattern that which seems to have value for us only 
 as proceeding from a single cast- — has been constantly brought 
 against the attempts at explanation of physical science." 
 
§149] CAUSAL CRITERION 227 
 
 an ultimate phase would be a cause without an effect.^ 
 A causal explanation of the world is, therefore, neces- 
 sarily incomplete.^ Its radical failure can be seen from 
 this: that the law of causality has no meaning except 
 in respect to modes of being, that is, to modification 
 taking place in reality. It supposes, therefore, an exist- 
 ing reality, which is, so to speak, the substratum or sub- 
 stance which supports or produces the variations, t But 
 the law of caugality is impotent to give any idea what- 
 soever of this substance — matter in the first aspect, 
 force or energy in the second — so it is impotent to 
 explain its origin. It can only explain the passage from 
 one state to another, from one mode of being to another, 
 and not the step from non-being to being, or from nothing 
 to somethingj* The law of causality would be, indeed, 
 directly violated and contradicted by "fieri ex nihilo," 
 and thus we are forced in order to apply it, to admit "a 
 priori" that there is external and indestructible sub- 
 stance, t In fact the postulate of the indestructibility of 
 matter and energy lies at the base of all the physical 
 sciences, although it is "per se" metaphysical, in other 
 words, without the proper sphere of the science, which 
 treats only of phenomena.'^ 
 
 ' "According to the principle of causality, every change is not 
 only the necessary result of some precedent fact, but is equally 
 necessarily the cause of some subsequent change. The principle 
 of causality does not of itself show the beginning nor end of the 
 series of changes." Spir, "Denken und Wirklichkeit," 3 ed. 
 (Stuttgart, 1884), II Bd., p. 139; cf. I Bd., Ill Bk., Cap. I. 
 
 ' Vide H. Weber, "Ueber die Entwicklung unserer mechanischen 
 Naturanschauung im neunzehnten Jahrhundert" (Strassburg, 1900), 
 p. 6, where the scientific importance of this principle is shown and 
 its quality of presupposition noted, "That matter, which can- 
 not begin nor end with an act of creation, is indestructible, is a 
 proposition of axiomatic knowledge of whose truth we are first con- 
 vinced by neither weight nor measure." To the contrary, Ostwald, 
 in "Vorlesungen iiber Naturphilosophie," 3 ed. (Leipsic, 1905), 
 
228 PRINCIPLE OF CAUSALITY [Ch.II 
 
 § 150. Causal Criterion is not Qualitative. Besides 
 being unsuited to grasp universal reality of itself or 
 in its origin, the causal criterion cannot fully explain 
 phenomena, but leaves a residuum to be considered and 
 digested elsewhere. Causal explanation consists, as 
 we have seen, in the systematic reduction of phenomena 
 to their determining condition, according to some type 
 or mechanical scheme which equalizes every consequent 
 to its antecedents. Specific and qualitative differences 
 remain over, converted into terms of genus and quantity. 
 The new, superior, and complex is understood as par- 
 ticipant in the pre-existing, inferior and simple, and as 
 resolvable into the former. A scientific appreciation 
 of the different grades and values of reality is, therefore, 
 impossible by such a test, for, if we recognize a pro- 
 gressive ascendence in the world toward always more 
 perfect forms of existence, we leave at once the realm of 
 pure causality, which interprets the many grades and 
 forms of nature only in what they have that is homo- 
 geneous, equivalent, and reciprocal. Thus it is that the 
 causal explanation is shown to be more inadequate as its 
 application is made to the more advanced rather than 
 the lower forms of existence." 
 
 esp. Lecture XIV, who tends unduly in general to convert logical 
 necessity and even the causal principle into mere (empirical) habits 
 of thought. He accepts, however, the principle of the con- 
 servation of energy and states its law: "There is no transformation 
 without an equivalent change of one or more kinds of energy" (p. 296, 
 cf. 158 et seq.). Another fundamental postulate of the physical 
 sciences admitted as the inversion of the causal law is the law of 
 inertia; that no modification can occur without a cause. Cf., on 
 this point, and on this subject in general, the deep treatise of Schopen- 
 hauer, "Ueber die vierfache Wurzel des Satzes vom zureichenden 
 Grunde," Cap. IV, §20. Vide also Kroman, "Unsere Naturer- 
 kenntnis" (Copenhagen, 1883), esp. § 17. 
 'Vide Petrone, "I limiti del determinismo scientifico," where 
 
1151] "EVEN THE UNNATURAL IS NATURE" 229 
 
 § 151. "Even the Unnatural is Nature." It is clear 
 that with this physical view of nature everything in it is 
 "normal," any violation or alteration of its laws what- 
 soever is excluded "a priori," for nature in this sense is 
 nothing more than the form of the necessity of all 
 reality. In the system of cause and effect there is 
 nothing superfluous, no phenomenon is lost, every 
 event has its place.^ This unfailing collocation or 
 allegiance to the system constitutes the naturalness of 
 all phenomena. So what seems to us in some quality 
 irregular, artificial, depraved, morbid, or somehow excep- 
 tional, is in this sense as natural as what we consider 
 regular, genuine, wholesome and sane. "Auch das 
 Unnatiirlichste," writes Goethe, "ist Natur."34f Surely, 
 
 this argument is treated with regard to the divers orders 
 of fact and the corresponding hierarchy of the sciences. 
 
 8 "Everything, no matter how minute," writes Bruno, "is subject 
 to Providence, infinitely great; every tiny grain is of utmost im- 
 portance in the cosmic scheme of the universe, because large things 
 are composed of small things, and the small of still smaller, which 
 in their turn consist of grains and particles." "Spaccio de la bestia 
 trionfante," Dial. I, edit, by Gentile, "Op. ital.," Vol. II (Bari, 
 1907-8), p. 74. 
 
 ' "Even the unnatural is nature." "Whoever does not see it 
 (nature) in everything, nowhere sees it rightly." Goethe, "Die Natur," 
 in "Sammtl. Werke," edit, by Reclam, Bd. XLV, p. 41. We may note, 
 however, that Goethe did not give these words the rigorous scientific 
 meaning that they can have. Cf., for Goethe's concept of nature, 
 Rickert, "Die Grenzen der naturwissenschaftlichen Begriffsbildung" 
 (Tubingen, 1902),p.622etseq.,andi'oMte«, "Goethe's ethischeAn- 
 schausengen" in "Gesamm. Vortr. u. Aufsatze," I Bd., 3 ed. (Berlin, 
 1907) , p. 4 et seq. Bain, on the contrary, lays stress upon this concept 
 even in his psychological reflections, ' 'The naturalistic mind represents 
 the maximum of disinterested associations. The purpose of the 
 naturalist is not selective, but exhaustive; whatever be the depart- 
 ment that he applies himself to, he notices every species belonging 
 to it. . . . He must not have any strong emotional likings of the 
 nature of preference; having to give an account of everything that 
 exists, because it exists, his main delight should be to attain impar- 
 
230 PRINCIPLE OF CAUSALITY [Ch-II 
 
 therefore, any science based on such a conception of 
 nature repudiates all forms of valuation and measures, 
 by which the mind controls reality, dictating norms to it, 
 or governing it by criteria not objective but subjective. 
 - § 152. The Idea of Final Causes. The idea of final 
 causes, which play so large a part in ancient physics, 
 especially in the works of Aristotle, is now con- 
 sidered as a disturbing or at least, a superfluous element. 
 The fact is incontestable that the modern reform of the 
 natural sciences was chiefly due to the progressive 
 abandonment of that idea, where it should have no place, 
 and its significance was, according to Spinoza, that 
 of an "ignorantiae asylum. "'U The naturalistic philoso- 
 phers of the Italian renaissance, in their effort to inter- 
 pret nature "juxta propria principia" (Telesius) attacked 
 the Aristotelian theories, and attempted to correct the 
 concept of finality, or what went by that name.^JBacon's 
 criticism was more exact and efficacious in this matter, 
 for he did not attempt to deny absolutely the admissi- 
 
 tiality and exhaustive completeness." "Mental and Moral Science," 
 Pt. I, p. 110. Spencer writes to the same effect in regard to the social 
 sciences, "In brief, trustworthy interpretations of social arrange- 
 ments imply an almost passionless consciousness. Though feeling 
 cannot and ought not to be excluded from the mind when other- 
 wise contemplating them, yet it ought to be excluded when con- 
 templating them as natural phenomena to be understood in their 
 causes and effects." "Principles of Sociology," Pt. V, §435. 
 
 '^Spinoza, "Ethica," Pt. I. Vico censured it also, "The physics 
 of the "ignorans" is a popular metaphysics, in which he attributes the 
 causes of things that he does not know to the will of God, without 
 considering the means which such Will uses." "Scienza nuova," 
 (2d ed.), "Degli elementi," Degn. XXXIII; cf. XXXII. 
 
 " Vide, on this point, Fiorentino, "Bernardino Telesio ossia studi 
 storici su I'idea della natura nel risorgimento italiano," Vol. I 
 (Florence, 1872-74), pp. 228, 234-5, 381; Vol. II, p. 50 et seq., et 
 passim. Cf. also M. Carriire, "Die philosophische Weltanschauung 
 der Reformationszeit in ihren Beziehungen zur Gegenwart," 2d ed. 
 (Leipsic, 1887). 
 
§152] IDEA OF FINAL CAUSES 231 
 
 bility of a teleological conception of the universe, but 
 held that it should not be allowed to prejudice the 
 scientific study of efficient causes. Distinguishing well 
 between physics and metaphysics, he pointed out that 
 the principle of final causes is incongruous and barren 
 in the first, but valid and regular in the second.'^ Another 
 remarkable criticism of this principle was made by 
 Spinoza. It was more severe and radical because based 
 upon a system of metaphysics which excluded every 
 point of view of the natural except one — the rigidly 
 mechanical.J According to Spinoza, in fact, the being 
 universal, infinite and eternal, which he called indiffer- 
 ently nature or God,'' acted through the same absolute 
 necessity by which he existed. In other words, he 
 neither acted nor existed for some end, but for itself. 
 All existing things are, therefore, determined "ex 
 necessitate divinse naturae," and are perfect in essence; 
 they can have nothing contingent." The perfection of 
 
 '*See especially, "De Dignitate et Augmentis Scientiarum," Lib. 
 Ill, Cap. 4; cf. "Novum Organum," Lib. I, § 48, Lib. II, § 2. For 
 Bacon's concept of nature, see Vera, "Saggi filosofici" (Naples, 1883), 
 esp. p. 236 et seq. 
 
 '' The distinction between "natura naturans" and "natura 
 naturata" ("Ethica," Pt. I, Prop. XXIX, Schol.), far from showing 
 any dualism, is held by Spinoza to express the immanence of the 
 single and infinite substance (God) in all its modifications. Cf. 
 Windelband, "Geschichte der Philosophie," p. 335; Zeller, "Ge- 
 schichte der deutschen Philosophie seit Leibniz," 2 ed. (Munich, 
 1875), p. 51; Hoffding, "Storia della Filosofia moderna," Vol. I, 
 p. 298. [Cf., also, Miraglia, "Filosofia del diritto," p. xli, Eng. 
 translation, p. 28. — TV.] On the origin of this distinction, which was 
 familiar to Scholastic philosophy from 1250 A.D., see Siebeck, "Ueber 
 die Entstehung der Termini natura naturans und natura naturata," 
 in "Archiv fur Geschichte der Philosophie," III Bd., (1890) , p. 370-78. 
 Ci.Eucken, "Geschichte der philosophischenTerminologie" (Leipsic, 
 1879) p. 122, 172. 
 
 " It may be observed that Bacon considered the idea of final 
 causes as a regulative or heuristic, and his criticism is reducible, there- 
 
232 PRINCIPLE OF CAUSALITY [ Ch. II 
 
 things, however, must be understood, but in regard 
 to the nature and power of the things themselves and 
 not in respect to some subjective criterion.'^ Who- 
 ever finds any imperfection or vice in nature, follows a 
 preconceived prejudice and does not base his judgment 
 upon cognition. In other words, he attributes to nature 
 a defect which really exists in his mind.^' Valuative 
 and teleological judgments, "de bono et malo, merito 
 et peccato, laude et vituperio, ordine et confusione, pul- 
 chritudine et deformitate," have to Spinoza's way of 
 thinking, no scientific content. Their significance, he 
 holds to be merely relative and imaginary; they are 
 "praejudicia, modi imaginandi, entia non rationis, sed 
 imaginationis."" There is only one way to understand 
 reality truly, and it applies uniformly to every thing, 
 of all grades and of all species. It lies in explaining 
 things according to the universal and immutable laws 
 of nature, based upon an understanding of their intrin- 
 sic necessity.'^ i^Even in reference to human acts, as to 
 
 fore, essentially to a proof of the inutility of that idea for the physi- 
 cal sciences. Spinoza, on the other hand, examined the question 
 ontologically (as a constitutive principle), and his condemnation 
 involves not only the utility, but also — and chiefly — the truth of 
 the principle. He categorically affirms "naturam finem nullum sibi 
 prsefixum habere, et omnes causas finales nihil nisi humana esse 
 figmenta." "Ethica," Pt. I, App. 
 
 1^ "Rerum perfectio ex sola earum natura et potentia est aesti- 
 manda, nee idee res magis aut minus perfectae sunt propterea quod 
 hominum sensum delectant vel offendunt; quod humanae naturae 
 conducunt vel quod eidem repugnant." "Ethica," Pt. I, App. "Per 
 realitatem et perfectionem idem intelligo." "Ethica" P. II, Def. VI. 
 
 " Vide, on this point, esp., "Ethica." Pt. IV, Prsef. 
 
 " Vide5^moza, "Ethica," Pt. I, App. Cf. Pt. IV, Prop. XXXVII, 
 Schol. II. 
 
 •^ "Nihil in natura fit, quod ipsius vitio possit tribui; est namque 
 natura semper eadem et ubique una, eademque eius virtus, et agendi 
 potentia, hoc est, naturae leges et regulae secundum quas omnia 
 
§152] IDEA OF FINAL CAUSES 233 
 
 which Bacon had declared the principle of final causes 
 particularly applicable," Spinoza wanted a method of 
 the purest objectivity, in order to give them a strictly 
 causal explanation, analogous to that of physical phe- 
 nomena. Appetites and commotions of the spirit 
 should be contemplated, according to Spinoza, in exactly 
 the same way as the perturbation of the atmosphere, 
 which, although it may trouble us, has definite causes, 
 through knowledge of which we can learn its nature.""" So 
 a philosopher sees in the affections and passions of man 
 not vices but properties, which he must understand and 
 not judge.jj "Humanas actiones non ridere, non lugere, 
 neque detestari, sed intelligere." ^i 
 
 fiunt et ex unis formis in alias mutantur, sunt ubique et semper 
 eaedem, atque adeo una, eademque etiam debet esse ratio rerum 
 qualiumcumque naturam intelligendi, nempe per leges et regulas 
 naturae universales." "Ethica," Pt. Ill, Praef. 
 
 " YideBacon, "Novum Organum," Lib. II, S 2. 
 
 ™ Vide Spinoia, "Tract. Polit.," Cap. I, § IV. 
 
 21 Ibid.; cf. "Ethica," Pt. Ill, Praef. This is not the place to 
 examine how and on what bases Spinoza formed an ethical system. 
 Schopenhauer states categorically that he "by mere sophistry erected 
 a moral system, whose consequence would never result from the 
 premises," and says that his ethics get their name like "lucus a non 
 lucendo." "Ueber den Willen in der Natur," "Hinweisung auf die. 
 Ethik," edit, by Grisebach, p. 337. There is much truth in this 
 opinion, which is held by many. Cf^ Siahl, "Die Philosophie des 
 Rechts," I Bd., "Geschichte der Rechtsphilosophie," "Spinoza 
 
 based law and morals on the power of nature His law of 
 
 nature should not be fulfilled by man, but nature itself fulfills it. It 
 is inevitable; man is not free to violate it. He has no claim upon it, 
 he is not subject to duty in the proper sense. All ethical form is 
 lacking in it also, for the law is not ethical but natural- (p. 181). 
 Cohen, "Kants Begriindung der Ethik," p. 162,"Whoever wants with 
 Spinoza to study human activity and action as if it were a question 
 of lines, areas, and bodies, may put aside everything but ethics"; 
 "Spinoza does not consider ethics in the ordinary sense. He looks 
 upon ethics as an enlightening, natural science, whose object is 
 
234 PRINCIPLE OF CAUSALITY [Ch. II 
 
 !1§ 153. Mechanical Determinism. We have laid stress 
 upon these characteristics of the system of Spinoza 
 because they show in a typical manner the meaning and 
 consequences of a purely mechanical conception of the 
 universe. When an absolute value is given to this 
 conception, such as that given by Spmoza m his meta- 
 physics, not only a repudiation of a final interpretation 
 of nature but a denial of any criterion of appraisement 
 of fact whatsoever follows as a logical necessity. Such 
 conclusions have been reached by other systems with 
 the same fundamental basis.4 The author of "Systeme 
 de la nature," to give a typical example, ^^ wrote a criti- 
 
 to explain the activity of man and trace back his affairs to their 
 source." Kriegsmann, "Die Rechts und Staatstheorie des B. von 
 Spinoza" (Wandsbeck, 1878) p. iii. On the contrary, Jodl, 
 "Geschichte der Ethik als philosophischer Wissenschaft," 1 Bd., 
 2 ed. (Stuttgart, 1906), Cap. XIII, § 3, whose arguments, however, 
 cannot have much weight after his own admission, "Spinoza thinks 
 that there is no duty in nature, but merely necessity, a compulsion 
 to be thus and so ("ein Nichtandersseinkonnen") (p. 489-90). But, 
 the question should be broader, as Hoffding said in "Den nyera 
 Filosofis historie" (Copenhagen, 1874), "It is not of greater incon- 
 sequence that he (Spinoza) established a system of ethics than that 
 he established other concepts than that of absolute substance." But 
 it is sufficient for us to note here, at any rate, that in Spinoza's mind 
 ethical terms express only relative not objective or universal truth. 
 Nature does not know ethical values. "Bonum et malum quod 
 attinet, nihil etiam positivum in rebus, in se scilicet consideratis, 
 indicant, nee aliud sunt, praeter cogitandi modos, seu notiones, 
 quas formamus ex eo, quod res ad invicem comparamus." Spinoza, 
 "Ethica," Pt. IV, Praef. "In statu naturali nihil fit, quod justum, aut 
 injustum possit dici .... Ex quibus apparet, justum et injustum, 
 peccatum et meritum notiones esse extrinsecas; non autem attributa, 
 quae mentis naturam explicent" (lb., Pt. IV, Prop. XXXVII, Schol. 
 II. Cf. "Tract. Theol. Polit." Cap. XVI; "Tract. Polit.," Cap. II). 
 22 On this work of the Baron Holbach (published in 1770 under 
 the name of Mirabaud), see Lange, "Geschichte des Materialismus 
 und Kritik seiner Bedeutung in der Gegenwart," 7 ed. (Leipsic, 
 1902), I Bd., p. 359 et seq.; Jodl, "Geschichte der Ethik," I Bd., 
 
§153] MECHANICAL DETERMINISM 235 
 
 cism of natural teleology, entirely analogous to that 
 which Spinoza with a larger philosophical spirit wrote 
 a century earlier. But Holbach's notion of order, like 
 Spinoza's,''' is entirely subjective; Ithe distinction be- 
 tween the ordered and disordered has no place in nature, 
 because in it, properly considered, all is of one make.'^ 
 ^ § 154. True Validity of the Causal Principled This 
 brief historical review — to which it would be easy but 
 superfluous to add more — offers to him who really 
 considers the intrinsic coherence of a causal principle 
 a proof of what we said above: that^any valuation of 
 existing things is logically impossible under a strictly 
 causal or mechanical conception of nature.^^ In saying 
 this we are far from contesting the legitimacy of such 
 conception but we have shown explicitly that the explana- 
 tion "per causas" is a necessary form of knowledge which 
 has an "a priori" value in respect to all phenomena. In 
 fact, it not only has weight in matters which are strictly 
 objects of physics, but can also be validly extended to 
 those which, as objects of other studies, are usually 
 
 p. 469 et seq.; cf. Fragapane, "Obbietto e limiti della Filosofia del 
 diritto," Vol. I, p. 51 et seq. 
 
 ^". . . quasi ordo aliquid in natura praeter respectum ad nostram 
 imaginationem esset." Spinoza, "Ethica," Pt. I, App. 
 
 '^^'The order and disorder of nature do not exist, we find order 
 in what conforms to our being, disorder in what is opposed to it. 
 All, however, is in order in nature, of which all parts must follow 
 certain and necessary rules, which come from its essence; there is 
 no disorder in a whole where all the results are the effect of natural 
 causes, which act as they must infallibly act." "In relation to 
 the great whole, all the movements of beings, all their modes of action 
 can only be in order and always conform to nature." "Syst^me de 
 la nature," Pt. I, Cap. V (p. 52 and 55 of edit. 1781).3 
 
 ^ Cf., on this point, Petrone, "I limiti del determinismo scien- 
 tifico,'' p. 115 et seq.; Bauch, "Ethik" in "Festschrift f. K. Fischer, 
 Die Philosophic im Beginn des XX Jahrhunderts" (Heidelberg, 
 1904-5), I Bd., p. 88 et seq. 
 
236 PRINCIPLE OF CAUSALITY [Ch. II 
 
 considered with other criteria and under other aspects : — 
 human and social facts are not excluded^ It can be 
 generally asserted that at every application of the causal 
 principle to matter not before examined by its light, 
 that is ^" when anything is considered natural and deter- 
 mined which before had been treated as arbitrary and acci- 
 dental, human science takesastep forward. Wecan observe 
 that the methodological significance of the doctrines 
 both of Darwin and Malthus, as well as of their followers, 
 lies in the attempt to introduce the criterion of natural 
 causality into matters in which that of final cai^ses alone 
 had previously prevailed .^^ In our mind, at any rate, 
 there can be no question but that the causal explanation 
 (whether it has as yet obtained or not) is possible in every 
 phase of phenomenal reality. And we are inclined to 
 agree with Spinoza that even human acts — inasmuch 
 as they form a part of such reality — can be treated with 
 the same rigorous objectivity which is proper in physics 
 and geometry.^ "perinde ac si quaestio de lineis, planis 
 aut de corporibus esset,"2'and we even affirm with Kant 
 that such actions themselves as natural phenomena are 
 necessarily determined and could be foretold as accu- 
 rately as eclipses of the sun and moon, were it possible 
 to have full knowledge of their antecedents.^' But in 
 this connection especially, we must always bear in mind 
 this capital truth, thatialthough the causal conception 
 
 28 In the physical sciences the hypothesis of Kant and Laplace 
 on the formation of the solar system has this fundamental signifi- 
 cance. 
 
 " Spinoza, "Ethica," Pt. Ill, Praf. 
 
 i»See Kant, "Kritik der praktischen Vernunft," 1 Th., 1 Buch, 
 III Hauptst., p. 120 of the edit, by Kehrbach. Cf. "Krit. d. rein! 
 Vernunft," Transscend. Elementarlehre, II Th., II Abth., II Buch 
 II Hauptst., 9 Abschn., esp. p. 439 et seq. Vide also in an analagous 
 sense, Fichte, "Die Bestimmung des Menschen," 1 Buch., esp. p. 19, 
 Schopenhauer, "Ueber die Freiheit des menschlichenWillens," passim. 
 
§154] TRUE VALIDITY 237 
 
 is legitimate and necessary for a sure understanding 
 of phenomena, still it is not the only conception actually 
 and logically possible, as we will show in the following 
 chapter. 
 
238 APPRECIATION OF THE END [Ch. Ill 
 
 CHAPTER III 
 
 APPRECIATION OF THE END AND META- 
 PHYSICAL CONCEPTION OF NATURE 
 
 TELEOLOGICAL INTERPRETATION AS THE COMPLE- 
 MENT OF THE CAUSAL INTERPRETATION. — NEED OF 
 DISTINCTION: THE FAULT OF THE ARISTOTELIAN 
 THEORY. — INTRINSIC FINALITY OP NATURE AND THE 
 MEASURE OF THE NATURALNESS OF NATURE.- — "NEXUS 
 EFFECTIVUS" AND "NEXUS FINALIS" : VALUE OF THE TWO 
 CRITERIA AND THEIR LEGITIMATE CO-EXISTENCE. — 
 ORGANISM AND ENTELECHIA. — OBSERVATIONS ON A 
 KANTIAN DOCTRINE. — CONSEQUENCE OF THE APPRE- 
 CIATION OF THE END. — NEW IDEA OF THE NATURAL. — 
 NATURE AND SPIRIT. 
 
 § 155. Teleological Interpretation of Nature as the Com- 
 plement of the Causal. Besides the mechanical or strictly 
 physical coricept of nature, there is another we can call 
 njetaphysical, not less valid nor less necessary than the 
 first, founded, like the first, on an intrinsic function and 
 attitude of our mind. Reality seems, from one point of 
 view, subject to a chain of causal determinations which 
 bind all phenomena together, but is also animated by a 
 spontaneous and inexhaustible power which directs and 
 guides the processes and raises it by degrees through 
 successive development to new forms and higher goals.' 
 
 * Such is, in substance, the concept of nature which Comte 
 qualifies as proper to the "metaphysical state." "The last term 
 of the metaphysical system consists in conceiving of a single, great, 
 general nature, considered as the only source of all phenomena, in 
 place of different particular entities." Comte, "Cours de philoso- 
 
§155] TELEOLOGICAL INTERPRETATION 239 
 
 Nature in this sense is not the mechanical unity of 
 phenomena, the law of the reducibility of consequents 
 to antecedents, a blind and rigid formula, called by 
 Hegel "the corpse of the intellect," ^ but is the living 
 principle which moves this mass of the universe and is 
 expressed in the infinite variety of its development. It is 
 the substance which we have seen to be free from the 
 bounds of causality. It is internal reason which gives 
 norms to all things and assigns them their tendencies, 
 functions, and ends. Such a concept of nature, rightly 
 considered, does not contradict but integrates and com- 
 pletes the causal concept, for from the contrast of 
 their sequelae come the final relations and values. And 
 if quantitatively a constant equality is preserved between 
 the "prius" and "posterius," still there is a qualitative 
 increase in every natural development which breaks 
 this equality, the second term being greater than the 
 first, and related to it as end to means. The teleological 
 interpretation of the universe is, however, both legiti- 
 mate and unavoidable, and recourse to it is the more 
 necessary as the relations under examination grow 
 higher and more complex.' 
 
 ' § 156. Need of Distinction between the Teleological 
 and Causal Concepts. The two concepts, the physical or 
 mechanical, and the metaphysical or teleological, can 
 and should co-exist as forms of interpreting nature, but 
 must be kept distinct. Each is vali4 in its own sphere, 
 that is, inasmuch as it gives a view of reality. Thus 
 
 phie positive," Vol. I, p. 5. In comdemning this concept, Comte 
 did not see that he was contradicting a fundamental necessity of 
 thought, which it would not be possible to discard even after the 
 advent of the hypothetic "positive state." 
 
 2 Estranged from the idea, nature is the corpse of reason," Hegel, 
 "Vorlesungen iiber die Naturphilosophie" (Berlin, 1842), § 247, p. 24. 
 
 s Cf . § 150, and n. 17, ante. 
 
240 APPRECIATION OF THE END [ Ch. Ill 
 
 the teleological criterion institutes a measure which 
 would never be recognized by the mechanical criterion, 
 but which cannot on that score be said to be erroneous, 
 as the other in its turn is not erroneous. It is irre- 
 futable as long as it remains within its own confines 
 and is accompanied by a knowledge of its relativity. 
 The error lies in the confusion or exchange of the terms 
 of the two interpretations of nature or in the asdgn- 
 m«it of exclusive value to one of them, as used to hap- 
 pen frequently and happens too often even now.i^ 
 
 § 157. Fault of Aristotle's Concept of Reality. The 
 Aristotelian doctrine, to which reference is proper on 
 this subject, is at fault not for accepting the principle 
 of final causes in the interpretation of nature, but for 
 not tempering and harmonizing this teleological con- 
 cept with the mechanical in a critical way. It is easy 
 to see how his idea of final causes prejudices and hinders 
 the purely physical explanation of phenomena at every 
 turn. Aristotle did not conceive of nature as subject 
 to immutable and inviolable natural laws but as a per- 
 petual and laborious struggle between two principles, 
 each trying to subject the other. Form, as final cause, 
 tries to imprint its essence upon matter, and is not 
 always successful in this, but the result differs, depend- 
 ing upon the degree of resistance in matter. With such a 
 
 * From this fundamental equivocation, in the varied and ambig- 
 uous use of the terms nature and natural, infinite philosophical and 
 juridical difficulties and disputes arose. Cf. in general, /. Dewey, 
 "Nature," in "Dictionary of Philosophy and Psychology," edit, by 
 J. M. Baldwin, Vol. II (New York, 1902); Eisler, "Natur," "Worter- 
 buch der philosophischen Begriffe," 2d ed. (Berlin, 1904); G. C. 
 Lewis, "Remarks on the Use and Abuse of Some Political Terms," 
 new edit. (Oxford, 1877), § XIV, "Nature, Natural, Unnatural, 
 State of Nature"; D. G. Ritchie, "Natural Rights," 2d ed. (London, 
 1903), Pt. I, Cap. II, "On the History of the Idea of Nature in 
 Law and Politics," and IV, "De Divisione Naturae." 
 
S 157 ] FAULT OF ARISTOTLE'S CONCEPT 241 
 
 teleological concept we can understand how not all 
 that which exists is natural in Aristotle's mind, but 
 only what corresponds to the intent of nature or ade- 
 quately conforms to its end.^ !^ Reality is not a homo- 
 geneous whole, but is essentially a scale of perfections^ 
 Phenomena are distinguishable as regular and irregular 
 (Tipara). Some existing things, for example, monsters 
 and the deformed, are nature's failures. In general, 
 whatever has a less complex and proportioned life, or 
 is more brute and amorphous than organic or is less 
 perfect organically, shows a partial impotence or incom- 
 pleteness of nature in the actualization of her designs.' 
 Aristotelian physics assumes, therefore, qualities more 
 valuative than explicative. It considers the tendencies 
 more than the laws of reality. It is in every case more 
 a philosophy than a natural science, as Hegel observed.^ 
 The rigor of method and criticism which marks modern 
 science is sought in it in vain, while it is almost typical 
 of other Greek philosophers, for example, of Democritus. 
 
 ' " 'H 8e KJiwrii TeXos icrriv. OTov yap Ikouttov icm rrji yEvecreois 
 TfXfsrOticrrp, ravryjv Kfrn/xev rr/v <l)v(7iv cfvat £Ka(7To«, Sxrwtp 
 avOpaiirov, tinrov, oiicws," Aristotle, "Polit.," Lib. I, Cap. I (II), § 8. 
 
 ^ See the characteristic steps, illustrated by Zeller, "Die Philosophie 
 dfer Griechen," Zw. Th., Zw. Abth., pp. 422-31; vide also, p. 330 
 etseq., p. 488 et seq., 803. Cf. Burle, "Essai historique sur le devel- 
 oppement de la notion de droit naturel dans I'antiquite grecque" 
 (Trevoux, 1908), pp. 367-69. 
 
 'Vide, Hegel, "Vorlesungen iiber die Geschichte der Philoso- 
 phie," Zw. Th., p. 301 et seq. The observation of Vico in "De 
 Antiquissima Italorum Sapientia," may be recalled: "Non vidit 
 haec Aristoteles, quia Metaphysicam recta in Physicam intulit; 
 quare de rebus phisicis nietaphisico genere disserit per virtutes et 
 facultates," etc. (Cap. IV, p. 84, edit, by Ferrari, "Opere," Vol. II), 
 and in his first "Risposta" to the "Giornale de' letterati d'Itaria,"i 
 "Aristotle has sinned as much in treating physics metaphysically 
 as power and faculties, as Descartes has in treating metaphysics 
 physically in finite acts and forms." (§ III, p. 124, 1. cit.; cf., 
 also, the second "Risposta," § IV, p. 156.) 
 
242 APPRECIATION OF THE END [ Ch. Ill 
 
 In this respect, therefore, it is no wonder that Bacon, 
 attempting the methodical restoration of science, pre- 
 ferred the physical theories of Democritus to those of 
 Aristotle and Plato ^ and that the modern speculative 
 renaissance, in general, was hostile to Aristotle, as we 
 have said. Opposition to Aristotelian teleology had, 
 furthermore, all the characteristics of a reaction. Not 
 only was the mechanical concept of nature accepted 
 and turned to profit (the spiritualistic Descartes was 
 among its most unbinding champions), but this concept 
 itself was generally given value not so much as an integra- 
 tion, but as a negation of the teleological concept.l^ Only 
 at a later date, under Leibniz and above all under Kant, 
 do we find the beginning of a rational reconciUation of the 
 two criteriajjj^ While, however, we admit at once that Aris- 
 totle did not have an adequate understanding of theimpor- 
 tance of the causal explanation and that in his doctrine 
 of final causes he erred in manifest anthropomorphism,' 
 yet we must not fail to recognize the legitimacy and 
 importance of the fundamental criterion he adopted for 
 the conception of nature. We do not hesitate to say 
 that the teleological criterion becomes more necessary, 
 while the causal criterion is more strictly understood 
 and applied, t As one progresses in the anatomy of reality 
 with the analytical process proper to causality, and as 
 
 8 Vide Bacon, "De Dignitate et Augmentis Scientiarum," Lib. IIIi 
 Cap. IV, end. For the methodological value of ancient atomists, 
 seeiotee, "Mikrokosmus," III Bd.,p. 223 et seq. Forthe difference 
 between ancient and modern atomists, cf. Zeller, "Ueber teleo- 
 logische und mechanische Naturerklarung in ihrer Anwendung auf 
 das Weltganze" in "Vortrage und Abhandlungen," Zw. Samml. 
 (Leipsic, 1877), p. 636. 
 
 » On this proposition, see the severe criticisms of Lange, "Ge- 
 schichte des Materialismus," I Bd., p. 61 et seq., and cf. Eucken, 
 "Die Methode der Aristotelischen Forschung" (Berlin, 1872), p. 91 
 et seq., 151 et seq. Cf. Zeller, "Die Philosophie des Griechen," Zw. 
 Th., Zw. Abth., pp. 422-31. 
 
§ 157 ] FAULT OF ARISTOTLE'S CONCEPT 243 
 
 one shows the reducibility and mechanical equivalence 
 of phenomena through the principle of the indestructi- 
 bility of matter and energy, the clearer becomes the 
 relativity of such interpretation and its unfitness to 
 grasp the true advance of the world in its essence.^ In 
 fact, the causal explanation supposes that a tendency 
 and direction has previously been given to reality; sup- 
 poses a power or active principle in it, whose successive 
 extrinsifications it collects and co-ordinates in its own 
 way.^" This is how the rigorous and quasi-schematic 
 idea of causality demands by way of complement the 
 idea of an active substance which gives its own sense 
 to causal successions, and moves through these to 
 qualitative distinctions and more complex forms and 
 types, which can logically be supposed to be already 
 implied in the primordial intent of nature, in other words, 
 be looked upon as ends in respect to the anterior and 
 simple phases of development. 
 
 § 158. Intrinsic Finality of Nature. To admit an 
 intrinsic or immanent finality in nature is nothing more 
 than to consider it in the absoluteness or spontaneity of 
 its principle." While the causal criterion indicates, as 
 we have seen, a purely relative necessity between the 
 divers phenomena or phases of growth, it does not 
 embrace reality as a whole nor explain the universe, in 
 relation to which no causality or necessity can be found. 
 The principle of reality, the very existence of the world, 
 is "per se" contingent. Its rationality can be understood 
 
 w Cf. Lotze, "Mikrokosmus," esp. Bk. Ill, Cap. V. "Every ex- 
 ample of causality forces us to conceive of the possibility of an 
 exchange of influences, to put in the place of simple natural collec- 
 tivity a single eternal substance in which the separated multitude 
 of phenomena would not appear distinct." (I Bd., p. 429). 
 
 " "The true teleological conception lies in this," writes Hegel in 
 "Vorlesung fiber die Naturphilosophie," p. 11, "to conceive of 
 nature as free in her proper sphere of life.'' 
 
244 APPRECIATION OF THE END [ Ch. Ill 
 
 from the point of view of finality, rather than under the 
 causal aspect. In other words, the direction shown by 
 reality in its development or its tendency to take on 
 certain forms of life can be considered. The angle of 
 vision, however, is here inverted, that is, what is last in 
 phenomenal production can be looked upon as the 
 reason for what is primal. The basis of intelligibility 
 is no longer in the coefficient but in the product, not 
 in the amorphous and simple but in the organic and 
 complex. The higher grades of development throw 
 light on the lower and give them a new and deeper 
 meaning, showing them to be medial in the system of 
 the ends of nature. The teleological interpretation is 
 thus placed above the causal or mechanical without 
 destroying or weakening it in any way; the "nexus 
 effectivus" subsists near and besides the "nexus 
 finalis," forming its empirical complement or sensible 
 aspect.*^ Finality is shown over the system of causes, 
 and is, in a certain sense, this same causality seen 
 from within. It is "causality become transparent," as 
 E. Hartmann says." -Teleology and mechanism are, in a 
 
 12 "The peculiarities of nature lie in this, that it acts in a mechani- 
 cal way, and notwithstanding that it is a blind piece of machinery, ac- 
 complishes its purpose." Schelling, "System des transscendentalen 
 Idealismus," in "Samtliche Werke,'" I Abth., Ill Bd. (Stuttgart, 
 1858), p. 608. 
 
 " Hartmann, "Kategorienlehre" (Leipsic, 1896), p. 475. Vide, 
 also, De Sarlo, "Metafisica, scienza e morality." (Rome, 1898), p. 24 
 et seq. ; Petrone, "I limiti del determinismo scientifico," "II problema 
 della morale" in "Problemi del mondo morale meditati da un 
 ii^ealista" (Milan, 1905), p. 260 et seq. Cf. on the reconciliation 
 of these two considerations, Sigwart, "Der Kampf gegen der Zweck" 
 in "Kleine Schriften," 2 Ausg. (Freiburg, 1889), II Bd., esp. p. 43 
 et seq., "Logik," 3 ed. (Tubingen, 1904), II Bd., p. 249 et seq., 
 770 et seq.; Wundt, "Logik," I Bd., p. 631 et seq., esp. p. 645, 651. 
 Also, note the profound essays by Trendelenburg, "Logische Unter- 
 suchungen," 3 ed. (Leipsic, 1870), esp. II Bd., Cap. IX, and by 
 Lotze, "Mikrokosmus," esp. Lib. IV, Cap. L 
 
5158] INTRINSIC FINALITY 245 
 
 word, two different ways of collocating the same data, 
 which meet in the absolute, according to Leibniz," or, at 
 least, possibly may meet, as Kant says.'^ It is not 
 true that the teleological interpretation is subjective and 
 the causal objective, for the causal interpretation is not 
 less subjective than the other, since it answers a logical 
 need, an "a priori" form or function of the intellect.'^ On 
 the other hand , there is no trace here of anthropomorphism 
 in the popular sense, that is, of an improper assimilation 
 of external facts to those of man, for it is evident that in 
 speaking of the ends of nature no conscious delibera- 
 tion, founded on representation of the outcome such 
 as takes place in the human psyche," is meant; and 
 
 ^* Vide Leibnii, "Specimen Dynamicum pro Admirandis Naturse 
 Legibus," etc., in "Leibnizens mathematische Schriften,'" ed. by 
 Gerhardt, VI Bd. (Halle, 1860), Pt. I, p. 242 et seq. Cf. Zeller, 
 "Ueber teleologische und mechanische Naturerklarung," p. 640 et 
 seq. We should, however, note that Leibniz (differing from Kant) 
 did not have a rigorous conception of causality, as can be seen in 
 his doctrine of miracles. Cf., on this point, Zeller, "Geschichte der 
 deutschen Philosophie seit Leibniz," p. 155 et seq. 
 
 '' Kant, without making any dogmatic statement, gave glimpses 
 of the possibility of a transcendental coincidence of the two criteria. 
 "Kritik der Urtheilskraft," II Th., §§ 77, 78 and passim, for ex. 
 § 70. "Wherefore it is undecided whether in the unknown inner 
 soul of nature, the physico-mechanical and the teological reasons 
 may not depend upon one principle." 
 
 " "To seek the purpose is as natural for the spirit as to seek the 
 cause, . . ." Lasson, "Kausalitat" (Berlin, 1904), p. 157. 
 
 " Against the possibility of such an error, see Kant, "Krit. d. 
 Urtheilskr.," § 68. Cf. Spir, "Denken und Wirklichkeit," II Bd., 
 pp. 152-87; "Vom dem Endzweck der Natur" in "Philosophische 
 Essays," esp. p. 93 et seq. The equivocations on this subject are 
 much too frequent, as £. Hartmann points out, "Kategorienlehre," 
 p. 437, "The confusion of the unessential idea of a conscious aim 
 with the term 'conformity to purpose' or 'finality' still exists in 
 th usage of language and keeps an aversion to teleology awakened 
 inethe circles of those half educated people who are utterly uncon- 
 
246 APPRECIATION OF THE END I Ch. Ill 
 
 there is no exchange of the objective finality, inherent 
 in the products of nature with the accidental and extrin- 
 sic utility which they can have for man." But it is 
 a proper criterion to show and weigh adequately the 
 most profound and intimate associations in the order 
 of fact and the development of its manifestationsji 
 
 § 159. Organism and Entelechia. In a word, we have 
 in the int\iition of ends "a further principle" for the 
 knowledge of nature ;" and we must remember this prin- 
 ciple, above all, when we study the characteristics of 
 organic entities. For an organism is pre-eminently a 
 system in which the various parts are not determined 
 "per se," or joined in a relation of simple coexistence, 
 accidental in respect to the whole, but are so placed as 
 to co-ogerate with their respective functions to maintain 
 the life of the whole. They are not, therefore, only 
 causes, but also in a stricter sense means or instru- 
 ments formed naturally in relation to a definite end.^" 
 
 Bcious of the fact that the German speculative philosophy has long 
 since stripped this unessential idea from the conception." 
 
 " Cf. Kant, "Krit. d. Urtheilskr.," § 63. The difference between 
 intrinsic and extrinsic finality was clearly indicated also by 
 Hegel, "Vorlesung uber die Naturphilosophie," § 245, Zusatz, p. 
 
 10 et seq. 
 
 » Cf. Kant, "Krit. d. Urtheilskr.," § 61. 
 
 2" "From the purpose of the whole the fixed relations of work and 
 accomplishment are established; the relation of the part to the 
 whole is seen if its contribution is known, which it adds to the 
 preservation or continuity of all other parts. Physiology has never 
 been able to deprive itself of this point of view; and it was a 
 superfluous polemic when, in the interests of a purely causal-mechani- 
 cal contemplation of living things, all and every employment of 
 the conception of purpose was combated." Sigwart, "Logik," 
 
 11 Bd., p. 255. Cf. also, Wundt, "Logik," II Bd., I Abth., p. 537 
 et seq. Rickert in "Die Grenzen der naturwissenschaftlichen 
 Begriffsbildung," p. 456, writes: F "This science (biology) may in 
 general be defined so as to treat of bodies whose parts act in teleo- 
 
§159] ORGANISM AND ENTELECHIA 247 
 
 tThe internal finality, entelechia, is shown in the organ- 
 ism by the correspondence between the organs and 
 functions and by a continuous and co-ordinated force 
 of reintegration and adaptation, which tends to pre- 
 serve the correspondence in all varieties of conditions. 
 An organism is not only an organized being, it is a being 
 which organizes itself.^^ Its formation and reproduction 
 are spontaneous in such a way as to oblige us to recog- 
 nize an animating principle in the material, that is, to 
 look upon it as subject to a suprasensible determination 
 (according to ends), not contrary but superior to the 
 causaljf And, whenever we admit (for there is no reason 
 for an "a priori" denial) that organic species are trans- 
 formed by a series of successive modifications or even 
 arise from the inorganic, it is more necessary to suppose 
 that there exists in them or in matter in general a 
 spontaneous tendency to life, an intrinsic capacity of 
 co-ordination and adaptation, which is equivalent to 
 saying an immanent finality.^' 
 
 § 160. Kantian Doctrine of the Organic and Inorganic. 
 Kant has shown that only true and proper organisms of 
 
 logical unity. In fact the conception of unity is so inseparable 
 from the conception of organism, that on account of their teleo- 
 logical connection only we call the living things organisms." A 
 science of organisms without any teleological moment would be a 
 contradiction "in adjecto.''-^ 
 
 21 Vide Kant, "Krit. d. Urtheilskr.," esp. § 65. Cf. Schelling, 
 "Ideen zu einer Philosophie der Natur" in "Samtliche Werke" 1 
 Abth., II Bd. (Stuttgart, 1857), p. 40 et seq. 
 
 ^ "Very far from authorizing the denial of vital spontaneity and 
 immanent finality, one can go so far as to say that the empirical 
 laws, which govern the transformation of organisms, carry such 
 spontaneity and finality as postulates of the transformism." G. 
 Richard, "L'idte d'evolution dans la nature et I'histoire" (Paris, 
 1903), p. 131. Cf. Boutroux, "De I'idde de loi naturelle dans la 
 science et la philosophie contemporaines," (Paris, 1895), esp. pp. 
 94^101. 
 
248 APPRECIATION OF THE END [Ch. Ill 
 
 necessity imply the concept of final causes since we 
 must weigh them on such scales, and that when we 
 have once established such a principle we are prone to 
 conceive of all nature as a system governed by the 
 rule of final causes.^ But we must say that Kant has 
 too markedly separated the organic from the inorganic, 
 granting a predominance to teleological interpretation 
 as for phenomena of the first class, and not permitting 
 it in the second except by way of analogy, and in an 
 almost fictitious or hypothethical method. But, in 
 conformity with the teaching of the modern science of 
 nature, we must consider the divers orders of nature as 
 ascending manifestations of one principle in intimate 
 and uninterrupted relations "inter se." Thus, in the 
 so-called inorganic world, we find an energy which 
 becomes specific in various forms, and is resolved in 
 relations of reaction and combinations in a determinate 
 sense. So in it, too, we find a series of growing com- 
 plications. " In a word, we recognize in it an evolution, 
 andj^evolution means a tendency towards some goal, a 
 subordination to a purpose.^* Of course the teleological 
 
 23 Vide Kant, "Krit. d. Urtheilskr.," §§ 67, 75. 
 
 ^ "Whatever develops must develop into its inherent destiny 
 and show a quality of self-determination or liberty." K. Fischer, 
 "Kritikder Kantischen Philosophie" in "PhilosophischenSchriften," 
 II, 2 ed. (Heidelberg, 1892), p. 212. "The conception of develop- 
 ment presupposes a difference of lower and higher, i.e., objectively 
 real differences of value, which in turn are to be measured by the 
 purpose." E. Hartmann, "Kategorienlehre," p. 468. "This law is 
 teleological in nature, for it looks upon the differentiating of simple 
 forms as a process which has for its purpose the generating of the 
 complex form. Even where this is not expressly stated the thought 
 of purpose is nevertheless visible, for the differentiating process is 
 examined not in relation to its causal conditions, but in reference to 
 its result." Wundt, "Logik," II Bd., 1 Abth., p. 540. Cf. Lasson, 
 "Kausalitat," p. 176. Vide, also, the recent observations of Aliotta, 
 "Cangiamento ed evoluzione" in "Cultura filosofica," II, 1908, p. 
 49 et seq. 
 
§160] KANTIAN DOCTRINE 249 
 
 quality is presented much more fully developed in 
 organisms, and is even more predominant in the psychic 
 system, where the end is anticipated in knowledge and 
 becomes the motive of action^ but, nevertheless, we 
 must admit the existence of elementary conditions and 
 precursors of finality (perhaps undeveloped and latent) 
 even in the lower forms of existence, under pain of 
 ignoring the fundamental unity of nature."* On the 
 other hand, the causal principle controls organisms as 
 well as the lower forms."^ Kant's statement, there- 
 fore, that mechanical explanation of organisms inde- 
 pendent of the teleological ^ will never be possible, 
 does not seem justified under a rigid examination. 
 
 ^ Cf., on this subject, the arguments of K. Fischer, "Kritik der 
 Kantischen Philosophie," p. 213, which, however, in their reference 
 to Kantian philosophy "as a theory of development," have the value 
 of integration rather than of true interpretation. 
 
 2' In this sense, for example, Rickert writes in "Die Grenzen der 
 naturwissenschaftlichen Begriffsbildung," p. 457: "However many 
 reasons may be advanced that the conception of mechanical caus- 
 ality is not sufficient as the explanation of organism, natural science 
 can never give up the endeavor for a mechanical comprehension of 
 the entire physical world, and therefore, it must leave a place in 
 organic life to be mechanically explained . " £otee put effective empha- 
 sis on this point, upholding the necessity of the mechanical conception 
 (even for organisms) at the same time showing its insufficiency. 
 "Nowhere is mechanism the nature of things; but nowhere does 
 nature manifest itself in any form of empirical existence except by 
 it." "Mikrokosmus," 1 Bd., p. 451. 
 
 " "It is certain beyond a doubt that we cannot study sufficiently 
 organized beings and their inner possibilities according to the mere 
 mechanical principles of nature, much less can we explain it; and 
 this is so certain that one can boldly state it is impossible for man 
 even to imagine such a design or to hope that perhaps a Newton 
 will arise again who can make comprehensible the generation of a 
 blade of grass according to natural laws which no purpose has 
 arranged; no such intelligence is possessed by man." Kant, 
 "Kritik. d. Urtheilskr.," § 75. According to E. Haeckel, "Die 
 
250 APPRECIATION OF THE END [Ch. Ill 
 
 f § 161. Co-existence of Final and Causal Principles. 
 The truth is that the final and causal principles can 
 co-exist perfectly, even as heuristic principles, so that 
 when we consider an organic being, we can and must 
 examine equally what is the cause and what the end 
 of its parts. Both kinds of examination are legiti- 
 mate, both aid the integrity of knowledge, neither is 
 superfluous, — knowledge of the end of a given organ 
 alone will not dispense with a study of the physical 
 laws and processes of its formation ; conversely, it is not 
 enough to know the structure of some part of an organ- 
 ism, but one must be able to show its end or function in 
 relation to the whole.J Where this last knowledge is not 
 attained, the naturalist sees in such a structure an un- 
 solved problem, of whose ultimate solution, however, he 
 cannot doubt. The maxim "nature does nothing in 
 vain"28 is applicable here as a guide in the research, and 
 as complementary to the other that nature leaves nothing 
 to chance.^' In the study of organisms the need of a 
 teleological measure is felt, indeed, no less strongly than 
 that of a causal explanation.^" 
 
 t-§ 162. Value of Final and Causal Criteria. The 
 diverse value of the two criteria appears, however, when 
 we consider the consequences which we can deduce from 
 
 Weltrathsel" (Bonn, 1899), Cap. XIV, this new "Newton of organic 
 nature" is not only possible, but has been incarnated in Darwin. 
 This is certainly not true, for Darwinism is not the negation of 
 teleology. Cf., on this point, MorselU's note in "I problemi dell' 
 universo," the Ital. ed. of the above work (Turin, 1904), p. 373 et seq. 
 
 28 "Ov8ev ix.a.Triv ^ <j)V(ns ttoicT," AristQtle, "Polit.," Lib. I, Cap. I 
 (II) § 10. 
 
 " Kant, "Krit. d. Urtheilskr.," i 66. 
 
 '" Cf. Reinke, "Der Neovitalismus und die Finalitat in der Biolo- 
 gie" in "Rapports et comptes rendusdu II Congr^s international de 
 Philosophie" (Geneva, 1905), p. 163 et passim; vide, also, the report 
 of the discussion. 
 
§162] VALUE OF CRITERIA 251 
 
 them. According to the criterion of the end, we can 
 establish a distinction (undeterminable by any causal 
 test) between the normal and abnormal, the physiological 
 and pathological. The cause of a disturbance in the 
 functions of an organism is judged less natural or un- 
 natural, althouth it is explicable causally, and enters in 
 this way into the mechanical or physical concept of 
 nature.^'^J In such an antinomy the double significance of 
 this term, the object of our prior criticism, can be seen. 
 
 " Significant, although not founded on a truly philosophical analy- 
 sis, is the objection which Voltaire made to the thesis of mechanical 
 naturalism, upheld in "Syst^me de la nature" (Cf. § 153, ante.): 
 "How can you endorse it? In physics, a child who is born blind, or 
 without the use of its legs, a monster is not contrary to the nature of 
 thespecies! Can you so contend for a moment? Is it not the ordin- 
 ary regularity of nature that constitutes order, and irregularity that 
 makes disorder? Is it not a very great disorder and a sad irregularity 
 that a child to whom nature has given hunger and thirst has an 
 obstruction in his esophagus? This disorder has doubtless its causes. 
 There can be no effect without a cause, but this is a very unorderly 
 effect." "Dictionnaire philosophique," "Dieu, dieux," Sect. IV, of 
 edit, of "CEuvres Completes" (Basle, 1786), Vol. XXXIX, p. 308. 
 Cf., for this, Lange, "Geschichte des Materialismus," 1 Bd., p. 369 
 et seq. Durkheim wrote in "Les regies de la methode sociologique," 
 p. 72;!, "Sickness is no more miraculous than health; it is founded 
 equally on the nature of beings. Only it is not founded on the nor- 
 mal nature." We must notice that the concept of normal nature, 
 in its supposition of a knowledge of an end, cannot be obtained by 
 simple empirical observation4 Cf. XJlrici, "Gott und die Natur," 
 3 ed. (Leipsic, 1875), p. 595 et seq.; Bauch, "Ethik," p. 88 et 
 seq.; Bayet, "Sur la distinction du normal et du pathologique en 
 Sociologie," in "Revue philosophique," January, 1907, p. 67 et seq. 
 That sickness should be cured is valuative and exceeds the simple 
 analytical knowledge of the process of sickness as a natural fact. 
 Merkel is not right, therefore, in invoking the analogy of medicine 
 (which really is in need of an ethical foundation, however elementary) 
 to hold that philosophy of law can gain knowledge of a norm from a 
 simple observation of the facts themselves in order to weigh it and 
 eventually correct it. "Ueber das Verhaltnis der Rechtsphilosophie 
 
252 APPRECIATION OF THE END [Ch.III 
 
 Teleologically considered, nature is not a principle of 
 identity but of hierarchy. It is not neutral in respect 
 to the course of growth. It is not shown indifferently in 
 all phenomena, but emerges from them, inasmuch as it 
 tends to definite types and co-ordinations. The nature 
 of anything is in this sense the type or sign of per- 
 fection, or what every individual or particular example 
 has to be in order to correspond to the final purpose 
 proper to its species.'^ -To live according to nature 
 (o/AoXoyou/iEvoJs Trj c^vcra ^^v), in the maxim of the Stoics,'* 
 means, therefore, in general, to attain one's end, that 
 is, to obey the law which springs for each being from 
 
 zur 'positiven' Rechtswissenschaft," in "Gesamm. Abhandl.," II Teil, 
 1 Halfte, p. 319 et seq. 
 
 '2 See, for the frequent application of this concept, even in relation 
 to law, M. Voigl, "Das jus fiaturale aequum et bonum und jus 
 gentium der Romer" (Leipsic, 1856-76), 1 Bd., p. 270 et seq., and 
 esp. Beil. Ill, "Ueber die Begriffe von naiura und naturalis in den 
 juristischen Quellen," p. 547 et seq.; where the two fundamental 
 meanings (the physical and the normative) which the word "natura" 
 had in the mind of Roman jurists are illustrated in detail, with 
 various subdivisions. "The question whether 'naturalis' simply 
 designates conformity to physical nature or to the nature of the 
 thing is to be answered according to the possible contrast in which 
 the 'naturale' is thought or placed." Cf., for the various meanings 
 and applications of the word "natura" in Roman law, Lasson, "Sys- 
 tem der Rechtsphilosophie," p. 73 et seq.; Bonfante, "Obbligazione 
 naturale" in "Foro italiano," Vol. XVIII, 1893, p. 150 et seq.; 
 Gradenwiti, "Natur und Sklave bei der naturalis obligatio" (Konigs- 
 berg, 1900), § 2, esp. p. 15 et seq.; Bryce, "The Law of Nature," in 
 "Studies in History and Jurisprudence" (Oxford, 1901), Vol. II, p. 148 
 et seq.; A. J. Carlyle, "A History of Mediaeval Political Theory in 
 the West," (Edinburgh, 1903,) Vol. I, Pt. II, "The Political Theory 
 of the Roman Lawyers," p. 33 et seq. 
 
 " Vide, on this and other analogous formulae, Ueberweg-Heinte, 
 "Grundriss der Geschichte der Philosophie des Alterthums," 9 ed. 
 (Berlin, 1903), p. 300 et seq. Cf. Jodl, "Geschichte der Ethik," 1 
 Bd., p. 82et seq.; Ritchie, "Natural Rights," p. 34; Burle, "Essai 
 historique," p. 413 et seq. 
 
5162] VALUE OF CRITERIA 253 
 
 its proper internal constitution, notwithstanding that the 
 external manifestations can also partially deviate from 
 it.'* So objective reality, interpreted from an higher 
 point of view, lends itself to a comparative appreciation, 
 that is, takes its place in a scheme of values, and we 
 acquire a deeper knowledge of it than we could obtain by 
 studying the series of changes from a merely causal point 
 of view. By nature we mean, now, the principle that 
 develops in the world through an ascending order of 
 types, the reason which vivifies matter, and compels it 
 to organization and individualization, assuming proper- 
 ties and relations always more elevated, until it at last 
 becomes spirit, a subject that feels, and wills, and 
 even thinks. J! In a word, reality is like a body, which 
 little by little grows animate and is roused. Spirit 
 at first diffused and unconscious gathers itself to- 
 gether and asserts itself as an agent.'^ This is a 
 
 '* The statement of the Cinici, "Naturalia non sunt turpia," and 
 others like it, have an ethical significance only when a regulative 
 principle is meant by "natura," superior to mere physical occurrence; 
 that is, when the possibility of distinguishing what facts are, and 
 what are not natural. Such is in substance Aristotle's doctrine 
 (cf., § 157, ante), expressed in the famous sentence, "Att 8^ o-koitcTv 
 tv Tots Kara tf>v(nv e\av(Ti fxaXkov t6 ^iJ<7ei, Kal /irj iv Tots 8u<l>9ap- 
 ju.ei/ots" "Non in depravatis, sed in his quae bene secundum naturam 
 se habent, considerandum est quid sit naturale," "Polit.," Lib. I, 
 Cap. II (III), § 10. Here we can see another confirmation of the 
 necessity of a distinction between physics and ethics, which is 
 founded on the different conception of nature advanced by the two 
 sciences. Cf. this with note by Del Vecchio on "L'Etica evoluzion- 
 ista" in "Riv. ital. di Sociologia," Vol. VI, 1902, p. 670 et seq. 
 
 •5 The antithesis between nature and spirit takes the first step 
 towards dissolution when we abandon the purely mechanical concept 
 of nature (which gives us only its passive side, "natura naturata," 
 "Natur als Objekt"), and consider it as a living entity or absolute 
 productivity ("natura naturans," "Natur als Subjekt") from which 
 the higher forms of existence are reached by way of the lower. 
 This first unification or metaphysical synthesis of reality (which 
 
254 APPRECIATION OF THE END [Ch.III 
 
 very different concept of nature from that described 
 by Schelling as being one "which was chemical and 
 
 is a forerunner, as we will see, of another in which it is resolved) 
 can be expressed in the words of Fichte, "Nature raises itself by 
 degrees in the fixed scale of generations. In simple matter there 
 is a single being, in organism it is reflective, in plants it is formative, 
 in animals active, and in man, nature's masterpiece, it is turned 
 in on itself for self-examination and consideration, is double as it 
 were, and develops from simple being, to being and consciousness at 
 the same time. "Die Bestimmung des Menschen," p. 21. Fichte's 
 doctrine is thus synthesized by Fischer: "No ego without develop- 
 ment, no development without unconscious production. The last 
 is, in its broadest sphere, called nature, it is distinguishable from the 
 conscious as the non-ego. Nature is a necessary stage in the 
 development of spirit. It shows a part or period of development. 
 It is the growing ego, the unconscious spirit, the production of the 
 intellect." K. Fischer "J. G. Fichtes Leben und Lehre" in "Philo- 
 sophische Schritten," III, 2 ed. (Heidelberg, 1892), p. 334. Fischer 
 forces the thought of Fichte somewhat in order to connect it with 
 later systems. ^The idea of nature as the progressive and organic 
 development of the absolute, which crowned the spirit conscious 
 of self, was the theme of Schelling and Hegel.4 Vide, by Schelling, 
 "Abhandlungen zur Erlauterung des Idealismus der Wissenschafts- 
 lehre" in "Samtliche Werke," 1 Abth., 1 Bd. (Stuttgart, 1856), p. 386 
 et seq., where the fundamental concepts which Schelling developed in 
 his subsequent works on the philosophy of nature are set forth. See 
 "Ideen zu einer Philosophic der Natur, Von der Weltseele" (ibid., 1 
 Abth., II Bd.), "ErsterEntwurfeines Systems der Naturphilosophie," 
 (ibid.. Ill Bd.), etc. By Hegel, see esp. "Vorlesungen fiber die 
 Naturphilosophie," §§ 247-51. Hegel considers nature as the idea 
 in the form of the other or of the external ("die Idee in der Form 
 des Andersseyns"), as spirit which, gone out from itself, tries to re- 
 enter into itself. "Nature is unrestrained spirit, which is wanton, a 
 bacchic God, with no hold or rein upon itself. A thinking considera- 
 tion of nature must consider how nature is a process for itself in order 
 to become spirit and to give up its other form." (ib., p. 24; cf. p. 
 38 et seq). In this sense, cf. Spaventa, "Spirit . . . certainly pre- 
 supposes nature, which has always been called the first mother and 
 teacher. But nature teaches and produces spirit only inasmuch as it 
 is in itself spirit." "Studi sull' Etica di Hegel," p. 60. Let us note, 
 finally, that even the metaphysics of Schopenhauer, which in many 
 
§162] VALUE OF CRITERIA 255 
 
 pharmaceutical."'^ But it is such a concept, more de- 
 veloped philosophically, which places us in a direct 
 and intimate relation with reality, of which we are part. 
 It is this concept which gives the reason for our infinite 
 and mysterious love of nature, since it shows the deep 
 identity of our being with the universal being.^' 
 
 respects is opposed to that just given, considers nature as anextrinsi- 
 fication of the absolute (here known as will, rather than idea), and 
 sees in the different modes of existence the stage of its development 
 tending toward organic life and consciousness. See, on this uni- 
 versal tendency or "straining of wills for higher objectivation,"esp. 
 "Die Welt als Wille und Vorstellung," § 27; where we may note 
 an express reference to Schelling's philosophy. 
 
 "Una letter to Fichte, dated October 3rd, 1801, vide "Fichtes und 
 Schellings philosophischer Briefwechsel" (Stuttgart, 1856), p. 103. 
 Vide, also, by Schelling, on the divers ways of considering nature, 
 the empirical and the philosophical, and on the insufficiency of the 
 former, "Erster Entwurf eines Systems der Naturphilosophie," 
 p. 13, and Introd., ib., p. 284 et seq., "Fernere Darstellungen 
 aus dem System der Philosophic" in "Samtliche Werke," IV Bd., 
 p. 342 et seq., "Vorlesungen iiber die Methode des academischen 
 Studium," 3 Ausg. (1830), p. 242 et seq., in "Samtliche Werke," 
 V Bd., p. 318 et seq. Cf. F. Medicus, "Kants Philosophic der Ge- 
 schichte" in "Kantstudien," VII Bd. (1902), p. 173. The observations 
 by E. Hartmann, "Kategorienlehre," p. 470, are in point, "Nobody 
 must ask natural philosophy to confuse in its study the causal and 
 teleological definition or to exchange their points of view tempo- 
 rarily ; such a proceeding would rather be a mistaking of the problems 
 of two branches. But one can obtain from the student of natural 
 philosophy as of every other branch a broader sphere of knowledge 
 than one's own specialty, in other words, a cultured man must assign 
 their true values in nature to teleological considerations and to real 
 objective finality, which, as a natural philosopher, he cannot do. 
 He must never mistake the boundaries of his own branch for the 
 boundaries of human wisdom in general, and throw aside everything 
 lying outside his own subject as unwisdom." See, also, for limita- 
 tions placed on scientific naturalism, Rickert, "Die Grenzen der 
 naturwissenschaftlichen Begriffsbildung," esp. p. 625; Eucken, 
 "Geistige Stromungen der Gegenwart," 3 ed. (Leipsic, 1904), p. 220 
 et seq. and passim ; Bowc^, "Ethik," p. 57 et seq. 
 
 "if'Love of nature" is really nothing but a form of man's knowledge 
 
256 APPRECIATION OF THE END [Ch. Ill 
 
 that he is a universal being and part of the absolute. In fact, an 
 elevation or quasi-purification "sub specie Eeterni" of individual 
 consciousness accompanies each revival of the love of naturejV In- 
 versely, each lessening of such sentiment (for example, because of a 
 dogmatic opposition of the natural and divine) is followed by an anala- 
 gous depression of self-consciousness, an alteration or perturbation 
 of the dignity of man. i Even historically the cult of nature appears 
 in conjunction with humanism; the two concepts are strictly com- 
 plementary. It can be seen, in fact, that love of nature developed 
 and waxed strong during the Renaissance practically in proportion 
 to the renewed sense of the humanj(cf. Del Vecchio, "Diritto e per- 
 sonality umana nella storia del pensiero," p. 12 et seq.). For Bruno, 
 as Fiorentino pointed out, "nature was not only a study but a love. 
 Bruno felt that he was vital with its life, felt the infinite in it, which 
 burnt and agitated his own breast; hence he loved nature and in 
 nature God, the living God, who was in the iinmensity of space and 
 in the depths of his consciousness. What a difference between 
 nature in the eyes of Bruno and that pale weakling which occupied 
 its place in the Middle Ages! At first every sin and degeneration 
 was attributed to it and then it was made the true and faithful image 
 of God!" Fioren/ino, "Telesio," Vol. II,p.46. We can note here as 
 an illustration of the connection we have emphasized, that the deep 
 love of nature which inspired Rousseau, for example, was practically 
 one with his consciousness of the infinite value of human personality, 
 ultimately reducible to what there is ulterior and superior to phe- 
 nomena in the external world as well as in the subjective being. In 
 this irresistible feeling, which shows the way to continuous and 
 fruitful confronting of fact to principle, of the temporal to the eternal, 
 and which, is, therefore, one of the essential prerequisites of ethics, 
 lies the true importance of Rousseau's work, and the reason for his 
 great historical efficiency both in politics and speculation. Rous- 
 seau's influence on all subsequent German idealism, for example, 
 can be seen by reading Fester, "Rousseau und die deutsche Ge- 
 schichtsphilosophie" (Stuttgart, 1890); of., also, Levy-Bruhl, "L'influ- 
 ence de J.-J. Rousseau en Allemagne" in "Annales de I'teole libra 
 des sciences politiques," II, 1887, p. 325-58. The "return to nature," 
 agitated and championed by Rousseau in all his writings, is, as 
 shown by a careful study, an act of the spirit. It is the return of 
 man to himself to hear and obey the living voice, which calls in the 
 depth of his consciousness. Hoffding, who distinguishes three 
 different meanings given by Rousseau to the word "Nature" (the 
 "theological," "natural historical," and "psychological concept of 
 
S162] VALUE OF CRITERIA 257 
 
 nature"J^^dmits finally that the last is the only fundamental and 
 constant one, in other words, is the concept of nature, which Rous- 
 seau obtains "by means of introspection," since Rousseau, he 
 observes, "wanted to teach men to trust their own hearts, to fall 
 back on themselves, instead of relying on external relations, — to find 
 in internals the source of all good and happiness. In this meaning 
 of the words he is called the champion and defender of nature." 
 "Jean Jacques Rousseau og hans Filosofi" (Copenhagen, 1896), 
 translated into German as "Rousseau und seine Philosophie," 2 ed. 
 (Stuttgart, 1902), p. 100-103. For the concept of nature in 
 Rousseau, cf. Del Vecchio, "Su la teoria del contratto sociale," 
 (Bologna, 1906) pp. 26, 32 et seq., 88; and "Ueber einige Grund- 
 gedanken der Politik Rousseau's" (Berlin, 1912). 
 
258 PRIMACY OF THE EGO [Ch.iV 
 
 CHAPTER IV 
 
 PRIMACY OF THE EGO OVER NATURE AND 
 THE FOUNDATION OF ETHICS 
 
 CONDITION OF MAN IN NATURE. — THE WORLD AS A 
 FUNCTION OF THE EGO AND THE LOGICAL PRIMACY OF 
 CONSCIOUSNESS. — OBJECTIVE AND SUBJECTIVE ORIEN- 
 TATION. — NEED OF SUCH ORIENTATION FOR ETHICS. — 
 ABSOLUTE QUALITY OF THE PERSON AND THE SUPREME 
 NORM OF ETHICS. — THE POSSIBILITY OF THE IMPERA- 
 TIVE. — DOUBLE QUALITY OF MAN AND THE VIOLA- 
 BILITY OF THE NORM. 
 
 § 163. Condition of Man in Nature. Such, in fact, is 
 the condition of man in nature; that, on one hand, he 
 is included and enters into it as the last and highest term 
 in the system of formations and developments, and, on the 
 other, in the constitutive and characteristic quality of 
 a thing as subject, he is reflected in nature, epitomizes 
 it in himself, posits and fixes it as his idea.* From this 
 higher point of view the world is no longer something 
 extrinsic, but is properly a function or representation of 
 the ego. ^ Subjective knowledge, which appears as the 
 last term in the order of growth, is the first in the logical 
 order,^ because before or without it no datum, phen- 
 
 ' "It is by one and the same stairway," wroteBruwo grandly, "that 
 nature descends to the production of things, and the intellect ascends 
 to their cognition; both proceed from unity to unity, passing by a 
 number of means." "De la causa, principle e uno," Dial. V., Vol. 
 I, p. 247. 
 
 2 "To vcrrepa ry yiveaa wporefm rrjv <fni(Tiv €(tti, Kal irpmrov to 
 Tg yevvra TtAeuTaTov. T<S /i.ev ovv \p6vio irporepav tt/v BXi/v 
 
5163] CONDITION OF MAN IN NATURE 259 
 
 omenon, or experience is possible. All these are clearly 
 relative terms, which have no meaning "per se," but only 
 in respect to another term, which by logical necessity 
 is precedent, that is, the mind of the agent. No 
 experience is possible without him who experiences, no 
 datum without some one to receive it, no phenomenon 
 unless there is some one to whom it is manifest. All 
 things, therefore, necessarily correspond to their ideas, 
 inasmuch as they are logically determined and qualified 
 by the latter.i 
 
 § 164. Ego the Absolute Principle. Such a concep- 
 tion of the world, in which the ego (not as empirical 
 personality but as the organ of id^as) upholds itself 
 as the absolute autonomous principle, involves and 
 includes all the other conceptions which we have con- 
 sidered so far. And we have said from time to time 
 (in a measure anticipating this final review) that Jail the 
 different interpretations and all the different concepts 
 of nature resolve in the last analysis into particular 
 relations or functions of the intellect. It would, there- 
 fore, be absurd and paralogical to use any of the inferior 
 particular relations to attack or avoid this last, which 
 is their basis, and the most universal, comprehensive, 
 and certain among them.'^ 
 
 dfayKatbv elvai Kal rrjv yevicnv, Tcp \6yif Se T^i oStruxv Kai ry)V 
 iKaXTTOv ii.op(^riv." Aristotle, "De Partibus Anim.," II, 1 (646a, 25). 
 ' "Of all the mistakes of the human mind," as Lotze well says in 
 his "Mikrokosmus,'' 1 Bd., p. 296, "it seems to me the strangest 
 for it to doubt its own peculiar being, of which alone it has direct 
 knowledge, or to consider itself the product of external nature, which 
 we know either at second hand or through the indirect knowledge 
 of the spirit, which we deny." Cf., pro, the elementary canons of 
 critical idealism, and contra, the paralogisms which overcome it, 
 Green "Prolegomena to Ethics," edit, by Bradley (Oxford, 1883), 
 p. 13 et seq. ; Petrone, "II diritto nel sistema della Filosofia d^Uo 
 spirito" (Naples, 1906), p. 35 et seq. 
 
260 PRIMACY OF THE EGO [ Ch. IV 
 
 £ § 165. Causality and Determinism. From the stand- 
 point of causality, everything in the world appears 
 determined. Freedom seems confined to a narrow 
 and unavoidable chain of causes and effects. But it 
 reappears unimpaired and dominant when the law of 
 causality is thought of as fixed and emanating from 
 consciousness, intrinsic in man, who in a certain sense 
 models his experiences and acts according to it.J The 
 series of causal determinations does not destroy the 
 logical primacy and absolute autonomy of the ego, 
 because these determinations, no matter how much they 
 extend and multiply, are always enclosed in parentheses 
 — in other words, dependent on and enclosed in con- 
 sciousness, which constitutes their fundamental law and 
 irreducible limit.* 
 
 * The recognition of the subjective quality of the law of the con- 
 catenation of facts signifies the freeing of the spirit from the apparent 
 servitude in which it would lie by reason of the law itself, if this 
 were extrinsic. This is, in substance, the reasoning of Fichte, who 
 in an imaginary dialogue attributes to the spirit, his questioner, this 
 lofty admonition:i"With this insight, mortal, be free, and forever 
 lose the fear which has humbled and tormented you. You are no 
 longer a pawn of the necessity which is in your mind, you are no 
 longer to be oppressed by the fear of things which are your products, 
 you are no longer to place thought in the same class with your other 
 products. So long as you are able to believe that a system, which 
 you have made up for yourself, can exist in reality independent of 
 you, and that you yourself are but a link in the chain, fear will grind 
 you down. But, now you have insight that all this is in you and 
 through you, and you without doubt have no fear of yourself, whom 
 you know for its proper self.'y "Die Bestimmung des Menschen," 
 p. 76. Cf. Schopenhauer's remarks in "Memorabilien," edit, by 
 Frauenstadt (Berlin, 1863), p. 725 et seq. Cf. Simmel, "Die 
 Probleme der Geschichtsphilosophie," p. viii et seq. "Men, who 
 are known, are made by nature and history; man, who knows, makes 
 nature and history.'' Thus Croce in "Cio che e vivo e cio che e morto 
 nella Filosofia di Hegel" (Bari, 1907), p. 205,-"Nature, in its concept, 
 isa product of the praxis of man, who, only because he forgets the path 
 
51661 ORIENTATION OF THOUGHT 261 
 
 § 166. Objective and Subjective Orientation of Thought. 
 Thus by an internal criticism of reason, the antinomies, 
 which were first found in the concept of nature, are 
 made clear. To the objective orientation of thought 
 by which everything is considered in the order of its 
 external genesis, according to the mechanical connec- 
 tion of antecedents and consequents, we must oppose 
 subjective orientation, which corresponds to the final 
 degree of self-knowledge and reflection. That is to say, 
 we must superimpose or add to it the certainty that the 
 iworld is our representatign or a positing of the ego, and 
 ^whatever exists or happens in the world always neces- 
 sarily cpnforms to the idea according to which it is learnt, 
 andCwiich contradistinguishes it in its own essence. A 
 fact or empirical datum, which by the former concep- 
 tion seems simple and original, is recognized by the 
 latter as the second term of an equation, whose abso- 
 lute basis and "a priori" law is in every case the man 
 himself. While from the first point of view conscious- 
 ness is looked upon as a derivative from the world and 
 an incident of it, like some kind of phenomenon, by the 
 second the profound truth of the opposite thesis is recog- 
 nized, which shows the world as essentially subordinate 
 to the determinations of consciousness. Our being, 
 subjectivity in general, which by the first test almost 
 vanishes and becomes a transient and insignificant 
 phase in the indefinite sequence of facts, is reaffirmed by 
 the other point of view as the principle, basis and con- 
 dition of every possible fact, as the place of ideas, in 
 whose function everything develops and takes place? 
 
 he has travelled, finds it before himself as something strange and 
 frightful in its aspect of impenetrable mystery." 
 
 ^ "In every man, in every individual, there is a world or universe," 
 so wrote Br««o in "Spaccio de la bestia trionfante," "Epist. espl.," 
 Vol. II, p. 12. Comp. with this, Schelling in "Philosophische Briefe 
 
262 PRIMACY OF THE EGO [ Ch. IV 
 
 § 167. Speculative Foundation of Ethics. Remember 
 that this supreme degree of knowledge, where the ego 
 recognizes itself as the principle of the world, has not 
 only a great theoretical but a practical value as well, 
 forming, as it does, the basis and the essence even of 
 ethics, t All our acts are necessary and not valuative as 
 long as we consider them natural phenomena, that is, 
 in the physical sense . They only acquire an ethical mean- 
 ing and value, when we refer them to man as their 
 absolute principleJ 
 
 § 168. Ethics are the Basis of Morals and Law Jt While, 
 therefore, other ways of considering reality are theo- 
 retically legitimate, this last alone is practically admis- 
 sible and necessary, for it is the only way which meets 
 the demands of the sciences, dealing specifically with the 
 valuation and norms of action, t Reference to subjec- 
 tivity and a reduction of the objective to terms of indi- 
 vidual creation and emanation from the ego make the 
 foundation of morals and of the philosophy of law 
 possible. As long as we consider human acts in their 
 
 iiber Dogmatismus und Kriticismus" in "Samtliche Werke," 1 Abth., 
 1 Bd., p. 318 et seq., "There dwells hidden ■within us all a wonderful 
 power to withdraw from the mutations of time into our very selves, 
 unaffected by any influence which may come from without, and there 
 under the form of the immutable gaze upon the eternal within us. 
 This vision is our deepest, most peculiar experience, on which every- 
 thing depends which we know and believe of a supersensual world. 
 It first convinces us that there is something that actually is, while all 
 else only appears. At the moment of this vision, time and duration 
 disappear for us; we are not in time but time — or rather not time 
 but absolute eternity is in us. We are not lost in the vision of the 
 objective world but the world is lost in our vision." This funda- 
 mental doctrine is common to all philosophies which are not 
 superficial. We may recall that Schopenhauer in the passage cited 
 called it a "great and pure truth.'' Vide "Anmerkungen zu Schel- 
 Hng," edit, by Grisebach, "Aus Schopenhauer's handschriftslichem 
 Nachlass," III Bd., p. 128. 
 
1 168 1 THE BASIS OF MORALS AND LAW 263 
 
 empirical aspect, as they enter into the causal succ^sion 
 of objective nature, we will be able at most to trace the 
 history, but never to create a philosophy of them. Of 
 course it is possible to give a materialistic explanation 
 of juridical and moral institutions as of everything else, 
 inclusive of psychic functions, and we can show the 
 connection in the phenomenological order between these 
 institutions and the physical conditions of environment. 
 We have considered them on their reverse side, i But, 
 with this, we have obtained only a partial explanation, 
 a reflected view of morals and law, as, to use a met- 
 aphor 4 he who in looking at a portrait by a great 
 master, considered only the chemical composition of 
 his colors, would not grasp the true essence of the 
 picture. 3 
 
 t § 169. Absolute Character of the Ego. The only prin- 
 ciple that gives a strict and adequate view of the ethical 
 world is that which recognizes the absolute quality of 
 the ego, the logically existing supremacy of man over 
 the objective world. The faculty of abstracting and 
 precipitating oneself out of nature, or of referring all 
 reality which converges in the ego to it by way of 
 ideas, forms the proper and specific being of man, his 
 nature in an eminent sense. This faculty or transcen- 
 dental vocation is affirmed psychologically by the knowl- 
 edge of freedom and imputability (conscience, which 
 the spirit cannot overcome or disregard) and is converted 
 by man into the supreme norm. Act not as a means or 
 vehicle of the forces of nature, but as an autonomous 
 being having the qualities of being and finality; not 
 as driven and controlled by extrinsic motives, but 
 as dominant over them; not as part of the sensible, 
 but of the intelUgible world; not as an empirical 
 individual, as "homo phaenomenon," governed by 
 physical passions and impulses, but as a rational ego 
 
264 PRIMACY OF THE EGO [ Ch. IV 
 
 or "homo noumenon,"* independent of such influences; 
 in a word, act with a knowledge of the pure spontaneity 
 
 » See for these Kantian terms, "Met. Anfangsgr. d. Rechtslehre," 
 p. xlviii. But, for the intelligible or metaphysical quality of man 
 in antithesis to his sensible or physical side, see more than any other 
 part of Kant, "Krit. d. prak. Vernunft," Erst. Th., 1 Buch, III 
 Hauptst. Cf. "Krit. d. rein. Vernunft," Transcend. Elementar- 
 lehre, II Th., II Abth., II Buch, II Hauptst., Ill, p. 428-445. In this 
 doctrine, it seems to us, lies the basis not only of the Kantian system 
 but of critical idealism in general, also in its ulterior developments 
 since Kant. On the other hand, we can see that this doctrine was 
 somewhat anticipated and outlined whenever regard was had to the 
 foundations of morals. Rousseau shows this, for example, in the 
 "Profession de foi du vicaire Savoyard," in "Emile," L. IV, where 
 there is the spirit of the Kantian theory, if not his philosophical 
 rigor of formula, ^"Meditating on the nature of man, I thought I 
 discovered two distinct principles, one of which tended to the study 
 of eternal truths, to love of justice and morality, to the realms of 
 the intellectual world in whose contemplation lies the pleasures of 
 the wise man, and the other of which was basely self centered and 
 betrayed man to his senses, and to the passions which minister to them. 
 . . . Attacked by these two contrary movements, I wondered, 'No, 
 man is not single, I want and I do not want, I am both slave and free. 
 I am active when I listen to reason, passive when passion holds sway. 
 And my worst torment when I succumb is to feel that I could have 
 resisted.' "-i As to the relation in ethics between Rousseau and Kant, 
 vide (besides Fester, "Rousseau und die deutsche Geschichtsphil- 
 osophie''andLe!;jr-BrMW,"L'influencedeJ.-J. Rousseau en Allemagne") 
 Dieterich, "Kant und Rousseau" (Freiburg, 1885); H. von Stein, 
 "Rousseau und Kant," in "Deutsche Rundschau," XIV Jahgr., 
 (1888), pp. 206-17; Hoffding, "Rousseaus Einfluss auf die definitive 
 Form der Kantischen Ethik" in "Kantstudien," II Bd. (1898), 
 pp. 11-21; Menzer, "Der Entwicklungsgang der Kantischen Ethik 
 in den Jahren 1760 bis 1785," ibid., esp. II Bd., p. 298 et seq. ; Delbos, 
 "La philosophie pratique de Kant" (Paris, 1905), p. 115 et seq. 
 ; In these books the exact words of Kant can be found, concerning the 
 influence of Rousseau's works in the formation of his thought. Among 
 the post-Kantian developments of this doctrine, we must remember 
 in the first place those of Fichte (esp. in "Die Bestimmung des 
 Menschen"), and of Schelling"(in the earlier phases of his thought, 
 see esp. "Abhandlungen zur Erlauterung des Idealismus der Wis- 
 
§169] EGO'S ABSOLUTE CHARACTER 265 
 
 of your decisions, of the absoluteness and universality of 
 your being, and, therefore (for its meaning is nothing 
 less), of your substantial identity with the essence of 
 every other human being, i! 
 
 § 170. Obligatory Force of the Absoluteness of the Ego. 
 Such is the fundamental ethical law, based on the very 
 essence of man, because and inasmuch as it transcends 
 the physical nature. The necessity of obeying this 
 norm is shown by the deep and basic feeling which 
 reveals every man to himself in his own nature and is 
 not learnt or suggested from without, but is the 
 negation of all exteriority. iConsciousness itself at 
 once shows the necessity of acting as subject and not 
 as object, that is, with a suprasensible intent, which 
 envelops acts not only as phenomena, but also as ideas, 
 giving them a scintilla of eternity .;{ 
 * § 171. The Ethical Imperative. If man were simply 
 a phenomenon, he would have no ethical problem 
 and be bound by no ethical imperative. Human acts, 
 as phenomena necessarily conforming to nature, would 
 be susceptible of no ulterior critical test, or valuative 
 judgment as to their legitimacy or illegitimacy. Under 
 these conditions, existence would be, as it is in the 
 physical sciences, the criterion of truth. But since man 
 belongs to the phenomenal order, and is and feels inti- 
 mately that he is something more than a phenomenon, 
 the explication of his own nature and the desire to be 
 himself are not data, but a problem and goal for him. 
 The apparently tautological "Be thyself" expresses, 
 in fact, a synthesis whose fulfillment is incumbent 
 upon him, and which continues to confront him as long 
 as he lives. Such existence really implies crises, which 
 he is constantly called upon to overcome, establishing 
 
 senschaftslehre," p. 396 et seq., p. 404 et seq., where the ties with 
 the Kantian philosophy are set forth) . 
 
266 PRIMACY OF THE EGO [Ch.IV 
 
 a certain relation or equation more or less perfect between 
 himself and the external world. And this very relation, 
 that is, the method by which man little by little over- 
 comes the antithesis between his internal and external 
 being (as a phenomenon), forms his behavior or prac- 
 tical activity, and is the object of ethical valuation 
 in general. Ethical valuation, therefore, deals with an 
 essentially metaphysical relation, and is only possible 
 where it is based on a criterion which transcends phe- 
 nomena .-S 
 
 § 172. Double Quality of Man. The imperative is 
 dominant because of this peculiar condition of human 
 essence, that it partakes as it were of two natures, or 
 rather belongs to both orders of reality, thA^hysical 
 and th^metaphysical, being both a part and the prin- 
 ciple of nature.' While, as part of nature, man always 
 acts in conformity with its laws (physical) and his acts 
 are necessarily coherent with all other phenomena, 
 there is no room for distinction between good and bad, 
 nor for true imputation of m«it or fault (since strictly 
 it is not the individual that acts, but nature in him) ; on 
 the other hand, regarded as the principle, in his quality 
 of an intelligent being, man has in himself the possi- 
 bility of decision, and nature is only the means or place 
 where his decisions develop and take sensible form, 
 t Human action is then weighed on another scale; no 
 
 ''"I stand," writes Fichte, "at the middle point between two 
 opposing worlds — one visible, in which fact governs, one invisible 
 and entirely incomprehensible, in which will governs; I am one of 
 the original forces in both worlds. It is my will which binds both. 
 This will is 'per se' a constituent part of the supra-sensible world. 
 This will also acts in material fact and belongs in the material world, 
 and acts in it, when it can act.";j Fichte, "Die Bestimmung des Men- 
 Echen," p. 120 et seq.; vide, also, p. 29, 126 et seq., 162. Cf. Kant, 
 "Krit. d. prakt. Vernunft," esp. p. 105 et seq., 118, 138. 
 
§172} DOUBLE QUALITY OF MAN 267 
 
 longer in an empirical relation, which binds it to ante- 
 cedents and consequents, but in its transcendental 
 independence of the noumenal being of man. It is not 
 explained simply as a phenomenon of nature, but is 
 valued as an expression of freedom, that is, by the 
 criterion given by the intimate being of man. In this 
 respect it forms its true and characteristic law; — a law, 
 therefore, not physical but metaphysical, which is equal 
 to its powers of teaching and commanding a new and 
 higher status which man can attain, because its prin- 
 ciple lies within himself, and, whose attainment is neces- 
 sary for his true self -development. Of course he can 
 fail to comply with this law, and still exist physically, 
 that is, without losing his inferior quality as a part of 
 nature. His acts contrary to these laws, like those in 
 conformity with them, are always phygcally explicable, 
 and the necessity of those which happen in the empirical 
 series will always be affirmable and comprehensible.^ 
 But — and this judgment is independent of the one 
 first given, for it does not concern the existence of acts 
 as phenomena, but their suprasensible relation with 
 the personality of the agent — such acts lack the second 
 and higher kind of reality (ethical) which can and 
 should be derived from man besides the physical reality 
 of all acts. And whoever denies his quality of prin- 
 ciple betrays his own nature. "Ipse se fugiet," to 
 quote Cicero, "ac, naturam hominis aspernatus, hoc 
 ipso luet maximas poenas, etiamsi cetera supplicia, 
 quae putantur, effugerit."* IThe law of action epito- 
 mizes and affirms, as it were, the being of man in his 
 highest theoretical determinations, that is, in his quality 
 of autonomous principle above the world of sensible 
 
 8 See Cicero's beautiful passage on "vera lex" in "De Repub.," 
 Ill, 17 (22). The fundamental thought is clearly Stoic. Cf., also, 
 "De Leg.," 1, 6, "Pro Milone," IV, 10. 
 
268 PRIMACY OF THE EGO [Ch. IV 
 
 objects. The absolute raising of the ego above phe- 
 nomena, which is the end of theoretical philosophy, is, 
 on the other hand, the beginning of ethics.?JS 
 
 ° This truth, of capital importance for philosophical progress in 
 general, can be said to be implied in Kant's doctrine, and is more 
 especially apparent when the relation between the two primal cri- 
 tiques is considered. An explicit statement of it can be found in 
 SchelUng, "System des transscendentalen Idealismus," p. 524, 
 "But this activity, which is absolute abstraction (that is, that in which 
 'the ego raises itself over all objects'), while absolute, just because 
 it is no more explicable to the intelligence, breaks the , chain of 
 theoretical philosophy, and only remains the absolute maxim. 
 There should be such an activity in the mind. But hereby theo- 
 retical philosophy oversteps its boundaries, and enters the juris- 
 diction of the practical, which is based on categorical necessity." 
 
§1731 TWO FORMS OF ETHICS 269 
 
 CHAPTER V 
 DEDUCTION OF THE PRINCIPLE OF LAW 
 
 TWO FORMS OF ETHICS: MORALS AND LAW. — 
 LOGICAL BASIS OF DISTINCTION. — PRINCIPLE OF 
 
 MORALS. INDIVIDUAL CONSCIENCE AND DUTY. — 
 
 PRINCIPLE OF LAW. — AUTONOMY AS RULE OF THE 
 RELATIONS OF GROUPS. — VALUE OF SUCH PRINCIPLE 
 IN RELATION TO POSITIVE LAW AND THE LOGICAL 
 FORM OF LAW. 
 
 §173. Two Forms of Ethics: Morals and Law. The 
 fundamental law of action, of which we have spoken,^ 
 necessarily takes on two distinct forms or phases, which 
 correspond to the two universal ethical categories of 
 morals and law. From law (as from any ethical prin- 
 ciple applicable to acts in general) two different kinds 
 of determination or valuation are logically deduced, 
 inasmuch as it is both subjective and objective. The 
 first conception is had when acts are considered in 
 relation to their agent "a parte subjecti," thus com- 
 mission and omission are logically opposed; the second 
 is followed when acts are considered in their possible 
 objective interference with those of other agents, thus 
 permission and prevention are opposed. The ethical 
 qualifications have, however, in the first case only the 
 form of positive or negative necessity (moral duty, 
 exercised by the agent over himself) ; in the second, on 
 the other hand, they are resolved into a correlative 
 and reciprocal series of possibilities and impossibilities, 
 wherein the behavior of several agents is co-ordinated 
 
 » Cf. 1 168, ante. 
 
270 DEDUCTION OF THE PRINCIPLE [ Ch. V 
 
 and limited. The necessity in such a case is shown, 
 therefore, only as the limit of the possible, and has an 
 objective meaning and value, inasmuch as it necessarily 
 corresponds to a claim of another individual.J" Such is 
 briefly the logical form of law which, however, always 
 presupposes that an ethical principle must be expressed 
 in both form of morals and of law, that is, be a coherent 
 juridical thesis.^ By reference to the law already 
 given, in which we have placed the highest criterion of 
 ethics in general, it is easy to see that it contains in 
 effect the principles of both categories. From this, in 
 the first place, comes moral duty, which makes it incum- 
 bent on every man, "qua" man, to conquer by his 
 absolutely free determination all his own interior 
 motives and particular and sensible impulses, and 
 thus to give his acts the universal character of reason. 
 In a word, man should transcend in his deliberations 
 his physical existence as an individual (for this is par- 
 ticular) in order to affirm himself in his quality of prin- 
 ciple as a rational or universal being, until he identifies 
 his being with that of every other man. This identifi- 
 cation, which cannot be understood and is not possible 
 in the order of phenomena but only in a suprasensible 
 realm, is shown in moral consciousness, which is the 
 last word of morality. Whoever acts morally or "in 
 accordance with his conscience"* leaves all that which 
 forms his empirical individuality and takes his place "sub 
 specie seterni," giving his conduct a typical value. He 
 
 " On these formal relations, sketched here, esp. § 106, et seq., ante. 
 Note the definition in § 142, "Law is the objective co-ordination 
 of possible acts among men, according to an ethical principle which 
 determines them and prevents their interference." 
 
 ' Moral consciousness, which is here meant, is the highest stage 
 of psychological consciousness, in other words that degree in which 
 the agent understands himself in his universality of principle, and 
 so weighs his acts. 
 
§173] TWO FORMS OF ETHICS 271 
 
 acts as humanity acts in him or as any other would act 
 in his place. His will is purified and absolute. Ascend- 
 ing from the empirical to the metempirical, from the 
 sensible to the intelligible, from the particular to the 
 universal, man finds at last in himself the principle 
 common to all mankind and includes all objectivity in 
 his determinations. Anyone who looks upon morality 
 in its extrinsic aspect seemingly reduces it to the duty 
 of acting "as others act," but this empirical formula 
 represents only its reverse impression. The truth is, 
 on the contrary, that man should attain by himself 
 the universal rule of activity, so that all can act as he 
 does.* This implies and shows the necessity of that 
 internal process in which individual consciousness is 
 sublimated and transfigured. Beyond the sphere of 
 empiria consciousness becomes ruler as well as subject. 
 In this agreement of two phases lies the essence of 
 morality.^ " This is, however, only the subjective meaning 
 of the general principle which we have given. In this 
 first respect, ethical law as a criterion of morality shows 
 the agent how he should act, what he should do, and 
 what he should omit. ' But ethical law has, as we have 
 seen, also another meaning and gives another series of 
 applications, in which it deals with the same acts from 
 
 *This was pointed out by Schelling in "Neue Deduktion des 
 Naturrechts," § 41, in "Samtliche Werke," 1 Abth., 1 Bd., p. 254; 
 "I should not act as others, but as I act so should others. But 
 in order that the rest act as I act, I should act as others can."^ 
 
 ' It would be easy to show that the maxims and precepts which 
 form the inherent content and truth of the morals of various peoples, 
 as well as of various philosophers, substantially conform and can 
 be reduced in some way to the fundamental concepts which we have 
 given. We know that however much the methods and manner 
 of proof differ, the principles, reached in different ways, are generally 
 in accord. We can say that there is no dissension of importance 
 on the supreme truth of ethics, although its theoretical proofs are 
 often inadequate and even erroneous. 
 
272 DEDUCTION OF THE PRINCIPLE [Ch.V 
 
 an objective and juridical point of view. Conduct is 
 then determined, not according to one's duty, simply, but 
 according to its possibility or impossibility in relation to 
 the acts of others. In other words, it is dependent upon 
 whether it has such value as to entail prevention or 
 respect on the part of other men. This second form of 
 ethical determination (juridical) is, by logical necessity, 
 congruent to the first (moral). ^ It is equally valid and 
 categorical, and develops with it. In the fact which 
 generates in man, the necessity or duty of acting as an 
 autonomous principle, lies the faculty or right to so act 
 in regard to others. It gives him the right ("Anspruch") 
 to non-interference by others. J As the objective con- 
 dition of ethics (we cannot otherwise describe a right), 
 there is a perpetual and constant prerogative of the 
 person, a universally valid and trustworthy claim, and 
 there is, because of the universality of this claim, a 
 correlative obligation on the part of everyone to respect 
 the bounds, beyond which opposition would be justified 
 and legitimate. 
 
 § 174. Principle of Law. Law, as well as morals, has 
 its principle in the nature or essence of man. It is dis- 
 tinct from the latter, and constitutes a specific criterion 
 of the valuation and determination of acts, by the 
 objectivity of the relation in which it places and pro- 
 tects the absolute quality of personality. The possi- 
 bility, proper to man, of living in a suprasensible universe, 
 and attaining, in his consciousness of an absolute being, 
 the reason of his deliberations (a possibility which we 
 have recognized as the basis of ethics in general), acquires 
 a specific juridical meaning when it appears as the 
 criterion and rule of all social relations. In this sense 
 
 ^Congruent but not coincident, in which case the two forms ■ 
 and their respective sciences would be reduced to one." For the 
 specific relations of morals and law, cf . S 107, ante. 
 
§174] PRINCIPLE OF LAW 273 
 
 it is advanced as the maxim that every man can, 
 merely because he is man, advance a claim not to be 
 forced against his will into any relation with another. 
 He can advance a claim not to be used by anyone 
 merely as a means or instrument. He can demand 
 respect, as he must give respect in return to the impera- 
 tive: "Do not extend your caprice over others, do not 
 aim to subject to yourself those who are subject to 
 themselves alone." By this principle or idea-limit, of 
 the properly universal law of personality, fixed and 
 inexhaustible in every concrete relation of society, all 
 social relations must be measured and made, so that 
 each one of them, of whatsoever kind it may be, will 
 bear its impress and will presuppose and imply the 
 recognition of the high worth of autonomous being, of 
 which it must be in fact an exercise or function." 
 
 § 175. Value of this Principle in Relation to Positive 
 Law. This is not the place to give in detail the con- 
 sequences and applications of this principle. Their name 
 is legion. It is better for us to show how the principle 
 itself is deduced "a priori" from reason, and how it 
 results from the simple essence of subjectivity in general. 
 The mentioned right, like the corresponding duty, is 
 conditioned upon no fact, and depends on no historical 
 institution or sanction of any kind, but has an absolute 
 
 ' It seems difficult to understand upon a superficial examination 
 how the foundation of relations of society can consist in an absolute 
 right of the person and in a qugsi "ri^t to solitude". . . . But the 
 paradox is only apparent. In fact the absoluteness of the indi- 
 vidual right does not prevent the formation of restraint and social 
 relations, but rather implies the need that in every case such a struc- 
 ture be based on the presupposition of the autongmy of its components. 
 Such is exactly the condition of the legitimacy of the relation. 
 
 [If the author had used the plural in the above note, viz., "In fact 
 the absoluteness of individual righto," etc., his conclusion would have 
 appeared more inevitable, — Tr.] 
 
274 DEDUCTION OF THE PRINCIPLE [Ch.V 
 
 value and appertains to any man because of his nature 
 alone. In society and in history, such a right can and 
 should be recognized and respected, but it is "per se" 
 anterior to any application or social relation, since it 
 contains the law which governs the application or rela- 
 tion. Its value'^xtends beyond the limits of time and 
 space. The further fact that empirical reality does not 
 always conform to such law is undeniable, but can be 
 explained in the same way as the violation of any 
 ethical truth . The right remains unaffected , retaining its 
 significance and value, because it belongs to the meta- 
 physical rather than to the physical order. The subsis- 
 tence of a juridical principle is never affected, but is in 
 fact logically confirmed by its recognition in the violation. 
 The recognition of injustice is only possible by a refer- 
 ence to the criterion of justice, which is implicitly 
 admitted thereby.* We may note that a social order, 
 whatever it be, necessarily presupposes a law. Every 
 society has, therefore, by definition its law, which is pos- 
 itive when historically promulgated and realized, as the 
 expression and effect of the dominant social force. 
 Positive law is always a fact which, as such, can also not 
 correspond, or correspond only imperfectly, to the abso- 
 lute principle of justice. In other words, natural law is 
 not upheld by the positive, but acts in relation to it, as 
 the measure or type of the rationality of its content. 
 ^ § 176. Value of this Principle in Relation to Logical 
 Form of Law. The juridical quality is "per se" (as we 
 have elsewhere shown) purely formal, so that one juridi- 
 cal institution can be not only different, but opposed to 
 another. This does not mean that all juridical institu- 
 tions are of equal value,' but shows that the criterion of 
 
 ' Cf. for a fuller discussion, § 98 et seq., ante. 
 
 ' This would be the thesis of "moral scepticism," referred to by 
 Rai)i in "II socialismo di Fichte e le sue basi filosofico-giuridiche" 
 
§ 176 ] VALUE 275 
 
 their v^ye cannot be given by the very concept of 
 law, but must be found elsewhere. By our deduction 
 we have found the principle that enables us to make 
 a rational appreciation of the intrinsic content of 
 law, which satisfies a philosophical demand very 
 distinct from that of conceptual definition, although 
 equally fundamental and necessary. Whoever considers 
 the institution of slavery,, for example, must recognize 
 that it is juridical, since it has and requires all the 
 formal qualities of law. He must recognize, too, its 
 historical existence as a fact, and that it is natural in 
 the sense that where it manifests itself it appears 
 necessarily determined by empirical conditions. But all 
 this does not prevent him recognizing that, compared with 
 the idea of the intrinsic justice, that is, confronting its 
 content with the content of this idea, it represents aviola- 
 tion or negation of the latter. It shows, we may say, 
 the form but not the content of justice. It is juridical 
 but not just. It is positive law but is contrary to 
 nature, inasmuch as it contradicts a categorical and 
 absolute demand of the latter, founded not on phenome- 
 non but on the essence of man. There is, in this 
 case, an antithesis between the ideal and the empirical 
 (which must, however, be included in the logical class of 
 law), between duty and fact, between the postulate of 
 reason and the manifestation of experience. This 
 antithesis speculation shows and analyses critically, and 
 does not hide or suppress by an arbitrary "a priori" 
 identification of its two terms. For thus "the royal 
 road" of criticism would enter one of the blind alleys of 
 
 (Milan, 1907), p. 35. Such scepticism would be inevitable if no 
 study, except the logical, tending to the conceptual definition of 
 "genera," were considered legitimate by philosophy. Contrary 
 to this and contrary to a formal concept of the philosophy of law, 
 vide Pt. I, Chap. Ill, and §§52, 60, and 182, ante. 
 
276 DEDUCTION OF THE PRINCIPLE [Ch.V 
 
 dogmatism. Equally erroneous with the refusal to 
 recognize or conceive of a juridical fact whose content 
 does not accord with the ideal is to ignore the ideal and 
 its value, because it is not found effective in juridical 
 experience;'" true respect for an ideal does not lie in an 
 "a priori" supposition that it exists in fact, for such a 
 unification would tie its fate to that of physical reality," 
 but in considering it as it is, essentially superimposed on 
 reality, where it lives and flourishes even when it is 
 contrary to physical events. So natural law exists 
 unchanged in its sphere and "burns with unwonted 
 splendor," as Rosmini said,'^ even when violated in 
 fact and denied by positive law. - 
 
 '» Those, who, like Croce (v. "La Critica," Vol. Ill (1905), p. 
 515 et seq.) and Vidari (v. "Riv. files.," Vol. VIII (1905), p. 676 et 
 seq.) do not accept the distinction which we have made between 
 the concept and ideal of law, that is, between the logical and deonto- 
 logical problems, must come to one or the other of two conclusions. 
 They must refuse to accept law as a part of juridical phenomenology, 
 which would not correspond to a definite principle or type, or else 
 refuse to oppose any ideal to all that which has been, historically 
 held as law, regardless of its iniquity or irrationality. On the first 
 hypothesis, making the juridicity of legislation depend upon its 
 intrinsic perfection, that is, on the value of its content, we repeat 
 with the Scholiasts, "Omnis lex humanitus posita — si in aliquo a 
 lege naturali discordet, jam non erit lex, sed fegis corruptio." Thomas 
 Aguinas, "Sum.Theol.," 1, 2, Qu. 95, Art. 2; cf. Suarez, "De Legibus 
 ac Deo Legislatore," III, 19, "Lex injusta non est lex," and finally 
 we come, to our cost, to free the doctrine of law from all objective 
 and integral elaboration of fact which historical reality gives it. 
 On the second hypothesis, on the contrary, subjecting speculation 
 to history, we state, at least implicitly, the equal rationality 
 of all facts, as if all that is juridical is just. The consequence 
 would be a supine adoration of fact or an a prioristic cult of his- 
 tory; in which Hegelian and positive dogmatism could meet, but 
 never critical idealisml 
 
 " Hegelian panlogism, notwithstanding its effort to avoid it, falls 
 into this error. 
 
 " "Filosofia del diritto," Vol. I, p. 126. 
 
1177] UNCERTAIN CONNOTATION 277 
 
 CHAPTER VI 
 
 SOME PARALOGISMS TOUCHING THE CON- 
 ' CEPT OF NATURE IN THE PHILOSOPHY 
 OF LAW 
 
 UNCERTAINTIES DOMINANT IN THIS MATTER. — 
 THE STATE OF NATURE AND EMPIRICAL POSITION OF 
 THE PROBLEM. — THE NATURAL IN THE SENSE OF 
 PRIMORDIAL: NATURE AND THE BIRTH OF THINGS. — 
 LOGIC OF THE GENETIC CRITERION AND THE INCON- 
 SEQUENCE OF THE JUS-NATURALISTS. — SPINOZA. — 
 ANTITHESIS OF THE NATURAL AND THE HUMAN. — 
 CONFUSION OF THE PRIMITIVE AND THE EXEMPLARY: 
 THE MYTH OF AN IDEAL PAST IN THE DOCTRINES OF 
 THE PHILOSOPHY OF LAW. — ORIGIN AND FUNCTION 
 OF THIS KIND OF ERROR. 
 
 § 177. Uncertain Connotation af the Word "Nature." 
 Our precedent analysis has enabled us to state citically 
 the idea of natural law, whose history has been long and 
 constantly harassed with controversies. The number 
 of dissensions on this subject can be ascribed, at least in 
 part, to the different meanings given the word "nature."^ 
 
 ^Lask, "Rechtsphilosophie" in "Festschrift fiir K. Fischer,'" II 
 Bd. (1905), p. 7, pointed this out, "In the phrase, 'natural law' 
 are hidden many different meanings of the word 'nature, ' few of which 
 are satisfactory." "Few terms used in philosophy," writes Dewey, 
 in his article "Nature," "have a wider or a looser use, or involve 
 greater ambiguity." "There are few concepts involving so many 
 misuses or entailing so many fallacious ideas as that of the 'natural'." 
 Sitnmel, "Einleitung in die Moralwissenschaft," 1 Bd., p. 86. "The 
 words 'nature' and 'natural' are constantly bandied about in 
 controversy as if they settled quarrels, whereas they only provoke 
 
278 SOME PARALOGISMS [ Ch. VI 
 
 Some (Hume, for example) thought the discussion as to 
 whether justice is natural or not was useless.'' It is 
 
 them by their ambiguity." Ritchie, "Natural Rights," p. 20. To 
 the same effect, Lewis, in "Remarks on the Use and Abuse of Some 
 Political Terms," p. 125; Lieber, "Manual of Political Ethics," 2 ed. 
 (Philadelphia, 1876), Vol. I, p. 68; Austin, "Lectures on Juris- 
 prudence, or the Philosophy of Positive Law,"5ed. (London, 1885), 
 Vol. II, p. 673 et seq.; Huxley, "Natural Rights and Political 
 Rights," in his "Essays" (London, 1903), p. 93. Cf., further, 
 Rickert, "Die Grenzen der naturwissenschaftlichen Begriffsbil- 
 dung," p. 209 et seq., 714 and passim. The ambiguity appeared 
 even in Aristotle, who wrote that in one sense the family naturally 
 takes precedence of the State ("Nic. Ethics," VIII, 12, §7), and in 
 another that the State takes precedence of the family and the indi- 
 vidual. ("Polit.," I, 2, § 12.) Cf. Ritchie (op. cit.), p. 28. The 
 confusion between the physical and normative concepts of nature 
 reached its height with the Stoics, and dominated ancient philosophy 
 in general. Vide, for example, Cicero, "De Finibus Bonorum et 
 Malorum," Lib. Ill, Cap. 5 et seq.; "De Legibus," Lib. I, Cap. 12, 
 Lib. Ill, Cap. I, where we find this characteristic passage; "Nihil 
 porro tam aptum est ad jus condictionemque naturae (quod cum 
 dico, legem a me dici, intelligi volo) quam imperium — sine quo 
 nee domus ulla nee civitas, nee gens, nee hominum universum genus 
 stare, nee rerum natura omnis, nee ipse mundus potest. Nam et 
 hie deo paret et huic obediunt maria terraeque, et hominum vita 
 jussis supremae legis obtemperat." This equivocation, by which 
 according to Lai^ (op. cit., p. 9), "a single meaning is covertly foisted 
 upon the varying concept of natural law" is very frequent. Vide, for 
 example, Affolter, "Naturgesetze und Rechtsgesetze" (Munich, 1904), 
 §§1, 11; there were some who tried to justify it, among them particu- 
 larly 5cAZeJej-»»acfcer in an ingenious but not convincing work, "Ueber 
 den Unterschied zwischen Naturgesetz und Sittengesetz," in his 
 SamtUche "Werke," III Abth., II Bd. (Berlin, 1838), p. 397 et seq., 
 in which he attempts in substance to identify the two kinds of laws, 
 partially destroying the rigor of ea ch. Vide, contra, the observations 
 oiZeller, "Ueber Begriff und Begrundung der sittlichen Gesetze," in 
 "Vortrage und Abhandlungen," 111 Samml. (Leipsic, 1884), p. 197 et 
 seq., where is found the Kantian argument, still fundamental in this 
 matter. Vide, further, De Sarlo, "La nozione di legge" in "Saggi di 
 Filosofia," (Turin, 1896), Vol. I, pp. 5-140. 
 
 ^ "The word 'natural' is commonly taken in so many senses, 
 and is of so loose a signification, that it seems vain to dispute whether 
 
§1771 UNCERTAIN CONNOTATION 279 
 
 interesting, too, to note that although Aristotle made an 
 attempt to make a comparative list of the various usages 
 di the word ^uo-ts,' deep critical work* on this subject 
 was rarely essayed even by the masters of natural 
 law, and the "difEcilis qusestio de natura naturae," 
 
 justice be natural or not." Hume, "An Inquiry Concerning the 
 Principle of Morals," App. III. Cf. the analogous position of 
 Qtiesnay in "Du droit naturel," Cap. U 
 
 ' Vide Aristotle, "Met.," D, 1814 b, 4; in the new German trans- 
 lation by Lasson (Jena, 1907), which has value as a commentary, 
 p. 290, et seq. 
 
 * One of the most painstaking disquisitions about what can be 
 meant by nature is in the treatise "De Duabus Naturis et Una Persona 
 Christi, " attributed to Boethius(" Boethi Opera Omnia , "edit, of Basel, 
 1570, p. 1203 et seq) ; (cf. on authenticity of this treatise, Veherweg- 
 Heinze, "Geschichte der Philosophie," Vol. II, p. 151). He descends 
 according to criteria largely Aristotelian, to the most particular 
 from the most general determination, "natura est earum rerum, 
 quae cum sint, quoquo modo intellectu capi possunt." The im- 
 portance of this work (like the others of Boethius) lies in its having 
 been almost a means of transition from ancient philosophy, especially 
 the Aristotelian, to that of the Middle Ages. His arguments con- 
 cerning the concept of nature, which are contained in the treatise 
 cited, were developed in scholastic philosophy. For example the 
 commentaries of Gilbertus Porreta, "De Natura," p. 1223 et seq. 
 We can further cite not only Thomas Aquinas, Duns Scotus, but 
 also the older Scotus Erigena, "De Divisione Naturae," where nature 
 is defined in different ways, according to a quadruple distinction. 
 The fundamental antithesis between "natura creatrix" and "creata," 
 as there shown (I, 1, cf. I, 14) contains the germs of many ulterior 
 distinctions (for the terms, "natura naturans"and "natura naturata," 
 cf. Sieheck, "Ueber die Entstehung der Termini 'natura naturans' 
 und 'natura naturata,' p. 29). But, in general, as to what concerns 
 the thought of that age, we may note the distinctions and subdis- 
 tinctions, multiplied to excess by dialectic practice, do not result in a 
 fecund elaboration and true knowledge of this matter. Theological 
 and teleological dogmatism prevented the acceptance of a strictly 
 causal concept of nature before the Renaissance. With this concept 
 comes the critique, which afterwards revises it, showing its founda- 
 tion and limitations in the system of reason. 
 
280 SOME PARALOGISMS [Ch.VI 
 
 as Thomasius called it,^ was laid aside, perhaps because 
 of its difficulty, whereas it should have pre-eminently 
 occupied those who based their juridical systems * upon 
 the concept of nature, especially the nature of man. 
 
 § 178. The "State of Nature." The school of natural 
 law did not occupy itself so much with the concept of 
 nature as with what long tradition has designated as the 
 "state of nature." The diverse denomination and posi- 
 tion of the problem shows the cause of the greatest error 
 of this school. This error does not lie in excess, as many 
 believe, but in a lack of speculative philosophy ; not in an 
 excessive tendency to metaphysics but in a too ingenuous 
 and ambiguous realism. The essentially transcendental 
 problem of nature is made an empirical problem, and is 
 put in the terms and forms of sensibility. This school did 
 not treat nature as a criterion or principle governing 
 experience, but rather as a portion or period of the reality 
 of experience itself. Thus, in respect to ethics and law, 
 it did not seek the supreme law in the absolute being of 
 every man, in his ultra-sensible quality, which is added to 
 and prevails over his physical side, but endeavors to find 
 that law by which man existed or is supposed to have 
 existed in another age. It does not see that, in remote 
 antiquity, prehistoric law did not exist as a truth superior 
 
 ' Thomasius, "Fund. Jur. Nat. et Gent.," Lib. I, Cap. I, § 3. He 
 thinks he can avoid the difficulty by this definition, "Quod in cor- 
 poribus visibile est aut tangi potest, materiam vocamus; invisibilia 
 autem et quae tangi non possunt, vocamus naturam." 
 
 * r. Meyer, in his recent "Institutiones Juris Naturalis," Pt. I., 
 (Freiburg, 1906) has pointed out this need, "Quo sensu hoc loco 
 illud vocabulum (scil. natura) acceptum velimus, accuratius deter- 
 minetur necesse est; eo magis, quod naturae conceptus prae ceteris 
 in tota hac disquisitione instar fundamenti nobis erit, cui deinceps 
 gravissima doctrinae capita superstruantur" (p. 6). He does not go, 
 however, beyond the usual Thomistic-Aristotelian determinations. 
 Cf., in the same sense, Cathrein, "Philosophia Moralis," 6 ed. (Frei- 
 burg, 1907), § 12, n. 7, § 69. 
 
§178] THE "STATE OF NATURE" 281 
 
 to phenomena, but only as a phenomenon chronologically 
 earlier. So the problem is manifestly misplaced and 
 not solved J Only, thanks to the indefinite distance of 
 this hypothetical state, of whose actual existence there 
 is no historical proof, this hypothesis can assume little by 
 little a quality more purely speculative, until it becomes 
 openly a means of expressing a postulate of reason.' £ The 
 traditional contraposition of the two states, the natural 
 and the civil, as two successive empirical realities, the 
 former being a norm for the latter, is based however on a 
 methodological error, the result of a failure of a precise 
 and strict concept of nature. The equivocation of this 
 word, as we have said, covers distinct and badly fused 
 notions. 
 
 § 179. Natural in the Sense of Primordial. In the 
 first place, the meaning of primordial is attributed to 
 natural, thus making nature mean the genesis of 
 things.* In this way the primitive condition of man is 
 
 ' It is strange that even those who, like Rousseau and Kant, under- 
 stand the state of nature in this high regulative significance, often 
 refer to it as if it had existed in some definite period. This is due 
 to the still existing strength of philosophical tradition and the 
 stubbornness and inadequacy of language in the expression of purely 
 ideal relations. For example, Kant writes in "Met. Anfangsgr. 
 d. Rechtslehre," II Th., § 44: "The state of nature . . . was a 
 state of lawlessness, before a public legal state was formed. ..." 
 "One outgrows the state of nature." Cf., however, ibid., § 47 etc. 
 It would serve no purpose to cite Rousseau. For the historical devel- 
 opment of this doctrine, cf. Del Vecchio, "Su la teoria del contratto 
 sociale" (Bologna, 1906). 
 
 8 So Aristotle in his "Met." D, 1814 b, 4: "*Jo-is XiyeToi em (lev 
 TpoTTOV ■^ Tutv ^oix,ev<av yh/exTK." Cf. Thomas Aquinas, "Sum. 
 Theol.," 3, Qu. 2, Art. 1, "Sciendum est quod nomen naturae a nas- 
 cendo est dictum vel sumptum — unde primo est impositum hoc 
 nomen ad significandum generationem viventium, quae nativitas vel 
 pullulatio dicitur, ut dicatur natura, quasi nascitura," etc. See also 
 ibid., I, Qu. 29, Art. 1. 
 
282 SOME PARALOGISMS [Ch.VI 
 
 considered natural or conforming to nature, for the single 
 reason that it is by hypothesis anterior to any other 
 condition. In the same way the earliest law, which 
 we would call the positive law of the most remote age, 
 is called natural. 
 
 § 180. Logic of the Genetic Criterion. This concept of 
 nature is fitted to show a reality of experience, an exist- 
 ence in fact. Consequently applied and developed, this 
 criterion would necessarily lead to the consideration of 
 the genetic determination of empirical reality in general 
 or the law of historical production and of the causal 
 relation of facts; in which lies the naturalness of the 
 phenomenal system.' Such was Vice's thought, ex- 
 pressed in the famous sentence, "The nature of things 
 is nothing but their birth at definite times and in definite 
 guises; which always" are thus and so, consequently 
 thus and so are things born."^" This shows and "fully 
 develops" the criterion of historical or empirical com- 
 prehension, because the connection between fact and 
 the condition by which it is produced is stated as 
 unavoidable and always true. If the nature of things 
 is nothing but their birth, everything is natural, inas- 
 much as it is born. It is made impossible "a priori" 
 for any fact to be born more or less than natural. This 
 is the conclusion to which a strict adherence to the 
 genetic criterion leads, and this is in substance the 
 thought of Vico. But it is very different with the 
 ancient theories of natural law. Their pseudo-historical 
 concept of nature did not have this meaning; in fact 
 it had no exact meaning at all. They were "mixed 
 modes of thought" " which marked the speculation 
 not yet governed by criticism. 
 
 ' Cf. Pt. Ill, Cap- II, p. 224, ante. 
 
 i» "Scienza nuova" (2), Lib. I, "Degli Elementi," § XIV. Vide, also, 
 §XV. 
 " Maine, "Ancient Law," p. 73. 
 
§ 181 ] INCOHERENCE 283 
 
 § 181. Incoherence of the Jus-Naturalists. The jus- 
 naturalists hold that nature remained in a primary 
 state.^^ Its empire was limited to the earliest age. 
 Stating this as a premise, they give it in reality, as we 
 will see, another meaning, which is, however, obscured 
 and dominated by the temporal. They speak of the 
 exit of man from the state of nature; they suppose that 
 natural law, after dominating one period, stopped at a 
 given point to make way for another more or less differ- 
 ent, that is, more pr less opposed to nature. This is 
 clearly an abandonment of a strict genetic criterion, 
 which would have made it correspond to one of the 
 rational and legitimate, that is, philosophical meanings 
 of nature. Where such a criterion is observed, the 
 "civil state" or the "state of society," and the positive 
 law of all the succeeding ages, must be held equally 
 natural as the hypothetical first state and its law. 
 
 § 182. Spinoza. There is one jus-naturalistic philoso- 
 pher who, without reaching this conclusion, approxi- 
 mates it very closely. That is Spinoza; The premises 
 of his system do not allow a strict distinction, much less 
 an antithesis, between the natural state and law on one 
 side and the civil state and law on the other. The quality 
 of empirical naturalness was recognized by Spinoza in 
 social and juridical institutions in general in this, that 
 according to his doctrine "omnia ad naturam referri 
 debent," not exclusive of the facts of man, determined 
 by nature "ad certo modo existendum et operandum."^' 
 
 * ^ The incongruity hidden in this doctrine was seen by Pascal, 
 "Pensees," Pt. I, Art. VI, § 19, in Didot's ed. of "Moralistes frangais," 
 "What is this nature, which may be effaced? Custom is a second 
 nature which destroys the first. Why is not custom natural? I 
 greatly fear that this nature itself is but a first custom, as custom 
 is a second nature." Cf . what Montaigne had written in his "Essais," 
 Lib. I, Cap. 22; Lib. H, Cap. 12.4 * 
 
 " Cf., § 152 ad finem, and notes, ante. To the same effect, Kriegs- 
 mann, in "Die Rechts- und Staatstheorie des B. v. Spinoza," p. x; 
 
284 SOME PARALOGISMS [Ch.VI 
 
 While, however, Spinoza, following historical tradition 
 and the example given but a few years before by Hobbes, 
 accepted that distinction, necessitated by the logic of his 
 principles, he little by little so determined it as to lessen 
 the discrepancy between the two terms as much as pos- 
 sible. This tendency he shows particularly in the last of 
 his works, the unfinished "Tractatus Politicus," where the 
 perpetual reality of natural law is so strongly affirmed 
 that its dualism with the "jus civitatis" loses all weight." 
 On the other hand, carrying our examination further, 
 we must observe that a complete elimination of the 
 duialism would have implied a grave consequence for 
 Spinoza's system, although it was the logical result of 
 his premises. It would have shown their insufficiency, 
 it would have entailed the abandonment and absolute 
 negation of all ethical value, and therefore of the obliga- 
 tion and validity of human laws. A "minimum" of 
 
 "The contradiction into which Spinoza falls lies in the opposition 
 of the state of nature to the civil state. All which happens, happens 
 by the eternal law of God or nature, "natura naturans." Thus it 
 is nature which produces the civil state by necessity. We can call 
 thjs state natural with the same right as the other, which Spinoza 
 thinks preceded it." Cf., too, Stahl, "Geschichte der Rechtsphiloso- 
 phie," p. 182 n.; "The distinction between the state of nature and 
 that of the social contract cannot be upheld, since the power of 
 nature is recognized over everywhere." 
 
 ** "Jus naturae uniuscuiusque (si recte rem perpendamus) in statu 
 civili non cessat. Homo namque tarn in statu naturali quam civili 
 ex legibus suse naturae agit, suaeque utilitati consulit," etc. "Tract. 
 Polit.," Cap. Ill, § 3; cf. Cap. II, § 15 and passim. Spinoza's 
 statement concerning the difference between his doctrine and that 
 of Hobbes should be remembered here: "Quantum ad Politicam 
 spectat, discrimen inter me et Hobbesium — in hoc consistit, quod 
 ego naturale jus semper sartum tectum conservo, quodque supremo 
 magistratui in qualibet urbe non plus in subditos juris, quam juxta 
 mensuram potestatis, qua subditum su'perat, competere statuo, quod 
 in statu naturali semper locum habet." Spinoza, "Epistula" L, in 
 "Opera," (Jena, 1802), Vol. I, p. 633. 
 
§ 182 ] SPINOZA 285 
 
 inconsequence was needed to avoid this concfusion 
 (which, however, is alone legitimate) in the mind of him 
 who accepts the physical or mechanical concept of 
 nature as exclusive. Of this vice in the doctrine of 
 Spinoza we will speak later." 
 
 § 183. Antithesis of the Natural and the Human. 
 In general, the champions of the natural rely on the 
 common and vague meaning of the word "nature," 
 whereby it denotes what is primitive and original in 
 antithesis to what is derivative arid acquired, especially 
 through art or act of man.^* The applications of this 
 meaning and the ^ititheses are frequent and various." 
 It is not right to condemn "a priori" such a restrictive 
 and particular use of a term which has, too, a more 
 general meaning, provided that the verbal ambiguity 
 does not result in a confusion of ideas. ■ It may be licit to 
 oppose the natural to the human, but we must never 
 
 « Cf., § 193, post. 
 
 " Vide, for example, Pwffendorf, "De Statu Hominum Naturali," 
 § 2 in "Dissertationes Academicae Select." (1675), p. 584. "Propo- 
 situm est nobis contemplari statum hominum, quo extra societatem 
 civilem vivere, et in quo omnia inventa et instituta humana, queis 
 vitae huic decor et commoditas f uit conciliata, abstracta intelliguntur. 
 Eum naturalis status vocabulo adpellare placet, non solum quia 
 istud a non paucis hoc sensu adhibetur, sed et quia cum usu com- 
 munis sermonis congruit, naturalia contradistinguere iis, quae 
 mediante facto humano existere coeperunt." Cf. "De Jure Nat. 
 et Gent.," Lib. II, Cap. II, §§ 1, 2. 
 
 " Cf. Ritchie, "Natural Rights," p. 74. "Within 'Nature,' in 
 this widest sense, which includes all human life and conduct, and 
 all the works of man, we are very commonly accustomed to make 
 the distinction between (1) what man does, and (2) what exists or 
 is thought to exist (for here the difference is not always recognized), 
 independently of, and apart from, what man does. We call the 
 former set of phenomena 'human,' 'social,' or 'artificial,' and the 
 latter alone in antithesis to them 'natural.' " Cf., also, Lews, ^ 
 "Remarks on the Use and Abuse of Some Political Terms," p. 130 
 et seq. ' 
 
286 SOME PARALOGISMS ICh.VI 
 
 forget that the fact of man, too, is subject "qua" phen- 
 omenon, to the laws of nature.'* • To distinguish the 
 
 1* If we mean by nature exclusively what is foreign to man, we must 
 note, however, that human action interacts or can intervene in 
 phenomena of all kinds. For example, not only the flora and fauna 
 but even the climate of a country is modified by the acts of man; thus, 
 the rainfall is increased or diminished by the planting or destruction 
 of forests. Cf. Ritchie, "Natural Rights," p. 68 et seq. This does 
 not prevent the phenomena, in which man is in some way active, 
 from being natural, as in fact human participation and interference 
 are natural. In a truly philosophical sense, as we have seen, nature 
 does not mean a class or kind of fact as much as a manner of consider- 
 ing them (universally). For example, isTawi says in "Kritik d. prak. 
 Vernunft," p. 52: "Nature in the most universal sense is the exis- 
 tence of things according to laws'"; and Rickert in "Die Grenzen der 
 naturwisserschaftlichen Begriffsbildung," p. 212: "Nature is reality 
 universally considered." Hence, the antitheses, in which nature 
 figures as a term, objective and concrete, have lost their importance, 
 or have been superseded by others in which it is taken as a criterion. 
 In a word, where a distinction of objects used to be found, a dis- 
 tinction of methods is to-day recognized in its place. Thus, 
 when natural sciences are opposed to historical, two methods of 
 scientific treatment are denoted, which Windelband called respec- 
 tively the "nomothetical" and the "idiographical." (Vide Windel- 
 band, "Geschichte und Naturwissenschaft," p. 12). But he says 
 "that this methodic opposition classifies the treatment, not the 
 content of the sciences. It is possible (and has been done) for us 
 to make the same facts the object of a nomothetical and an idio- 
 graphic study." Vide, also, to the same effect the larger develop- 
 ments by Rickert (op. cit., p. 249 et seq., esp. 255 et seq., 289 et seq., 
 and passim). Thus Croce, "Filosofia di Hegel," p. 154, holds that 
 "the content of the so-called natural sciences is not a part of reality, 
 but a method of the treatment of the whole of reality." Cf. 
 his "Lineamenti di una Logica come scienza del concetto puro" 
 (Naples, 1905), esp. p. 69 et seq. Notwithstanding these authorities, 
 natural, in common parlance, still designates a certain class of fact 
 to the exclusion of another, and in many cases it is used to denote 
 simplicity or primitiveness, as distinct from complexity or elabora- 
 tion. But in these cases it is a question of purely empirical dif- 
 ferences, whose sense is limited to a certain relation, so that the same 
 object can be considered natural or unnatural, depending upon 
 
§183] ANTITHESIS 287 
 
 primitive from the subsequent is equally licit, but we must 
 never give a distinction so made any but an empirical or 
 temporal meaning. • If we convert a temporal "prius" into 
 a logical principle, a datum into a law or type, a co-ordi- 
 native relation between objects of experience into one 
 of ideal control or subjection, if, in a word, we exchange 
 the physical concept of nature for the metaphysical or 
 normative, we are guilty of a paralogism, which inaccu- 
 rate or ambiguous phraseology may be able to hide to 
 some extent but never can cure." Now this is precisely 
 
 circumstances. If, for example, human facts are in a certain sense 
 opposed to others which are restrictively called natural, the result 
 is that, by subdividing the first class, the part of human activity 
 which is the more instinctive and spontaneous can be called natural 
 in antithesis to that which seems the result of reflection and culture. 
 So, by this criterion, nations can be divided into "Naturvolker" 
 (naturefolk) and "Kulturvolker" (civilized people), with successive 
 division into "Vollkulturvolker" and "Halbkulturvolker." Cf. 
 Vierkandt, "Naturvolker und Kulturvolker" (Leipsic, 1896), where, 
 however, such fundamental concepts are anything but clearly set 
 forth. Vide, esp., p. 7, et seq., p. 110 et seq., p. 239 et seq. We 
 can see at once that such particular qualifications and distinctions 
 in the field of phenomena, although relatively justified, do not 
 embrace the philosophical problem of nature and are not enough 
 to solve it. 
 
 " Cf., on errors of this kind, the well-weighed statement of Sim- 
 mel, in "Einleitung in die Moralwissenschaft," 1 Bd., p. 94 et seq. 
 "If one looks upon altruism as a less natural force than egoism be- 
 cause it appears later, then one must also look upon sexual instinct 
 as a less natural force than hunger, because the former appears in 
 the second decade of life while the latter makes its appearance with 
 the first day of existence; or the growth of the beard less natural 
 than the growth of the hair of the head." The entire mode of think- 
 ing, which places the older and more primitive things in an especially 
 close relation to nature and thereupon ascribes unto them certain 
 qualities, is entirely wrong and erroneous. If we distinguish between 
 nature and any of her antitheses, such as culture or ethics or con- 
 formity to law, certainly these conditions are the later ones (as far 
 as time is concerned) but the converse is entirely unjustified, that the 
 
288 SOME PARALOGISMS [Ch.VI 
 
 the equivocation into which the ancient and traditional 
 doctrine of the "jus naturae" almost constantly falls 
 for want of criticism. It fused the two ideas of the 
 primitive and the exemplary into one in its badly defined 
 idea of the natural.^" What, on one hand, it believed 
 to have existed at the beginning, it predicated, on the 
 other hand, as a law or model for all time. Inversely, 
 by the same "optico-mental" illusion, it did not believe 
 it could advance a norm or principle of what should be, 
 unless it could suppose or represent it as having existed 
 in a remote age. This weak ideology wavered awkwardly 
 between the sensible and the intelligible, between empiri- 
 cal data and rational ideals, incapable of establishing a 
 precise distinction or a purely transcendental relation 
 between them. It was exhausted in the search for a 
 hypothetical coincidence or medial term which would 
 have the characteristics of both. It is no wonder that 
 this term was sought and found by a fiction in the dawn 
 of history, because the indefinite distance of the fact is 
 the sign and almost the symbol of the effort made to 
 obtain its transfiguration into principle, that is, into a 
 truth over and above its actuality .^^ 
 
 § 184. The Myth of an Ideal Past. Thus the com- 
 plex and mighty myth of an ideal past was born, which 
 characterizes the school of the "jus naturae" and con- 
 temporal relation is sufficient to attach to the earlier things the 
 chara:cteristic of being more natural and thereupon to ascribe to 
 them favorable or unfavorable aspects which really and logically 
 cannot be found therein." 
 
 '"The characteristic words of Gratianus will be remembered: 
 "Naturale jus inter omnia (jura) primatum obtinet tempore et dig- 
 nitate." "Decretum," Pt. I, Dist. V. 
 
 " "What is remote in time and space,'' writes Gioherti in "Delia 
 Protologia," Saggio IV, § III (in "Opere inedite," Vol. IV, p. 177), 
 "pleases more than what is near or present, because it partakes 
 more of the intelligible and less of the sensible." 
 
§184] THE. MYTH OF AN IDEAL PAST 289 
 
 tributed so largely to its discredit as historical studies 
 increased in number and insight. It is a myth, as the 
 student can see, which supplies an inadequate expres- 
 sion for the speculative needs of reason, and so it must be 
 judged. In the formation of beliefs concerning the 
 primitive state of man and the law which governed it, 
 no small part was played by religious dogmas inter- 
 spersed with classical tradition.'^ For we must note 
 that in these dogmas the tendency to empirical trans- 
 position and sensible representation of postulates and 
 principles of a metaphysical order by reference to past 
 ages was effectively developed. The habit of look- 
 ing upon the past as the seal of truth, properly superior 
 ta all time, thereby implying a grave paralogism, has 
 . long ruled .almost uncontradicted in the philosophy of 
 law, and has influenced not a few of its fundamental 
 doctrines, to its prejudice, rendering its refusal too easy, 
 because its content of truth is lost in improper and falla- 
 cious forms. The result of this habit was that the new 
 findings of justice were almost always announced as 
 confirmations or restorations of law formerly upheld 
 but later somehow abrogated j^' and that by this fiction 
 of an ancient state of perfection, subsequently corrupted 
 and overthrown, history was almost systematically made 
 
 ^ Cf., on this point, Rietier, "Die literarischen Widersacher der 
 Papste zur 2eit Ludwig des Baiers" (Leipsic, 1874), p. 131 et seq.; 
 Gierke, "J. Althusiu^ und die Entwicklung der naturrechtlichen 
 Staatstheorien," 2 Ausg. (Breslau, 1902), p. 92 et seq., and passim; 
 A. J. Carlyle, "A History," Vol. I, esp. Cap. VIII et seq. 
 
 2' Cf. Jodl, "Ueber das Wesen des Naturrechts," p. 12 et seq., 
 where, however, the intrinsic significance of this fact is not fully 
 grasped. -Vide also Ritchie, "Natural Rights," p. 11 et seq.: "The 
 tendency is always strong to translate logical and metaphysical 
 theories into the easier language of imaginated history ... At all 
 times it has been customary to represent reform as the return to some 
 earlier and better condition of affairs. The very word 'reform' 
 suggests this." Cf. ibid., p. 75 et seq.^ 
 
290 SOME PARALOGISMS [Ch.VI 
 
 the empirical or actual foundation, without which no 
 ethical principle or rational ideal could be sustained. 
 The theory of a social contract in many of its historical 
 developments offers a good example of this dialectic 
 artificiality. And we must remember that the adver- 
 saries of this system had no method of confutation, 
 different from that of its followers. So they sought 
 another primitive fact to oppose to that, true or presumed, 
 upon which the contractual istic deduction was founded. 
 Filmer proceeded in a typical way, when, in order to 
 combat the doctrine of the divine right of kings and 
 to show "the natural right of regal power," he had 
 recourse to the primitive family state of Biblical tradi- 
 tion and taught that politic power is paternal, inherited 
 by Noah from Adam.^* In this pseudo-historical 
 ideology, the legitimacy of a regime depends upon its 
 conformity with another prior in existence, and progress 
 could only be a return, that is, a "regression to the 
 best" or a "return to first principles."^ And when we 
 
 ^ Vide R. Filmer, "Patriarcha, or the Natural Power of Kings" 
 (posthumous edit., London, 1680), esp. Cap. I, "That the First 
 Kings were Fathers of Families," §§ 8, 10. Filmer's work was con- 
 futed at great length by Sidney, "Discourses Concerning Govern- 
 ment," (posthumous edit., London, 1698) hy Locke, in the first of the 
 "Two Treatises of Government," and by others. Cf. MoU, "Ge- 
 schichte und Literatur der Staatswissenschaften," I Bd. (Erlangen, 
 1855), p. 327 et seq. Rotisseau, "Du social contrat," Lib. I, Cap. 
 II, in fine, alludes ironically to this. 
 
 '^Gioberti, "Teorica de sovranaturale," 2 ed. (Capolago, 1850), 
 Vol. II, Pt. II, §§ CXX-CXXI, and Machiavelli (cited there in 
 n.LII),"Discorsisopra la prima Deca di T.Livio," Lib. Ill, Cap. I. 
 For this "tendency to look backward instead of forward for the 
 goal of moral progress," cf. Maine, "Ancient Law," Cap. Ill, IV, 
 esp. p. 71 et seq. His theory of the origin of the contrary ten- 
 dency is, on the other hand, inaccurate, "The tendency to look not 
 to the past but to the future for types of perfection was brought 
 into the world by Christianity" (p. 74). References to the idea of 
 
§184] THE MYTH OF AN IDEAL PAST 291 
 
 consider that the primitive condition is, and in the past 
 has been to a much larger extent, left to conjecture, 
 we can readily see the possibility of widely divergent 
 conclusions in this method. Depending upon the con- 
 ception of the "state of nature," at any given historical 
 moment its recall could practically be resolved into an 
 attempt to legitimize established- authority, or, more fre- 
 quently, into a critical demolition of it.^' 
 
 § 185. OriginandFunciionof the Erroneous Belief in an 
 Ideal Past. This criticism, however, is not and is not 
 
 progress are not entirely lacking in classical antiquity, but in that 
 period, as during the earlier years of Christianity and throughout 
 the Middle Ages, this idea was overcome by others which were both 
 diverse and contrary. Only in modern times has the tendency to 
 regard history as development and progressive advance towards 
 perfection been generally followed. Vide Vidari, "Intorno alia 
 genesi dell' idea di progresso morale sociale" in "Rendiconti" by the 
 Royal Institution of Science and Art of Lombardy, Series II, Vol. 
 XXXVII, 1904, p. 636 et seq.; Grotenfelt, "Geschichtliche Wertmass- 
 stabe in der Geschichtsphilosophie bei Historikern and im Volks- 
 bewusstsein'' (Leipsic, 1905), §§2, 3. Cf. Coro, "Le progres social, 
 Histoire de I'idee du progres jusqu'au dix-neuvieme siecle," in 
 volume entitled "Problemes de morale sociale" (Paris, 1876), esp. 
 p. 298 et seq., Littri, "La science au point de vue philosophique," 
 (Paris, 1873), esp. p. 419 et seq.; Janet, "Histoire de la science 
 politique," Vol. II, p. 676 et seq. Cf., also, Pt. I, § 21 et seq. and 
 §33 et seq., ante. 
 
 ^'The destructive force of the idea of a natural opposed to a 
 civil state was pointed out by Pascal "Pensees," Pt. I, Art. VI, § 9, 
 alias XXV, 6, or III, 8; "The art of overturning States consists in 
 upsetting established customs by going back to their source to show 
 their lack of authority and justice. We must, someone says, return 
 to the fundamental and primitive laws of the State, which unjust 
 custom has destroyed. . . . The people are easily persuaded by 
 these harangues." These statements caused, as Maine believed, 
 by the uprising of the Fronde, are equally applicable to subsequent 
 popular movements, particularly those of the following century. 
 Cf. Maine, "Popular Government" (new ed., London, 1890), p. 155, 
 n. 6. 
 
292 SOME PARALOGISMS [Ch.VI 
 
 meant to be purely rational, but it tries to remain in 
 the sphere of experience, and when constrained to leave it, 
 it supplies its lack by imagination. In other words, it 
 supposes and adds new experiences as it needs them. 
 It does not dare to oppose "pure ac simpliciter" an "a 
 priori" rational necessity to fact, but only another more 
 or less plausible fact — one which if not true at least has 
 the virtue of verisimilitude, if not proximate, then 
 indefinitely remote. This process, characteristic of the 
 whole order of systems of natural law, is properly to be 
 considered as an intermediate grade of development, 
 which leads the mind from the consideration of phenom- 
 ena to that of ideas, from the comprehension of a fact to 
 that of the norm which governs it. It is well known 
 that historically these two notions were confused until a 
 certain step was reached. In a primitive epoch, as Vanni, 
 following in the footsteps of Maine, points out, "men 
 could not distinguish between what they do and have 
 always done and what they should do."^' Authority and 
 power were considered one, and custom seemed valid and 
 just by the fact of its establishment. Then criticism 
 developed as knowledge grew, which could distinguish 
 between reason and power, justice and force, <^uo-is 
 and vo'/ios. The theory of natural law is only the 
 expression of this antithesis, which has its roots in con- 
 sciousness itself.^4 Although glimmers of this antith- 
 
 "Vide Vanni, "Maine," p.' 63 et seq.; cf. "II sist. di Spencer," 
 p. xxvi et seq.; "Lezioni di Filosofia del diritto" (Bologna, 1904), 
 p. 187, 267. 
 
 ^ Cf. Del Vecchio, "II sentimento giuridico," p. 21 et seq.; "La 
 Dichiarazione dei diritti dell' uomo e del cittadino nella rivoluzione 
 francese," p. 22 et seq.; Pt. I, § 13,-ante. For a general considera- 
 tion of the theory of natural law in its historical development, see 
 Filomusi-Guelfi, "Del concetto del diritto naturale"; Carh, "La Filo- 
 sofia del diritto," Vol. I, Sec. I, p. 235 et seq. Cf. his "La vita del 
 diritto," p. 303 et seq. and passim. Vide, also, Solari, "La scuola 
 
§1851 ORIGIN AND FUNCTION 293 
 
 esis are seen in antiquity,^' they were particular and 
 occasional. And its accurate aijd exact deduction, 
 consonant with a universal conception of the world, 
 presented such great difficulties and implied problems 
 of such a nature as to make solution attainable only by 
 mature philosophical thought, furnished with critical 
 means of transcendental reflection. It is not strange, 
 therefore, that it was solved slowly and only after a 
 number of more or less inadequate and imperfect 
 attempts. The mind does not free itself without an 
 effort from particular immediate impressions and sen- 
 sible suggestions. The vision of empirical data is not, 
 and cannot be, rationally overcome "ex abrupto." Thus 
 it is, that at first hypothetical or fictitious facts are sub- 
 stituted and the authority of. the past is invoked to 
 obtain the first provisional freedom from the authority 
 of the present. Th^ reference to this class of truth 
 which, if not rational, is at least not strictly empirical, 
 offers, so to speak, a resting place for a mind not entirely 
 capable of rising to the pure contemplation of the ideal, 
 independent of fact. Such is the origin and function of 
 those methodological errors touching the concept of 
 
 del diritto naturale nelle dottrine etico-giuridiche dei secoli XVII c 
 XVIII" (Turin, 1904). 
 
 ^ The invocation of Antigone in Sophocles (v. 449 et seq.) is a 
 celebrated example. It is noted by Aristotle, "Rhet.," I, 10-15. 
 Cf. Hegel, "Grundliniender Philosophiedes Rechts," §166; Ritchie, 
 "Natural Rights," p. 30 et seq. Burle, "Essah historique," p. 279 
 et seq. Much more noteworthy, because less indefinite, is the 
 thought of the Sophists concerning this antithesis. But still they 
 did not present it in (he organic form of a system. For the various 
 tendencies of Sophistic thought, cf. Chiappelli, "SuUe teorie sociali 
 dei Sofisti greci"; Fragapane, "II problema delle origini del diritto," 
 p. 15 et seq. and the authors there cited. Cf., too, Petrone, "Le 
 nuove forme della scetticismo morale e del materialismo giuridico," 
 p. 128 et seq. 
 
294 SOME PARALOGISMS [Ch.VI 
 
 nature, which have been shown to exist in the doctrines 
 of the philosophy of law.'" 
 
 '"The history of philosophy in general, especially in antiquity, 
 offers many examples of similar paralogism, for the reasons given 
 above. So in ancient Greek naturalism, writes Fragapane, in "II 
 problema delle origini del diritto,'' p. 21 et seq., "it is always a 
 question of nature posited as one of time; time aiid duration, for 
 primitive men, when rationalism is not developed, are the signs of 
 authority and tests of truth." For other such errors, cf. SchelUng, 
 "Pbilosophische Briefe iiber Dogmatismus und Kriticismus," p. 321 
 and note. In general, contra the philosophers who "wish to show 
 the eternal by means of the facts and consideration of time," see 
 Schopenhauer, "Memorabilien," p. 720. 
 
§186] PREOCCUPATION OF THE IDEAL 295 
 
 CHAPTER VII 
 
 CONCEPT OF NATURE IN SOME SYSTEMS OF 
 THE PHILOSOPHY OF LAW 
 
 PREOCCUPATION OF THE IDEAL IN THE CONSIDERA- 
 TION OF HISTORICAL FACTS. — REGARD FOR THE 
 PRIMITIVE IN THE STUDY OF HUMAN NATURE. — 
 HOBBES: HIS METHOD IN THE STUDY OF THE NATURAL. 
 — EGOISM AND THE SOCIAL SENSE. — EMPIRICAL MOTIVES 
 AND THE BASIS OF LAW. — NULLITY OF NATURAL LAW 
 ACCORDING TO HOBBES. — ANTITHESIS BETWEEN "jUS 
 NATURALE" and "lex NATURALIS." — CRITICAL OBSER- 
 VATIONS. — SYSTEM OF SPINOZA. — REDUCTION OF 
 LAW TO PHYSICAL FORCE AND THE INCONSISTENCY OF 
 THE PRINCIPLE OF OBLIGATION. — NEGATIVE SIGNIF- 
 ICANCE OF THE DOCTRINE OF SUCH WRITERS. 
 
 § 186. Preoccupation of the Ideal in the Consideration 
 of the Historical. If our earlier considerations have 
 enabled us to penetrate and justify in part some of the 
 paralogisms which are frequently found in the philo- 
 sophical doctrines of law, they have not prevented, nor 
 should they prevent us, from recognizing the gravity of 
 their consequences. Their result was, on one hand, 
 an abuse which can be called systematic, of fictions 
 and conjectures, to the detriment of a true and objective 
 historical picture of law. By this a normative meaning 
 was given to the genetic or historical problem. The 
 consideration of facts was, then, disturbed by that of the 
 ideal, which should be seen and understood in the fact 
 itself. This preoccupation first appeared in the choice 
 of historical arguments, a choice dependent upon the 
 
296 CONCEPT OF NATURE [Ch.VII 
 
 caprice of the chooser, determined less by a desire to 
 have a full grasp of events than by a certain "mental 
 sympathy" for particular periods and methods, suited 
 to corroborate some preconceived practical or political 
 thesis. For this and other cognate reasons, a large 
 part of the historical reality of law was for a long period 
 almost purposely forgotten.^ But (what is more grave) 
 
 '■ The idea of a universal jurisprudence, in the sense of a com- 
 parative study of the positive laws of all people, was conceived of 
 by Leibniz as a scientific need, which must be satisfied (vide 
 Leibniz, "Nova Methodus Discendae Docendaeque Jurisprudentiae,"^ 
 Pt. II, § 29: "Ex his aliisque omnibus undique coUectiis, Deo dante, 
 conficiemus aliquando theatrum legale, et in omnibus materiis omnium 
 gentium, locorum, temporum placita irapoXK-rjXw'S disponfemus"). 
 The same idea was held and emphasized by others, above all by Vico. 
 The first to outline the organic programme of a comparative science 
 of universal law, even with the terminology now current of "Uni- 
 versal-Jurisprudenz" and "vergleichende Rechtswissenschaft" was 
 P. A. Feuerbach (to-day entirely forgotten in this respect). V. his 
 posthumous work, "Idee und Nothwendigkeit einer Universal juris- 
 prudenz" (publ. by his son, Ludwig Feuerbach, in "A. von Feuer- 
 bach's Biographischer Nachlass," 2 Ausg. (Leipsic, 1853), II Bd., 
 p. 378 et seq.). But only in a later period, approximate to ours, has 
 this idea begun an effective career. Vide, for the directive and 
 fundamental concepts of such science, Del Vecchio, "Sull' idea di una 
 scienza del diritto universale comparato," 2nd ed. (Turin, 1909; 
 German transl., "Die Idee einer vergleichenden universalen Rechts- 
 wissenschaft," in "Archiv fur Rechts und Wirtschaftsphilosophie," 
 VII, 2-3, Berlin, 1914). See, also. Post, "Einleitung in eine Natur- 
 wissenschaft des Rechts" (Oldenburg, 1872); "Einleitung in das 
 Studium der ethnologischen Jurisprudenz"; "Ueber die Aufgaben 
 einer allgemeinen Rechtswissenschaft" and his other works; cf. 
 Achelis, "A. H. Post und die vergleichende Rechtswissenschaft" 
 (Hamburg, 1896) ; Bonfante and Longo, Introduction to the Italian 
 translation of Post's work, "Giurisprudenza etnologica" (Milan, 
 1906); Bernhoft, "Ueber Zweck und Mittel der vergleichenden 
 Rechtswissenschaft" in "Zeitschrift fur vergleichende Rechtswissen- 
 schaft," 1 Bd., 1878; Kohler, "Das Recht als Kulturerscheinung" 
 (Wurzburg, 1885); "Die Entwicklung im Recht," in "Zeitschrift fiir 
 das Privat- und offentliche Recht der Gegenwart," XIV Bd., 1887, 
 
§186] PREOCCUPATION OF THE IDEAL 297 
 
 a subjective and imaginative element was introduced also 
 into the treatment of those events and periods which 
 seemed worthy to be stated.^ In fact history, especially 
 that of archaic times, was thought of as a means, and 
 was sometimes even made a pretext, for defining 
 programs and exhibiting models. And the sinister 
 influence of this error of the confusion in one ambig- 
 uous concept of the primitive and the ideal is shown 
 not only in historical but in strictly speculative 
 studies. The compromise of the two diverse needs is 
 accompanied (as is inevitable) by harm to both. Thus, 
 attempting to deduce the most general principle of law 
 from the nature of man, recourse is had to it in its 
 primitive and rudimental forms, and the impulses 
 
 pp. 410-18; "Ueber die Methode der Rechtsvergleichung," ibid., 
 XXVIII Bd., 1901, pp. 273-84. Kohler, through his many investiga- 
 tions (carried on also by his students, as for example A. Hellwig) has 
 given great value to his maxim; "Thus no period or popular stock is 
 unimportant, nor the worst type of human existence unconsiderable, 
 no historical tradition of a past age so meagre, that we should not 
 consider it." Kohler, "Die Entwicklung im Recht," p. 417. Cf., 
 on the work of Kohler in this field, Berolzheimer, "J. Kohler als 
 Rechtsphilosoph" in "Philosophische Wochenschrift," I Bd., 1906; 
 vide, also, Fadda, "Rendiconto delle tornate e dei lavori dell' Acca- 
 demia di scienze morali e politiche," A. XLII (Naples, 1904), 
 p. 27 et seq. 
 
 ' Maine's bitter and not entirely justified criticism of philosophico- 
 juridical doctrines in general has reference to this error, "There 
 is one remarkable omission with which all these speculations are 
 chargeable, except, perhaps, those of Montesquieu. They take no 
 account of what law has been at epochs remote from the particular 
 period at which they made their appearance. Their originators 
 carefully observed the institutions of their own age and civilization, 
 and those of other ages and civilizations, with which they had some 
 degree of intellectual sympathy, but, when they turned- their atten- 
 tion to archaic states of society which exhibited much superficial 
 difference from their own, they uniformly ceased to observe and 
 began guessing." "Ancient law," Cap. V, p. 118, et seq. 
 
298 CONCEPT OF NATURE [ Ch. VII 
 
 which govern him from birth, and the functions and 
 properties which he has in common with the lower 
 animals and even inanimate objects in general,' in a 
 word, his empirical side or quality as a phenomenon or 
 "particula totius naturee,"* is considered much more 
 than his true intellectual quality, which alone makes 
 him capable of an ethical (and therefore juridical) 
 existence over and above the physical. In the search 
 for the inclinations and impulses, originally manifested 
 in the phenomenology of human beings, an attempt 
 is made to synthesize them by reducing them to the 
 smallest number, one if possible, with the object of 
 making it the basis of law and ethics. The error, how- 
 ever, does not lie so much in these attempts (inspired by 
 a rather rudimentary psychology) to reduce human nature 
 to the smallest number of particular motives or one 
 motive, such as sociability or egoism, as in the common 
 methodical assumption of deriving moral and juridical 
 obligation from a simple psychological inclination, empir- 
 ically existing in the first grades of consciousness. 
 
 § 187. Hobbes; his Method in the Study of Nature. 
 Hobbes, therefore, was in a certain sense right when he 
 combated the social sense as the basis of law. And yet 
 his criticism in the last analysis put his own doctrine 
 as well as the one he attacked in the wrong, for while 
 attacking its content, he followed its method, wherein 
 lay its error. In fact he followed it more strictly than 
 its originators. The doctrines of Hobbes, like those of 
 Spinoza, deserve special study. They are distinguish- 
 able from all others because their greater consistence 
 
 ' For the various grades of human participation in the natural 
 order, we can cite Thomas Aquinas, "Sum. Theol.," I, II, Qu. 94, 
 Art. 2; and Vico, "De Uno Universi Juris Principio et Fine Uno " 
 I LXXV. 
 
 * Spinoza, "Tract. Theol. Polit.," Cap. XVI. 
 
1 187 ] HOBBES 299 
 
 and conceptual precision clearly show vices which are 
 somewhat lessened or hidden by partial inconsequences 
 and intentional vagueness in other systems. Hence it is 
 that we can give these doctrines a certain value as logical 
 experiments and look upon them as "examples of 
 growth" of the fallacies common to the entire class to 
 which they belong, as Schopenhauer regarded the ethics 
 of Fichte in relation to those of Kant.* Hobbes, with- 
 out any substantial change in the terms of the problem 
 formulated in anterior doctrine,.^ proposed to find out 
 "quails sit natura humana, quibus rebus ad civitatem 
 compaginandam apta vel inepta sit, et quomodo homines 
 inter se componi debeant, qui coalescere volunt."' He, 
 too, as we can see, distinguished between what man 
 is by nature and what he acquires by discipline. With 
 this start, he went to an extreme, refusing to accept as 
 natural what was not clearly shown to be an attribute 
 of man from birth, "ab ipsa nativitate," "statim atque 
 est natus." While, therefore, he considered those appe- 
 tites natural which lead man, together with every 
 other animals, to sensible good,* he does not so consider 
 
 'Vide Schopenhauer, "Ueber die Grundlage der Moral," § 11; 
 "Die Fichte'sche Ethik als Vergrosserungsspiegel der Fehler der 
 Kantischen." In this case, (of Fichte), however, we can say that the 
 "growth" shows the value and not the vice in the original doctrine. 
 
 ^ This similarity in original position is noted by Siahl, "Ge- 
 schichte der Rechtsphilosophie" pp. 178-9. Cf. the analysis by 
 Fragapane, "II problema delle origini del diritto," Lib. I, Cap. Ill, 
 esp. p. 74, 76. 
 
 ' Hoibes, "De Give," Praf., cf. Cap. I, § 1. 
 
 8 "Quamquam enim a natura, hoc est, ab ipsa nativitate, ex eo 
 quod nascuntur animalia (homines) hoc habeant, ut statim omnia 
 quae sibi placent, cupiant, faciantque quantum possunt ut quae 
 impendent mala, aut metu fugiant, aut ira repellant," etc. "De 
 Cive," Praef. "Infantes, nisi omnia quae cupiunt dederis, plorant 
 atque irascuntur, etiam parentes ipsos verberant, habentque a 
 natura utitafaciant." Ibid. 
 
300 CONCEPT OF NATURE [Ch.VII 
 
 reason ^ nor civil society, that supposes a rational bond 
 which cannot be understood by all, in no case by a 
 child, who, however, is gifted with human nature.^' 
 What, therefore, gives according to Hobbes (here 
 directly opposed to Aristotle) the most faithful por- 
 trayal of human nature is the least developed state of 
 man, with the fewest relations." When he desires to 
 show human nature, he refers to savages " and even to 
 
 ' "Homines . . . disciplinam et usum rationis a natura non 
 habent," "De Give,'' Prsef. "It appears that reason is not, as 
 sense and memory, born with us; nor gotten by experience only, 
 as prudence is; but attained by industry," etc. "Leviathan," Pt. I, 
 Cap. V. "Children are not endued with reason at all, till they have 
 attained the use of speech; but are called reasonable creatures, for 
 the possibility apparent of having the use of reason in time to come." 
 Ibid. Cf., however, "De Cive," Cap. I, § 1, Cap. II, § 1, in fine. 
 
 '" "Manifestum est omnes homines (cum sint nati infantes) ad 
 societatem ineptos natos esse; permultos etiam (fortasse plurimos) 
 vel morbo animi, vel defectu disciplinae, per omnem vitam ineptos 
 manere. Habent tamen illi tam infantes quam adulti naturam 
 humanam. Ad societatem ergo homo aptus non natura, sed dis- 
 ciplina factus est." "De Cive," Cap. I, § 2, Ann. 
 
 " Aristotle, we have seen, always taught on the contrary, "Naturam 
 ex fine seu ex perfectione existimandam esse." Cumberland came 
 back to this doctrine in his confutation of Hobbes, observing in 
 respect to the passage which we have just cited: "Certe puerilis est 
 illatio et Grammaticam sapit non Philosophiam moralem, homines 
 nati sunt infantes, ergo ad societatem inepti nati. . . . Quamquam 
 enim vox ilia "Natura" a nascendo ducatur, notum tamen est, 
 naturam (humanam dico) eam exprimere rationis vim, cuius in- 
 choata tantum semina in recens natis reperiuntur. Sic ad specie! 
 suae propagationem natura sua comparatus est homo, et tamen nee 
 infans ad hoc sufficit, nee si morbo sterilis evadat," etc. Cumberland, 
 "De Legibus Naturae," Cap. II, § 2. Cf . ante, esp. n. 19, p. 287, ante. 
 
 " Vide, for example, "Leviathan," Pt. I., Cap. XIII, where em- 
 phasis is laid upon the American Indians; such a tendency is fre- 
 quently followed. Cf. Mondolfo, "Saggi per la storia della morale 
 utilitaria," I, "La morale di T. Hobbes," (Verona, 1903), p. 101 
 et seq. 
 
§1871 HOBBES 301 
 
 children. He follows the old adage, "indicant pueri, in 
 quibus ut in speculis natura cernitur."*' And yet, even 
 when he ascends in his empirical search to the primordial 
 age, endeavoring to collect rudimentary and unformed 
 manifestations of the human being, they still appear as 
 somehow interfused in a certain order of social relations 
 and subjected to some discipline and adaptation. The 
 study of natural man, although undertaken entirely with 
 empirical intentions and criteria, must, it seems, go 
 beyond immediate experience and end in an abstraction, 
 which in this case, because of the methodological pre- 
 conception, is based on data gathered from the lowest 
 grades of experience only. Hobbes, in fact, finding 
 man nowhere entirely abandoned to himself, without 
 education or restraint, tried to obtain an idea of him by 
 mentally dissolving civil society." In order to picture 
 the state of nature in its purity, he had to imagine 
 
 " Cicero, "De Finibus Bonorum et Malorum," Lib. V, Cap. XXII, 
 § 61; cf. Cap. XX, § 55, and further, Lib. II, Cap. X, § 32, and the 
 doctrine of Epicurus there given. Others, however, (for example, 
 Grotius, to give an immediate predecessor of Hobbes) have trusted 
 to their psychological study of children to confirm an opposite thesis 
 of human nature. "Idem de infantibus dicendum, in quibus ante 
 omnem disciplinam ostendit se ad bene aliis faciendum propensio 
 qusedam . . . sicut et in ea setate misericordia sponte prorumpit." 
 "De Jure Belli ac Pacis," Proleg., § 7. 
 
 M "Sicut enim in horologio automato aliave machina paulo impli- 
 catiore, quod sit cuiusque partis rotaeque officium, nisi dissolvatur, 
 partiumque materia, figura, motus seorsim inspiciatur, sciri non 
 potest, ita in jure civitatis, civiumque ofiiciis investigandis opus est, 
 non quidem ut dissolvatur civitas, sed tamen ut tamquam dissoluta 
 consideretur." "De Cive," Prsef. Puffendorf had to define the 
 task in the same way, in the dissertation we have cited, "De 
 Statu Hominum Naturali," § 1, where the influence of Hobbes is clear. 
 "Omnes societates velut transscendere, et mente concipere con- 
 ditionem atque statum hominum, qualis ille extra societatem, et 
 ab omnibus artibus et institutis humanis vacuus intelligi potest." 
 Cf. also, "De Jure Nat. et Gent.," L. II, Cap. II, §§ 1, 2. 
 
302 CONCEPT OF NATURE [Ch.VII 
 
 men "tamquam si essent jamjam subito e terra (fungo- 
 rum more) exorti et adulti, sine omni unius ad alterum 
 obligatione" ; '^ for human nature in his mind is fin- 
 ished or is modified accidentally when human society 
 or history begins." Thus he reduced the nature of 
 man to simple egoistic impulses, such as the instinct 
 of self-preservation, the desire of possession, the fear of 
 death, artifically isolated, and considered all which 
 renders social life possible as transformations or deriva- 
 tions of these impulses. It was his belief that man by 
 nature loves nothing but himself," and that there is 
 nothing in his nature which attempts to correct or over- 
 come this egoism. 1* 
 
 15 "De Give," Cap. VIII, § 1. 
 
 1' Cf. "De Give," Gap. I, §2, "Gausas enim, quibus homines con- 
 gregantur, et societate mutua gaudent, penitius inspectantibus, facile 
 constabit, non ideo id fieri, quod aliter fieri natura non possit, sed 
 ex accidente." 
 
 " "Si homo hominem amaret naturaliter, id est, ut hominem, 
 nulla ratio reddi posset, quare unusquisque unumquemque non 
 Eeque amaret, ut aequo hominem," etc. "De Give," Gap. I, § 2. 
 Love would not only be lacking among men "in statu naturae," 
 according to Hobbes, but there would be a positive will to harm, 
 a "mutua laedendi voluntas." Ibid., Gap. I, §§ 3-6. 
 
 i^The word "egoism" is here used, as usual, in its stricter sense, 
 as the affirmance of the particular or empirical individuality in 
 contradistinction to the consciousness of the quality of universal 
 subject, which constitutes the ethical or non-egoistic character of 
 action. In a broader sense every act can be said to be egoistical, in 
 as much as it aims at any satisfaction of the ego, but in such a case 
 the nature of this satisfaction would have to be determined by the 
 above distinction, which is of capital importance in ethics. Gf. Pt. 
 Ill, Gap. IV and V, p. 258, ante. Lasson, in "Philosophische Vor- 
 trage," published by the "Philosfische Gesellschaft" (Berlin), N. F., 
 1 Heft, "Ueber das realistische Princip der Autoritat als der Grund- 
 lage des Rechts und der Moral" (Halle, 1882), p. 51, expresses this 
 with accuracy, "In fact it is wholly impossible that anything be 
 willed without the subject seeking his own satisfaction therein ; as far 
 
§ 188 ] EGOISM 303 
 
 § 188. Egoism and the Social Sense. The most fre- 
 quent criticism of Hobbe's doctrine is based, as is well 
 known, upon the incompleteness of his psychological 
 analysis, and more particularly upon his defective 
 appreciation of the entire order of motives, which lend 
 even primordial human life (as well as that of the lower 
 animals to a certain extent) a quality which can be 
 called metegoistic. In fact Hobbes, because of his 
 restricted and one-sided psychology, did not adequately 
 set forth the phenomenology of law. In this respect 
 his doctrine, founded on the concept that man is not 
 by nature a irokiriKov ^Stov, was inferior to that of 
 Grotius, who followed the Aristotelian maxim,'* and 
 who, after all, cannot be compared with the thinker of 
 Malmesbury for acumen and originality of viewpoint. 
 Hobbes's attempt to explain the transformation of egoism 
 into sentiments of reverence and piety merits some atten- 
 tion, especially because it marks the beginning of that 
 rich series of research, since continued without interrup- 
 tion in English psychology, aimed to show the origin 
 
 as the worth and moral quality of will is concerned, it does not give 
 rise to the question as to whether a man is acting for his own satis- 
 faction or not, but to a question of the kind of satisfaction, for a 
 case in which no selfsatisfaction is sought by the act of will is 
 entirely inconceivable." Cf. similar statements of Sigwari, "Vor- 
 fragen der Ethik," 2 ed. (Tubingen, 1907), p. 8 et seq. 
 
 " Vide Grotius, "De Jure Belli ac Pads," Proleg. The Aristotelian 
 doctrine had many followers even in the Middle Ages (cf., for its 
 various phases during that period, Gierke, "]. Althusius und die 
 Entwicklung der naturrechtlichen Staatstheorien," p. 94 etseq., 109 
 et seq.). Especially noteworthy is the statement oiEgidio Colonna, 
 "De Regimine Principum," Lib. Ill, C. II, 32, "Sciendum est quod 
 civitas sit aliquo modo quid naturale, eo quod naturalem habemus 
 impetum ad civitatem constituendam: non tamen efiScitur nee per- 
 ficitur civitas nisi ex opera et industria hominum." On this, cf. 
 Franck, "RMormateurs et publicistes de I'Europe," Vol. I (Paris, 
 1864), p. 71 et seq. 
 
304 CONCEPT OF NATURE [ Ch. VII 
 
 and development of moral sentiments.^ Hobbes, how- 
 ever, was able to give but a rough sketch of what later 
 became the psychology of association, the course of whose 
 advance and refinement resulted in the rectification, 
 and to a large extent in the abandonment, of the early 
 and crude concept of egoism which Hobbes instituted 
 as the basis of his system. He lacked, above all, an 
 exact notion of the organic ties between the individual 
 and the species, which form the quasi-physiological 
 substratum of altruism, and prevent modern science 
 from accepting the hypothesis of an individual con- 
 trolled entirely by antagonism for his fellows, that is, 
 the hypothesis of an "homo homini lupus." ^' To define 
 human nature in such a way as to repudiate as non- 
 natural sentiments and inclinations which correspond 
 to the very conditions of life, means to suppose a dis- 
 sension or hiatus at will, where in fact there is and can 
 be only a definite development. It means to give a 
 creative virtue to history, while ignoring some elements 
 
 ""This was pointed out by Tarantino, "Saggio sulle idee morali e 
 politiche di T. Hobbes" (Naples, 1905), p. 70, 136 et seq. and passim. 
 Ci.Lamosa, "La Filosofia scientifica del diritto in Inghilterra," Pt. I 
 (Turin, 1897), esp. p. 160 et seq., 270 et seq. The relation, pointed 
 out by Windelband, "Die Geschichte der neueren Philosophie," 4 
 ed. (Leipsic, 1907), I Bd., p. 158, between the "selfish system" of 
 Hobbes and the later doctrines of the English economists and 
 naturalists, is less strict. Cf. also, Jodl, "Geschichte der Ethik," 
 I Bd., p. 227 et seq. 
 
 *' On the naturalness of man's social instincts, it is enough to recall 
 the proof of Darwin, "The Descent of Man," Pt. I, Cap. Ill, upon 
 which all the more recent proofs are based. Furthermore, even in 
 Hobbes' day, the necessity, both biological and psychological, of 
 sociability began to be shown by various theories, in opposition to 
 his doctrines. For example, Cumberland, "De Legibus Naturae" 
 (1672), Cap. II, Shaftesbury, "Characteristics of Men, Manners," etc., 
 (ed. 1732, Vol. II, p. 17 et seq.). Cf. GizycM, "Die Philosophie 
 Shaftesbury's" (Leipsic, 1876), p. 65 et seq. 
 
§ 188 ] EGOISM 305 
 
 without which it could not even begin its course. ^^ We 
 must not believe, however, that Hobbes erred entirely or 
 
 ^ The Viconian doctrines are still authoritative on the "true ele- 
 ments of history." His well-known fundamental thought is that 
 the principles of the civil world "should be found within the nature 
 of the human mind." Vico, "Scienza nuova" (1st), Lib. I, Cap. XI. 
 "Human customs grow out of the nature of man; from customs 
 come governments, from governments, laws." Ibid., Lib. II, Cap. 
 LVI. The system of Hobbes is confuted particularly by Vico by 
 the concept that utility, as similar principles, such as fear, indigence, 
 etc., is not the cause but the occasion of human society. "Homo 
 natura factus ad societatem veri rationisque colendam; igitur 
 factus ad communicandas ulilitates ex vero et ratione . . . Non 
 igitur utilitas fuit mater juris et societatis humanse, sed occasio 
 fuit, per quam homines natura sociales, et originis vitio divisi, infirmi 
 et indigi ad colendam societatem sive adeo ad celebrandam suam 
 socialem naturam raperentur." "De Uno Universi Juris Principio 
 et Fine Uno," §§ 45, 46. The truth of this Viconian doctrine has 
 recently been confirmed by Carle, "La Filosofia del diritto," esp. 
 p. 103 et seq. There have been some writers, however, who, erring 
 as Hobbes did, have attempted to reiterate the absolute opposition 
 between human nature and history, between natural man and the 
 social or moral man. "Not nature," writes IJiering in "Der Zweck 
 im Recht," II Bd., pp. 85-93, "but history is the author of morals. 
 The human will, as it is given out by the hands of nature and comes 
 forth new each day, has simply the maintenance and affirmance of 
 the ego with a purpose (self-assertion); it is the pure egoism 
 with which nature has endued man. It is always history, which is 
 the source of morals." Yet "natural" man, exclusively egoistic, 
 about whom Ihering writes, is a mere "ens imaginationis," whose 
 existence is not shown by its inventor, as that of the "homo homini 
 lupus" was not shown by Hobbes. On the other hand, the impossi- 
 bility of its existence has been proved not only by historical and 
 psychological observations but by arguments gathered in the bio- 
 logical field. Experience again denies what the empiricists affirm in 
 its name. ToquoteZaMO«,"K. Fischers Hegel,"publ. in"Nationalische 
 Zeitschrift," 1901, N. 115: "Those who claim to be pure empiricists 
 go beyond this point in their concept, constructing in excess of what 
 their premise justifies. Unfortunately they do this in undialectic 
 fashion." We need only note, then, that the same hypothesis, in the 
 terms shown by Ihering, is absurd, viz., that morality can arise in 
 
306 CONCEPT OF NATURE [ Ch. VII 
 
 principally through failure to recognize the naturalness of 
 the social sense of man. Even if he had admitted this 
 motive in addition to others (as, in fact, he seems inclined 
 to do in some places)^ he would not have succeeded in 
 establishing the true basis of law. It even seems to us 
 a peculiar merit in Hobbes that he saw the insufficiency 
 of this principle for juridical philosophy and for politics 
 in particular. The "appetitus societatis" is not "per 
 se" more than an impulse or tendency. It does not form 
 an enforceable obligation nor determine the obedience due 
 the State.2* It is not enough to state generally the 
 
 him who by nature has no capacity to acquire it, "richt die mind- 
 este Empfanglichkeit" (loc. cit.). Hence we can state with Simmel, 
 "Einleitung in die Moralwissenschaft," I Bd., p. 92: "In general, 
 therefore, we can conceive of circumstances in which man as such can 
 live and develop as an egoism, but there must be a certain element 
 of altruism present, in as much as intellectually the concept of self 
 can arise only through separation from and in contradistinction to 
 the non-self." 
 
 ''^ Vide, especially, "De Cive," Cap. I, § 2, Ann., "Verum quidem 
 esse homini per naturam, sive quatenus est homo, id est, statim atque 
 est natus, solitudinem perpetuam molestam esse. Nam infantes ad 
 vivendum, adulti ad bene vivendum aliorum ope indigent. Itaque 
 homines alteram alterius congressum natura cogente appetere non 
 nego." It is very difficult to reconcile this with other expressions 
 no less explicit, for example with that cited in n. 44, p. 315, post. 
 
 "This is in substance the meaning of Hobbes' statement, "Soci- 
 etates civiles non sunt meri congressus, sed fcedera, quibus faciendis 
 fides et pacta necessaria sunt." "De Cive," (Cap. I, § 2, Ann.). 
 We may recall that Aristotle distinguished the instinctive tendency, 
 "PM> to live together, which has its principle in the <^tX«i, and 
 can be found in many particular and imperfect forms, from its uni- 
 versal and full determination, which forms the State. Vide, esp., 
 Aristotle, "Nic. Eth.," Lib. VIII, Cap. IX-XIV; "Polit.," Lib. Ill, 
 Cap. V, § 10 et seq. Cf. Hildenhrand, "Geschichte und System," 
 I Bd., p. 332 et seq., 393 et seq.; Filomusi-Guelfi, "La dottrina dello 
 Stato," § § 37, 41. Even Grotius seems to have had a dawning knowl- 
 edge that the social nature ot man was not a sufficient principle "per 
 se" for the specific deduction of law. "Inter haec, quae homini sunt 
 
5 188 1 EGOISM 307 
 
 necessity of social life in order to trace the principle 
 which defines and controls it. The juridical problem is 
 not if but how men should live in society, that is, accord- 
 ing to what criteria of reciprocal obligation society 
 should be formed. 
 
 § 189. Empirical Motives and the Basis of Law. It is 
 plain, therefore, that until we consider man in his sen- 
 sible Jnclinations, that is, as determined by certain 
 impulses, among them even that of sociability, we will 
 not be able to establish such criteria,^ as in general 
 we cannot form a norm or an appreciation of their 
 moral or juridical legitimacy or illegitimacy from the 
 simple psychological genesis of acts."^^ To this end, as 
 we have seen, man must be considered in his intelligible 
 quality of pure principle, that is, not as the supporter, 
 but as the author of his motives, capable, therefore, of 
 subjecting all his impulses to measure and judgment, and 
 absolutely determining his own acts. Without this we 
 could not speak of obligation, and all ethical values 
 would fail, if we could not refer, in matters of human 
 action, to this higher point of view, to this metaphysical 
 consideration which controls but does not contradict the 
 
 propria, est appetitus societatis, id est, communitatis, non qualis- 
 cumgue, sed tranquillse, et pro sui intellectus modo ordinatse," etc. 
 Grolius, "De Jure Belli ac Pacis,'' Proleg., § 6; cf. Lib. I, Cap. I, 
 § 1 10, 12. Yet Grotius did not follow up this statement, nor correct 
 the indefiniteness of the principle he adopted, so that he could 
 bend his political doctrines to the empiricism, as we have shown 
 elsewhere. Del Vecchio, "Su la teoria del contratto sociale," Cap. 
 III. 
 
 25 The impossibility of deducing law or obligation from any 
 impulse or appetite was noted by Vlrici, "Das Naturrecht," "Gott 
 und der Mensch," II (Leipsic, 1873), p. 216 et seq. 
 
 2' In an analogous matter this is shown by Zeller, "Ueber Begriff 
 und Begriindung der sittlichen Gesetze," p. 208, "The question is not 
 what men actually want and strive for, but what they should 
 strive for, on a rule of judgment of their actual behaviour." 
 
308 CONCEPT OF NATURE [Ch.VII 
 
 empirical order, in which every act seems determined 
 by a sufficient motive." 
 
 § 190. Nullity of Hobbesian Natural Law. All sys- 
 tems, indeed, which, founded on this lower concept of 
 human nature, attempt to deduce the principle of 
 morality and law exclusively from its sensible deter- 
 minations, are doomed to fail.^^ The doctrines of 
 Hobbes do not escape this logical necessity. They, in 
 fact, confirm it. It did not satisfy Hobbes to prove 
 the insufficiency of the motive of sociability as the basis 
 of law; he then ran into an error similar to that which 
 he destroyed, by simply replacing one motive by another — 
 individual selfishness, which seemed more natural or 
 anterior in time. From this he inferred that "natural 
 law" permitted the individual to do whatever he wished 
 
 " Cf. ante, esp. § 169. 
 
 ^ Vide, contra attempts of this kind, the critique by Stammler, 
 "Wirtschaft und Recht," esp. p. 178 et seq., who errs, yet, in our 
 opinion, when agreeing expressly with the "chief antagonists of natural 
 law," he denies that an ideal of definite content can be deduced from 
 human nature, however considered, at the same time admitting 
 a universally valid criterion of justice. Vide also his "Die Lehre von 
 dem richtigen Rechte," pp. 93-121; "Wesen des Rechtes und der 
 Rechtswissenschaft," in "Die Kultur der Gegenwart," Vol. II, VIII 
 Abt. (Berlin, 1906), pp. 1-lx. Cf., on the ideas of Stammler, what 
 had been written earlier by Petrone, "La fase recentissima della 
 FilosofiadeldirittoinGermania," pp. 241-46, containing a reference 
 to a prior work; alsoi. n. Savigny, "Das Naturrechtsproblem und die 
 Methode seiner Losung" in "Jahrbuch fur Gesetzgeb. Verwalt.," etc., 
 XXV Jahrg., II Heft (1901), esp. p. 35 et seq.; J. Stern, "Rechts- 
 philosophie und Rechtswissenschaft" (Berlin, 1904), p. 12 et seq.; 
 Berolzheimer, "System der Rechts- und Wirtschaftsphilosophie," 
 II Bd. (Munich, 1905), p. 415 et seq., and the writers there cited 
 in n. 25; Makarewicz, "Das richtige Recht" in "Zeitschrift fur die 
 ges. Straf rechtswissenschaft," XXVI Bd. (1905-6), esp. p. 935 et 
 seq.; Reichel, in "Zeitschrift fur Philosophie und philosophische 
 Kritik," Bd. 124 (1904), p. 232-35, and in "Philosophische Wochen- 
 schrift," V Bd. (1907), p. 183 et seq. 
 
§190] NULLITY OFHOBBES' THEORY 309 
 
 and could,''' but it is clear that the power here expressed 
 is juridical only in name. "Jus in omnia," "libertas 
 belluina,"'" which nature has given to all is only a para- 
 phrase to denote the absence of all juridical criterion or 
 regulation, or the total anarchy which, in the concept 
 of Hobbes, would be proper and characteristic of the 
 "status mere naturalis." In fact he explicitly denied 
 that there was any distinction in such a state between 
 the just and the unjust. His thought is that no ethical 
 determination, no duty towards others, and, therefore, 
 no right follows from the nature of man. His specious 
 afifirmance of natural law is in fact a denial ; '' and this 
 denial is a consequence of his concept of nature. 
 
 "' "Natura dedit unicuique jus in omnia. Hoc est, in statu mere 
 naturali . . . unicuique licebat facere quaecumque et in quoscumque 
 libebat, et possidere, uti frui omnibus quae volebat et poterat." 
 "De Give," Cap. I, § 10. Cf. "Leviathan," Pt. I, Ch. XIV. 
 
 » Thus "De Give," Gh. VII, § 18. 
 
 '' If we make the licit the same as individual capacity and destroy the 
 logical difference between law and force, law disappears. Cf. Pt. II, 
 Gap. II, p. 147, ante. The method by which Hobbes represented the 
 "status mere naturalis,'' in which law is the same as caprice, is an 
 illustration of this. There is only the verbal incongruity of calling 
 law that which is, by definition, juridically indeterminate. But 
 it appears from many of his statements, as well as from the spirit of 
 his system, that Hobbes really meant to deny the existence of a 
 natural law. The most noteworthy of these statements is found in 
 the Preface of "De Give," "Doctrinas de justo et injusto, bono et 
 malo, praeter leges in unaquaque civitate constitutas authenticas esse 
 nuUas." Cf., also, ibid., Cap. I, § 10, "Injustitia erga homines sup- 
 ponit leges humanas, quales in statu naturali nuUae sunt"; ibid., § 11, 
 "Effectus ejus juris (in omnia) idem pene est, ac si nullum omnino jus 
 exstiterit." Seealso "Leviathan," Cap. XIII, in fine. Thedoctrine 
 of Hobbes can, therefore, be likened to that enunciated by Archelaus 
 even before the days of the Sophists, "To SiKaiov dvcu, koX to 
 al<T)(pov ov tfiva-a, oXX.a vo/iio." (See Diogenes La'rt., II, 16.) For 
 the interpretation of this passage, which gives place to discussions, 
 vide Hildenbrand, "Geschichte und System," p. 47 et seq., where 
 there is a confutation of Ritter, "Geschichte der Philosophie," 
 
310 CONCEPT OF NATURE [Ch.VII 
 
 § 191. Antithesis between "Jus Naturale" and "Lex 
 Naturalis." In order to find law, Hobbes had to 
 imagine a departure from the natural state, a cessation 
 of that pseudo law, which, he held, belonged to man 
 ' 'quatenus est homo. " His doctrine presents this anoma- 
 lous characteristic, that nature forces man to abandon 
 what nature itself had given him.^' The primitive "jus 
 naturale" is practically abolished by a supervening "lex 
 naturalis."'' And only at this point does an effective 
 juridical system begin among men. Here the questions 
 arise: "What is the foundation of this law and in what 
 does its naturalness consist ?' ' Hobbes is here betrayed by 
 his own logic, since he still maintains his concept of 
 human nature from which, as we have seen, he could 
 get no principle of obligation. Even the "lex naturalis" 
 is founded in his system on individual selfishness, of 
 which it is considered a direct and logical consequence. 
 This same egoistic tendency, which at first would con- 
 fer a "jus in omnia" on all men, later induces them to 
 
 1 Bd., p. 344; cf. Zeller, "Die Philosophie der Griechen," 1 Th., 
 p. 849etseq.; Bertirei, "La Filosofia greca prima di Socrate" (Turin, 
 1869), p. 311; Filomusi-Guelfi, "La dottrina dello Stato," § 8; "Del 
 concetto del diritto naturale," p. 7; Fragapane, "II problema delle 
 origini del diritto," p. 25. — We may recall that even Franck, "Re- 
 formateurs et publicistes de I'Europe," Vol. II, p. 367 et seq., puts 
 Hobbes among the "adversaires du droit naturel." 
 
 52 See "De Give," Cap. I, § 15, Gap. II, § 3, "Facit itaque contra 
 rationes pacis, hoc est, contra legem nature, si quis de jure sue in 
 omnia non decedat, etc." Vide, also, "Leviathan," Gap. XIII, in 
 fine. Cf. Filomusi-Guelfi, "Del concetto del diritto naturale," p. 20. 
 y The erjpr of considering rights Gus) as anterior to and indepen- 
 dent of law (lex, diritto obiettivo), when the two concepts must be 
 co-ordinate and correlative, is especially apparent in the "Leviathan," 
 Pt. I, Cap. XIV. It is derived in the last analysis from the fact 
 that Hobbes thought the "jus naturale" a physical power without 
 any corresponding obligation on the other hand, and, therefore, 
 without the true qualities of right.4 
 
5191] ANTITHESIS 311 
 
 part with it by offering them the advantages of social 
 life and legal protection. A calculation based on 
 individual interest would thus form the basis of the 
 authority of the State and be the reason of the obligatory 
 force of law.'* But it is not difficult to see the 
 inconsistency of such argument. The imperative or 
 obligatory character of the "lex naturalis," with all its 
 implications, is here only apparent.'^ Such precepts as 
 "pacem esse quserendam, jus omnium in omnia 
 retinendum non esse," do not express a duty or a neces- 
 sity controlling individual caprice, but only a probable 
 effort, and are of weight only as long as the individual is 
 pleased to follow them. The abandonment of the 
 "status naturae" is determined in such hypotheses only 
 by the impelling desire to escape the dangers and troubles 
 of that state.'^ The confines of particular or empirical 
 individuality are not broken by such an act, nor does 
 man assert himself in a knowledge of his universal char- 
 acter with the consequent obligation of respecting this 
 characteristic in himself and others. If it were so, the 
 narration of the succession of the two states could be 
 taken as an allegorical representation of the basis of 
 
 8^ Hobbes made the ancient formula his, "Est igitur lex naturalis . . . 
 dictamen rectae rationis." "De Cive," Cap. II, § 1, but he gives 
 these words, as he says, a meaning very different from the traditional. 
 (Cf., for example, the passage from Cicero, cited in n. 8, p. 299, ante, 
 and Grotius, "De Jure Belli ac Pacis," Lib. I, Cap. I, § 10.) In 
 his mind, the "recta ratio" is only the subjective fitness to measure 
 the consequences of one's own acts in order to attain selfish ends, "ad 
 propriam conservationem" (see annotation of above citation). 
 
 '^ This radical defect of the Hobbesian system was especially 
 pointed out by Jouffroy, "Cours de droit naturel," 4th ed. (Paris, 
 1866), Vol. I, Lesson XII, esp. p. 308. Vide also Tarantino, "Saggio 
 sulle idee morali e politiche di T. Hobbes," p. 92 et seq. 
 
 " "Homines omnes ex eo statu misero et odioso, necessitate 
 naturae suae, simulatque miseriam illam intellexerint, exire velle." 
 "De Cive," Praef. 
 
312 CONCEPT OF NATURE [Ch.VII 
 
 law. But, as it is understood and represented by 
 Hobbes, as a mere incident in the continuous struggle 
 of egoism, the passage from the natural to the civil state 
 is a pure and simple fact which would form no obliga- 
 tion, nor would it modify the nature of its authors. 
 Before and after such an event man would be urged 
 on by his sensible impulses, ''necessitate quadam naturae 
 non minore quam qua fertur lapis deorsum,"^' and 
 bound by his particular egoism. Any law coincident 
 with this would be superfluous, one in opposition, 
 impossible and null. The "status naturae," therefore, 
 "nomine mutato," would continue; and relations of fact 
 could arise among men, but no relation of law. The 
 State thus formed would govern by caprice and force. 
 The anarchy of the "status naturae" would be succeeded 
 by despotism and political absolutism.. The two con- 
 cepts are proximate in theory, as in fact the step from 
 one phenomenon to the other is short. 
 
 § 192. Criticism of Hobbes. The thought of Hobbes 
 is active within these bounds. The defects implied by 
 his premises are shown in his conclusions, that is to say, 
 the dfestruction of the intrinsic authority of law and the 
 systematic reduction of law to physical power or fact. 
 Unbridled violence and arbitrary control are mechanical 
 meai^s which express -subjuridica:! reality. Both, in a 
 wdrd, remain below the law notwithstanding their 
 apparent opposition. The meaning of the Hobbesian 
 system, in respect to the problem of justice is, therefore, 
 essentially negative. But such a negation is important, 
 for it confirms "a contrario" the positive proof, otherwise 
 obtained, that the foundation of law can be only gotten 
 by a; transcendental conception of human nature — by a 
 conception which goes beyond the phenomenology and 
 
 " "De Civp," Cap. I, 8 7. 
 
§1921 CRITICISM OF HOBBES ' 313 
 
 empirical determination of action and finds its principle 
 and norm in the intelligible essence of man. 
 
 § 193. The System of Spinoza. The system of 
 Spinoza, of which we have already given the funda- 
 mental characteristics,'* gives credence to analogous 
 considerations in regard to law. In this system, too, 
 the identification of the "jus naturale" with physical 
 power or necessity is equivalent to a pure and simple 
 negation of such a law." The total elision of juridical 
 values, the absence of every criterion and rule of con- 
 duct, is the result of the reduction of man to the uni- 
 versally mechanical concept of nature. Thus weighed 
 as a part of nature in general, man is always passive. 
 Hence, it is equally natural for man to live according to 
 reason as according to the movement of his passion ; *" 
 and every act, no matter how violent or deceitful, is 
 legitimate, because it is always determined by nature. 
 Developing these concepts, Spinoza concludes that 
 
 " Cf. § 182, ante. 
 
 ^ Spinoza himself points this out when he states that "sub solo 
 naturae imperio" there is no possibility of a distinction between 
 right and wrong, "injuria non potest concipi." Vide, esp., "Tract. 
 Theol. Polit.," Cap. XVI, and the citations in n. 22, p. 305, ante. 
 An old historian of the philosophy of law was right, therefore, in 
 saying, "To establish a natural law, as Spinoza has done, is in the 
 last analysis nothing but to deny its existence." Huhner, "Essai 
 sur I'histoire du droit naturel," (London, 1767-8), Pt. II, p. 430. 
 Cf., also, Franck, "Reformateurs et publicistes de I'Europe," Vol. II, 
 p. 410 et seq. 
 
 ' *■ In this respect the doctrine of Spinoza is more exact and more 
 comprehensive than the Hobbesian, which we have just/ given. 
 Vide Spinoza, esp. "Tract. Theol. Polit.," Cap. XVI; "Nee hie uUam 
 agnoscimus differentiam inter homines et reliqua naturae individua, 
 neque inter homines ratione praeditos et inter alios, -qui veram 
 rationem ignorant, neque inter fatuos, delirantes et sanos." "Non 
 enim omnes naturaliter determinati sunt ad operandum secundum 
 regulas et leges rationis," etc. 
 
314 CONCEPT OF NATURE [Ch.VII 
 
 nothing is forbidden by nature, except what no one desires 
 or can do.*i After this, it would seem that law in a strict 
 sense could not be spoken of. Every act must be 
 thought normal to itself, that is, absolutely justified by 
 its happening, every reference to the deontological order 
 must be excluded. And yet, with the same inconse- 
 quence with which he speaks of a model of perfection or 
 "exemplar humanae naturae" ^^ in ethics, he tries to 
 establish a principle of juridical valuation by supposing 
 a cessation of the "status naturalis" through an agree- 
 ment among men to act "ex solo rationis dictamine."*' 
 But at this point we meet the same difficulty as in the 
 Hobbesian doctrine ; what is the value of such an agree- 
 ment? How can it be obligatory if men always act as 
 impelled by nature, each following his own particular 
 interest? Spinoza saw this difficulty and thought to 
 overcome it by subjecting the value of the hypothetical 
 agreement to the advantage gained by everyone who 
 kept it, explicitly admitting, therefore, the right on the 
 part of anyone to break it when it would be to his 
 
 ""Jus et Institutum naturae, sub quo omnes nascuntur et 
 maxima ex parte vivunt, nihil nisi quod nemo cupit et quod nemo 
 potest, prohibere; non contentiones, non odia, non iram, non dolos, 
 nee absolute aliquid quod appetitus suadet aversari." Spinoza, 
 "Tract. Theol. Polit.," Cap. XVI. 
 
 " "Ethica," Pt. IV, Praef. The contradiction of such a concept 
 with its premise was shown by H. Sigwart, "Der Spinozismus his- 
 torisch und philosophisch eriautert" (Tubingen, 1839), p. 161 et seq.; 
 "Vergleichung der Rechts- und Staats-Theorieen des B. Spinoza und 
 des T. Hobbes" (Tubingen, 1842), p. 7. The inconsequence is par- 
 tially cured by the merely relative value given by Spinoza to his 
 criterion. Cf. Trojano, "Ethica, Qusestioni preliminari," I (Naples, 
 1897), p. 49 et seq. Vide, also, Green, "Lectures on the Principles 
 of Political Obligations," B., esp. p. 59; Caird, "Spinoza" (Edin- 
 burgh, 1902), p. 222 et seq. 
 
 ""Tract. Theol. Polit.," Cap. XVI. 
 
§193] THE SYSTEM OF SPINOZA 315 
 
 advantage." This reserve saves, in a certain sense, the 
 logic of his system, but it manifestly destroys all the 
 supposed pact, making it both ridiculous and null. 
 "To agree to do a thing," writes Jouffroy most happily, 
 "reserving the right to omit it, if one so thinks best, is 
 not to make a contract, but to crack a joke; and, if no 
 other contract is possible among men save of this kind, 
 the word has no meaning. "^^ The juridical edifice falls 
 with the objective validity of contract, upon which it 
 is based, and law again becomes a relation of mere 
 fact, arbitrary regulation sketched by "potentia" alone." 
 The conclusion, based on these examples, is that 
 the true essence of law — that is, its ideal superiority 
 over fact — cannot be deduced from nature until we 
 understand by nature, simple genesis, the beginning in 
 the phenomenal system, or even the genetic relation in 
 general, according to the principle of sufficient reason. 
 The production of fact, with all its relations and condi- 
 tions of a physical kind, even if effected by the dynam- 
 ics of motive, cannot furnish an ethical norm. To 
 speak of natural law in this sense, as Hobbes and Spinoza 
 did, means the sacrifice of the juridical criterion to a 
 
 ** "Pactum nuUam vim habere posse, nisi ratione utilitatis, qua 
 sublata pactum simul tollitur, et irritum manet." "Nemo con- 
 trahit nee pactis stare tenetur, nisispe alicuius boni, vel sollicitudine 
 alicuius mali: quod fundamentum si toUatur pactum ex sese tolli- 
 tur." "Tract. Theol. Polit.," Cap. XVI. 
 
 ^Jouffroy, "Cours de droit naturel," Vol. I, Leg. XII. 
 
 " As Spinoza thinks that individual right equals individual power 
 in the state of nature, so he believes that in the civil state the "jus 
 civitatis" corresponds to the "potentia civitatis. " This doctrine then 
 leads, in accordance with its premise, directly to ethically indeter- 
 minate absolutism, vide "Tract. Theol. Polit.," Cap. XVI; "Tract. 
 Polit.," Cap. Ill, § 5. It is characteristic, for example, that Spinoza 
 defines freedom of thought only in the sense that it is materially 
 impossible for the sovereign power to control it. Vide "Tract. 
 Theol. Polit.," Cap. XVII, XX. For this error, see §§94-95, ante. 
 
316 CONCEPT OF NATURE [Ch.VII 
 
 unilateral concept of nature.^' These writers, however, 
 having given with their doctrines a clear demonstration 
 of this negative result, indirectly forced their successors 
 to revise their concept of nature as a basis for law. But 
 the uncertainties on this point have not yet ceased. The 
 different senses in which nature can be understood were 
 alternated and used promiscuously by those authors 
 and by the successive jus-naturalistic theorists ^ down 
 to the age of criticism. 
 
 " There is a new indirect proof of this in the fact that others, for 
 example Harms, admitting but the mechanical sense of nature, and 
 attempting to grasp, without lessening it, the principle of law, comes 
 to state "sic et simpliciter," that it is not a "natural truth," and 
 "does not appertain to nature." Harms, "Begrifif, Formen und 
 Grundlegung der Rechtsphilosophie" (Leipsic, 1889), p. 85-92. A 
 deeper analysis would have led to admitting, besides that, another 
 concept of iiature. 
 
 *'As characteristic examples of this confusion and indefiniteness 
 concerning the fundamental concepts of "natura," "lex naturalis," 
 etc., can be recalled the treatises, praiseworthy under other aspects, 
 of Cumberland, "DeLegibus Naturae,'' esp. Cap. II, §§ 2-5, 8; Cap. 
 Ill, §§ 1-2, 4; Cap. V, §§ 1, 9-10, 60-51, 57-58, and of Puffendorf, 
 "De Jure Nat. etGent.," esp.. Lib. II, Cap. I, §§ 5-8; and Cap. II, 
 III. Cf. also his dissertation "De Statu Hominum Naturali." The 
 attempts to correct the doctrines of Hbbbes by both authors, and 
 those of Spinoza by the second, are remarkable, but it cannot be 
 said that their logic is in truth overcome. 
 
$194] CRITICAL SOLUTION 317 
 
 CHAPTER VIII 
 
 CONCLUSION. NATURALNESS OF POSITIVE 
 AND NATURAL LAW 
 
 CRITICAL SOLUTION OF THE PROBLEM. — PHENOM- 
 ENAL SIDE OF LAW AND ITS HYPERPHENOMENAL PRIN- 
 CIPLE. — LEGITIMACY OF THE TWO CONSIDERATIONS. 
 
 — ERRORS OF THE EMPIRICISTS AND JUS-NATURALISTS. 
 
 — NATURAL LAW AS A DEONTOLOGICAL NEED AND AS 
 THE GOAL OF HISTORICAL DEVELOPMENT. — DELUCI- 
 DATIONS AND RECAPITULATIONS. 
 
 § 194. Critical Solution of the Problem. Only the 
 new critical philosophy can definitely solve the inveterate 
 equivocations about the concept of nature, t But it has 
 not been adequately developed as regards law, since it 
 hcis been but partially understood and applied. A dupli- 
 cate line of considerations (as we have seen) can and 
 should be based on criticism, t On one side, it enables 
 us to recognize and even to state "a priori" the natural- 
 ness of all law in the phenomenal line — of law, that is, 
 as a fact; on the other side, it enables us to obtain 
 from human nature, absolutely considered, the principle 
 of duty and law as a need inherent in the essence of 
 personality and universally valid over and above all 
 fact. 
 
 § 195. Phenomenal Side of Law and its Hyperphe- 
 nomSnal Principle. In general doctrine, however, after a 
 certain time,^ the first class of considerations conquers 
 
 ' We allude to the intense but brief rationalistic season which 
 followed the juridical speculation of Kant and Fichte. Cf. Del 
 Vecchio, "La Dichiarazione dei diritti dell' uomo e del cittadino 
 
318 CONCLUSION [ Ch. VIII 
 
 the second, with which, though remaining distinct, it can 
 and should coexist. It is generally admitted, with ever 
 increasing unanimity, that positive law is a natural fact; 
 the historical explanation shows this, doing away with 
 many of the prejudices against it,^ but the existence of 
 natural law as a criterion of reality, including positive 
 law, is denied, because that first concept of nature de- 
 prives law .of all but its phenomenal side. Thus the denial 
 of natural law becomes, as it has been for a century, a 
 kind of dogma,' being thought a necessary consequence 
 
 nella rivoluzione francese," p. 63 et seq. For a complete bibliog- 
 raphy, Warnhonig, "Rechtsphilosophie als Naturlehre des Rechts," 
 2 Ausg. (Freiburg, 1854), p. 137 et seq.; cf., also, Meister, "Lehrbuch 
 des Natur-Rechtes" (Frankfurt a / O., 1809), p. 123 et seq. 
 
 2 For the gradual penetration of this concept into juridical 
 philosophy, cf. Carle, "La vita del diritto," Pt; II, Lib. II, Cap. IV; 
 Gabha, "Alcuni piu generali problemi," esp. Series I (Turin, 1876), 
 p. 10 et seq.; Fragapane, "II problema delle origini del diritto," 
 Lib. I, Cap. IV; "Obbietto e limiti della Filosofiadel diritto," Vol. I, 
 Cap. II. Cf., too, Pt. I, Cap. VI, p. 32, ante. It Would be super- 
 fluous, alter what we have said, to insist further on this point, 
 that the fact that positive law is an historical and social phenome- 
 non does not prevent it from being, in a proper sense, a natural phe- 
 nomenon. VidePt. Ill, Cap. II, and § 180, and n. 16, p. 286, ante; 
 and § 195, and n. 5, p. 319, post. 
 
 ^ ^ Zitelmann, "Die MogHchkeit eines Weltrechts" in "Allgemeine 
 osterreichische Gerichts-Zeitung" (Vienna, 1888), n. 25, p. 193, 
 writes, "We live scientifically in the strange situation that in many 
 circles it is held as 'contra bonos mores' for a jurist to maintain any, 
 even a Platonic, relation with the seriously compromised natural 
 law." It would be easy to show in other ways that the idea 
 of natural law, notwithstanding that it has been tabooed by 
 the dominant philosophical schools, is still, as it always has 
 been, most active in juristics. And we may add that its dis- 
 appearance, if it were possible, would indubitably mark a regress in 
 the elaboration and development of positive law. The beneficial 
 and necessary function, which it exercises in that respect, in other 
 words, its efficiency in promoting juridical progress, is admitted 
 by those of its adversaries who have been impartial in their judg- 
 
§195] PHENOMENAL SIDE OF LAW 319 
 
 of the naturalness of positive law.Jf Here the saying of 
 Leibniz, that philosophers are often right in what they 
 affirm and wrong in what they deny,^ is again proved. 
 The negation is unjustified in this case, because it 
 erroneously supposes an absolute antinomy or objective 
 incompatibility between the two different ideas of 
 nature, which criticism teaches should be reconciled 
 in the very act of differentiation, tit is true that positive 
 law is a datum of experience and can, a^ such, be under- 
 stood and explained as a phenomenon, that is, can be 
 given a place, coherently in the system of natural pro- 
 ductions.^ But it is equally true that law has essentially 
 
 ment. Maine, for example, wrote in "Ancient Law," "I know no 
 reason why the law of the Romans should be superior to the laws of 
 the Hindoos, unless the theory of natural law had given it a type of 
 excellence different from the usual one ... It is impossible to 
 overrate the importance to a nation or profession of having a dis- 
 tinct object to aim at in the pursuit of improvement" (p. 78). "The 
 natural law of the Romans . . . has rendered its greatest service 
 to civilization in enfranchising the individual from the authority of 
 archaic society" (p. 258). Cf. Graham, "English Political Philosophy 
 from Hobbes to Maine" (London, 1899), esp. 377 et seq., where, 
 even in regard to the above declarations, it is stated that Maine's 
 opposition to natural law is ill-founded. Even Vanni in "Maine," 
 p. 33, admits that "with all its errors in method, the doctrine of 
 natural law had strongly co-operated to insure the triumph and 
 consecration of the juridical recognition of new and higher ideals of 
 social justice." Cf., for particular proofs in this case, Ruffini, "La 
 liberlA religiosa," Vol. I (Turin, 1901), p. 232 et seq.; Pacchioni, 
 "Corso di diritto romano," Vol. I (Innsbruck, 1905), p. 213 et seq.; 
 and the other writers cited in n. 21, p. 330, post. Other discussions on 
 the school of natural law can be found in Brugi, "Per la storia della 
 giurispru,denza," "II periodo del diritto naturale in Germania," in 
 "Riv. ital. per le scienze giurid.," Vol. XXXII, 1901, p. 404-22. 
 
 * Vide Leibniz, "Opera Philosophica," ed. by Erdmann (Berol, 
 1840), p. 702. 
 
 5 On this point Ardigd in "Sociologia" (Vol. IV of "Opere filoso- 
 fiche") (Padua, 1897), p. 72, "Positive law is a natural formation of 
 the social whole, which has grown to what it is by passing from the 
 
320 CONCLUSION [ Ch. VIII 
 
 a hyperphenomenal significance, inasmuch as it tends to 
 institute an ethical order and attributes values, independ- 
 ent of physical actualization — without which it would 
 not be law. In every juridical proposition, therefore, 
 there is a moment of transcendence or indication of 
 duty which is logically superior to phenomena, within 
 whose bounds it does not entirely lie. While the affirm- 
 ance and observance of law is positive (for that matter, 
 inobservance is equally so), its principle ife metaphysical. 
 The "eternal seed of justice," the foundation of its idea, 
 is not furnished by nature, considered as the complexity 
 or succession of empirical facts, but by the essence (or 
 nature) of man, which comprehends and transcends 
 other nature, and is in itself autonomous, and hence 
 
 indistinct to the distinct (by a law common to all natural forma- 
 tions.") Cf. Brugi, "L'opera di R. Ardig6 nella Filosofia del diritto" 
 in "Atti del Reale Istituto Veneto," Vol. LVI (1897-8), p. 821-65, 
 esp. p. 833 et seq. Similarly wrote Wautrain-Cavagnari, in "La 
 Filosofia del diritto secondo la scienza moderna" (Bologna, 1888), 
 p. 9: "Law, there can be no doubt, is a natural formation. From 
 this point of view it is governed by the same laws as govern the 
 evolution of all phenomena." Vide, also, for the naturalness of 
 juridical and social facts, Brugi, "Introduzione enciclopedica alle 
 scienze giuridiche e sociali nel sistema della giurisprudenza," 4th 
 ed. (Milan, 1907), p. 19 et seq., where Romagnosi's thought is 
 opportunely recalled. Cf., esp., "Introduzione alio studio del diritto 
 pubblico universale," Cap. II, §§ 18, 89. With the same belief, 
 among the Italian jurists are Vadali-Papale, "Morale e diritto nella 
 vita," Schiattarella, and many others. For the special conditions 
 of genetic research applying to juridical and social formations, the 
 works of Fragapane, "II problema delle origini del diritto," Lib. II, 
 and "Obbietto e limiti della Filosofia del diritto," Vol. II, Cap. 
 Ill, are noteworthy. In reference to method, we can cite Gdbba, 
 "Alcuni piu generali problemi," esp. Series I, Lect. Ill- VI; 
 Series II, p. 108-30, who in this and in other works, as well as in 
 his famous "Philosophie du droit de succession" ("Essai sur la 
 veritable origine du droit de succession," for which he was honored 
 by the Academy of Brussels, May 5th, 1858) anticipates many 
 beliefs of to-day. 
 
§195] PHENOMENAL SIDE OF LAW 321 
 
 susceptive of rights and duties. How the principle of 
 law follows and is deducible "a priori" from human 
 nature, we have already shown.* Now we reassert once 
 more that this principle is valuable as a criterion to 
 weigh the specific grades of truth in various juridical 
 propositions (be they positive or not). In other words, 
 it can weigh the justice of their intrinsic content while 
 their formal quality of juridicity, which makes them 
 measurable by this test, remains secure, and while, on 
 the other hand, as far as regards positive juridical 
 propositions, the historical or phenomenal explanation 
 which is applicable to them as to every other datum 
 of experience, even not juridical, remains entirely 
 unaffected. 
 
 § 196. Legitimacy of the Two Considerations. Every 
 historical proposition or institution therefore, which is 
 recognized as containing the logical genius of law, is 
 subjected with equal legitimacy to two considerations 
 which correspond to and are connected with the two 
 fundamental concepts of nature. ■ In the first place, an 
 attempt can well be made to acquire analytically a 
 knowledge of the genesis or natural formation of the 
 institution itself as fact; then the examination of the 
 determining coefficients and conditions lead to the 
 elucidation of the relative necessity of the datum, and 
 the study is the more complete as this theoretically pre- 
 determined goal is neared. • In the second place, leaving 
 purely empirical necessity, there is a desire to determine 
 the value of this test rationally; what is sought, there- 
 fore, is if and how far it harmonizes in this idea with 
 the supreme principle, which is implied in the nature 
 of an intelligent being as a right superior to phe- 
 nomena, and in this sense it can well be called natural. 
 But it is in this sense only. Since it is clear that we 
 
 « Cf. Pt. Ill, Cap. IV, V, p. 258, ante. 
 
322 CONCLUSION [ Ch. VIII 
 
 cannot interchange or confuse the two considerations 
 without falling into paralogisms similar to those with 
 which the history of doctrines of this kind is for the 
 most part interwoven. It would be improper to attrib- 
 ute to natural law a mode of phenomenal being or 
 actual existence, for, though found in experience, it is 
 essentially metempirical and deontological; and it 
 would be equally illegitimate to infer the non-existence 
 of law as a right and an ideal because it does not exist 
 and have its being as phenomenon. 
 
 § 197. The Errors of the Empiricists and Jus-Natural- 
 ists. If errors of the first kind are, as we have seen, 
 frequent in the ancient schools of the "jus naturae," 
 those of the second class are often made in the school of 
 modern positivists. The internal correction which (be- 
 cause of the development of criticism) took place in the 
 conception of natural law,' was not sufficiently noticed 
 
 ' This correction appeared, as it is known, even in name, 
 which was changed by many from natural ("Naturrecht") to rational 
 law ("Vernunftrecht"). We believe, however, that even the first 
 term can be retained — it was never abandoned by everyone — for, 
 when properly elucidated, it has the advantage of immediately 
 showing the ontological basis of law, while the second refers to the 
 method or "principium cognoscendi. " That natural law could and 
 should be, with regard to this, rational, was known, at least in the 
 abstract, even before the complete reformation in method. For 
 example, Winkler, the great precursor of Grotius, spoke of "jus 
 rationale," "Ratio est proximus fons juris humani," "Principiorum 
 Juris Libri V" (Leipsic, 1615), Lib. I, Cap. IX, Lib. II, Cap. V; vide, 
 further, Lib. I, Cap. X, Lib. II, Cap. IX; of. Kaltenborn, "Die Vor- 
 laufer des H. Grotius auf dem Gebiete des jus naturae et gentium" 
 (Leipsic, 1848), I, p. 239 et seq. ; II, p. 45 et seq. Grotius and Hobbes 
 in different ways both refer natural law to "recta ratio." Cf. n. 34, 
 p. 311, ante. Leibnis wrote in "Observationes De Principiis Juris," 
 § 3, in his "Opera," ed. by Dutens, Vol. IV, Ft. Ill, p. 270: "Jus 
 naturale est quod ex sola ratione nalurali sciri potest." Vide also 
 Thomasius, "Fund. Jur. Nat. et Gent.," Lib. 1, Cap. V, § XXIX. 
 Thus even in 1723, A . P. Glafey could write a "Geschichte des Rechts 
 
J 197] ERRORS OF BOTH SCHOOLS 323 
 
 in the neo-dogmatism of the empiricists; they continued 
 to raise incongruous objections and make attacks on this 
 conception which are comprehensible only in relation 
 to antiquated forms of doctrine. ' The confutation of 
 natural law, which was begun and prosecuted by modern 
 positivists, came logically very late, that is, after the 
 conception of this law had lost the primitive pseudo- 
 empirical or pseudo-historical elements through the works 
 of its protectors — and after, we may note, by the very 
 protectors of natural law had been formed, too, the bases 
 for a scientific treatise on the phenomenology of law, inas- 
 much as it is comprehended through its historical position 
 within the limits and forms of the empiria.' What is to- 
 day believed to be opposed to the theory of natural law 
 is the result of the fundamental equivocation denying 
 the order of truth proper to natural law and attributing 
 
 der Vernunft" as the first part of his "Vernunft- und Volkerrecht," 
 which he published then separately at Leipsic in 1739; cf. Landsberg, 
 "Geschichte der deutschen Rechtswissenschaft," III Abth., I Halbb. 
 (Munich, 1898), p. 93. For the use of the expression "Law of 
 Reason," alternately with "Law of Nature" in old English juris- 
 prudence, cf. Bryce, "The Law of Nature," p. 165. 
 
 ' It is so appqjent that criticism had shown also this way, that 
 the founder of the historical school of law, Hugo, could refer directly 
 to Kant and declare that he was his follower in the determination 
 of his exclusively empirical formula. Vide Landsberg, "Kant und 
 Hugo," p. 670-86; d.Brugi, "Introduzione enciclopedica alle scienze 
 giuridiche e social!," p. 39 et seq. He was of course wrong, as 
 we have shown in § 67, in that he thus ignored what is the eminent 
 and characteristic quality of Kantian doctrine — the necessity 
 of a inetaphysical basis of law. But we must remember, neverthe- 
 less, the empirical or historical treatise found its proper premise 
 in the critique of reason, which, although the enemy of empiricism 
 as a system, still gives such a method of treatment an adequate 
 position, that is, one which is subordinate and non-exclusive. We 
 can recall to affirm this that we owe the first program of a universal 
 comparative science of positive law (cf. § 186, ante) to a cultivator 
 of rational law in a critical sense; such as, P. A. Feuerbach. 
 
324 CONCLUSION [ Ch. VIII 
 
 to it an untrue meaning. In substance, the objection 
 to natural law is that it is not positive, and fault is found 
 with a law whose only pretense is to act as a criterion 
 over phenomena for not being positive, and for not 
 appearing as a, datum of experience. Implicitly or 
 explicitly, the positivist school denies the quality of law 
 to that which has no historical actualization, thus 
 making a postulate of its conclusion.' '■ 
 
 § 198. Natural Law as a Deontological Need. The 
 only partial justification which can be adduced in 
 favor of this defective reasoning is that the dogmatism 
 of the ancient jus-naturalists led to many vices. When 
 they assume, for example, that natural law is the law 
 common to different peoples, that is, the law which is 
 commonly observed," they justify to a certain extent 
 
 '»The following passage from Vanni's "Lezioni," p. 281 et seq., 
 shows this manner of argument, too frequent on this subject, "The 
 theories of natural law hold that there is another law besides positive 
 law which exists in nature. . . . But, this statement is in contrast . . . 
 with experience. We have already seen that the only sphere where 
 experience shows us law as a reality is the historical sphere, and 
 that the only really existing law known to us is positive law. . . . 
 There is not, therefore, and cannot be a different law; law does not 
 exist in nature and cannot be given by nature." Cf., also, his 
 "Maine," p. 34. A vigorous and clear confutation of these errors; 
 characteristic of modern positivism, has been made by Petrone 
 in his valuable work,"La fase recentissima della Filosofia del diritto 
 in Germania," Sec. 11, Cap. Ill, esp. p. 233 et seq. 
 
 "• Cf., for example, Cicero, "Epistulae Tusculanse," Lib. I, Cap. 13, 
 § 30, "Omni' autem in re consensio omnium gentium lex naturae 
 putandaest." Vide ibid., Cap. 15, §35. For the improper assimila- 
 tion of natural law into the positive law of all peoples, cf. Pt. I, Chap. 
 IV, p. 21, ante. The wavering of the Roman thought as to the con- 
 cepts of "jus naturale" and "jus gentium" is well known; cf. 
 Maine, "Ancient Law," Ch. Ill; Hildenbrand, "Geschichte und 
 System," 1 Bd., § 149; A. J. Carlyle, "A Histoi-y," Vol. I, p. 36 
 et seq.; and we may note that in modern times Grotius, for ex- 
 ample, in "De Jure Belli ac Pacis," Lib. I, Cap. I, § XII, admitted 
 
§198] NATURAL LAW 325 
 
 the contrary argument of the empiricists, based on \ the 
 historical variability of law. The error here lies in 
 the stating of the problem, and in the tacit supposi- 
 tion of both schools that the truth of natural law 
 depends on its translation into phenomenon or pos- 
 itive being.':: Thus, when the positive law of an 
 hypothetical primitive age is considered natural in con- 
 tradistinction to that of subsequent periods, the fact 
 that the law of all ages is in a sense equally natural is 
 lost sight of, while, if the ideal end is meant by nature, 
 nothing is more arbitrary and unjust than to suppose 
 that its full attainment was made in the earliest age. 
 On the contrary, we must admit that this event could 
 not take place at the beginning, but must mark the end 
 of the process, for it is the part of all empirical develop- 
 ment, as we have shown, '^ to give only little by little its 
 reason for existence — which is virtually contained iij its 
 beginning. What appears first temporally is generally 
 the furthest from its nature teleologically considered, 
 while the adequate expression of its nature is given last 
 in the series of experience as the fulfillment of its growth. 
 This governs natural law as well as human nature, from 
 which it springs. The constitutional and characteristic 
 properties of personality are shown only after develop- 
 ment, determined "by the constant explication of the 
 human mind over its own nature," to quote Vico,^^ and 
 by the same stages "the eternal seeds of justice, hidden 
 in the human race," as it were, keep developing "from 
 
 a "proband! ratio popularior" of natural law to be that by which 
 it was inferred "juris naturalis esse id, quod apud omnes gentes, 
 aut moratipres omnes tale esse creditur." The incongruity of this 
 transference was remarked in part by Puffendorf, "De Jure Nat. 
 et Gent.," Lib. II, Cap. Ill, II VII-IX. 
 
 11 Cf., § 158, ante. 
 
 12 "Scienza nuova" (1), Lib. II, Cap. IV. 
 
326 CONCLUSION [Ch-VIII 
 
 the childhood of the world" in "proven maxims of jus- 
 tice."" We should look upon history in its organic 
 character as the unfolding of an implied purpose." 
 In this sense, the series of particular positive laws 
 appear to us as imified by the tendency toward the 
 development of natural law. This tendency, grasped 
 by the mind "a priori" as an absolute and universal 
 necessity, superior and anterior to any application 
 in experience, develops in it through a long and labo- 
 rious historical gestation. This should not be taken 
 to mean that natural law begins to be true or becomes 
 law only at the moment when it is recognized and 
 actualized (for this would throw us into the old error) ; 
 the additional positive recognition does not result 
 in value or truth, but is, at the most, a consequence 
 or result of its value and truth. Observance or non- 
 observance "per se," as facts of the empirical order, 
 do not affect the intrinsic significance of the prin- 
 ciple, which is essentially transcendental, and which 
 is self-sufficient in its sphere regardless of its unrecog- 
 nition or violation in fact.** ^That facts can exist con- 
 
 " Vico, "Scienza nuova" (1), Lib. II, Cap. IV. We may cite 
 the words of Seneca, "Epistula" CXX, "Desideras did, quomodo ad 
 nos prima boni honestique notitia pervenerit. Hoc nos docere 
 Xatura non potuit; semina nobis scientuz dedit, scientiamnon dedit." 
 Cf. Cicero, "De Finibus Bonorun Et Malorum," Lib. V, Cap. XXI. 
 
 '* For thb regulative principle (which should not be wrongly 
 dogmatized in the Hegelian manner) see, Kant, "Ideen zu einer 
 allgemeinen Geschichte in weltburgerlicher Absicht," esp. 8 Satz. 
 Cf. Masci, "La liberty nel diritto e nella storia secondo Kant ed 
 Hegel" in "Atti della Reale Accademia di scienze morali e politiche," 
 VoL XXIV (Naples, 1903), esp. p. 536 et seq. Vide, also, Taranttno, 
 "II principio dell' Etica e la crisi morale contemporanea" (Naples, 
 1904), p. 21. 
 
 •* We cannot omit reference to an excellent but little known 
 passage in Leibniz, in which the truth of this proposition is shown: 
 "Doctrina juris ex. eanim numero est, quae non ab experimentis sed 
 
§198] NATURAL LAW 327 
 
 trary to law is the tacit presupposition of every juridical 
 doctrine; hence, in relations between positive and natural 
 law, we must always admit of the possibility of a con- 
 trast, in which the latter, as far as experience goes, 
 succumb.'^ This has actually occurred in the course of 
 
 definitionibus, nee a sensuum, sed rationis demonstrationibus 
 pendent et sunt, ut ita dicam, juris, non facti. Cum enim con- 
 sistat justitia in congruitate ac proportionalitate quadam, potest 
 intelligi justum aliquid esse, etsi nee sit, qui justitiam exerceat nee 
 in quem exerceatur, prorsus ut numerorum rationes verae sunt, 
 etsi non sit, nee qui numeret nee quod numeretur, et de domo, de 
 machina, de re publica praediei potest pulchram, efficacem, felieem 
 fore, si futura sit, etsi nunquam futura sit. Quare mirum non est 
 harum seientiarum decreta Eeternae veritatis esse." Leibniz, "Juris 
 et Aequi Elementa," ed. by MoUat, p. 24. * In the same sense, 
 Hubner, "Essai sur I'histoire du droit naturel," Pt. II, p. 425, has 
 written, "Suppose that human legislators have made unjust and 
 contradietory laws, contrary to those of universal legislation, their 
 mistake or injustiee no more destroys natural law than a bad proof 
 or false caleulation of a mathematician or geometrician of little skill 
 destroys the reality and certainty of mathematics." 3 
 
 '' Even those who (like, for example, the Roman jurisconsults 
 or, in modern times, Vieo) try to reconcile the two concepts of 
 natural and positive law, expressly admit the possibility of a dis- 
 crepancy between theni. This the Roman jurisconsults did, for 
 example, in regard to slavery; vide Inst. 1, 3, 2; Dig. 1. 1. 4. ( Ul- 
 pian); Dig. 1. 5. 4, 1. {Florentinus); Dig. 50. 17. 32 ( Vlpian); Dig. 
 12. 6. 64 (Tryphoninus), etc. The opinion of Perozii, who thinks all 
 the passages of the Roman jurisconsults which hold that men are 
 free under natural law are interpolated, is unique. "Istituzioni di 
 diritto romano," Vol. I (Florence, 1906), p. 73, n. 3. Cf. contra, 
 Lcmgo, "Note critiehe a proposito della tricotomia jus naturale, 
 gentium, civile" in "Rendiconti" of the "Reale Istituto Lomb. disci- 
 emse e lettere," Series II, Vol. XL (1907), pp. 632^0. Vide, also, 
 Voigt, "Das Jus Naturale Aequum Et Bonum und Jus Gentium der 
 Romer," 1 Bd., p. 279 and n. 444, p. 283, 296, 332, 405; IV Bd., 1 
 Abth., p. 7et seq., 19 et seq., 45 et seq., 61 et seq.; Leist, "Alt- 
 arisches Jus Gentium" (Jena, 1889), p. 513 et seq.; Costa," LaFilo- 
 sofia greca nella Giurisprudenza romana" (Parma, 1892) , p. 16 et seq. ; 
 Gradenwitz, "Natur und Sklave," p. 21 et seq. For the teachings of 
 
328 CONCLUSION [Ch.VIII 
 
 history. Only the blindest of dogmatists would be able 
 to ignore that there have been occurrences of injustice 
 in the juridical history of mankind. What we expect of 
 history, and what it actually shows us, though with much 
 wavering and deviation, is that natural law is always 
 making for recognition and will ultimately triumph." 
 The postulate of the final triumph of justice is pictured, 
 for reasons which we have given, as a return to an original 
 state in which justice ruled uncorrupted. In like 
 manner, the mental attainment of universal ideas is 
 interpreted as a recollection of primitive knowledge.*^ 
 Subtracting, by mature critical reflection, what illusions 
 or impropriety, or we may better say what ingenuous 
 and unconscious symbolism,, there is in conceptions of 
 this sort, and we have left as true the fundamental fact 
 that man has a predetermined end in himself, toward 
 which his development must tend; that a process is 
 necessary in experience by which he may "rejoin 
 his nature," and "celebrate" it, to quote Vico, that is, 
 "become" that which he "already is within himself." 
 The Platonic Ipcos and the Viconian "vis veri" denote 
 this intrinsic potentiality and vocation of man, from 
 
 Vico in this matter, which tend to the distinction of the true and 
 the certain, vide esp. his "De Uno Universi Juris Principio et Fine 
 Uno," 51 LXXVII, LXXXIIspt seq.; "Scienza nuova" (1) Lib. II, 
 Cap. IV: (2) Lib. I, Degn. CIV et seq., CXI, CXIII et seq. Cf. 
 Cantoni, 'Vico,'' p. 103 et seq., where this point is clearly shown. 
 
 " In this sense, vfor example, Rosmini in "Filosofla del diritto," 
 Vol. II, pp. 951-53, speaks of "a progress towards the natural con- 
 struction of civil societies," that is, so made that "the very nature 
 of things leads society insensibly toward it." 
 
 " Referring to this Platonic doctrine of ivafivrjcris, Petrone in 
 "La fase recentissima della Filosofia del diritto in Germania," p. 185, 
 . states felicitously that it "is more of a poetic deformation of a 
 healthy philosophical principle than a principle false in its nature." 
 The same can be said of many doctrines in the philosophy of law, as 
 we have shown in Pt. Ill, Cap. VI, p. 277, ante. 
 
§1981 NATURAL LAW 329 
 
 which springs the knowledge of a duty to be fulfilled, and 
 almost a presentiment of a higher reality to be attained. 
 The original disposition of being acts in all contin- 
 gencies beyond particular individual intentions,'' and 
 produces by natural ways that which seems to form the 
 metaphysical signification of history — the gradual 
 
 " In this transcendency is shown the law, which Wundt to-day 
 calls the "heterogeneity of ends" ("Heterogenic der Zwecke," vide 
 Wundt, "Ethik," I Bd., p. 274), which was well-known to Vico, who 
 described it in his magnificent phraseology as follows : "Albeit that it 
 was by men that this World of Nations was formed . . . ; yet to 
 its present state this World has without doubt come from a Mind 
 in itself diverse and often contradictory, and always superior to 
 those particular ends which men have proposed for themselves, 
 which restricted ends, made means to serve more amply ends, it 
 has always adopted to conserve Mankind on earth. Men wished 
 to avail themselves of bestial lust and to scatter their seed, but 
 the result of their attempt was the chastity of marriage, whence 
 came the Family; the' Patriarchs wished to exercise unlimited 
 paternal control over their clients, and Cities grew up; the Nobles 
 wished to abuse their freedom as Lords over the masses and fell 
 into the slavery of law, which has resulted in popular liberty; the 
 Free Peoples wished to escape frojn the control of their laws and 
 were subjected to monarchies; the Kings, with all the vices of the 
 dissolute at their command, cowed their subjects, and were then 
 forced to bear slavery at the hand of stronger Nations; the 
 Nations wished to dissipate themselves and were saved from it by 
 the Solitudes from which they arose like the phoenix. That which 
 accomplished all this was Mind, because men accomplished it with 
 intelligence. It was not Fate, because they did it through Election. 
 It was not Chance, because they did it with perpetuity, always so 
 acting as to accomplish the same things." Vico, "Scienza nuova," 
 (2) Conchiusione, p. 672. Cf., on this proposition, the analysis of 
 Vidari," Ancora dell' idea diprogresso" in '*Rendiconti"of the"Reale 
 Istituto Lombardo di scienze e lettere," Series II, Vol. XXXVIII, 
 1905, p. 999 et seq.; and for a comparison of the Viconian and 
 Hegelian doctrines, Croce, "Hegel," Cap. 'III. Vide, also, for the 
 application of these principles to law, the observations of Kohler, 
 "Rechtsgeschichte und Weltentwicklung" in "Zeitschrift fiir 
 vergleichende Rechtswissenschaft," V Bd., 1884, p. 328 et seq. 
 
330 CONCLUSION [ Ch. VIII 
 
 advent of the ideal in the order of phenomena, and the 
 progressive equation of fact and ideal. Even in respect 
 to law, the reality of experience confirms and proves 
 the postulates of reason again, we can say, in their 
 inverted order. Empiricism itself has had to recognize 
 that many juridical needs, once upheld by pure specula- 
 tion, and rejected by the empiricists of earlier days as 
 tainted with metaphysics,^" have been and are constantly 
 actualized historically.''' • In fact, in this respect we can 
 freely say that empiricists are but tardy metaphysicians, 
 as, vice versa, metaphysics can be called an anticipation 
 of experience. It is certain that the absolute value of 
 personality, the equal freedom of all men, the rights of 
 
 "> Schopenhauer's observation on the value of confutation which 
 is attributed in philosophical disputes to mere name (for example, 
 "That is idealism, that is Spinozanism, that is pantheism," etc.) is 
 opportune and noteworthy. Vide Schopenhauer, "Eristische Dia- 
 lektik," Kunstgriff 32 ("Aus Schopenhauer's handschriftlichem 
 Nachlass," II Bd., p. 101 et seq.). Cf. Bentham, "Treatise on 
 Political Sophistry," "Sophisme des anti-Penseur" (ed. by Dumont, 
 Vol. I, p. 512 et seq.). 
 
 For the word "metaphysics," cf. Croce in "Critica," VI (1908), 
 p. 49; for the "metaphysics of the antimetaphysicians,'' vide Marti- 
 netli, "Introduzione alia metafisica," p. 8 et seq.; cf. Liard, "La 
 science positive et la metaphysique" (Paris, 1879), Cap. IV, V. 
 
 " Cf. Del Vecchio, "La Dichiarazione dei diritti dell' uomo e del 
 cittadino," Cap. V. Vide also Filomusi-Guelfi, "La codificazione 
 civile e le idee moderne che ad essasi riferiscono," p. 7 et seq.; 
 Scherger, "The Evolution of Modern Liberty" (London, 1904), 
 pp. 11-14. Particularly noteworthy is the certainly unsuspected 
 evidence by Gierke, in "Naturrecht und deutsches Recht," p. 24; 
 "The new tendency (scil. the historical conception of law) not 
 only could not object to the remodelling made by the abstract school, 
 but also it could not prevent the continued development of certain 
 principles of natural law. Indeed it often saw itself compelled to 
 finish with its own hand the work begun by its conquered opponent. 
 So natural law gains material victories long after the collapse of 
 its formal power." 
 
S1981 NATURAL LAW 331 
 
 every associate to be an active as well as a passive 
 participant in social laws, and in general, the principles 
 in which the true and most profound substance of the 
 classic philosophy of law, "juris naturalis scientia," may 
 be fouijd, have already received marked sanction in 
 positive legal systems, and yet greater "reform" may be 
 counted upon. 
 
 § 199. Natural Law as the Goal of Historical Develop- 
 ment. On our attempt up to this point to establish the 
 ideal which synthesizes the eternal truth of law, we 
 have shown as well the goal of its historical development.;! 
 For we can see that this evolution leads to a constantly 
 increasing recognition of human autonomy and to a 
 corresponding transformation of social assets, to which 
 this principle should apply while remaining unsatiable 
 "in se." The transitions, empirically effected from the 
 regime of status to that of contract,^" from aggregation 
 ("Gemeinschaft") to association or society ("Gesell- 
 schaft"),^ and others analogous to them, which mark the 
 historical process of law, are but partial expressions or 
 aspects of the capital fact, which must be regarded in its 
 universality as the fulfillment of a supreme necessity of 
 
 ^ It seems to us that the well-known formula of Maine, "The 
 movement of the progressive society has hitherto been a move- 
 ment from Status to Contract," contained in his "Ancient Law," 
 p. 170, had in his mind a more restricted and less philosophical signif- 
 icance, than that which it really bears. So the objections of Vanni, 
 "Maine," p. 79 et seq., based on an exclusively "privatistic" concept 
 of contract, do not affect in our way of thinking the essential truth 
 of the theory. Cf. Del Vecchio, "Su la teoria del contratto sociale," 
 (Bologna, 1906), and the other writings there mentioned. We may 
 recall that Spencer in his "The Principles of Sociology," Pt. V, 
 "Political Institutions," esp. Caps. XVII, XVIII, confirmed and 
 developed the concept of Maine. 
 
 ^ Vide Tonnies, "Gemeinschaft und Gesellschaft, — Abhandlung 
 des Communismus und des Socialismus als empirischer Cultur- 
 formen" (Leipsic, 1887). 
 
332 CONCLUSION [Ch.VIII 
 
 reason. Correlated to this process and in conformity 
 to this necessity, a world-wide human law ("jus cosmopol- 
 iticum," "Weltbiirgerrecht") or a juridical co-ordination 
 of all mankind (first dreamt of by the Stoics) ^* tends to 
 positive formation. This is evidenced by the gradual 
 abandonment of the limitations to which the recognition 
 of personality was originally subjected, by the progressive 
 extension of social groups and of relations of every kind 
 among them, to which the legislative thought and the 
 custom of various peoples ^* are made to conform. The 
 
 '* See Hildenbrand, "Geschichte und System," I Bd., p. 510 et 
 seq.; Janet, "liistoire de la science politique," Vol. I, p. 241 et seq.; 
 Carle, "La vita del diritto," p. 131; Willoughby, "The Political 
 Theories of the Ancient World" (London, 1903), p. 202; Jellinek, 
 "Allgemeine Staatslehre," 2 ed. (Beriin, 1905), p. 294. Cf. Del 
 Vecchio, "II fenomeno della guerra e I'idea della pace," 2nd ed. 
 (Turin, 1911; Germ. Transl., Leipsic, 1913), Ch. IV, §4; Thomas 
 Balch, "International Courts of Arbitration," p. 9. 
 
 ^' For this essential quality of juridical evolution, see |§ 44 et 
 seq., ante, and the authorities there cited. We can point out also 
 that Vico emphasized progress, by which "cities united for common 
 interest in wars, alliances, and trade, and 'the natural civil laws' 
 finally form one natural law ... of nations united together in 
 one great city of the world, which is the law of mankind." Vico, 
 "Scienza nuova" (1), Lib. II, Cap. V. Cf. Fragapane, "II problema 
 delle origini del diritto," Lib. IV, Caps. II, III, and Tarie, "Les 
 transformations du droit," 2 ed. (Paris, 1894), p. 59 et seq., 
 "An admirable and wonderful progress, which no one has taken 
 the trouble to notice, but which accompanies nevertheless all 
 juridical evolution, consists in the continual enlarging of the 
 relations of law. These relations, at first restricted to a small 
 and consanguineous group, which was extended as far as pos- 
 sible by adoption and legendary relationship until it included 
 all sorts of fictions and imaginary relations, were then ejctended, 
 now by feudal agreement, now by contract of corporate associa- 
 tion to the largest circle of neighbors, associates, or citizens of 
 nearby cities, later, through the idea of nationality, to millions of 
 citizens, and by the ideas of Christianity, Islamism or other religious 
 communities to hundreds of millions of unknown peoples, and at 
 
§1991 NATURAL LAW 333 
 
 fundamental identity of human nature appears in the 
 particular laws of nations and directs their development 
 necessarily toward a common goal, that is, to that uni- 
 versal law whose principles are predetermined and implied 
 in nature, so that reason can deduce them "a priori" 
 and recognize their validity before they are verified "a 
 posteriori, "as expressed and observed in certain actual 
 , contingencies, and independently of this verification. 
 The antithesis sometimes shown between the speculative 
 ideal and historical fact, between the <^i;a-£t SiKomv and 
 the Ofxru or vofuf BiKaiov, or between natural and positive 
 law^* cannot, therefore, be converted into an argument 
 against the admissibility of the first term, since it is 
 essentially valid over and above the second, and so much 
 
 last, through the ideas of humanity, laws common to mankind 
 and of natural law, to all men. And, while it extends geographically, 
 it deepens, including lower classes of society, woman, the plebeian 
 and the slave in the great brotherhood of Law." Cf. also, in con- 
 firmation and illustration of this, Zitelmann, "Die Moglichkeit 
 eines Weltrechts"; M. Kechnie, "The State and the Individual" 
 (Glasgow, 1896), Cap. XI, esp. p. 150 et seq. It is not without 
 good reason that M. Smith concludes his writing on "Jurisprudence" 
 (New York, 1908), p. 42, as follows: "For centuries to come, per- 
 haps during the whole future existence of the human race, there 
 will be ample fields for juristic activity within the single nations; 
 but the great task of the jurisprudence of the future will be to 
 interpret the social will of federated humanity and to express in 
 increasingly accurate and logical form the universal sentiment of 
 justice." 
 
 ''■^ Ardigi, "Sociologia," p. 175, held directly that "there must 
 always be a struggle between natural and positive law." This deci- 
 sion was forced upon him because he attributed no objectively 
 certain content to natural law, but only admitted it as an "indis- 
 tinct potentiality" (p. 174). But the truth is that natural law is 
 not essentially indeterminate, and does not lose its authority upon 
 actualization. A correspondence between the two distinct orders 
 of truth is possible and can no more be dogmatically denied, than 
 it can be asserted "a priori." 
 
334 CONCLUSION [ Ch. VIII 
 
 the less can the lack of historical or positive sanction 
 be opposed to natural law, the earlier the empirical phase 
 is to which the observation is referred. The objections 
 of this kind to the truth of natural law which are the 
 most frequent are the least valid philosophically. ! It can 
 be remembered, for example, how Bentham undertook 
 to confute the maxim of the natural liberty of man, 
 enunciated by the "Declaration of the Rights of Man 
 and of Citizens" — "All men are born free. This begin- 
 ning contained a palpable falsity. Study the facts. All 
 men are born in a state of subjection — in fact, of the 
 most absolute subjection. A child is continually depend- 
 ent because of its feeblenessand itsneeds."^' The obser- 
 vation of facts, however, is not enough to establish the 
 existence or non-existence of a law, just as a law cannot 
 be adduced by proving that a definite event has happened 
 or not.^* What-observation discovers empirically in the 
 afield of the positive does not invalidate the criterion and 
 law, which reason sustains deontologically.^* We can 
 
 '^Bentham, "Sophismes anarchiques," in "CEuvres" cit. T, I, p. 553. 
 
 '^ Bentham himself could not avoid seeing that the juridical affir- 
 mation of freedom was directed to protect it against empirical denial 
 and actual violation. He advances the reply to his argument. 
 "This contradiction, you may say, is only apparent. We must 
 distinguish law and fact ; men slaves in one sense are free in another — 
 free in relation to the laws of nature, slaves in relation to political 
 laws, which are vainly called laws but which are not such, since they 
 contradict the laws of nature." And so he insists upon his earlier 
 sophistry, and writes, "This is the subtle language to which recourse 
 is had when one wants to deny what is, when one is embarrassed 
 by well-known facts, when one has the evidence of truth against one' ' ! 
 "Anarchical Fallacies," "Work," Vol. II, p. 489, ed. by Dumont, 
 Vol. I, p. 553. 
 
 " It is noteworthy that Ritchie, one of the severest critics of the 
 jus-naturalistic theory, after noting that the term "nature" has, too, 
 a deontological or normative meaning, adds, "If the term 'natural 
 rights' were always confessedly used in this sense and in this sense 
 
§199} NATURAL LAW 335 
 
 state that freedom is inherent in man, with regard to the 
 transcendental essence of subjectivity, while admitting 
 with Fragapane, "Man is born slave — and his history 
 is only the history of his emancipation" -^ because 
 criticism has taught us to distinguish the truth of phe- 
 nomenon from that of the ideal norm which governs it, 
 while offering us a means of recognizing its gradual 
 reconciliation in history. The problem of the natural- 
 ness of law is philosophically complete with the recog- 
 nition of the possibility of these two diverse considera- 
 tions, for both are in accord with the nature of man and 
 are founded in it. Critical idealism is the only system 
 which can give, by the criteria which we have shown, a 
 congruous and wholly adequate solution of this problem. 
 
 only, no objection could be taken to it, except that it was an ambigu- 
 ous way of saying what migh^ be less ambiguously expressed by a 
 direct use of the term 'ought.' Ritchie, "Natural Rights," p. 75. 
 Vide, also, the declaration of Green, "Lectures on the Principles of 
 Political Obligation," p. 33 et seq. 
 " Fragapane, "II problema delle origini del diritto, p. 262." 
 
First Appendix 
 
 DEL VECCHIO'S LEGAL PHILOSOPHY 
 
APPENDIX I 
 
 DEL VECCHIO'S LEGAL PHILOSOPHY' 
 By Hans Reichel^ 
 
 Nothing in any science, one would suppose, should be 
 freer from controversy, and more settled, than its funda- 
 mental principles. But this expectation is deceptive. 
 The historical development of knowledge often leads 
 far away from a logical arrangement of the objects of 
 knowledge. The reason for this, easy to see, is psycho- 
 logical. According to logic (or, as it were, "de jure") 
 general ideas assume a leading importance, while from 
 the standpoint of experience (or ' 'de facto") sensible things 
 have priority; for experience, first of all, deals with 
 particulars. In this connection, one might denominate 
 the history of knowledge as a continuous vcrrepov irporepov, 
 in the sense that the author in his book incidentally 
 observes: "quello che nell' ordine psicologico e la con- 
 clusione, nell' ordine ontologico h il principio; e solo per 
 questi due estremi termini il soggetto si ricongiunge all' 
 oggetto adeguatamente. La veritcl non comincia dal 
 momento in cui e conosciuta; e per usare un classico 
 
 * [This review of the author's "I presupposti filosofici della nozione 
 del diritto" was published in "Kritische Vierteljahresschrift fiir 
 Gesetzgebung und Rechtswissenschaft,'' Dritte Folge, Band XI 
 (1907), pp. 209-224. It is translated by Albert Kocourek, 
 Professor of Jurisprudence in Northwestern University, and member 
 of the Editorial Committee for this series. — Ed.] 
 
 ' [Professor of Roman Law and Legal Philosophy in the University 
 of Zurich. —Ed.] 
 
340 FIRST APPENDIX 
 
 paragone, la legge della uguaglianza dei raggi vale anche 
 prima che il circolo sia tracciato." ^ 
 
 This observation also holds true for the science of law. 
 Logically, of course, "quid jus" always precedes "quid 
 juris" ; for before one can determine what is lawful, he must 
 first know what is law. Actually, however, the situation 
 is reversed. There is widespread and thoroughgoing 
 agreement as to particular questions of law — the "quid 
 juris" ; the most complicated problems of detail have been 
 in part exhaustively investigated and treated. On the 
 contrary, the higher we climb toward the general and 
 fundamental, the darker and more thorny becomes the 
 path. The summit of this ascent, the question "quid jus?" 
 is surrounded, so it would appear, by a heavy fog. 
 Even to-day the famous and often quoted * words of 
 Kant have an undiminished application — "noch suchen 
 die Juristen eine Definition zu ihrem Begriffe vom 
 Recht";^ and "what is law?" This question might 
 well perplex the jurist who would avoid falling into 
 tautology, or referring to the will of the laws of this 
 or that country at some particular time instead of giving 
 a general solution ; just as the question, "What is truth?" 
 would puzzle the logician.' Gierke, also, adopts this 
 
 ' [What is the conclusion psychologically, is the beginning onto- 
 logically, and the subject can read the object adequately only by 
 these two extreme terms. Truth does not begin at the moment 
 of its recognition; and to use a classical simile, the law of equality 
 of the radii governs before the circle is drawn." — Ed.] 
 
 * See Trendelenburg, "Kleine Schriften," II (1871), p. 81; Rumelin 
 "Reden und Aufsatze," Neue Folge (1881), p. 317; Stammler, 
 "Wirtschaft und Recht," 2d ed. (1906) p. 482. 
 
 ' "The jurists are still looking for a definition for their conception 
 of law." — "Kritik der reinen Vernunft," (Transcendentale 
 Methodenlehre), Cap. I, Sec. I, Kerbach ed., p. 560 [or Meiklejohn's 
 translation (London, 1893) p. 445]. 
 
 » "Metaphysik der Sitten" ("Rechtslehre"), Kirchman ed., p. 30. 
 
REICHEL 341 
 
 thought when he says: "The science of law is neither 
 more nor less fortunate than its sister sciences; after 
 centuries of labor, it has not attained a satisfactory and 
 unobjectionable answer to this question (sc, what is 
 law?) upon a solution of which an understanding of this 
 science itself depends. The effort has not even so much 
 as produced a generally accepted external definition 
 which was possible by the help of the trustworthy 
 delimitation of the sphere of law from other provinces 
 of social life, from the standpoint of their formal attri- 
 butes." ^ Indeed, "tot capita, tot sensus." Nearly 
 every jurist or philosopher who has reflected on the law, 
 has made his own definition. One may compare by way 
 of illustration the variegated assortment of definitions 
 of law collected by Riimelin, and by Trendelenburg,* 
 as well as in the monograph of Baumstark.^ 
 
 The question might perhaps be left at rest with a "non 
 liquet" if it were only a struggle of wits; but far from it, 
 a given definition of law, according to its range and con- 
 tent of idea, produces wide and deep differences which 
 enter into the last details. One has only to call to mind 
 the controversy as to the legal quality of international 
 law. It seems, therefore, and in this we may agree 
 with the author, not only justifiable, but in fact neces- 
 sary to begin the labor anew, and to build up the founda- 
 tions of a definition of law from the bottom. The 
 author's monograph entitled, "II concetto del diritto" 
 is devoted to this laudable undertaking; but before this 
 effort could be commenced it was necessary that the 
 ground be cleared of its great luxuriance of noxious 
 growths in preparation for the planting of the new seed. 
 
 ' "Naturrecht und deutsches Recht" (1883), p. 4. 
 
 » "Kleine Schriften." 
 
 » "Was ist das Recht?" (1874). 
 
342 FIRST APPENDIX 
 
 This was possible only by a critical and philosophical 
 preliminary labor, of which this book is the issue. It 
 contains, therefore, historical-philosophical prolegomena, 
 and especially criteria of the validity of knowledge for 
 a new and independent definition of law. 
 ~ The concept of a thing, says the author, is the center, 
 as it were, the point of cleavage ("punto d'incontro") 
 between the ideal of the object, on one hand, and the 
 sum of the accompanying isolated, empirical phenomena, 
 on the other. A definition of law which is purely ideal 
 or speculative, and a definition which is purely factual 
 or empirical, therefore, are equally at fault, like all one- 
 sided views. The first error is made by those who proceed 
 from a transcendental ideal of law, conceiving law not as 
 what it is but rather what it ought to be.'" As we all 
 know, this was the mistake made by not a few of the 
 writers on natural law in their definitions which are 
 founded on an ideal of law; and, consequently, such 
 definitions are without value. • However, one would 
 be greatly misled, as may be read between the lines, 
 if he supposed that the author was entirely opposed 
 to the ideas of natural law; on the contrary, he ex- 
 pressly gives them countenance. "Che il diritto sia 
 per essenza sua solo positivo, h un' affermazione gra- 
 tuita, che non fu nh pu6 essere dimostrata, ma solo 
 creduta in omaggio al dogma di una filosofia passeg- 
 giera" — (the author has in mind the school of posi- 
 tivism). "Ora tutti gli argomenti con cui si h creduto 
 di demolire il diritto naturale, riposano semplicemente 
 su quella tesi, e si riducono quindi a mostrare che il 
 diritto naturale non esiste — come diritto positivo, ci6 
 
 " "This concept is an imperative"; cf. my elaboration of this point 
 in "Tubingen Zeitschrift fur der gesammelten Staatswissenschaf ten," 
 Bd. 67, p. 212. 
 
REICHEL 343 
 
 che per vero h fuor di questione." " At this point the 
 author is entirely in accord with Carle, Petrone, and 
 others who tilt a lance in favor of natural law. Indeed 
 he aligns himself without reserve with Thomasius ^^ who 
 expresses his views of natural law in the following 
 language: "Jus pro lege acceptum est vel naturale, 
 vel positivum. Fundamentum huius divisionis est 
 principium cognoscendi. Jus naturae cognoscitur ex 
 ratiocinatione animi tranquilli, jus positivum requirit 
 revelationem et publicationem," and the author finishes 
 his pertinent statement with the exultant words: "noi 
 teniamo per fermo che I'idea del diritto naturale, come 
 ha resistito aUe obiezioni degli scettici e degli empiristi 
 de' tempi andati, cosi resisteri pure a quelle dei posi- 
 tivisti moderni, e accompagneri I'umanitk anche nell' 
 awenire." " 
 
 The error described, in proceeding from a stand- 
 point of ideality, is perpetrated especially by all teleo- 
 logical definitions, therefore, by all those which start 
 out from the actual or supposed ends of law. In this 
 class belongs, for example, the well-known definition 
 of Trendelenburg." !i The familiar maxim of Kant, 
 
 i" ["That the law in its essence is solely positive is a gratuitous 
 statement which has not been and cannot be demonstrated; but 
 is only believed in tribute to a passing philosophy. Now, all the 
 arguments by which it is purposed to destroy natural law rest 
 simply on this proposition, and reduce to this, that natural law 
 does not exist — as positive law — which in truth is beyond the 
 question."]-^ 
 
 " "Fund. lur. Nat. et Gent." I, 5, 29. 
 
 " ["We regard it as established that the idea of natural law, as 
 it has resisted all attacks of the sceptics and empirics of the past, 
 will therefore also withstand those of the modern positivists, and 
 accompany humanity also in the future."] 
 
 ""KleineSchriften,"p.87; "Naturrecht,"Sec. 46,2ded.,p.83. A 
 work of recent years expressly attaching itself to Trendelenburg, is 
 that of Salvadori, "Das Naturrecht und der Entwicklungsgedanke," 
 
344 FIRST APPENDIX 
 
 according to which "law is the sum of the conditions 
 under which the will of one man can be adjusted to the 
 will of another man under a general law of freedom," "^ 
 also "non ^ una definizione nel senso proprio, ma un 
 principio razionale che, nella mente stessa del Kant, ha 
 il valore di un ideale." ^^ The formal blunder of making 
 a definition out of the end is comrriitted even by such 
 an anti-speculative thinker as I hering, (who would not 
 otherwise be in point here). In that in his "Geist" 
 as in his "Zweck" " he defines law as the protec- 
 tion of interests, the protection of the conditions of life, 
 he substitutes the notion of purpose for a definition.'* 
 Hegel's paralogism reaches the summit of speculative 
 daring and furnishes at the same time a paradigm for a 
 definition of everything ideal. For Hegel ideas alone are 
 real and substantial. Concept and idea are equivalent; 
 but the phenomenal world is only a method of activity 
 of the jdea. "Per conseguenza di ci6, il concetto del 
 diritto sarebbe, secondo la dottrina hegeliana, anche 
 la ca,gione della realtcl del diritto, il motivo generatore 
 della sua esistenza nel mondo empirico." '* 
 
 The exact opposite of Hegelian speculation — to 
 consider now the second, the empirical group of defini- 
 
 1905, p. 97. Cf. my remarks in "Philosophische Wochenschrift,'' 
 II, p. 59. 
 
 " "Rechtslehre" (Einleitung C). 
 
 " ["Is not a definition in the proper sense, but a rational principle 
 which in the view of Kant himself derived its value from an ideal."] 
 Stammler, also, justly finds fault with it, y- "Richtiges Recht," 
 1902, p. 210. 
 
 " [Translated in this series under the title "Law as a Means to an 
 End."] 
 
 IS Cf. R-Leening, "Wurzel und Wesen des Rechtes," 1907, p. 11, seq. 
 
 •' ["As a consequence, the concept of law, according to the Hege- 
 lian doctrine, would be also the reason of the reality of law, the 
 generative motive of its existence in the empirical world." ] 
 
REICHEL 345 
 
 tions of law — is agnostic positivism, which is not at all 
 pleasing to the author. If the idealistic metaphysics 
 goes astray by way of over-extension, the positivist 
 doctrine fails in putting aside all ideological considera- 
 tions. The one school drives the "a priori," and the other 
 school urges the "a posteriori" to the uttermost limit. 
 The first philosophy represents the idea of everything 
 and the appearance of nothing; while the second denotes 
 the appearance of everything and the idea of nothing. 
 Consequently, according to the author, an acceptable 
 definition of law has been hitherto impossible and will 
 always be an utter impossibility for the positivist. The 
 reason is that from pure empirical factS'one can never 
 attain to ideas. If one desires to systematize the in- 
 ternal relation of facts, there is always presupposed the 
 concept of this relationlike Munchhausen lifting himself 
 by his own forelock. The efforts, therefore, of the "His- 
 torische Schule" which was externally propped up by a 
 little Schellingean philosophy, and internally torn apart 
 by an abortive empiricism, were insufficient to bring 
 forth a serviceable definition of law; but this does not 
 derogate from the value of the contributions made by 
 Savigny and his followers in the study of legal evolution 
 and the social-psychological basis of legal science. Still, 
 that which touches a conceptual and detailed explanation 
 of the chief and ultimate questions of jurisprudence 
 remained apart from the mission of the "Historische 
 Schule" ; audit is just to say that it was anunphilosophical 
 school. "Invertendo la massima del filosofo, che vedeva 
 1^ cominciare il problema, dove per gli altri finiva, la 
 scuola storica accettava qual soluzione ci6 che per altri 
 era stato soltanto la proposizione di una difficolt^, ed 
 ud motivo di speculare." ^ One illustration will suffice — 
 
 ™ ["Inverting the maxim of the philosopher, who discerned as ' 
 the beginning of the problem what others regarded as the end, the 
 
346 FIRST APPENDIX 
 
 the much-quoted definition of Puchta ^^ — "law is 
 a general conviction (tjberzeugung) of the members 
 of a legally organized society"; but this is mere tautol- 
 ogy. To attempt to derive the concept of law from legal 
 history or to distill being from becoming, as Krause 
 has pointed out,^^ is like the effort of milking a he-goat.^' 
 Considerations of the philosophy of history also lead 
 to this judgment. Laws of history which lay down the 
 course of historical development, and likewise the lines 
 of legal evolution, cannot be discovered. Especially, 
 the proposition fails that history unfolds in rigidly 
 patterned cycles ; ^ it forces history into a mechanical 
 form which is foreign to it. The law of history, if any 
 such there is, is rather that of constant change which 
 if not illimitable in fact is yet illimitable for the mind. 
 A concept must be eternal; in other words, it cannot be 
 valid only for the past and present, but it must hold for 
 all future. When the "Historische Schule" educes the 
 notion of law solely from the past it goes astray, com- 
 mitting the ' 'fallacia fictae universalitatis ;" ^^ as the past, 
 since the stream of history never stands still, cannot 
 give hostages for the future. 
 
 Little more profitable, according to the author, for 
 the establishment of fundamental juristic ideas, have 
 been the performances of the schools which succeeded to 
 leadership after the decline of the "Historische Schule" — 
 
 Historical School accepted as a solution what was for others only 
 the statement of a difficulty, and a motive of inquiry." ] 
 
 » "Pandekten," Sec. 10. 
 
 22 "Rechtsphilosophie" (1874), p. 19 seq. 
 
 ^ This polemic against historicism is, of course, not new; the 
 author himself refers, among others, to Schuppe in "Zeitschrift fur 
 vergleichende Rechtswissenschaft" 5, 209, and Stammler in the 
 "Festgabe fur Windscheid," Halle (1889), p. 3. 
 
 " Cf . iJegeri" three-part measures, and Spencer's rhythm theory. 
 
 " Cf. Mill, "Logic" (Ger. trans, by Scheil [1849], p. 621). 
 
REICHEL 347 
 
 thus the School of Comparative Law;^° the writers on 
 general jurisprudence ("allegemeine Rechtslehre") ; ^^ the 
 Analytical School.^ The author would leave untouched 
 the important services of these schools in the upbuilding 
 and extension of positive legal science; and he mentions 
 with special emphasis the writings of Bergbohm, Bierling, 
 Binding, Schuppe, and Thon; yet he thinks that reser- 
 vation must be made, that the purely empirical-induc- 
 tive method, which these writers- follow, is incapable 
 of providing a successful solution of the ultimate ques- 
 tions of legal science.^' In particular, comparative law 
 is not adapted to extract a single concept of law out of 
 the manifold abundance of legal phenomena. Com- 
 parison always presupposes a standard of measurement, 
 and this standard is an already postulated concept of 
 law. The positivist legal philosophy, and especially 
 general jurisprudence, may not be spared the reproach 
 that it assumes to take upon itself, according to the 
 
 2' Whose program is represented by Post, "Ursprung des Rechts," 
 (1876). 
 
 " Represented hy A. Merkel, "Ueber das Verhaltnis der Rechts- 
 philosophie zur positiven Rechtswissenschaft" in "Grunhuts Zeit- 
 schrift," I, 1 seq. 
 
 ^ Austin, "Lectures on Jurisprudence or the Philosophy of Positive 
 Law," 4th ed. (1873). With reference to these schools, see the 
 review in "L. C. Bl." (1906), p. 1364, of Groppali's "La filosofia del 
 diritto" (1906), p. 118 seq., 148 seq. [The best exposition of this 
 subject is Pound's "Theories of Law," reprinted from "Yale Law 
 Journal," December, 1912.— rr.] 
 
 29 The author's scruples against the positivist jurisprudence are 
 the same as may be urged against positivism in general. Cf. my 
 article on Mill's inductive method in "Zeitschrift fur Philosophie und 
 Philosophische Kritik," Bd. 123, p. 121 et seq.; cf. also the observa- 
 tion of Ferd. Jak. Schmidt in "Preuss. J." Bd. 106, p. 638; "induction 
 is an heuristic method for a study of details, but not a scientific 
 method as Bacon called it. Philosophy, however, must completely 
 retain this instrument in that it is not a science of particulars." 
 See also, Kohler, "Modeme Rechtsprobleme" 1907, p. 16 seq. 
 
348 FIRST APPENDIX 
 
 author, the practical functions of legal science *" and 
 reduces legal philosophy to the position of a mere spec- 
 tator of social life. In a word: The onesidedness of 
 empiricism is equally as inadequate for an answer to the 
 question proposed, as the partiality of speculative 
 idealism. 
 
 Various investigators have shielded themselves from 
 this situation; some of them have adopted, therefore, 
 syncretic views. Among the positivists, Spencer is 
 named, who inconsistently and despite his evolutionary 
 phenomenalism, recognizes the proposition of natural 
 law.^* From the other side, Lasson, in his work on legal 
 philosophy, takes now the idea of law, and then pure 
 empiricism for a starting-point.^* 
 
 It may suggest itself that there is something mon- 
 strous in this combination of the "a priori" and the 
 "a posteriori"; but psychologically the contradiction is 
 not great. It is only a step from the proposition that 
 
 '" Concerning this much discussed question in Italian legal philo- 
 sophy, see Vanni, "La funzione pratica della filosofia del diritto" 
 (address), (1894); Brugi, "Introduzione enciclopedica alle scienze 
 giuridiche e sociali," 3d ed. (1898), p. 95 seq.; Groppali, "La funzione 
 pratica della filosofia del diritto" (1904); and Levi, "Per un pro- 
 gramma di filosofia del diritto" (1906), p. 103 seq. 
 
 " Levi treats in a critical fashion Spencer's notion of natural law — 
 "Sur le droit naturel dans la philosophie de Spencer" ("Contes ren- 
 dusdu II e Congr^s Internal, de philosophie," Geneve, Sept. 1904.) 
 
 '^"Rechtsphilosophie"; cf. pp. 19 and 176. The Neo-Hegelian 
 Josef Kohler undertakes a similar synthesis of idealism and empiri- 
 cism, but upon a foundation of much more universal knowledge, and 
 with more genius; Cf. "Grtinhuts Zeitschrift," XXVIII, 272 seq., 
 "D. J. Z." IX, 27. seq., also the article "Rechtsphilosophie und 
 Universalrechtsgeschichte," in v. Holtzendorff' s "Rechtsenzyklopadie 
 6th ed. (1904). [See, especially, Kohler's late work, "Philosophy 
 of Law," in this series.] Berolzheimer ably states the legal philo- 
 sophy of Kohler [in "The World's Legal Philosophies," in this series] 
 and in "Philosophische Wochenscrift," I, 6 seq., Berolzheimer 
 
REICHEL 349 
 
 reason and reality are identical to the affirmation that 
 reality itself as such is reasonable, that is to say, is the 
 principle and source of all reasoning. "Dall' identi- 
 ficare 'a priori' la ragione col fatto all' assumere il fatto 
 stesso come principio non h in realty che un passo, ed 
 un inevitabile passo."'' 
 
 The author is little disposed to approve this kind of 
 synthesis; he expressly rejects it. He believes the right 
 course lies between, but not in a combination, of opposites. 
 Ideas do not generate reality, says he, nor does reality 
 produce ideas. Both points of view already noted, 
 
 styles himself a Neo-Platonist; cf. my review of his book in "Zeit- 
 schrift fiir Philosophic und Philosophische Kritik," Bd. 129, p. 111. 
 
 " ["From an identification 'a priori' of reason with fact, to the 
 assumption that the fact itself is the source, is in truth only a step, 
 and an inevitable step."] 
 
 I have rarely seen a more pointed statement of the dogmatism 
 of empirical facts as set out by the author than the following words 
 of Alessandro Levi ("Programma," p. 18) : "Pei positivisti il fenomeno 
 ha un valore assoluto, non nel senso di un 'quid immutabile,' ma 
 bensinella accezionediunveroch'eadesso inerente: 'verum . . . 
 ipsum factum,' diceva il Vico. II fatto e per noi un assoluto, non 
 perchfe sia un 'prius,' un effetto senza causa, una proles sine matre 
 creata, ma perche ad esso, e ad esso soltanto, se pu6 rivolgere la nostra 
 osservazione, paga di esaurirvisi e aliena dal tentar di penetrare in un 
 misterioso al-di-1^. — Diceva 1' Ardig6 con lucidissime parole, a 
 proposito delle quali non si pud senza mala fede giocare d'equivoco: 
 'II fatto e divino, la spiegazione k umana.' " 
 
 [For the positivist, phenomena have an absolute value, not in the 
 sense of a "quid immutabile," but rather in the acceptation of a truth 
 which is to him inherent: "verum . . . ipsum factum," said Vico. A 
 fact is for us something absolute, not that it is a "prius," an effect 
 without cause, a child without a mother, but because to it and to it 
 alone are we able to address our observation, content to there exhaust 
 it and averse to any attempt to penetrate a mysterious something 
 beyond. In the brilliant words of Ardig6 (which cannot except in 
 bad faith turn upon an equivocation), "facts are divine; explanation 
 is human."] 
 
 [Attention may be directed, here, to the study contributed by 
 
350 FIRST APPENDIX 
 
 idealism and empiricism, and not less their fusion, 
 lack that which is first of all necessary to an advan- 
 tageous examination of the matter in hand — criti- 
 cism of the faculty of knowledge. Fundamentally, 
 the author aligns himself with Kant. His course, as he 
 proudly asserts, is the "royal road of criticism"; that is 
 to say, of the Kantian critique of reason ; and he adopts 
 the motto "back to Kant." The formulation of the 
 problem with which his book commences is Kantian 
 in its sense and phrasing: "e possibile una determina- 
 zione obiettiva . . . di ci6 che k il diritto? E se ^ 
 possibile, quali ne sono le condizioni metodiche, cio^ come 
 h essa possibile?" ^* 
 
 The author's method is self -disclosed. The material 
 of phenomena is to be abstracted; to <Jiis extent it is 
 possible to proceed "a priori." Only the form can be an 
 object of consideration insofar as it is the constitutive 
 element of a concept. Form alone is one and eternal, 
 and the truly substantial in the stream of phenomena : ^ 
 "la forma e I'essenza medesima dell' obietto." '* This 
 form is the gnoseological condition of the possibility of 
 particular phenomena; and, for that reason, form as 
 
 Prof. Levi, which will appear as a part of Volume VI in this series 
 treating the "Positive Philosophy of Law," by /. Vanni. — Ed.] 
 
 ^ [" Is an objective determination of the law possible? And if it 
 is possible, what are the methodological conditions, that is to say, 
 how is it possible?"] 
 
 One feels involuntarily reminded of Kant's statement of the 
 inquiry regarding the possibility and method of knowledge — "Proleg- 
 omena," Sees. 4, 5. "Reklamausgabe," pp. 46, 61. An adoption 
 of the Kantian model is also discernible among such Kantians 
 as Stammler ("Richtiges Recht," p. 85), where the turn of language 
 — "love without justice is blind"; justice without love is empty — 
 resembles what Kant says concerning intuitions and concepts. 
 
 '^ In accord with AristoOe, "Met.," xi, 8, p. 1074a. 
 
 " "The form is the essence itself of the object." 
 
REICHEL 351 
 
 compared with phenomena is an absolute presuppo- 
 sition. Consequently, the effort to derive the concept 
 of thing from experience involves an inversion of the 
 true relation. "Lungi da ci6, che il concetto formale 
 sia una copia imperfetta e sbiadita delle cose concrete 
 e sensibili (come vorrebbe la logica degli empiristi), 
 queste medesime cose non rappresentano in veritk se 
 non un parziale riscontro e un atteggiamento passeggiero 
 di quel concetto, che ne k I'essenza, e che si rispecchia 
 intero nella pura ragione." ^' 
 
 Law also can be subjected to the same method of con- 
 sideration. The Kantians, Simmel ^* and Stammler,'' 
 have been of service in separating the formal element 
 in law from its material content; and further advances 
 in this direction are possible. The problem is not, what 
 is the content of law and how is it ascertained — what 
 are the functions and purposes of law — what is the 
 relation between law and justice? but the question is 
 solely and exclusively as to the form of the concept of 
 law.. "Senza enunciare per se alcun giudizio siffatto, 
 senza attribuire i predicati di giusto o ingiusto ad alcun 
 dato oggetto, la forma logica (del diritto) designa solo il 
 carattere proprio di un qualsiasi giudizio di tal natura." ^^ 
 A detailed explanation of this thought is not to be had 
 
 " ["Far from it, that the formal concept is an imperfect and color- 
 less copy of the concrete and sensible thing (as the logic of the 
 empirics would have it), this same thing in truth yet represents a 
 partial counterpart and a passing attitude of the concept which is the 
 essence of it, and which reflects as a whole in pure reason." ] 
 
 " "Einleitung in die Moralwissenschaft," 2nd ed. (1904). 
 
 " [Stammler's work, "Richtiges Recht," is translated in this series 
 under the title "Theory of Justice."] 
 
 40 [ "Without stating in itself any certain opinion, without attribut- 
 ing the predicates just or unjust to any given part, the logical form 
 of the law indicates only the true character of any judgment what- 
 soever of this nature." J 
 
352 FIRST APPENDIX 
 
 in the work under review; the author has expressly 
 reserved that discussion for the study concerning the 
 concept of law to which reference already has been made.^' 
 
 The foregoing examination will be sufficient to in- 
 dicate the spirit and tendencies of the book; more 
 detail would not be practicable. The excursuses on the 
 history of philosophy, especially, have been left out of 
 consideration. The author shows a fondness for tracing 
 certain problems through the history of philosophy 
 from ancient times to the present. The utility of this 
 procedure is doubtful. To one who knows the history 
 of philosophy — and whoever has earnestly had to do 
 with legal philosophy may be expected to have acquain- 
 tance with the universal history of philosophy — these 
 excursuses will hardly provide anything new. Again, to 
 one who lacks special knowledge of the history of philos- 
 ophy, it may be feared that the exposition of the author 
 is too brief to render him any satisfactory orientation. 
 
 Another detail which relates to the literary-his- 
 torical treatment cannot be omitted. In following the 
 historical development the reader is apt to lose the 
 systematic unity of the whole. The arrangement which 
 underlies this review is attributable to the reviewer.^ 
 Of course, it could not have been expected that the 
 author would pedantically cramp himself by this or any 
 other arrangement; yet it would have been desirable 
 if he had brought out more clearly than he has done 
 the systematic points of view, whether in a foreword, 
 or in his arrangement of chapter heads and suihmaries. 
 
 The scrupulous reading of the author and the quota- 
 tions with which he makes his book useful appear in due 
 moderation. With freedom from ostentation in his cita- 
 tions, which has made many a German book unen- 
 
 " [This study constitutes Pt. II of the present volume.] 
 
REICHEL 353 
 
 durable, he employs notes which are necessary and 
 serviceable, and with good taste and ability. That 
 "he should have made use of the German literature goes 
 without saying; it is just this recourse to German science 
 which has yielded advantageous results. The book 
 shows a good deal of German thoroughness and Kantian 
 earnestness. As it deserves, the literature of England 
 is taken into account. The disregard of modern French 
 literature is quite conspicuous. Tarde, for example, 
 whose writings have attained at least equally as much 
 fame as those of Maine, is invoked only once, and his 
 history of philosophy *^ is entirely passed over. The 
 reason for this is plain enough; the psychological posi- 
 tivism of the French is a thorn in the flesh to ^he critical 
 disposition of the author. 
 
 It is more astonishing, however, that the author has 
 not oftener made reference than he does to the works 
 of Stammler. No legal philosopher of the day, it 
 seems to me, stands as close to the critical tendencies 
 of the author, as the Kantian Stammler. I do not have 
 in mind here the work of Stammler dealing with the 
 method of historical legal theory which the author 
 frequently refers to; but I have in view rather the two 
 leading works of Stammler.*' The author, of course, is 
 acquainted with these works, but it excites one's wonder 
 that he has not more often made positive reference to 
 them. This is not the first time that this observation 
 
 *^ See the critical dissent of Groppali, "La filosoiia del diritto," 
 pp. 243 seq., 286 seq. That elsewhere in Italy a keeii interest is 
 shown in the works of Tarde, is discovered by the able work of MiceK, 
 "Le fonti del diritto," (1905); cf. my review in "Kritische Blatter 
 fiir die gesammelte Sozialwissenchaften," 1, 358 seq. 
 
 « ["Wirtschaft und Recht," and "Richtiges Recht." The trans- 
 lation of the latter work, as already indicated, appears in this series. 
 Since the date at which the reviewer writes, Stammler has published 
 his "Theorie der Rechtswissenschaft."] 
 
354 FIRST APPENDIX 
 
 has intruded itself on my attention among Italian legal 
 philosophers,** and I have looked in vain for a reason. 
 Perhaps it may be, as a foreigner said to me in conversa- 
 tion, that the books of Stammler, on account of their 
 style, offer special difficulties to the foreign reader. 
 
 So much may suffice. Fundamental criticism of the 
 book under review would require a critical survey of 
 position with reference to the Kantian theory of knowl- 
 edge in general ; *^ but it seems ill-advised to attempt 
 this vast problem on the occasion of a book-review of 
 prolegomena which are moreover themselves chiefly 
 critical. Such discussion may await the author's 
 promised solution of the problem.*' For the same 
 reason the question may be left unanswered as to whether 
 criticism implies an affirmation of a so-called natural law 
 which seems to be the view of the author. *' This course 
 seems all the more proper inasmuch as the author himself 
 emphasizes that the problem of natural law — to which 
 without apparent ground he devotes an entire chapter 
 — is independent of the problem of defining the law. 
 
 « Cf. "Philosophische Wochenschrift," II, 61. 
 
 " To those who seek an introduction to the study of Kant, I never 
 tire of recommending the classical little book of August Stadler, 
 "Die Grundsatze der reinen Erkenntnistheorie in der Kantischen 
 Philosophie" (1876), instead of the too finely written books of Cohen. 
 
 " [Prof. Segond's review which appears in the next appendix has been 
 selected for the discussion of the work to which reference is made.] 
 t " Kant himself was, in a strict sense, a proponent of natural law, 
 and the works of modern Kantians show sympathy for natural law 
 ideas. 5 See my review of Stammler, "Richtiges Recht," in "Zeit- 
 schrift fiir Philosophie und Philosophische Kritik," 124, 234, and 
 Graf zu Dohna, "Rechtswidrigkeit" in "Kritische Blatter fiir die 
 gesammelte Sozialwissenschaften," I, 117. 
 
Second Appendix 
 
 THE NEO-KANTIAN PHILOSOPHY OF LAW 
 
APPENDIX II 
 
 THE IDEALISTIC AND NEO-KANTIAN RENAIS- 
 SANCE OF THE PHILOSOPHY OF LAW ' 
 
 By J. Second* 
 
 Giorgio Del Vecchio, professor of philosophy of law 
 at the University of Bologna, re-published last year, 
 with an important addition, the paper read by him in 
 September of 1908 at the Third Congress of Philosophy 
 held at Heidelberg, entitled "*rhe Idea of a Science of 
 Universal Law from a Comparative Point of View." 
 Very interesting in itself, this paper presupposes, for an 
 accurate understanding, an acquaintance with the prior 
 works of Del Vecchio. The work of this author within 
 his chosen field seems to us significant of the philosophical 
 and idealistic renaissance which, originating in Germany, 
 is, as we know, agitating contemporary Italy, and it 
 seems worth while, in order to give a place to this move- 
 ment in the more limited field of law, to study briefly 
 its expression, both in the paper referred to above, and 
 in two other essays by the same author, one on "I 
 presupposti filosofici della nozione del diritto,"' the 
 other on "II concetto della natura e il principio del 
 diritto."* 
 
 1 1 A critique published in the "Revue philosophique de la France 
 et de I'etranger," February, 1911, Vol. XXXVI, p. 168. —Ed.] 
 
 2 [Professor of Philosophy at the Lyceum of Toulon, and lecturer 
 on philosophy at the University of Aix-Marseille. Translated by 
 Layton B. Register, member of the Philadelphia Bar and 
 Lecturer in the Law School of the University of Pennsylvania. — Ed.] 
 
 »Cf. Pt. I, pp. 1-124, ante. — Tr. 
 
 «Cf. Pt. Ill, pp. 219-335, ante.— rr. 
 
358 SECOND APPENDIX 
 
 Italian philosophy was exemplified at the period of 
 the "Risorgimento" by great metaphysicians such as 
 Rosmini and Gioberti, and, in the work of Rosmini, was 
 inspired by the ancient Pythagorean or Eleatic phil- 
 osophy, as well as by that . of Thomas Aquinas or 
 by the thinkers of the Renaissance. It seemed only 
 a few years ago finally consecrated to an integral 
 positivism of purely scientific intent, freed from the 
 agnosticism of Comte or Spencer, and inspired by the 
 "patriarch" of Padua, Roberto Ardig6. And while 
 the "Revista Filosofica" (edited until his death by 
 Cantoni), represented, primarily, the tradition of Kantian 
 criticism, the "Revista di Filosofia e scienze affini," 
 altogether positivist and directly under the guidance of 
 Ardig6, was very often accepted outside of Italy (at 
 least in France), as more faithfully depicting the current 
 view point of Italian thought. Several years ago, how- 
 ever, the French "Italianists" found that they must 
 modify this impression. The doctrine, to be sure, of 
 the romanticist-poet of Vicenza, Antonio Fogazzaro, 
 the author of "I ascensioni umane" and of "II Santo" — 
 a doctrine Rosminian in its gnoseological and partially 
 Darwinian in its scientific origin, and Franciscan in 
 its mystic origin, — appeared perhaps insufficiently 
 systematized, to certain minds or not sufficiently critical 
 or (let us say) secular. Yet such names as that of 
 Barzellotti, with other genuine and great philosophers 
 and scholars, show clearly that critical inspiration and 
 the Kantian systematization of knowledge have eminent 
 and original exponents in contemporary Italy. Along- 
 side this neo-critical revival, the spiritualistic and 
 theistic tradition defends its rights, allying itself to the 
 very minute positive studies of normal and pathological 
 psychology or of experijoiental ethics, as is proved by 
 the works of de Sarlo, of Aliotta, and others. 
 
SECOND 359 
 
 Regarded from the very modern point of view of the 
 criticism of the sciences and of positive gnoseology, the 
 Italian philosophy is represented in our day by the 
 logico-mathematical work of Peano and of the lamented 
 Vailati, and by the remarkable essays of Enriques, the 
 president elect of the Congress of Bologna. But, it is 
 particularly in Florence and Naples that the Italian 
 philosophic renaissance has established its two centers 
 of idealist propaganda. 
 
 The Florentine pragmatists — already grouped about 
 Papini, the destroyer of idols and the prophet of the 
 "twilight of the philosophers," — showed themselves 
 in the publication of the "Leonardo," to belong to the 
 empirical school of Mill, and to that yet more radical 
 school of William James, while extolling the mathemati- 
 cal determination of phenomena as opposed to the 
 panlogistic philosophy of nature, and while invoking 
 the patronage of Leonardo da Vinci. Several of them 
 gave evidence of religious affinities, and, championing 
 the "veiled host," turned the "philosophy of action" 
 of Maurice Biondel in a Hellenic direction. To-day, 
 though they still possess an ofhcial mouthpiece, the 
 periodical called "La Voce," their innovating ideas are 
 chiefly given expression in a club of philosophical scholars 
 at Florence. ^ Recently, however, they have affirmed, 
 in a forceful manifesto of revolt, their readiness to 
 speculate "on the side." 
 
 The Neo-Hegelians of Naples, grouped about Bene- 
 detto Croce, also possess in the "Critica" an organ of 
 their own ; and in it they display their aggressive audacity. 
 As adversaries of pragmatism, and as philosophers of 
 the "Idea," they strive, in their systematic efforts, to 
 give to Italian youth a genuinely philosophic culture. 
 For this purpose they are producing little by little a 
 collection of classics, in which, though the Cermanic 
 
360 SECOND APPENDIX 
 
 influence dominates, the philosophy of Bruno and Vice 
 are extolled no less than that of Hegel and Kant. As 
 an editorial of the "Leonardo" of Florence once pointed 
 out, this Naples school, in its hatred for empiricism, 
 views with scant favor any subservience to Anglo- 
 Saxon ideas, and seeks inspiration especially from the 
 German idealistic tradition, with which it sometimes 
 contrasts (as in the learned studies of Gentile) the 
 gnoseological doctrines of the Italian philosophers of 
 the "Risorgimento." And though Croce, the talented 
 promulgator of this critical Hegelianism, has shown that 
 -'a pseudo-philosophy of Nature is the dead centre of the 
 doctrine of Hegel, he himself elaborates from an idealistic 
 point of view a pure philosophy of Spirit; in a trilogy 
 of essays he develops a formal theory of knowledge, 
 intuitive and conceptual, theoretic and practical, hold- 
 ing the mathematical and natural pseudo-sciences as 
 simple instruments of action, while avoiding all meta- 
 physics. In other respects the two groups seem at one 
 in their disdain for the philosophic instruction furnished 
 the students of their country and for the official positivism 
 of the disciples of Ardig6. 
 
 Now this aversion for positivism and this idealistic 
 preoccupation are also found amongst the "professors 
 of philosophy" themselves. One of them spoke to me 
 with a certain irreverence, at Heidelberg, of the "patri- 
 arch" of Padua and of his "pupils." Besides, do not 
 Gentile, the associate of Croce, and Calderoni, the 
 Florentine pragmatist, both teach philosophy? But it 
 seems that this pedagogical idealism, — doctrinal but 
 not official — accords badly with both their pragmatic 
 tendencies and theif concealed empiricism, and with the 
 Hegelian system and its pure concepts. Indeed, they 
 would much prefer to present themselves as a realization, 
 in present day Italy, of the return to Kant — understood 
 
SECOND 361 
 
 in an exact sense, as Del Vecchio acutely notes. Of 
 this neo-Kantian theory of the knowledge of law and 
 of this transcendental idealism — which demands the 
 positive existence of a juridical "reality" having an exact 
 and wholly experimental scientific method — Del 
 Vecchio's essays offer us the scheme and show us the 
 necessity. 
 
 II 
 
 Just as the Kantian critique of mathematical and 
 physical knowledge took as its starting point the fad 
 of mere existence of the sciences of natural phenomena, 
 so the neo-Kantian critique of juridical knowledge com- 
 mences in the fact, recognized to-day by all, of the 
 existence of a phenomenology of universal law. And it 
 is to the determination of the prerequisites of this 
 comparative science of juridical facts that Del Vecchio 
 devoted his paper. He insisted upon this truth: 
 that the possibiUty of the birth of such a science could 
 no longer, in principle, be doubted; and that the 
 very ease of its establishment might, by reason of the 
 breadth of the subject and of the indefinite knowledge 
 of primitive law (especially of prehistoric times), give 
 rise to a problem, though, for that reason, the science 
 should stimulate all the more the zeal of the jurists. 
 He denounced the prejudices which still retard the 
 realization of the program of this universal phenome- 
 nology, and which, even among the scholars who are 
 responsible for this program, distort its true bases and 
 falsely attribute an antiphilosophical signification to it. 
 Among these prejudices he laid emphasis upon the 
 illusion which attributes to the law of a particular time 
 or people an exclusive or unique value; makes of the 
 rules of this particular law universal norms of legal 
 
362 SECOND APPENDIX 
 
 reasoning; sets up the object of the investigation as the 
 criterium of the investigation; and by narrowness of 
 view renders itself incapable of comprehending the 
 relativity of this particular phenomenon and its evolu- 
 tionary position. He reminded us that Roman law 
 particularly had long been profiting by this strange trans- 
 figuration from a European law, determinate and belong- 
 ing to a simple historical category, into a universal and 
 absolute law; and that this had come about through the 
 instrumentality of the most diverse and mutually hostile 
 schools of law, without excepting therefrom the German 
 "historical school," whose illusions in this regard had been 
 actually undermined by the "philosophical school" and 
 the theorists of rational law in their criticisms of the 
 prejudices of the theorists of natural law. He showed 
 that this necessity for an entirely relativistic comparison 
 between the institutions and customs of different peoples, 
 even primitive ones, did not fit in with the didactic 
 programs, and for this reason was given free rein in "the 
 defective systematizations of that chaotic collection of 
 facts and conjectures which constitutes so-called sociol- 
 ogy and which is the sign of an ailment in contemporary 
 civilization." Del Vecchio sees in this alleged science 
 only "an organic body of methodological needs to be 
 observed in the study of human phenomena," and has 
 set himself the task of determining those rules of method 
 with regard to juristic phenomenology and their relations 
 to the philosophy of law. 
 
 The first of these "needs" consists in viewing positive 
 law as a natural phenomenon, and for this very reason 
 is bound to the whole of reality which experience presents 
 to us; it is, therefore, not to be mbced with the presenta- 
 tion of facts which enter into considerations of a deon- 
 tological order. The further need consists in adopting 
 towards human phenomena the impartial attitude of 
 
SECOND 363 
 
 the naturalist; whence it follows both that no juristic 
 institution could be adopted as the prototype of others, 
 and that no institution could be despised as unethical 
 or without meaning. Whence it follows, furthermore, 
 that we must search for the origins and primitive phases 
 of all institutions, even of those which we meet with in 
 our experience in a finished form, since only a comparison 
 between the phases of their development can disclose 
 to us the meaning of their present phase as a part of 
 nature. .' The existence of hidden survivals and of appar- 
 ent exceptions renders this reconstruction possible, and 
 is facilitated by the frequent analogies between that 
 which appears abnormal in a given state of advanced 
 civilization and that which, in^a given state of primi- 
 tive civilization, forms an integral part of an organic 
 system. 
 
 To this generic prerequisite, applicable to all experi- 
 mental research, must be added a specific prerequisite, 
 applicable exclusively to juridical research, namely: 
 the logical determination of the very notion of law, of 
 that which gives distinctively a juridical character to 
 phenomena. This universal logical form, this conceptual 
 plan, transcends experience, since it comprehends all pos- 
 sible cases and constitutes the possible limit itself of any 
 given juristic experience. Without such a plan there can 
 be no grouping of phenomena of this order, no unity in 
 the research, no homogeneous comparison of facts. "To 
 recognize this all-important prerequisite is not to dimin- 
 ish the value of juridical data, but, in fact, to assure its 
 authority in its special sphere." 
 
 In conformity with these rules there is formed an 
 independent science of universal law, regarded from the 
 comparative point of view. But such a science is only 
 possible by reason of the postulate of the unity of the 
 human mind, t Every conscience carries within itself. 
 
364 SECOND APPENDIX 
 
 as it were, the "eternal seed" of what is just, which 
 permits it to surmount empirical personality and to co- 
 ordinate this by a moral relation to the personality 
 of another. And positive law, the universal exterioriza- 
 tion of the subjective intellect, — though it passes only 
 by degrees from the obscurest to the clearest forms of 
 knowledge, though it consists at first of institutions 
 produced by vague intuition and blind instinct — is, 
 nevertheless, from the commencement (in the words of 
 Vico) "of human creation" and produced by them 
 "through the intelligence," — a fact which assures to 
 it the quality of an incorporeal phenomenon. , Now this 
 juridical unity is not expressed alone by the universal 
 existence of law; it manifests itself also in the resem- 
 blances which appear between the most diverse and 
 independent manifestations of law. And the very 
 evolution of juristic forms does not contradict this 
 analogy, since such an evolution presents a human and 
 general character in such a way that the substantial 
 unity of the human mind is revealed throughout this 
 development. 
 
 Juridical unity is shown also by the constant fact 
 of the communicability of norms, — as where the law 
 of one people (the Roman law, for example) may be 
 assimilated by another, so that the very internal logic 
 of juristic institutions assures them an "autonomous 
 life" and (despite the historical basis of their origin), 
 a signification that is universal and metahistorical. 
 The author lays stress upon, the history of the doctrines 
 relative to this communicability in a note which he 
 adds to his original paper, emphasizing there the "empir- 
 icist" and "superficial" exaggeration of Gabriel Tarde, 
 who, in his emphasis on imitation (often hypothetical), 
 slighted the native and "autochthonous" similarity of 
 developments. 
 
SECOND 365 
 
 The result is that the natural evolution of the law 
 of each people tends to make those elements that are 
 of a general and human character predominate (in the 
 higher phases) over those that are individual or of a 
 strictly national order. And this convergence of diverse 
 juristic institutions forms, by its spontaneity and 
 necessity, one of the aspects of the evolution of the 
 human mind itself. Hence by serving as an effective 
 instrument for this progressive unification of law, for 
 this slow formation of a "societas generis humani," the 
 comparative science of universal law is to be distinguished 
 from the purely chronological history of law, and the 
 distinction lies in the fact that the former reconstructs 
 in the growth of the phenomenal world the absolute idea 
 of justice and of right which conscience demands 
 unconditionally and which reason demands upon tele- 
 ological grounds. Thus comparative jurisprudence hangs 
 upon a series of philosophic premises. The incom- 
 patibility which some have alleged to exist between 
 this "empirical science" and the "philosophy of law" 
 arises from the fact that the lowest forms of empiricism 
 still subsist in the philosophy of law, though they have 
 been finally banished from philosophy in general. And 
 to prove this incompatibility purely imaginary it is 
 enough to cite the name of a forerunner in this compara- 
 tive science, Paul Anselm von Feuerbach, a disciple of 
 Reinhold, a critical and Kantian rationalist, and a meta- 
 physician bound to the absolute principle of justice as 
 deduced from pure reason. Del Vecchio concludes 
 finally "that the idea of a comparative science of uni- 
 versal law is in no wise bound by its nature to an 
 empiricist conception of the philosophy of law, but is, 
 on the contrary, from a double point of view, material 
 and logical, evolved from a rational conception of this 
 philosophy." 
 
366 SECOND APPENDIX 
 
 III 
 
 The paper which has just been analyzed, proposes, then, 
 to set forth the dependence, from the epistemological as 
 well as from the teleological point of view, of positive 
 jurisprudence upon transcendental, idealistic and neo-' 
 Kantian philosophy. The philosophical premises of this 
 jurisprudence are, therefore, of two kinds. On the one 
 hsnd, the comparative science of law presupposes a logical 
 and formalistic concept of law, which shall assure the 
 unity of the science. On the other hand, this com- 
 parative science, because it fixes by this definite aspect 
 the fundamental unity of the human mind and redis- 
 covers in the history of juridical phenomena the "meta- 
 historical" forces of the realization of unity of mind, 
 presupposes a rational "idea" of law, — no longer 
 formalistic but creating a standard and an abstract 
 criterium of valuation. It becomes necessary, there- 
 fore, to expound both a system of transcendental canonics 
 of juridical knowledge and a system of transcendental 
 metaphysics. To this double exposition Del Vecchio 
 devotes the two other essays which we mentioned at 
 the beginning; and it remains now to summarize from 
 this double point of view the exposition which he himself 
 offers us. 
 
 The canonic problem is almost exclusively treated in 
 Del Vecchio's treatise upon "The Philosophical Presup- 
 positions of the Notion of Law." The present crisis in 
 the philosophy of law is first pointed out, not as an 
 exceptional peril which might threaten the existence of 
 this line of speculation, but as the present form of the 
 premise upon which the very existence of such a phil- 
 osophy depends. By its own definition such a philosophy 
 is subject to a state of perpetual crisis; since its function 
 is to co-ordinate and dominate juridical facts, and since, 
 
SECOND 367 
 
 therefore, every upheaval which occurs in the juridical 
 consciousness requires a renewal of that effort of co- 
 ordination. 
 
 But does not a preliminary question arise as regards 
 the definition of law itself? If Kant could assert even 
 in his day that jurists were still on the search for such 
 a definition, and if the agreement of jurists in this 
 respect is no more an actuality to-day, of what good has 
 the research been? This question seems all the more 
 pertinent, since intuition suffices to furnish sure marks of 
 the recognition of the subject matter and to render the 
 science possible. But Del Vecchio declares particularly 
 that this important point is not the basis of the pre- 
 liminary question. The object of the definition of law is 
 not to assure immediate clearness to the subject matter, 
 but rather to indicate its exact relations with other 
 subjects, and, by separating its attributes, to permit the 
 science of law to be built up as a science. In the absence 
 of a satisfactory definition, a purely historical determin- 
 ation of the characteristics of positive law could do no 
 more than disclose the variations thereof, — merely fur- 
 nishing a proof of the necessary denial of natural law, 
 and therein justifying (because of the relativity of 
 juridical phenomena) that scepticism which, by its mere 
 continuity, from Herodotus to the positive ethics of 
 the present day, must perforce oppose our inevitable 
 aspiration towards the science and towards a rational 
 synthesis based upoii deduction from complex historical 
 law to a general and constant law. 
 
 Diverse methods have been attempted to satisfy this 
 aspiration. Such was, for example, the r61e assigned 
 long ago to the affirmation (realized indeed, in different 
 systematic ways) of natural law. ' Psychological analysis 
 shows that the ideal of an absolute justice forces itself 
 upon our conscience. Gnoseological criticism, by deter- 
 
368 SECOND APPENDIX 
 
 mining the true sphere (exclusively rational) of natural 
 law — by contrasting its purely deontological character 
 with the existence in fact of positive law — by demon- 
 strating that its being is confused with its value — allows 
 us to repudiate the so-called positive negations of 
 this ideal law as beside the point. But from the logical 
 point of view the recognition of natural law, for the very 
 reason that it constitutes a purely ideal criterium of 
 valuation, could not insure the synthesis of law. The 
 universal concept of law cannot be limited in its applica- 
 tion to one particular system of law, but must extend 
 to all systems and to all juridical forms, even to those 
 merely possible. And in this is found a new proof of 
 the distinction which is necessary between the canonic 
 problem and the metaphysical problem of the presup- 
 positions of law. 
 
 Juridical synthesis is no better assured, moreover, by 
 the separation (clearly expressed by Aristotle and the 
 Roman jurists as well as by Grotius) of the general from 
 the particular and accidental elements in the history of 
 law. Besides the fact that this theory tends to destroy 
 the real character of natural and rational law by con- 
 fusing it with the durable elements of positive law, it 
 overlooks the reality, as phenomena, of the accidental 
 elements which it eliminates, and it could not furnish 
 a universal definition applicable to juridical phenomenol- 
 ogy in its entirety. 
 
 The vain attempt has been made, from Plato to Vico, 
 to unify the changing historical law by the establish- 
 ment of a rule fixing the order of its modifications. A 
 "history that shall be ideal and eternal" — such as the 
 thesis of the "corsi" and "ricorsi" of Vico's "Scienza 
 nuova" offers us — might indeed provide a scheme of 
 "immobilization." This is the negation of historical 
 movement, — of history itself, which, "made by men" 
 
SECOND 369 
 
 and representing the reign of the individual, constitutes 
 a perpetual renaissance. It is the negation of progress, 
 since it halts history within the circle of a rigid design 
 and distorts the living reality. Whatever, therefore, 
 may be the value of partial syntheses of the evolution 
 of law, it is impossible to include historical law in its 
 universality by a synthesis of this kind. 
 
 Would not the surest method of unifying historical 
 law be, therefore, to determine the relations of the law 
 of each period to the whole body of elements of social 
 life? This method, which dates back in principle to 
 Hippocrates, found its expression in the Middle Ages 
 even in the work of Thomas Aquinas and in a remark- 
 able passage of Dante. Though put into practice by 
 Machiavelli (who was chiefly occupied in this respect 
 with its political applications), it was, however, only 
 in Vico and Montesquieu that the method, though still 
 very imperfectly measuring up to the facts, became 
 conscious of itself. That aspect of the "Scienza nuova" 
 (as opposed to that of "eternal history") is the more im- 
 portant of the two; and the pregnant idea of Vico con- 
 sists in the fact that he subordinated the external to the 
 psychological circumstances of law, and saw in the law 
 of each people an expression of the "genius" of that 
 people. The eighteenth century economists were large 
 contributors to the exact application of the relativistic 
 method. This inclusion in the equation of all the social 
 factors — as seen in the works of Turgot, Condorcet, and 
 especially of Kant, exhibits the theory of progress in 
 its idealistic interpretation. 
 
 . The last thinker showed the law of progress to be a 
 principle regulating juridical knowledge. By conciliating 
 the empirical research for- facts with this idealism, he 
 found in the whole body of the history of law a gradual 
 realization of reason, — an advance towards the final 
 
370 SECOND APPENDIX 
 
 ideal of pure justice. And though it has been possible 
 to take exception to certain traces of metaphysics, in 
 the thesis of progress, this regulating principle in 
 phenomenological research is inevitable. To transform 
 this study of social conditions into a pure phenomeno- 
 logical inquiry, and to suppress, consequently, every 
 premise properly speaking founded on reasoning, was 
 the work of the German historical school. It set the 
 course of juristic speculation towards the present posi- 
 tivism, in spite of its early ties with the transcendental 
 philosophy of the "becoming" (or rather of the "became") 
 of Schelling and of Hegel. 
 
 But, most of all, this school anchored in the thought 
 of the jurists (along with the idea of the interlocking of 
 all social facts and of their character as a part of nature) 
 the idea of capital importance (anticipated by Vico) 
 of the subordination of these facts, and in particular of 
 juridical phenomena, to the collective intelligence. Of 
 this subordination Savigny was distinctly the interpreter. 
 Thereafter came to be formulated, with respect to the 
 science of law, an absolute relativity which was no longer 
 merely sceptical but methodological. Since him, it 
 is not the essence of law, which furnishes material for 
 research ; it is its history and function. But this banish- 
 ment of the epistemological problem (which is simply 
 an episode in the present reaction against ideology), 
 leads to a disregard of a part of the data, — to a neglect 
 of the uniformities which are encountered so frequently 
 in the history of law, — to the failure to remember that 
 it is the idea alone of a common juridical reasoning that 
 gives a scientific meaning to the comparison of different 
 juristic systems, — to the abandonment of that course 
 towards a general law (human and no longer simply 
 national) which is characteristic of progressive civiliza- 
 tion. The fact of this uniformity alone, at once static 
 
SECOND 371 
 
 and dynamic, does not suffice to solve the canonic problem 
 which has been raised ; since human law, the ideal goal 
 of juristic progress and identical in short with natural 
 and rational law, is not the outcome of a concept applic- 
 able to all the realizations of law. The juristic unifica- 
 tion sought after could not be found by the study of the 
 substance of juridical thought, but only by the analysis 
 of the form of this thought. 
 
 The distinction in logic between the form and the 
 substance, — the affirmation of form in the sense of 
 Aristotelian immanence and not of Platonic transcen- 
 dence, — the modern position of the central philosophical 
 problem of innate ideas, — the Kantian solution of this 
 problem (by the determination of the element of form 
 as a prerequisite, not in regard to time but in regard to 
 understanding, and of experience possible as well as 
 actual), — and hence the attribution to this "a priori" 
 form, of the qualities of universality and necessity which 
 are separated by an abyss from the qualities furnished 
 by generalizations from experience, — all this dialectic 
 deduction permits us to reach a conceptual definition ' 
 of law. . The claim of contemporary positivism to 
 monopolize, while mutilating, the Kantian thesis, pro- 
 ceeds from the fundamental error of confusing actual 
 with possible experience, of overlooking the qualitatively 
 superior importance of the intelligible universality 
 — inherent in sensible reality, but not exhaustible by it, 
 since this universality constitutes the very prerequisite 
 of and limit to all the virtualities of experience. The 
 concept of the inherent and of the transcendental in 
 law, is of itself indifferent to every definite juridical con- 
 tent. It is "a priori" logical, but not ontological (in 
 the manner of the "Ideas" of Plato and of Hegel). And 
 it is no criterium for the valuation of legal phenomena, 
 answering the preliminary question, "quid jus?" but not 
 
372 SECOND APPENDIX 
 
 the particular question, "quid juris?" This concept 
 alone furnishes the necessary principle for the scientific 
 systematization and for the comparative history of 
 juridical phenomena as a whole, since it determines, as 
 a basis for the inquiry into these complex and variable 
 phenomena, an immutable essence of law, the subject 
 of a unifying category. 
 
 It is possible, henceforth, to appreciate, no longer 
 in its relations to the content, but to the logical form 
 of law, the value of juristic empiricism. When Kant 
 affirmed the principle of the methodological necessity of 
 this transcendental form, the knowledge of the history 
 of law was as yet little developed. Especially from the 
 speculative point of view they could not help clinging 
 to the conceptual problem of the essence of law. But 
 after the failure of its dogmatism (which was, more- 
 over, vague, and of a social rather than strictly legal 
 scope) , just as after the failure of the Hegelian dogmatism 
 by which it had been in part inspired, the result of the 
 labors of the German "historical school" was to imbue 
 the speculation of jurists with empiricism and pure 
 "historicism." This explains the abandonment as to 
 method of all research into the essence, and the positivist 
 attempt to extract the concept of law from the data of 
 experience alone. This paradoxical attempt comes front 
 ignoring the inevitable exigencies of critical reflection. 
 The world is our visualization, and as such is subject 
 to the formal laws of our perception, which is the "organ 
 of ideas." Therefore, "by an inherent necessity of 
 thought, law is law only by virtue of the ideal form which 
 determines it, and nothing can he known as law unless it 
 is in relation with that form." To attempt to wrest the 
 concept of law from a generalization of juridical data, as 
 the positivists claim to do, is to attribute to phenomena 
 and the knowledge of phenomena an alogical character, — 
 
/ 
 
 SECOND 373 
 
 to forget with inconsistency and ingratitude that this 
 discovery of the notion in the facts presupposes an 
 original logical synthesis, and that our recognition of 
 the juridical nature of a phenomenon is simply retro- 
 spective. 
 
 It is the province, therefore, of the transcendental 
 philosophy of law, and not of the empirical science of 
 law, to deduce this fundamental notion. Of this uni- 
 versal and not purely idealistic definitibn of juridical 
 phenomena, in its inexhaustible and necessary poten- 
 tiality, genetic research can only furnish a crucial and 
 partial verification. "The logical form of law is a 
 primordial concomitant of reason, though its slow 
 manifestation ki the consciousness can be followed parallel 
 to the historical development of the corresponding 
 reality." This critical demand of an "a priori" form 
 of law is in accord with the actual methods of the jurists 
 themselves, who, more than any other class of scholars, 
 make constant use of conceptual abstraction. But the 
 universal concept which determines the essence of law, 
 since it transcends the science of the jurists and belongs 
 to philosophy has been neglected up to tha present day 
 by the jurists, — despite the recent efforts of the German 
 "AUgemeine Rechtslehre" towards a synthesis, though 
 even in this case these efforts are restricted to the law 
 of a particular period. The elucidation of this concept 
 should be the work of "those who have undertaken in 
 our day to reclaim the philosophy of law from the 
 fallacious doctrines of empiricism, thus relating this 
 critical movement to that 'return to Kant' which is truly 
 one of the characteristic signs of modern thought." 
 
 And this transcendental doctrine does not give rise 
 to an empty formalism, since the formalistic concept 
 of law expresses the law's true but purely logical essence; 
 this, in experience, is endlessly refracted, facilitates 
 
374 SECOND APPENDIX 
 
 investigation of the content of experience, and finds 
 in the actual analysis thereof its necessary complement. 
 In short, this "reclamation" is directed not against 
 "the positive or historical science of law, which is clearly 
 legitimate as knowledge," but against "historicism 
 raised to a philosophy." 
 
 IV 
 
 The inquiry which we have just summarized, offers, 
 in its transcendental nature, a purely formalistic solution 
 of the special problem raised by the existence of juridical 
 phenomenology. It remains to analyze "a priori" 
 knowledge in order to disclose there the truly juridical 
 conditions of experience. And this new determination, 
 though the motive for its formation arose from a canonic 
 necessity, could not remain shut within the domain 
 of pure logic, nor even within the purely formalistic 
 boundaries of the indeterminate possible. The task 
 of philosophy, in the full S^ense of that term, should be 
 an elucidation of the inherent "metaphysics" "of the 
 human mind," a suggestion which we have seen indi- 
 cated by Vico. And it is, in fact, by this reduction 
 of complex data to the fundamental unity of a single 
 principle that that "harmonious and complete vision 
 of the universe" explanatory of empirical phenom- 
 enology itself may be finally realized. To this task, — 
 that is to say, to this establishment of a systematic 
 method of knowledge, centralized in the unifying notion 
 (unifying in the absolute sense) of universe or of nature; 
 which shall be superior to the pre-philosophical "presen- 
 tation" of unsystematized phenomena; and which 
 reflects one of the mind's innate needs, of which scep- 
 ticism is simply a negative expression — to this task 
 Del Vecchio devoted his metaphysical essay ("meta- 
 
SECOND 375 
 
 physical" still in the transcendental sense) upon "The 
 Concept of Nature and the Essence of Law." : 
 
 A complete systematization of empirical data, con- 
 sidered as nature, is furnished by tjie strict application 
 to phenomena of the principle of causation. And the 
 fact that this application is made manifest currently 
 with the phenomenon observed does not authorize us 
 to deduce such a principle from it; for as an indis- 
 pensable condition of a scientific conception of nature 
 and of the establishment of an unbroken chain of phen- 
 omena, the principle of causation constitutes, rather, an 
 intrinsic necessity of thought, — a function of the 
 intellect as "legislator of nature," according to the 
 doctrine of Kant and Fichte. Besides, this systematiza- 
 tion which science exacts is incomplete in that it does 
 not permit of attaining, under pain of contradiction, 
 either the beginning or end of the chain of phenomena, 
 and in that it obliges the mind to presuppose a 
 substantial substratum, an indestructible material or 
 energy, — in its turn an essential of science and the 
 object, too, of a "metaphysical" concept. It is in- 
 complete, furthermore, in the sense that by determining 
 the mechanical equation of phenomena, it converts 
 qualitative into quantitative differences, and must 
 appear proportionately less adequate as we try to apply 
 it to the highest forms of existence. From this restriction 
 it follows that the causative synthesis necessarily rejects 
 every valuation of phenomena; that it discovers every- 
 where exclusively the natural and the normal; and that 
 it excludes teleological conclusions even from the knowl- 
 edge of human acts, as is shown in the type system 
 of Spinoza. Such a conception is, moreover, legitimate 
 in its universal extension. In all matters, methodo- 
 logical reduction from the arbitrary and accidental to 
 the natural and determined constitutes progress in 
 
376 SECOND APPENDIX 
 
 science. Acts themselves, considered as natural 
 phenomena, are necessarily determined and foreseeable. 
 But this legitimate and inevitable synthesis is not 
 the only one that is actually and logically possible. The 
 fact is that teleological systematization is not less legiti- 
 mate and indispensable than mechanical synthesis. 
 Aristotle's mistake lay not in attaching nature to final 
 causes, but in leaving to one side the properly causative 
 explanation, so as to limit himself to a valuation of phe- 
 nomena, and in neglecting physics too much by reducing 
 his work to a philosophy of nature. And Descartes' 
 abandonment of teleology, prior to Leibniz and Kant, 
 is explainable primarily as a reaction against this misuse. 
 It cannot be objected to the synthesis based upon final 
 causes thjat it proceeds subjectively, because the explana- 
 tion based upon primal causes is also subjective. The 
 two principles constitute two internal needs of thought. 
 And we cannot with Kant limit the immediate applica- 
 tion of finality to organic nature, or ' rather, exclude 
 the world of life from the mechanical explanation. Both 
 principles, considered as heuristic, are equally inevitable 
 and unavoidable. But the teleological method, which 
 permits us to observe the qualitative progress towards 
 a higher form, — to embrace the whole of phenomena 
 in its unity, — to perceive, as from within, the series 
 of causes, — to evaluate hierarchically the modes of 
 existence, — to distinguish the normal from the abnor- 
 mal, — gives to the concept of nature a more com- 
 plete ideal sense, seizes the reality (according to 
 Hegelian philosophy) in the absolute spontaneity of 
 its principle, and shows this to us in its rational and 
 progressive organization and individualization, until 
 it is raised to the level of intelligence and of a subject 
 capable of reflecting upon itself. Thus "this concept 
 of nature is philosophically superior, since it puts us into 
 
SECOND 377 
 
 direct and intimate relation with the reality of which we 
 form a part, and since it reveals to us the profound iden- 
 tity of our being with universal being." 
 
 If man, from the mechanical point of view, forms 
 part of nature, yet from another point of view, and 
 because the world presupposes consciousness and ideas, 
 considered as forms, that regulate consciousness, he sums 
 up entire nature in himself; and reality is in its whole 
 a function of the Ego. . Thus the Ego, as the "organ 
 of ideas" and not as an empirical personality, is autono- 
 mous in its subjectivity. Even though everything is 
 determined in nature, and liberty is apparently abolished, 
 yet liberty reappears triumphant the moment that the 
 law of causation becomes an emanation of the subject. 
 Objective gives way to subjective orientation of thought; 
 the given fact ceases to be an original datum ; subjectivity 
 is no longer a negligible force, but the prerequisite itself 
 of all possible reality. And this point of view, superior 
 to others in theory, is the only admissible one in practice, 
 since acts, which as physical phenomena are indifferent 
 to any valuation, become objects of valuation by their 
 relation to the subject as well as to their absolute prin- 
 ciple. It is consequently in this relation that the ethics 
 and the philosophy of law find their foundation. The 
 absolute character of the person and the supremacy 
 of the subject over the object is reflected in the supreme 
 norm of practice, which bids man act as an autonomous 
 being, as a rational and noumenal Ego, conscious of his 
 essential identity with the being of all other subjects. 
 It is this feature alone of the subjective and ultra-phe- 
 nomenal essence of man that makes possible the impera- 
 tive, presents an opportunity for decision, and imposes 
 upon the subject the task of surmounting that crisis, and 
 effecting a reconciliation between himself as a "being 
 complete in himself" and his phenomenal existence as 
 
378 SECOND APPENDIX 
 
 "himself a part of being." Human acts from this 
 point of view are no longer explainable simply by their 
 empirical and natural relations, but are appraised as 
 expressions of liberty. Thus, "the absolute elevation of 
 the Ego above phenomena" is, in its entirety (as Kant 
 teaches implicitly and Schelling explicitly) "the limit 
 of theoretic philosophy and the principle of ethics." 
 
 The transcendental principle of action is defined in 
 two forms: In so far as it is a question of a subjective 
 relation of the Ego to itself, we have the moral principle 
 of duty and of the necessity of the act ; in so far as it is 
 a question of an objective relation between subjects, we 
 have the juridical principle of the possibility of the act 
 and the ability of compelling respect on the part of another. 
 The two laws are co-existent and equally categorical. 
 The duty to act, as a principle, autonomous and univer- 
 sally valuable (considered legislatively), implies an in- 
 violable prerogative of the person; the principle of law 
 is deduced "a priori" from reason; it is not dependent 
 upon facts; it exists prior to any application, and is of 
 value to all men by virtue of its nature alone. Here is, 
 then, not the purely formalistic concept of law, but the 
 ideal serving as the measure and standard of the rational- 
 ity of law, — positive in its content, in a word, natural 
 law. In this way that moral scepticism is overcome 
 which would be irresistible from the logical point of 
 view of the concept without the aid of a criterium of val- 
 uation. In this way, too, the difference is reaffirmed 
 between the two problems of the philosophy of law, 
 the one canonic and formalistic, the other metaphysical 
 and deontological. 
 
 The inaccurate and equivocal conceptions of nature 
 have led the theorists of natural law to paralogisms 
 which critical and Kantian idealism alone can remedy. 
 The pseudo-historical character of conceptions of this 
 
SECOND 379 
 
 kind, and the confusion resulting from them between 
 the primitive and the normative, explain the present 
 positivist negation of natural law. But the transcen- 
 dental conception robs these belated negations of 
 their cause of existence. The neo-Kantian philosophy 
 of law maintains in its entirety both the naturality 
 of historical law and the supra-historical essence of 
 natural law. By overcoming the confusion between the 
 natural and the primitive, between causative explanation 
 and valuation, it none the less admits of a finality in 
 the evolution of primitive law, and it regards the juridical 
 ideal of autonomy as the limit towards which positive 
 law itself tends. "Criticism has taught us to dis- 
 tinguish the truth of the phenomenon from the truth 
 of the ideal necessity which commands it, while offering 
 us also the means of recognizing the gradual reconcilia- 
 tion of the two in history." 
 
 V 
 
 The three essays of Del Vecchio which we have thus 
 summarized briefly give a good presentation of the 
 critical idealism by which he is inspired, in its double 
 aspect, logical and metaphysical. The numerous cita- 
 tions which the work contains are witness to the author's 
 desire to express in it, not his own feehng towards the 
 rational prerequisites of juridical science, but rather a 
 general tendency of philosophy, at once traditional and 
 contemporary, — a tendency which he finds not only 
 amongst the philosophers occupied with law, but also 
 amongst the jurists themselves. We wish to indicate 
 briefly, on the one hand, what are the philosophical 
 doctrines with which his own doctrine presents conscious 
 affinities, and, on the other hand, what is the relation 
 that he himself would desire to see established between 
 
380 SECOND APPENDIX 
 
 the positive science of universal law and his own trans- 
 cendental idealism. 
 
 The philosophical tradition defined by Del Vecchio 
 is, as it were, staked out by the great idealistic doctrines 
 of Aristotle, Vico, Leibniz, Kant, Fichte and Hegel. 
 And for that reason, while one may well note the definite 
 relation attaching his work to the principal "schools" 
 of contemporary Italy (those of Padua, Florence and 
 Naples), it is rather with the "philosophy of Spirit" of 
 Croce and his neo-Hegelianism that we would, in fact, 
 ally the work of Del Vecchio. To the anti-agnostic 
 and anti-idealistic relativism of Ardig6, (though, indeed, 
 he himself in no wise professes agnosticism), the idealism 
 of Del Vecchio is expressly opposed. Positivism freed 
 from all critical presuppositions, and affirming itself 
 (by assuming the proof) as pure relativism, and pure 
 historicism r-aised to a philosophy, — it is precisely these 
 systems which Del Vecchio proposes to combat by his 
 transcendental doctrine. As to the pragmatism of 
 the "Leonardo," the constant sympathy of this current 
 of thought with empiricism, the aversion which the 
 associates of Papini (herein resembling William James) 
 evidence for the Kantians and the Hegelians, their 
 sarcasm with regard to the "a priori," the concept 
 and philosophical systematization, — all these features 
 seem to mark off their negative and radical critique 
 from the doctrinal and positive critique of Del Vecchio. 
 
 But the Hegelianism of Croce cannot, however, claim 
 Del Vecchio as one of its disciples. Though he, too, is 
 persuaded that the only knowledge wholly admissible 
 is that which, by being philosophical and not simply 
 naturalistic, presents an absolute character and is 
 associated with the pure "idea," — though it seems 
 to us, moreover, that this doctrine cannot be contrasted 
 with that of Croce, on the ground that he himself definitely 
 
SECOND 381 
 
 rejects the Hegelian thesis of the impelling force 
 imparted to "ideas" (for Croce in repudiating the Hege- 
 lian philosophy of nature rejects, we believe, this thesis, 
 seeing in it a pseudo-philosophical affirmation even of 
 the "naturalistic"), nevertheless a radical opposition 
 is apparent between the doctrine of the neo-Hegelians 
 and that of Del Vecchio by the distinction upon which 
 he deliberately insists between the concept and the ideal. 
 By this distinction of principle, indeed, he contrasts the 
 world of "values" with the world of "essences." He 
 contrasts the practical problem of making a decision 
 in a given instance with the entirely theoretical task of 
 defining the universal form. He determines the very 
 notion of the "rational " in an original fashion as the 
 realization of the "ought to be" and not simply the 
 hypostasization of the "becoming." 
 
 And while he shows in repeated passages his apprecia- 
 tion of the German historical school of Savigny and 
 Hugo, and points out in the historicism of this school 
 the influence exercised by the Hegelian philosophy and 
 the emphasis which it wished to impart to the universal 
 and impartial "rationality" of all becoming, "per se" — 
 is it not also the neo-Hegelianism of Naples which is hit 
 by this criticism? And cannot the objection be raised 
 against him equally that, by the "becoming" which he 
 rationalizes, since he refuses to see in it the progressive 
 realization of a practical and rational task, he, in fact, 
 legitimatizes and rationalizes exclusively the "became?" 
 And if by reason of this contrast, — by this teleology 
 of nature, — by this supreme importance attributed 
 to the world of "values," Del Vecchio approaches prag- 
 matism, in a measure, yet it is as a rationalist that he 
 would understand this tendency; and his teleology, 
 truly anti-empirical in principle, shows essential agree- 
 ment with that of Fichte and that of Kant alone. The 
 
382 SECOND APPENDIX 
 
 "transcendental idealism," the "renaissance" of which 
 we have remarked in the significant work of this philos- 
 opher of juridical thought, is truly, in this sense, a neo- 
 Kantism. 
 
 This neo-Kantian quality of Del Vecchio's doctrine 
 determines the relation of his idealism to the positive 
 science of law. While positivist empiricism exalts the 
 study of phenomena at the expense of conceptual forms, 
 putting all knowledge under the measure of time and 
 history, and while, on the other hand, neo-Hegelian 
 idealism exalts the pure concept at the expense of 
 phenomena by refusing to recognize true concepts in 
 the laws of nature aiid true knowledge in the natural- 
 istic or even in the mathematical sciences, yet trans- 
 cendental idealism affirms (according to the Kantian 
 thesis) both the empirical realism pf the natural sciences 
 and the value, independent of time and metahistorical, 
 of the pure conceptual forms. Hence the necessary 
 relation between the philosophical science of concepts, 
 and the positive and historical science of law. • Empiri- 
 cism, because it sees in essence nothing but generaliza- 
 tions, could never discover, beneath and beyond the 
 variations in positive law, the changeless and universal 
 character of law; it thus fails to give juridical learning 
 the unifying principle indispensable to it, and opposes 
 to those jurists who, by that necessary hypothesis 
 of a rational and constant juridical essence, determine 
 in practice a comparative and universal juridical 
 phenomenology. ' Neo-Hegelian idealism, because it 
 sees in pure concepts something else than the inex- 
 haustible and rational potentiality progressively realized 
 by historical law, and because by its denial of the 
 rationality of juridical phenomenology, it abolishes the 
 relation between the essences and positive determina- 
 tions, condemns itself, therefore, to remain a vain 
 
SECOND 383 
 
 philosophy of form, and does not permit of the justification 
 of the comparative science of law, since it does not 
 regard the concept as the unifying principle of scientific 
 usage. - On the other hand, because transcendental 
 idealism makes essences that are absolute and in no 
 wise empirical generalizations out of conceptual forms, 
 and because it sees in these rational forms inex- 
 haustible potentialities inherent in the natural real- 
 ization of the aspects of positive law, — transcendental 
 idealism thus maintains the universality 'of pure law, 
 changeless because wholly logical and nowise temporal, 
 and maintains as well the rationality of the varying 
 aspects of historical law, in the concept of which it 
 discloses the unifying principle and the truth of the 
 phenomenology of that universal law which determines 
 specifically the partial realizations of pure law and of 
 its inexhaustible potentialities. ■ The naturalistic and 
 mechancial explanation of positive and actual law, by 
 scientific application of the metaphysical law of causality, 
 does not at all furnish the unity of this law, if its suc- 
 cessive moments and its substance are under considera- 
 tion. But, if its constitutive and essential form can 
 be examined, the unity of positive law appears as a 
 necessity; and to this prerequisite, exclusively, the 
 comparative and natural science of law owes its possibil- 
 ity. Plainly the transcendental method, therefore, is 
 seen to be the one faithfully followed by the neo- 
 Kantian juridical idealism, and assures for it an incom- 
 parable superiority over positivism and neo-Hegelianism. 
 The fact of juristic knowledge and the reality of positive 
 law, in their common existence, are both subject to 
 this necessary prerequisite of all possible juridical 
 experience, — the limitirig concept of pure rational law. 
 But neo-Kantian idealism lays down as necessary a 
 double principle, because, as has been explained, it 
 
384 SECOND APPENDIX 
 
 opposes to the world of essences the world of values. 
 In this, too, it is faithful to the transcendental method 
 by which it is inspired. To place the position of the 
 practical problem and of the realization of the juridica:! 
 "ought-to-be" in opposition to the (dynamic no less 
 than static) explanation by historical causality, (sub- 
 ordinated, however, to the universal concept), is to apply 
 to the question of law the general opposition formulated 
 by Kantian idealism between the problem of theoretic 
 reason and transcendental knowledge of the existent 
 and the problem of practical reason and transcendental 
 legislation of action. And just as Kantian idealism 
 followed up the synthesis of the two kinds of reason by 
 reducing the principles of form to the activity of the 
 transcendental Ego, so also neo-Kantian juridical idealism 
 for gnoseological reasons determines the Ego, whom 
 it declares to be the ne,cessary primate of nature, as the 
 common and transcendental source of the science of 
 positive law and of the realization of natural law. 
 
 No doubt, just as knowledge in general is conceivable 
 from the Kantian point of view, by reason of the synthetic 
 activity of the Ego and the constitutive forms of that 
 activity, without postulating the ought-to-be and tlie 
 practical problem, so juridical science would be con- 
 ceivable from the neo-Kantian point of view, by reason 
 of the pure form of law — a principle of the causative 
 and historical explanation of law, — without finding it 
 necessary to postulate here either the practical problem 
 of the juridical "ought-to-be," the necessity of the oppor- 
 tunity for decision, and the necessary realization of 
 ideal and natural law. This is just what Del Vecchio 
 points out when he declares that, from the pure logical 
 point of view, the forces of historical law are indifferent 
 so far as the question of their value is concerned. But 
 did not Kant's idealism already indicate, though incom- 
 
SECOND 385 
 
 pletely, the co-existence of the mechanical explanation 
 and of the teleological attitude? And in its doctrine 
 of the noumenon, did it not tend to subordinate the 
 mechanism of nature and science to the expressed finality 
 of the autonomous Ego? While Kant saw in the teleo- 
 logical principle a heuristic rule as regards positive 
 research, he himself (as Del Vecchio proves) applied 
 this same heuristic principle to historical knowledge of 
 existing law. And since the science of comparative 
 law reveals similarities which do not spring from imita- 
 tion, — since the characteristics of complex law converge 
 little by little towards the unity of human and rational 
 law, — since the law of progress correctly expresses a 
 heuristic rule favorable to historical research into the 
 phases of positive law, it is vain to disassociate the 
 logical necessity of the notion defining essence and 
 the teleological necessity of the ideal defining values. 
 It is indeed the positive science of existing law, made 
 subject to the concept of the juridical essence which 
 leads to the formulation of the hierarchy of values and 
 the necessity of the ideal. Thus the teleology of law, 
 quite as well as the causative explanation of law, is 
 conformable to the transcendental and Kantian method. 
 Nay more, does not the inexhaustible feature of the 
 juridical essence already imply the contrast between the 
 rational subject, creator of the possible, and the phenom- 
 enon which is simply existent? This implied contrast, 
 which the logical position of the idealistic problem neces- 
 sarily included is cleared up by the doctrine of the 
 primacy of the Ego in relation to nature — a doctrine 
 which corresponds to the metaphysical position of this 
 problem. It is, therefore, in entire fidelity to the method 
 consciously proclaimed by hirh that Del Vecchio has in 
 this work — to us significant of a new philosophic 
 tendency — followed up this attenipt at an idealistic 
 
386 SECOND APPENDIX 
 
 justification of a positive science of universal law with 
 the formulation of an absolute juristic criterium. 
 
 What is here important is, indeed, this neo-Kantian 
 tendency. Is it not the conception of a world of values 
 that dominates in this new philosophy of law? The 
 difiSculties of the original philosophy of Kant diminish 
 when, by limiting the notion of the actual to that which 
 is in fact realized, we regard the noumenal world from a 
 practical point of view as a system of values, and, there- 
 fore, as a rational principle of potential realizations. 
 And since this very world of essences offers the system 
 of potentialities which historical phenomena will realize 
 only partially (actuated as it will be by the pursuit of 
 a better), does it not present for this very reason, 
 to the scholar who unifies the development of phenomena 
 and studies their progress, a value of truth, — wholly 
 formalistic in appearance, but unfolding itself by the 
 comparison of successive elements of the empirical 
 substance, and their relative evaluation? 
 
 This is saying that the logical problem of the idealistic 
 philosophy of law is itself impliedly of teleological nature. 
 But it is also saying, perhaps, that a new research into 
 this notion of a "world of values" would still further 
 deprive them of the ontological character which they 
 owe to the really Kantian origin of the doctrine; that 
 such a research would definitely resolve into "ought-to- 
 be" the necessity and the universality and the exhaustless 
 potentiality which characterize them; that it would 
 determine their alleged "timelessness" as absolute 
 immanence and creative potentiality. By this critique, 
 (still more radical and more in accord, it would seem, 
 with its own spirit), the transcendental idealism of the 
 neo-Kantians would draw away from the neo-Hegelian 
 dialectic. Abandoning the rigid forms raised to entities 
 and the absolute Ego determined as being, it would 
 
SECOND 387 
 
 approach Pragmatism; whose proper function is, indeed, 
 to substitute for the reign of essences and for the idol- 
 atry of conceptual forms the reign of values — to 
 substitute for the affirmation of the became or the 
 fixed, the valuation of the "becoming." 
 
INDEX 
 
 [The numbers refer to the pages.] 
 
 Abelard, 72. 
 
 "Abhandlung des Strafrechts" 
 
 (Berner), 132. 
 "Abhandlungen zur Erlauterung 
 
 des Idealisraus der Wissen- 
 
 schaftslehre" (Schelling), 254. 
 Absolute justice, 14. 
 Abstraction, conceptual, 70. 
 Academies, the second and third. 
 
 The Sceptic theory, 10. 
 Achelis, 296. 
 "Actio des romischen Civilrechts 
 
 vom Standpunkte des heu- 
 
 tigen Rechts, Die" (Wind- 
 
 scheid), 188. 
 Acts — 
 
 analysis, of which conduct 
 consists, 126. 
 
 cannot lack extrinsification, 
 135. 
 
 no distinction between ex- 
 ternal and internal, 128. 
 Actual need of a logical treatment 
 
 of law, 6. 
 Affolter, 278. 
 Aguil&a, 209. 
 Ahrens, 52, 163, 200. 
 Albertus Magnus, 72. 
 Alighieri, 34, 35. 
 Aliotta, 248. 
 "AUerlei von dinglichen Rechten" 
 
 (Bekker), 190. 
 "AUgemeine Rechtslehre" — ■ 
 
 and the "Analytical School," 
 110. 
 
 criticism of, 112. 
 "AUgemeine Staatslehre" (Jel- 
 
 linek), 122, 332. 
 "Alt-arisches Jus Gentium" (Leist) , 
 
 327. 
 "Althusius, J., und die Entwick- 
 
 lung der naturrechtlichen 
 
 Staatstheorien" (Gierke), 289, 
 
 303. 
 
 "Analytische Beleuchtung des 
 
 Naturrechts und der Moral', 
 
 (Herbart), 6. 
 "Analytical School" — 
 
 and AUgemeine Rechtslehre, 
 110. 
 "Analytika Posteriora" (Aristotle), 
 
 117. 
 "Ancient Law" (Maine), 43, 168, 
 
 222, 282, 290, 297, 319, 324, 
 
 331. 
 "Ancora dell' idee di progresso" 
 
 (Vidari), 329. 
 "Anmerkungen zu Schelling" 
 
 (Schopenhauer), 262. 
 Annfie sociologique, L', 30. 
 Anselmo of Aosta, 72. 
 "Antinomia dello spirito umano, 
 
 Un' " (Faggi), 15. 
 "Antropologia in servigio della 
 
 scienza morale" (Rosmini), 
 
 131, 137. 
 Anzilotti, 17, 19, 65. 
 ' Aipaala, 10. 
 "Apologieder Jurisprudenz" (Rets- 
 
 lag), 109. 
 "Architektonik der reinen Ver- 
 
 nunft" (Kant), 4. 
 "Archiv fiir civilistische Praxis" 
 
 (Bulow), 179. 
 Ardigd, 114, 222, 319, 333. 
 Aristotle • — ■ 
 
 fault of concept of reality, 
 240. 
 
 historical modification, 26. 
 
 partial uniformity of law, 21, 
 Aristotle, 12, 21, 26, 33, 70, 71, 72, 
 
 74, 76, 78, 117, 207, 240. 241, 
 
 242, 250, 253, 259, 278, 279, 
 
 281, 293, 300, 303, 306. 
 "Aristotele esposto e esaminato" 
 
 (Rosmini), 71. 
 Arndts, 177. 
 Arnold, 33, 34, 52, 109. 
 
390 
 
 INDEX 
 
 [The numbers refer to the pages.] 
 
 "Assunto primo della scienza del 
 
 diritto naturale" (Romagnosi) , 
 
 172, 177. 
 "Aufgaben einer allgemeinen 
 
 Rechtswissenschaft, Ueber 
 
 die" (Post), 62, 296. 
 Augustine, 68. 
 Aulus Gellius, 33, 149. 
 Austin, 65, 111, 138, 139. 
 "Azione nel sistema dei diritti, 
 
 L' " (Chiovenda), 188. 
 
 Bachofen, 167. 
 
 Bacon, 35, 230, 231, 233, 242. 
 
 Bain, 12, 229. 
 
 Balch, 332. 
 
 Baldwin, 137. 
 
 Barbeyrac, 177. 
 
 Barthaemy-St. Hilaire, 12. 
 
 Bartolomei, 100. 
 
 Bauch, 235, 251, 255. 
 
 Baumstark, 121. 
 
 "Bausteine fiir eine allgemeine 
 
 Rechtswissenschaft auf 
 
 vergleichend-ethnologischer 
 
 Basis" (Post), 56, 57, 59, 61, 
 
 205. 
 Bayet, 251. 
 "Bedeutung und die Fortschritte 
 
 des modernen Volkerrechts, 
 
 Die" (Bluntschli), 64. 
 "Begriff, Formen und Grundle- 
 
 gung der Rechtsphilosophie" 
 
 (Harms), 316. 
 "Begriff des Gesetzes, Ueber den" 
 
 (Wundt), 225. 
 "Begriff des subjektiven Rechts, 
 
 Der" (Schuppe), 170, 175, 
 
 178, 203. 
 "Begriff eines socialen Gesetzes, 
 
 Ueber den" (Riimelin), 30. 
 "Begriff und Begriindung der 
 
 sittlichen Gesetze, Ueber' ' 
 
 (Zeller), 278, 307. 
 "Begriffe von natura und naturalis 
 
 in den juristischen Quellen, 
 
 Ueber die" (Voigt), 252. 
 Bekker, 190, 204. 
 Bentham, 138, 139, 144, 330, 333. 
 Bergbohm, 2, 6, 17, 51, 92, 111, 
 
 113, 120. 
 
 "Bernardino Telesio ossia studi 
 storici su I'idea della natura 
 nel risorgimento italiano" 
 (Fiorentino) , 230, 256. 
 
 Bernardo of Chartres, 72. 
 
 Berner, 132. 
 
 Bernhoft, 62, 198, 296. 
 
 Berolzheimer, 297, 308. 
 
 Berr, 30. 
 
 Bertlni, 310. 
 
 "Beruf unserer Zeit fiir Gesetz- 
 gebung und Rechtswissen- 
 schaft, Vom" (Savigny), 51. 
 
 Beseler, 169. 
 
 "Bestimmung des Menschen, Die" 
 (Fichte), 226, 236, 254, 260, 
 264, 266. 
 
 Bierling, 111, 112, 122, 127, 170, 
 172, 174, 175, 178, 179, 180, 
 186, 188, 190, 200, 203, 209. 
 
 Binding, 111, 179, 180, 184, 192, 
 195, 197, 201, 203. 
 
 Bluntschli, 26, 64, 93, 117, 122. 
 
 Bodin, 27, 35. 
 
 "Bodin, pr^decesseur de Montes- 
 quieu" (Fournol), 35. 
 
 Boethius, 279. 
 
 Bonfante, 252, 296. 
 
 "Book of Fallacies" (Bentham), 
 330, 334. 
 
 "Bossuet, Vico, Herder" (Jouf- 
 froy), 41. 
 
 Bougie, 209. 
 
 Boutroux, 30, 247. 
 
 "Briefe iiber naturliche Religion" 
 (Frauenstadt) , 79. 
 
 Brinz, 148, 173, 188, 190. 
 
 Brugi. 48, 49, 134, 188, 319, 320, 
 323. 
 
 Bruno, 118, 229, 258, 261. 
 
 Bruns, 22, 169. 
 
 Bryce, 19, 252, 323. 
 
 Bulow, 179. 
 
 Burlamaqui, 177. 
 
 Burle, 241, 252, 293. 
 
 Caird, 314. 
 Callicles, 155. 
 Campanella, 27. 
 Campbell, 139. 
 
INDEX 
 
 391 
 
 [The numbers refer to the pages.] 
 
 "Cangiamenti ed evoluzione" (Ali- 
 
 otta), 248. 
 Cantoni, 26, 27, 30, 36, 38, 39. 
 Carle, 16, 19, 34, 35, 37, 65, 153, 
 
 157, 168, 199, 292, 306, 318, 
 
 332. 
 Carlyle, 252, 289, 324. 
 Carneades, 10. 
 Caro, 291. 
 Carrara, 133. 
 Carriere, 230. 
 Catellani, 62. 
 Cathrein, 280. 
 "Causa, principio e uno, De la" 
 
 (Bruno), 258. 
 Causal criterion — 
 
 co-ordination of phenomena, 
 224. 
 
 external, explaining neither 
 beginning nor end, 226. 
 
 not qualitative, 228. 
 Causal principle — 
 
 true validity of, 235. 
 Causality and determinism, 260. 
 Causes, final ■ — • 
 
 idea of, 230. 
 Cavagnari, 19, 26, 49. 
 "Cenni sui limiti e suUa direzione 
 
 degli studi storici" (Romag- 
 
 nosi"), 39. 
 "Characteristics of Men.Manners" 
 
 (Shaftesbury), 304. 
 Chiappelli, 9, 33, 293. 
 Chiovenda, 188. 
 Chrysippus, 126, 171. 
 Cicero, 10, 14, 60, 171, 185, 267, 
 
 278, 301, 324, 326. 
 Cimbali, 19. 
 Cincii, 253. 
 "Ci6 che i vivo e cid che 6 morto 
 
 della Filosofia dl Hegel" 
 (Croce), 260, 286, 329. 
 "Codificazione civile e le idee 
 
 moderne che ad essa si riferis- 
 
 cono, La" (Filomusi-Guelfi) , 
 57, 330. 
 Coercion — 
 
 and compulsion, 202. 
 Cogliolo, 113. 
 Cohen, 113, 233. 
 CoVonna, Egidio, 303. 
 
 \ 
 
 "Comparative Legal Philosophy" 
 
 (Miraglia), 16, 19, 114, 205, 
 
 231. 
 Comparative law, 54. 
 Compulsion — 
 
 and coercion, 202. 
 Comte, 40, 42, 44, 45, 48, 52, 69, 
 
 60, 108, 238, 239. 
 Comte — 
 
 sociology, 52. 
 Concept — 
 
 confusion of, with ideal, 78. 
 
 logical antecedence of, 101. 
 
 precedence of, is logical, 76. 
 Concepts — 
 
 needs of distinction between 
 teleological and causal, 239. 
 Conceptual abstractions, 70. 
 Conceptualism, 72. 
 "Concetto del diritto, 11" (Del 
 
 Vecchio), pub. as Part II, 125. 
 "Concetto del diritto naturale e del 
 
 diritto positive nella storia 
 
 della Filosofia del diritto" 
 
 (Filomusi-Guelfi), 16, 19, 37, 
 
 114, 153, 292, 310. 
 "Concetto della enciclopedia del 
 
 diritto, Del" (Filomusi-Guelfi) . 
 
 11, 37. 
 "Concetto della natura e della 
 
 principio del diritto, 11" (Del 
 
 Vecchio), pub. as Part. Ill, 
 
 219. 
 "Concetto della storia nelle sue 
 
 relazioni col concetto dell' arte, 
 
 II" (Croce), 30. 
 Condition of man in nature, 258. 
 "Condizioni che escludono o dimin- 
 
 uisco^o I'imputabilita, Delle" 
 
 (Filomusi-Guelfi), 133. 
 Condorcet, 44. 
 Conduct — 
 
 analysis of acts, 126, 
 "Considerations sur la France" 
 
 (De Maistre), 117. 
 "Consuetudine nei suoi rapporti 
 
 col diritto e colla legislazione, 
 
 Delia" (Vanni), 170. 
 Content and form, a unit, 115. 
 "Contrat social, Du" (Rousseau), 
 
 157, 290. 
 
392 
 
 INDEX 
 
 [The numbers refer to the pages.] 
 
 "Contributo all' analisi dei carat- 
 terl differenziali del diritto" 
 (Petrone), 69, 150, 163, 167, 
 191. 
 
 "Contributi alia teorica della re- 
 sponsibilita della pubblica 
 amministrazione" (Forti) , 135. 
 
 "Corso dl diritto romano" (Pac- 
 chioni), 319. 
 
 "Corso sugli scrittori politici itali- 
 ani" (Ferrari), 26. 
 
 "Corso moderno di Filosofia del 
 diritto" (Cavagnari), 19, 49. 
 
 Costa, 327. 
 
 "Coursde droit natural" (Jouffroy) , 
 311, 315. 
 
 "Cours de philosophie positive" 
 (Comte) , 40, 42, 45, 48, 52,238. 
 
 Criteria — 
 
 legal and moral, difference be- 
 tween, 147. 
 logic of genetic, 282. 
 value of final and causal, 250. 
 
 "Critica, La" (Croce), 276, 330. 
 
 Croce, 30, 260, 276, 286, 829, 330. 
 
 "Cultur und Rechtsleben" (Ar- 
 nold), 34, 52, 109. 
 
 Cumberland, 300, 304, 316. 
 
 "Cursus der Institutionen" 
 (Puchta), 150, 167, 170. 
 
 Dante, 34, 35. 
 
 "Darstellung der Rechtsphiloso- 
 
 phie des Hugo Grotius" (Har- 
 
 tenstein).23. 
 Darwin, 54, 55, 304. 
 Darwinian theory, 33. 
 "Data of Ethics. The" (Spencer), 
 
 12, 65. 
 "Dati psicologici nella dottrina 
 
 giuridica e sociale di G. B. 
 
 Vico" (Vadaia-Papale) , 38. 
 De aere, acquis et locis (Hippoc- 
 rates), 32. 
 "De Antiquissima Italorum Sapi- 
 
 entia" (Vico), 241. 
 "De Beneficiis" (Seneca), 125. 
 "De Give" (Hobbes), 6. 83, 155, 
 
 203, 299, 301, 302, 306, 309, 
 
 310, 311, 312. 
 
 "DeDignitate et Augmentis Scien- 
 tiarum" (Bacon), 231, 242. 
 
 "De Divisione Naturae" (Scotus 
 Erigena), 279. 
 
 "De Duabus Naturis et Una Per- 
 sona Christi" (Boethius), 
 279. 
 
 "De Finibus Bonorum et Malo- 
 rum" (Cicero), 278, 301, 
 326. 
 
 "De Jure Belli ac Pacis" (Gro- 
 tius), 23, 140, 149, 177, 301, 
 303, 307, 311, 324. 
 
 "De Jure Naturse et Gentium" 
 (Puffendorf), 23, 130, 177. 
 203, 285, 301, 316, 325. 
 
 "De Legibus" (Cicero), 14, 267, 
 278. 
 
 "De Legibus ac Deo Legislatore" 
 (Suarez), 276. 
 
 "De Legibus Naturae" (Cumber- 
 land), 300, 304, 316. 
 
 De Maistre, 117. 
 
 "De Monarchia" (Dante), 34. 
 
 "De Natura" (Gilbertus Porreta). 
 279. 
 
 "De Officio Hominis et Civis" 
 (Puffendorf), 130. 
 
 "De ortu et progressu morum" 
 (Stellini), 39. 
 
 "De Partibus Animae" (Aristotle), 
 259. 
 
 "De Regimine Principum" (Gro- 
 tius), 303. 
 
 "De Republica" (Cicero), 10, 267. 
 
 "De Republica" (Bodin), 35. 
 
 De Sarlo, 244, 278. 
 
 "De Statu Hominum Natural!" 
 (Puffendorf), 285, 301, 316. 
 
 "De Uno Universi Juris Principio 
 et Fine Uno" (Vico), 298, 305, 
 328. 
 
 "De Vera Religione" (Augustine). 
 68. 
 
 "De Vulgari Eloquentia" (Dante), 
 35. 
 
 Decretals, 288. 
 
 Definition of law, 1. 
 
 "Definition des Rechts, Die" 
 (Trendelenburg), 3, 108, 121, 
 122. 
 
INDEX 
 
 393 
 
 [The numbers refer to the pages.] 
 
 "Definition des Rechts, Eine" 
 (Rumelin), 3, 110, 121, 122, 
 151, 195. 
 
 Delbos, 264. 
 
 Del Vecchio, 2, 18, 48, 51, 62, 154, 
 253, 256, 257, 281, 292, 307, 
 307, 317, 330, 331. 
 
 Democritus, 241, 242. 
 
 "Denken und Wirklichkeit" (Spir), 
 227, 245. 
 
 Descartes, 102, 137, 138, 242. 
 
 "Descent of Man, The" (Darwin), 
 304. 
 
 Determination — 
 
 distinction of logical and real, 
 119. 
 
 Determinism — 
 
 and causality, 260. 
 mechanical, 234. 
 
 Dewey, 240. 
 
 D'Holbach, 234, 235. 
 
 "Dichiarazione dei diritti dell' 
 uomo e del cittadino nella 
 rivoluzione f rancese, La' ' (Del 
 Vecchio), 48, 317, 330. 
 
 Dieterich, 264. 
 
 Digest, 125, 138, 151, 169, 171, 
 177, 327. 
 
 Dilthey, 30, 33, 42, 102, 220. 
 
 Diogenes Laertes, 10, 309. 
 
 "Diritto nei suoi rapporti coUa 
 persona, coUa societa, e collo 
 Stato, II" (Lilla), 19. 
 
 "Diritto nel sistema della Filosofia' 
 dello spirito, 11" (Petrone), 
 166, 259. 
 
 "Diritto nella totalita dei suoi rap- 
 porti e la ricerca oggetiva, 11" 
 (Vanni), 123. 
 
 "Diritto e personalita umana nella 
 storia del pensiero" (Del Vec- 
 chio), 18, 256. 
 "Diritto naturale" (Cimbali), 19. 
 "Discourses Concerning Govern- 
 ment" (Sir Philip Sidney), 290. 
 "Discorsi sopra prima Deca di T. 
 
 Livio" (Machiavelli), 290. 
 "Dissertations on Early Law and 
 Custom" (Maine), 168, 172. 
 
 "Distinction du normal et du path- 
 ologique en Sociologie, Sur 
 la" (Bayet), 251. 
 
 "Dottrina delle due Etiche di H. 
 Spencer, La" (Juvalta), 65. 
 
 ' ' Dottrina dello Stato nell ' antichita 
 greca nei suoi rapporti con 
 I'Etica, La" (Filomusi-Guelfi), 
 22, 26, 306, 310. 
 
 "Dottrina platonica delle idee e il 
 concetto di societa interna- 
 zionale. La" (Catellani), 62. 
 
 "Droit naturel,Du"(Quesnay) ,279. 
 
 Dubuc, 11. 
 
 Duni, 39. 
 
 Duns Scotus, 72, 279. 
 
 Duranti, 11. 
 
 "Durchschnittstypus," 122. 
 
 Durkheim, 79, 251. 
 
 Duties — 
 
 correspondence with rights, 
 186. 
 
 Eberty, 118. 
 
 Egidio Colonna, 303. 
 
 Ego — 
 
 absolute character of, 263. 
 
 obligatory force of, 265. 
 
 the absolute principle, 259. 
 Egoism and the social sense, 303. 
 "Einleitung in das deutschePrivat- 
 
 recht" (Thol), 173. 
 "Einleitung in die Geisteswissen- 
 
 schaft" (Dilthey), 30, 33, 42, 
 
 102. 
 "Einleitung in die Moralwissen- 
 
 schaft" (Simmel), 9, 133, 152, 
 
 277, 287, 306. 
 "Einleitung in eine Naturwissen- 
 
 schaft des Rechts" (Post), 296. 
 "Einleitung in die Philosophie" 
 
 (Schopenhauer), 220. 
 "Einleitung in das Studium der 
 
 ethnologischen Jurisprudenz" 
 
 (Post), 61, 296. 
 Eisler, 240. 
 "Elementeder allgemeinenRechts- 
 
 lehre" (Merkel), 111, 135, 170, 
 
 175, 178, 179, 183, 184, 186, 
 
 200, 201, 203. 
 "Elementi, Degli" (Vico), 230, 282. 
 
394 
 
 INDEX 
 
 [The numbers refer to the pages.] 
 
 "Elements de droit constitutionnel 
 francaisetK;ompare"(Esmeine), 
 196. 
 
 "Elements of Politics, The" (Sidg- 
 wick), 161. 
 
 Eltzbacher, 109. 
 
 "Emile" (Rousseau), 3, 61, 264. 
 
 Empiricists ■ — 
 
 and jus naturalists, error of, 
 322. 
 
 ' 'Enciclopedia gmridica' ' (Filomusi- 
 Guelfi), 170, 187. 
 
 "Encyklopadie der philosophischen 
 Wissenschaften" (Hegel), 64. 
 
 "Endzweck der Natur, Von dem" 
 (Spir), 245. 
 
 "English Political Philosophy from 
 Hobbes to Maine" (Graham), 
 319. 
 
 Entelechia — 
 
 and organism, 246. 
 
 "Entstehung des Termini natura 
 naturans und natura naturata, 
 Ueber dei" (Siebeck), 231, 
 279. 
 
 "Entwicklungsgangder Kantischen 
 Ethik in den Jahren 1760 
 bis 1785, Der" (Menzer), 
 264. 
 
 "Entwicklung eines positiven 
 gemeinen Rechts in der 
 civilisirten Menschheit, Ueber 
 die" (Leist), 65. 
 
 "Entwicklung im Recht, Die" 
 (Kohler), 296, 297. 
 
 "Entwicklung unserer mecha- 
 nise h e n Naturanschaiiung 
 im neunzehnten Jahrhundert, 
 Ueber die" (Weber), 227. 
 
 "Epistula" (Seneca), 326. 
 
 "Epistula" (Spinoza), 284. 
 
 "Epistulse Tusculanae" (Cicero), 
 324. 
 
 Erigena (Scotus), 279. 
 
 "Eristische Dialetik" (Schopen- 
 hauer), 330. 
 
 "Erster Entwurf eines Systems der 
 Naturphilosophie" (Schelling) , 
 254, 255. 
 
 Esmein, 196. 
 
 "Esprit des lois, L' " (Montes- 
 quieu), 40. 
 "Esquisse di un tableau historique 
 
 des progres de I'esprit humain" 
 
 (Condorcet), 44. 
 "Essai sur I'histoire du droit natu- 
 
 rel" (Hubner), 313, 327. 
 "Essai historique sur la developpe- 
 
 ment de la notion de droit 
 
 naturel dans I'antiquit^ grec- 
 
 que" (Burle), 241, 252, 293. 
 "Essais" (Montaigne), 11, 283. 
 "Essay Concerning Human Under- 
 standing" (Locke), 12. 
 "Essay on the Intellectual Powers 
 
 of Man" (Reid), 4, 129. 
 "Essay on Political Tactics" (Ben- 
 
 tham), 330, 334. 
 "Estetica" (Croce), 30. 
 "Ethica" (Spinoza), 230, 231, 232, 
 
 233, 234, 235, 236, 314. 
 "Ethica, Quaestioni preliminari" 
 
 (Trojano), 314. 
 Ethical imperative. The, 265. 
 Ethics, 158. 
 
 basis of morals and law, 262. 
 
 objective, constitute morals 
 and law, 160. 
 
 speculative formation of, 262. 
 
 two forms of; morals and 
 law, 209. 
 "Etica evoluzionista, L' " (Del 
 
 Vecchio), 253. 
 "Ethik" (Bauch), 235, 251, 255. 
 "Ethik" (Wundt), 329. 
 "Etude sur Stuart Mill" (Taine), 5. 
 Eucken, 231, 242, 255. 
 "Even the Unnatural is Natural," 
 
 229. 
 "Evolution des id^es gen&ales, 
 
 L" " (Ribot), 116. 
 "Evolution of Modern Liberty, 
 
 The" (Scherger),330. 
 "Evoluzione dell' ospitalita, L' " 
 
 (Del Vecchio), 63. 
 "Evolution juridique dans les 
 
 diverses races humaines, L' " 
 
 (Letourneau) , 2. 
 "Ewigen Frieden, Zum" (Kant), 
 
 64, 177. 
 
INDEX 
 
 395 
 
 [The numbers refer to the pages.] 
 
 "FacoltS. create dalle autorizzazioni 
 
 e concessioni amministrative" 
 
 (Ranelletti) , 195. 
 Fadda, 297, 
 Faggi, 15. 
 "FEisi del pensiero storico, Le" 
 
 (Marselli),26. 
 "Fase recentissima della Filosofia 
 
 del diritto in Germania, La" 
 
 (Petrone), 19, 100, 113, 119, 
 
 308, 324, 328. 
 Ferneiul, 44. 
 "Fernere Darstellungen aus detn 
 
 System der Philosophie" 
 
 (Schelling), 255. 
 Ferrari, 26, 38, 241. 
 Fester, 256, 264. 
 Feuerbach, 108, 296, 323. 
 Fichte, 140, 151, 166, 177, 191, 226, 
 
 236, 254, 255, 260, 264, 266, 
 
 299. 
 "Fichtes J. G. Leben und Lehre" 
 
 (Fischer), 254. 
 "Fichtes und Schellings philoso- 
 
 phischer Brief wechsel" (Scho- 
 penhauer), 255. 
 "Ficht'sche Ethik als Vergrosser- 
 
 ungsspiegel der Fehler der 
 
 Kantischen" (Schopenhauer), 
 
 299. 
 Filangieri, 39. 
 Filmer, 290. 
 Filomusi-Guem, 11, 16, 19, 22, 
 
 26, 37, 57, 64, 114, 133, 153, 
 
 170, 187, 292, 306, 310, 
 
 330. 
 "Filosofia del diritto" (Miraglia), 
 
 16, 19, 114, 205, 231. 
 "Filosofia del diritto" (Rosmini), 
 
 26, 119, 126, 146, 156, 176, 
 
 181, 276, 328. 
 "Filosofia del diritto in Germania 
 
 e la ricerca positiva" (Vanni), 
 
 58, 96, 123. 
 "Filosofia del diritto al lume dell' 
 
 idealismo critico, La" (Pe- 
 trone), 19, 62. 
 "Filosofia del diritto nello Stato 
 
 moderno. La" (Carle), 16, 19, 
 
 29, 35, 39, 65, 96, 153, 157, 
 
 168, 199, 292, 305. 
 
 "Filosofia del diritto interna- 
 zionale" (Miceli), 2, 19. 
 
 "Filosofia del diritto private" 
 (Cogliolo), 113. ■ 
 
 "Filosofia della Politica" (Ros- 
 mini), 30. 
 
 "Filosofia della volunta"(Galluppi), 
 128. 
 
 "Filosfia giuridica nel presente 
 ordinamento degli studi, 
 Delia" (Fragapane) , 82 , 
 112. 
 
 "Filosofia greca nella giurispru- 
 denza romana, La" (Costa), 
 327. 
 
 "Filosofia greca prima di Socrati, 
 La" (Bertini), 310. 
 
 "Filosofia scientifica del diritto in 
 Inghilterra, La" (Laviosa), 
 304. 
 
 Final causes, — ■ 
 idea of; 230. 
 
 Fiorentino, 230, 256. 
 
 Fischer, 72, 248, 249, 254. 
 
 "Fischers K. Hegel" (Lasson), 
 305. 
 
 Flint, 26, 36, 38, 41, 44, 45. 
 
 Florentinus, 327. 
 
 Form and content, a unit, 115. 
 
 Forti, 135. 
 
 "Forza obligatoria della consuetu- 
 dine giuridica. La" (Miceli), 
 170. 
 
 Fournol, 35. 
 
 Fragapane, 9, 33, 37, 39, 40, 42, 
 82, 96, 98, 111, 168, 235, 
 293, 294, 310, 318, 320, 332, 
 335. 
 
 "Fragmente zur Sozialwissen- 
 schaft" (Merkel), 111. 
 
 Franck, 303, 310, 313. 
 
 Frauenstadt, 79. 
 
 "Freiheit des menschlichen Wil- 
 lens, Ueber die" (Schopen- 
 hauer), 236. 
 
 French Revolution, 47. 
 
 Fricker, 142. 
 
 "Fundamentum Juris Naturae et 
 Gentium" (Thomasius), 18, 
 23, 142, 177, 280, 322. 
 
396 
 
 INDEX 
 
 [The numbers refer to the pages.] 
 
 "Funzione practica della Filosofia 
 del diritto, La" (Groppali), 
 96. 
 
 "Funzione practica della Filosofia 
 del diritto considerata in se 
 e in rapporto al socialismo 
 contemporaneo, La" (Vanni), 
 
 Gabba, 42, 51, 52, 98, 318. 
 
 Galluppi, 127. 
 
 "Gegenwart und Zukunft der 
 Rechts und Staatswissen- 
 schaft Deutschlands" (L. v. 
 Stein), 57, 109, 113. 
 
 "Gegenwartige Bewegung in der 
 Rechtswissenschaf t, U e b e r 
 die" (Pachmann), 109, 184, 
 209, 213. 
 
 "Geist des romischen Rechts auf 
 den verschiedenen Stufen 
 seiner Entwicklung' ' (Ihering) , 
 172, 184, 194, 210, 212, 213, 
 214, 215. 
 
 "Geistige Stromungen der Gegen- 
 wart" (Eucken), 255. 
 
 "Gemeinschaft und Gesellschaft" 
 (Tonnies), 331. 
 
 "Gemeinspruch: Das mag in der 
 Theorie richtig sein, taugt 
 aber nich fiir die Praxis, 
 Ueber die" (Kant), 45. 
 
 "Genesi e sviluppo delle varie 
 forme di convivenza civile e 
 politica" (Carle), 65. 
 
 "Genesi, fondamenti, e fine del 
 diritto in relazione con I'or- 
 dine universale" (Wautrain- 
 Cavagnari), 19. 
 
 "Genovesial Galluppi, Dal" (Gen- 
 tile), 39. 
 
 Gentile, 39, 229. 
 
 Gerber, 195. 
 
 "Gerichtssaal" (Heinze), 203. 
 
 "Gesammelte Abhandlungen aus 
 dem Gebiet der allgemeinen 
 Rechtslehre und der Straf- 
 rechts" (Merkel), 96, 111. 
 
 "Geschichte der deutschen Philo- 
 sophic seit Liebniz" (Zeller), 
 231, 245. 
 
 "Geschichte der deutschen Rechts- 
 
 vi'issenschaft" (Landsberg), 
 
 92, 323. 
 "Geschichte der Ethik als phil- 
 
 osophischer Wissenschaft" 
 
 (Jodl), 234, 252, 304. 
 "Geschichte der heutigen Philoso- 
 
 phie" (Hoffding), 231. 
 "Geschichte der Logik im Abend- 
 
 lande" (Prantl), 7'l. 
 "Geschichte des Materialismus 
 
 und Kritik seiner Bedeutung 
 
 in der Gegenwart" (Lange), 
 
 234, 242, 251. 
 "Geschichte der neueren Philoso- 
 
 phie. Die" (Windelband) , 304. 
 "Geschichte der neueren Staats- 
 
 wissenschaft" (Bluntschli), 26. 
 "Geschichte der Philosophic, Ueber 
 
 die" (Hegel), 83. 
 "Geschichte der Philosophie" 
 
 (Heinze), 279. 
 "Geschichte der Philosophie" (Rit- 
 
 ter), 309. 
 "Geschichte der Philosophie" 
 
 (Schwegler), 70, 151. 
 "Geschichte der Philosophie" 
 
 (Windelband), 71, 231, 304. 
 "Geschichte der philosophischen 
 
 Terminologie" (Eucken), 231. 
 "Geschichte des Rechts der Ver- 
 
 nunft" (Glafey), 322. 
 "Geschichte der Rechtsphiloso- 
 
 phie" (Stahl), 49, 92, 194, 233, 
 
 284, 299. 
 "Geschichte und Literatur der 
 
 Staats wissenschaf ten' ' (M ohl) , 
 
 290. 
 "Geschichte und Naturwissen- 
 schaft" (Windelband) , 222, 286. 
 "Geschichte und Quellen der 
 
 romischen Rechts" (Bruns), 
 
 22, 57. 
 
 "Geschichte und System der 
 Rechts- und Staatsphiloso- 
 phie" (Hildenbrand), 10, 22, 
 
 23, 26, 306, 309, 324, 332. 
 "Geschichtliche Wertmasstabe in 
 
 der Geschichtsphilosophie bei 
 Historikern und ira Volks- 
 bewusstsein" (G rotenfelt) , 291. 
 
INDEX 
 
 397 
 
 [The numbers refer to the pages.] 
 
 "Gesetze der Geschichte, Ueber" 
 
 (Riimelin), 30. 
 "Gestaltende Macht," 118. 
 "Gewohnheitrecht, Das" (Puchta), 
 
 170. 
 Geyer, 93, 195, 197. 
 Gierke, 2, 6, 48, 92, 109, 289, 303, 
 
 330. 
 Giese, 196. 
 
 Gilbertus Porreta, 279. 
 Gioberti, 288. 
 "Giurisprudenza ethnologic a" 
 
 (Post), 296. 
 "Giuristi della scuola storica di 
 
 Germania nella storia della 
 
 Sociologia e della Filosofia 
 
 positiva, I" (Vanni), 48. 
 "Giusticia e il diritto nei loro carat- 
 
 teri differenziali. La" (Miceli), 
 
 19. 
 Gizycki, 304. 
 Glafey, 322. 
 Gliick, 173. 
 Goethe, 229. 
 "Goethes ethische Auchauungen" 
 
 (Paulsen), 229. 
 Gomperz, 9. 
 
 "Gorgias" (Callicles), 155. 
 "Gott und die Natur" (Ulrici), 
 
 251, 307. 
 Gradenwitz, 252, 327. 
 "Graeco-italische Rechtsge- 
 
 schichte" (Leist), 22. 
 Graham, 319. 
 Gratzianus, 288. 
 Gravina, 93. 
 
 Green, 132, 143, 196, 259, 814, 335. 
 "Grenzen der naturwissenschaft- 
 
 lichen Begriffsbildung" (Rick- 
 
 ert), 30, 229, 246, 249, 255, 
 
 278, 286. 
 "Griechische Denker" (Gomperz), 
 
 9. 
 Groppali, 96. 
 Grotenfelt, 291. 
 Grotius, 23, 140, 141, 149, 177, 
 
 303, 306, 311, 322. 324. 
 Grotius. Partial uniformity of law, 
 
 23. 
 
 "Grundbegriffe der Staatsrechts 
 
 und die neuesten Staatsrechts- 
 
 theorien. Die" (Gierke), 109. 
 "Grundlage der Moral, Ueber die" 
 
 (Schopenhauer), 149, ,299. 
 "Grundlage des Naturrechts" 
 
 (Fichte), 141, 166, 177, 191. 
 "Grundlagen der Rechtsentwick- 
 
 lung bei den indogermanischen 
 
 Volkern, Ueber die" (Bern- 
 
 hoft), 198. 
 "Grundlinien der Philosophic des 
 
 Rechts" (Hegel), 16, 33, 64, 
 
 90, 119, 129, 293. 
 "Grundrechte, Die" (Giese), 196. 
 "Grundriss der Geschichte der 
 
 Philosophic der Alterthums" 
 
 (Ueberweg-Heinze), 252. 
 "Grundriss der ethnologischen 
 
 Jurisprudenz" (Post), 62. 
 "Grundsatze des deutschen Privat- 
 
 rechts" (Thol), 179. 
 "Grundziige der Ethik und Rechts- 
 
 philosophie" (Schuppe), 112. 
 Guglielmo di Champeaux, 72. 
 Gumplowicz, 157. 
 
 Haeckel, 249. 
 
 "Handbook of Psychology" (Bald- 
 win), 137. 
 "Handbuch des Strafrechts"(Bind- 
 
 ing), 203. 
 Haring, 34. 
 Harms, 316. 
 Hartenstein, 23. 
 Hartmann, 244, 245, 248, 255. 
 Hegel, 16, 48, 64, 78, 83, 90, 118, 
 
 119, 129, 239, 241, 254, 276, 
 
 293. 
 Hegelianism and "gestaltende 
 
 Macht," criticism of, 118. 
 Heinze, 203, 279. 
 Hellwig, 297. 
 Herbart, 6. 
 Herder, 40, 41. 
 Herodotus, 9. 
 "Heutige romische Recht, Das'* 
 
 (Bruns), 169. 
 Hildenbrand, 62. 
 Hildenbrand, 10, 22, 23, 26, 306, 
 
 309, 324, 332. 
 
398 
 
 INDEX 
 
 [The numbers refer to the pages.] 
 
 "Hinweisung auf die Ethik" (Spi- 
 noza), 233. 
 Hippocrates, 32, 33. 
 "Histoire de la science politique 
 
 dans ses rapports avec la 
 
 morale" (Janet), 26, 44, 45, 
 
 291, 332. 
 Historical modifications — 
 
 approximate systemization, 
 30. 
 
 Aristotle, 26. 
 
 governed by internal law, 41. 
 
 Vico and his doctrine of flux 
 and reflux, 27. 
 — a denial of progress, 28. 
 Historical Progress, Kant, 44. 
 Historical school, juridical views 
 
 of, 48. 
 Historische Schule, 47, 48, 51, 94. 
 History, continuity of, 40. 
 
 unity of, 43. 
 "History of Mediaeval Political 
 
 Theory in the West, A" 
 
 (Carlyle), 252, 289, 324. 
 Hobbes — 
 
 criticism of, 312. 
 
 method in study of nature, 298. 
 Hobbes, 6, 83, 155, 298, 299, 300, 
 
 301, 302, 303, 304, 306, 308, 
 
 309, 310, 311, 312, 313, 322. 
 Hoffding, 137, 231, 234, 264. 
 Holbach, D", 234, 235. 
 Holder, 198. 
 Hubner, 313, 327. 
 Hoppe, 2. 
 Hugo, 91. 
 
 "Human Mind, The" (Sully), 137. 
 Hume, 278, 279. 
 Huxley, 278. 
 
 "Idea del diritto nell' Antropolo- 
 gia, nella Storia e nella 
 Filosofia, L' " (Schiattarella), 
 61. 
 
 Ideal, The — 
 
 preoccupation of, in the con- 
 sideration of the historical, 
 295. 
 
 "Ideale del diritto, L' " (Wau- 
 train-Cavagnari) , 19. 
 
 "Idealer Typus," 122. 
 
 "Idealistic and Neo-Kantian 
 Renaissance of the Philoso- 
 phy of Law, The" (Segond), 
 357. 
 
 Ideas, innate, 72. 
 
 "Id^e du droit en allemagne, L" " 
 (Aguil&a), 209. 
 
 "Idee revolution dans la nature 
 et I'histoire, L' " (Richard), 
 247. 
 
 "Idee de loi naturelle dans la 
 science et la philosophie con- 
 temporaines, De 1' " (Bou- 
 troux), 30, 247. 
 
 "Idee und Nothwendigheit einer 
 Universaljurisprudenz" 
 (Feuerbach), 296. 
 
 "Ideen zur einer allgemeinen 
 Geschichte in weltbiirgerlicher 
 Absicht" (Kant), 45, 46, 326. 
 
 "Ideen zur Philosophie der Ge- 
 schichte derMenschheit" (Her- 
 der), 41. 
 
 "Ideen zu einer Philosophie der 
 Natur" (Schelling), 247. 
 
 Ihering, 57, 109, 113, 122, 157, 
 158, 167, 172, 174, 184, 194, 
 195, 209, 210, 211, 212, 213, 
 214, 215, 216, 305. 
 
 Imperative, the ethical, 266. 
 
 "Inbegriff der Rechtswissenschaft 
 Oder Juristische Encyclopadie 
 und Methodologie, Der" 
 (Putter), 2. 
 
 "Indirizzo e delle condizioni 
 odierne degli studii intomo 
 alle scienze sociale, Dell' " 
 (Gabba), 42. 
 
 "Inductions of Ethics, The" (Spen- 
 cer), 12. 
 
 "Infinito universe e mondi, Del' " 
 
 (Bruno), 118. 
 "Influence de J.-J. Rousseau en 
 
 Allemagne, L' "(Lgvy-Breuil), 
 
 256, 264. 
 
 "Inquiry Concerning the Principles 
 of Morals, An" (Hume), 279. 
 
 "Institutes," 22. 
 
 "Institutiones Juris Naturalis" 
 (Meyer), 280. 
 
INDEX 
 
 399 
 
 [The numbers refer to the pages.] 
 
 Insufficiency of immediate intui- 
 tion, 5. 
 "Intelligence, Del' " (Taine), 116. 
 "Intorno ad alcuni piu generali 
 
 problemi della scienza sociale' ' 
 
 (Gabba), 42, 51, S2, 98, 318, 
 
 320. 
 "Intorno alia genesi dell' idea 
 
 di progresso morale sociale" 
 
 (Vidari), 291. 
 "Introduzione alia metafisica" 
 
 (Martinetti), 220, 330. 
 "Introduzione alio studio del 
 
 diritto pubblico universale" 
 
 (Romagnosi), 82. 
 "Introduction historique a I'etude 
 
 de droit" (Tissot), 61. 
 "Introduzione enciclopedica alle 
 
 scienze giuridiche e social! 
 
 nella sistema della giurispru- 
 
 denzia" (Brugi), 49, 320,323. 
 Intuition of law, 2. 
 "Irrtum und Rechtsgeschaft" 
 
 (Zitelmann), 184. 
 "1st eine Philosophie der Ge- 
 
 schichte mbglich" (Schelling), 
 
 30. 
 "Istituzioni di diritto civile itali- 
 
 ano" (Brugi), 134, 188. 
 "Istituzuoni di diritto romano" 
 
 (Perozzi), 327. 
 "Istituzioni di scienza politica" 
 
 (Scolari), 38. 
 Italian Code, 174, 178. 
 
 Janelli, 39. 
 
 Janet, 26, 44, 45, 61, 291, 332. 
 
 "Jean-Jacques Rousseau og haus 
 
 Filosofi" (Heffding), 257. 
 Jellinek, 122, 181, 196, 198, 214, 
 
 217, 332. 
 Jodl, 17, 137, 234, 252, 289, 304. 
 Jouffroy, 41, 311, 315. 
 Juridical criterion. The, 125. 
 
 applies to acts, 126. 
 
 applicability, two current 
 theories of, 128. 
 
 must lie in variable qualities, 
 147. 
 
 Juridical criterion (.continued). 
 
 non-applicability of, because 
 of a deficiency of the physi- 
 cal element, 139. 
 of the psychic, 129. 
 Juridical development objectively 
 
 treated, 46. 
 Juridical ideas, genesis of, 169. 
 Juridical modifications are syste- 
 matic, 25. 
 Juridical norms — 
 
 classical division of, 172. 
 
 control acts, 181. 
 
 explicative, 174. 
 
 first characteristic of, 185. 
 
 imperative character of, 171. 
 
 negative, 175. 
 
 permissive, 175. 
 
 and non-prohibitive, 180. 
 
 reducible to imperative, 178. 
 
 Thol's classification of, 173. 
 Juridical value, 147. 
 "Juris et ^qui Elementa" (Leib- 
 niz), 120, 327. 
 "Juristische Begriffsbildung" (Ru- 
 
 melin), 109. 
 "Juristische Encyklopadie" (Mer- 
 
 kel), 111, 
 "Juristische Encyklopadie" (War- 
 
 konig), 173. 
 "Juristische Prinzipienlehre" (Bier- 
 ling), 111, 112, 127, 200, 
 
 203. 
 "Jurisprudence" (M. Smith), 333. 
 "Jurisprudenz und Rechtsphiloso- 
 
 phie" (Bergbohm), 2, 6, 17, 
 
 51, 92, 111, 113, 120. 
 "Jus Gentium." Partial uniformity 
 
 of law, 22. 
 "Jus naturale" — 
 
 antithesis with ' 'lex naturalis, ' ' 
 310. 
 "Jus naturale" (Brini), 252, 327. 
 "Jus naturale aequum et bonum 
 
 und jus gentium der R5mer, 
 
 Das" (Voigt), 252, 327. 
 Jus naturalists — 
 
 and empiricists, errors, of, 322. 
 
 incoherence of, 283. 
 "Justice" (Spencer), 6, 16, 18. 
 
400 
 
 INDEX 
 
 [The numbers refer to the pages.] 
 
 Justinian, 22. 
 Juvalta, 65. 
 
 Kaltenborn, 322. 
 
 "Kampf gegen der Zweck, Der" 
 (Sigwart), 244. 
 
 "Kampf mn's Recht, Der" (Iher- 
 ing), 167. 
 
 Kant, 3, 16, 17, 18, 41, 44, 45, 46, 
 63, 68, 73, 74, 75, 76, 83, 88, 
 89, 90, 91, 115, 117, 119, 121, 
 135, 142, 177, 191, 194. 197, 
 216, 225, 226, 236, 245, 246, 
 247, 248, 249, 250, 264, 265, 
 266, 268, 281, 286, 299, 323, 
 326. 
 
 Kant — 
 
 doctrine of the organic and 
 
 inorganic, 247. 
 historical progress, 44. 
 
 "Kant und Hugo" (Landsberg), 
 91, 323. 
 
 "Kant und Rousseau" (Dieterich), 
 264. 
 
 "Kants Begriindung der Aesthe- 
 tik" (Cohen), 113, 233. 
 
 "Kants Philosophie der Ge- 
 schichte" (Medicus), 255. 
 
 "Kants Rechtsphilosophie, Zu" 
 (Fricker), 142. 
 
 "Kategorienlehre" (Hartmann), 
 244, 245, 248, 255. 
 
 "Kausalitat" (Lasson), 245. 
 
 Kechnie, M., 333. 
 
 Kirchmann, 109. 
 
 Knowledge • — ■ 
 
 grades of, 221. 
 
 Kohler, 35, 62, 296, 297, 329. 
 
 "Kohler, J., als Rechtsphilosoph" 
 (Berolzheimer), 297. 
 
 Krause, 52, 93, 214. 
 
 Kriegsmann, 234, 283. 
 
 "Kritik der juristischen Grund- 
 begriffe, Zur" (Bierling), 111, 
 122, 170, 172, 174, 175, 178, 
 179, 180, 186, 188, 190, 200, 
 203, 209. 
 
 "Kritik der Kantischen Philoso- 
 phie" (Fischer), 248, 249. 
 
 "Kritik der Kantischen Philoso- 
 phie" (Schopenhauer), 69. 
 
 "Kritik der politischen CEkono- 
 mie, Zum" (Marx), 157. 
 
 "Kritik der praktischen Vernunft" 
 (Kant), 236, 264, 266, 286. 
 
 "Kritik der reinen Vernunft" 
 (Kant), 3, 4, 68, 75, 76, 117, 
 119, 226, 236, 264. 
 
 "Kritik der Urtheilskraft" (Kant), 
 245, 246, 247, 248, 249, 250. 
 
 "Kritik moderner Rechtsphiloso- 
 phie" (Kijhnast), 209. 
 
 Kroman, 228. 
 
 Kiihnast, 209. 
 
 "Kultur der Gegenwart, Die" 
 (Stammler), 308. 
 
 "Kultur der Gegenwart, Die" 
 (Dilthey), 220. 
 
 Kuntze, 109. 
 
 Labanca, 36. 
 Landsberg, 91, 92, 323. 
 Lange, 234, 242, 251. 
 Laplace, 236. 
 Lask, 277. 
 
 Lasson, 43, 55, 109, 114, 119, 122, 
 133, 150, 156, 184, 203, 205, 
 216, 245, 302, 305. 
 Laviosa, 304. 
 Law — 
 
 anterior identification of em- 
 pirical manifestations, 104. 
 all equally universal, 105. 
 basis of and empirical mo- 
 tives, 307. 
 based on ethics, 166. 
 bilateral, 164. 
 coercion, 191. 
 coercion of — 
 
 apparently uncoercive 
 
 law no proof, 204. 
 impossibility of effective 
 coercion, no proof of 
 uncoercive law, 202. 
 limits of, not a proof of 
 
 uncoercive law, 194. 
 not exercised by posses- 
 sor no proof of uncoer- 
 cive law, 198. 
 spontaneous observance 
 no proof of uncoercive 
 law, 199. 
 
INDEX 
 
 401 
 
 [The numbers refer to the pages.] 
 
 Law (.continued). 
 concept of, 217. 
 confusion of logical and ac- 
 tual, 77. 
 co-ordination of, 63. 
 critical solution of problems of, 
 
 317. 
 definition of — 
 formal, 81. 
 Ihering's, 208. 
 criticism of, 211. 
 external, 164. 
 formal concept of — 
 
 classical juridical philoso- 
 phy and, 86. 
 "Historische Schule" and, 
 
 91. 
 Kant and, 88. 
 modern research and, 85. 
 natural law and, 86. 
 phenomenism and, 87. 
 philosophical school and, 
 
 94. 
 positivism and, 94. 
 juridical, 149. 
 
 legitimacy of two considera- 
 tions, 321. 
 logical form of — 
 
 every juridical proposi- 
 tion is a manifestation 
 of, 82. 
 more comprehensive than 
 sura of juridical pro- 
 position, 82. 
 modern denial of, as unit 
 fact, 58. 
 
 the result of anti-idealistic 
 views, 59. 
 natural — 
 
 as a deontological need, 
 
 324. 
 as goal of historical de- 
 velopment, 331. 
 nullity of Hobbesian, 308. 
 object of, 207. 
 philosophy of, 110. 
 positive, 153. 
 
 correspondence the end of 
 
 social life, 122. 
 a fact, 152. 
 present day genesis of , 154. 
 
 Law (.continued). 
 
 positive science of, 107. 
 principle of, 272. 
 
 hyperphenomenal, 317. 
 value of, in relation to 
 logical form of law, 274; 
 to positive law, 273. 
 reality of depends logically 
 
 on its ideal form, 99. 
 is relative, 32. 
 
 relativity of — conclusion, 56. 
 Greece and Rome, 32. 
 Middle Ages, 34. 
 Montesquieu, 39. 
 Vico, 36. 
 unity of — 
 
 abstract, 68. 
 
 modern denial, result of 
 anti-idealistic ideas, 59. 
 proof of, 61. 
 
 not provable by content, 
 65. 
 "Law of Nature, The" (Bryce), 19, 
 
 252, 323. 
 Laws of nature and juridical laws, 
 
 148. 
 "Lectures on Jurisprudence, or the 
 Philosophy of Positive Law" 
 (Austin), 65, 111, 138, 139. 
 "Lectures on the Principles of Po- 
 litical Obligation" (Green), 
 132, 143, 196, 314, 335. 
 Legal capacity, 188. 
 "Leggi nella dottrina di S. Agos- 
 tino e S. Tommaseo, Le" 
 (Vadala-Papale), 34. 
 "Leggi nella doctrina di Dante 
 Alighierie di Marsilio di Pad- 
 ova, Le" (Vadala-Papale), 35. 
 "Legge dei mutamenti politici, La" 
 
 (Miraglia), 26. 
 "Leggi storiche e la liberta dell' 
 
 uomo, Le" (Carle), 29. 
 "Lehrbuch des Natur-Rechtes" 
 
 (Meister),318. 
 ' 'Lehrbuch der Psychologic' ' ( Jodl) , 
 
 137. 
 "Lehrbuch des Vernunftrechts und 
 derStaatwissenschaften" (Rot- 
 teck), 169. 
 
402 
 
 INDEX 
 
 [The numbers refer to the pages.] 
 
 "Lehre vom jus naturale, aequum 
 
 et bonum und jus gentium der 
 
 Romer, Die" (Voigt), 22, 23. 
 "Lehre vom modernen Staat" 
 
 (Bluntschli), 64. 
 "Lehre vom dem richtigen Rechte, 
 
 Die" (Stammler), 112. 
 Leibniz, 78, 106, 119, 120, 128, 
 
 245, 319, 322, 326, 327. 
 "Leviathan" (Hobbes), 300, 309, 
 
 310. 
 Leist, 22, 55, 65, 327. 
 Letourneau, 2. 
 Levy-Bruhl, 256, 264. 
 Lewis, 240, 278, 285. 
 Lex naturalis — antithesis with jus 
 
 naturale, 310. 
 "Lex permissiva," 177. 
 "Lezioni di Filosofia del diritto" 
 
 (Vanni), 43, 123, 127, 292, 324. 
 Liard, 330. 
 "Liberia nel diritto e nella storia 
 
 secondo Kant and Hegel, La," 
 
 (Masci), 326. 
 "Liberia religioso, La" (RafSni). 
 
 319. 
 Lieber, 278. 
 Liepmann, 40. 
 Lilla, 19. 
 "Limit! del delerminismo scienti- 
 
 fico, I" (Petrone), 30, 228, 
 
 235, 244. 
 "Lineamenti di una Logica come 
 
 scienza del concetto pure" 
 
 (Croce), 286, 
 "Lineamenti di una teoria del 
 
 guisto e del ingiuslo" (Barlolo- 
 
 mei), 100. 
 Lingg, 157. 
 "Literarischen Widersacher der 
 
 Papste zur Zeit Ludwig des 
 
 Baiers, Die" (Riezler), 289. 
 Littre, 291. 
 
 Locke, 290. Variance of law, 12. 
 "Logica" (Masci), 74. 
 "Logik" (Sigwart) , 30, 102, 244, 246. 
 "Logik — • Eine Untersuchung der 
 
 Principien der Erkenntniss 
 undder Methode Wissen- 
 
 schaftlicher Forschung" 
 
 (Wundt) , 30, 109, 244, 246, 248. 
 
 "Logische Untersuchungen" 
 
 (Trendelenburg), 244. 
 "Logische Frage in Lichte des 
 
 Philosophie, Die" (L. Stein), 
 
 166. 
 X0701, 9. 
 
 Longo, 296, 327. 
 Lotmar, 110. 
 Lotze, 222, 226, 242, 243, 244, 249. 
 
 259 
 Lubbock, 167. 
 
 McLennan, 167. 
 
 Machiavelli, 27, 35, 290. 
 
 "Macht und Recht" (Stintzing), 
 
 158. 
 Maine, 43, 167, 168, 172, 222, 282, 
 
 290, 291, 292, 297, 319, 324, 331. 
 Maistre, De. See De Maistre. 
 Makarewicz, 308. 
 Malmesbury, 303. 
 Malthus, 54. 
 "Manual of Political Ethics" 
 
 (Lieber), 278. 
 "Manuale di Filosofia del diritto" 
 
 (Lilla), 19. 
 Man — ■ 
 
 condition of, in nature, 258. 
 
 double quality of, 266. 
 Marcade, 171, 203. 
 Marselli, 26. 
 Martinetti, 220, 330. 
 Marx, 157. 
 Masci, 74, 326. 
 "Materialismo storico ed econo- 
 
 mia marxistica" (Croce), 30. 
 Medicus, 255. 
 
 "Meditations, Reponse aux premi- 
 ses objections" (Descartes), 
 
 102, 137. 
 Meister, 318. 
 
 "Memorabilia" (Xenophon), 24. 
 "Memorabilien" (Schopenhauer), 
 
 260, 294. 
 "Mental and Moral Science" 
 
 (Bain), 12, 230. 
 "Mente di Giambattista Vico, La" 
 
 (Ferrari), 38. 
 Menzer, 264. 
 
INDEX 
 
 403 
 
 [The numbers refer to the pages.] 
 
 Merkel, 96, 110, 111, 133, 135, 
 
 158, 170, 175, 178, 179, 183, 
 
 184, 186, 200, 201, 203, 251. 
 "Metafisico della Morale" (Prisco), 
 
 130. 
 "Metafisica, scienza, e Moralita" 
 
 (DeSarlo), 244. 
 "Metafisica poetica, Della" (Vico), 
 
 222. 
 "Metapysische Anfangsgriinde der 
 
 Rechtslehre" (Kant), 16, 83, 
 
 89, 90, 91, 121, 142, 191, 194, 
 
 198, 216, 264, 281. 
 "Metaphysics" (Aristotle), 12, 71, 
 
 78, 207, 279, 281. 
 "Metaphysique d'Aristote" (Bar- 
 
 tMlemy-St. Hilaire), 12. 
 Method of a higher synthesis, 12. 
 "Methode der Aristotelischen 
 
 Forschung, Die" (Eucken), 
 
 242. 
 "Methode der geschichtlichen 
 
 Rechtstheorie, Ueber die" 
 
 (Stammler), 93, 96, 100. 
 "Methoden der Rechtsphiloso- 
 
 phie. Die" (Schuppe),93, 100, 
 
 118, 201. 
 "Methode der Rechtsvergleichung. 
 
 Ueber dei" (Kohler), 62, 297. 
 Meyer, 280. 
 
 Miceli, 2, 19, 92, 109, 170. 
 "Mikrokosmus" (Lotze), 222, 226, 
 
 242, 243, 244, 249, 259. 
 Mill, 2, 4, 5, 83, 98, 127, 138. 
 Mirabaud, 234, 235. 
 Miraglia, 16, 19, 64, 114, 205, 231. 
 Modestinus, 171. 
 "Moglichkeit eines Weltrechts, 
 
 Die" (Zitelmann), 65, 318, 
 
 333. 
 Mohl, 290. 
 MoUat, 120. 
 Mondolfo, 300. 
 "Monadologia" (Liebniz), 78. 
 Montaigne, 11, 283. 
 Montesquieu, 40. 
 
 relativity of law, 39. 
 
 "Morale dei positivisti, La" (Ar- 
 
 digo), 114. 
 "Morale e diritto nella vita" 
 
 (Vadala-Papale), 320. 
 Morals and law — ■ 
 
 are always in accord, 161. 
 
 distinction between, 163. 
 Morgan, 167. 
 MorseUi, 250. 
 Myth of an ideal past, 288. 
 
 "Natur Die" (Goethe), 229. 
 "Natur und Sklave bei der natur- 
 
 alis obligatio" (Gradenwitz) , 
 
 252, 328. 
 "Natura e necessity della scienza 
 
 delle cose e delle storie 
 
 umane, Sulla" (Janelli), 39. 
 Natural, The — 
 
 antithesis of the human, 285. 
 
 in sense of primordial, 281. 
 Natural law, 15. 
 
 modern refutation of, and its 
 value, 17. 
 
 question of, does not in- 
 volve the logical definition 
 of law, 19. 
 
 See Law, natural. 
 "Natural rights" (Ritchie), 240, 
 
 252, 278, 285, 286, 289, 293, 
 
 334. 
 "Natural rights and political 
 
 rights" (Huxley), 278. 
 Nature — 
 
 condition of man in, 285. 
 
 "state of," 280. 
 
 teleological interpretation of, 
 as complement of the causal, 
 238. 
 
 uncertain connotation, 277. 
 
 "Nature" (Dewey), 240. 
 "Naturgesetze und Rechtsgesetze" 
 
 (Afiolter), 278. 
 "Naturrecht, Das" (Ulrici), 307. 
 "Naturrecht auf dem Grunde der 
 
 Ethik" (Trendelenburg), 109, 
 
 156, 200. 
 "Naturrecht und deutsches Recht" 
 
 (Gierke), 2, 6, 48, 330. 
 
404 
 
 INDEX 
 
 [The numbers refer to the pages.] 
 
 "Naturrecht oder die Philosophie 
 des Rechts" (Ahrens), 52, 55, 
 163, 200. 
 
 "Naturrecht und Politik im Lichte 
 der Gegenwart" (Walter), 55. 
 
 "Naturrechtsproblem und die 
 Methode seiner Losung, Das" 
 (Savigny), 308. 
 
 "Naturvolker und Kulturvolker" 
 (Vierkandt), 287. 
 
 Naville, 30. 
 
 Negation, systematic, 96. 
 
 "Neovitalismus und die Finalitat 
 in der Biologic, Der" (Reinke) , 
 250. 
 
 "Neue Abhandlungen iiber den 
 menschliche Verstand" (Leib- 
 niz), 106. 
 
 "Neue Deduktion des Natur- 
 rechts" (Sclielling), 271. 
 
 "Neueren Rechtsschulen der deut- 
 schen juristen, Die" (Blunt- 
 schli), 93, 118. 
 
 Neuner, 190, 191. 
 
 "Nicomathean Ethics" (Aris- 
 totle), 21, 33, 278, 306. 
 
 "Noctes Atticae" (Aulus Gellius), 
 33, 149. 
 
 Nominalism and realism, 71. 
 
 "Normen und ihre Uebertretung, 
 Die" (Binding), 111, 180, 184, 
 192, 195, 197, 201, 203. 
 
 "Note critiche a proposito della 
 tricotomia jus naturale, gen- 
 tium, civile" (Longo), 327. 
 
 "Notion de loi historique. La" 
 (Naville), 30. 
 
 "Nova Methodus Discendae Do- 
 cendaeque Jurisprudentiae" 
 (Leibniz), 296. 
 
 "Novum Organum Scientiarum" 
 (Bacon), 231, 233. 
 
 "Nozione di legge. La" (De Sarlo), 
 278. 
 
 "Nuovo diritto degli individui e 
 dei popoli, U" (Cavagnari), 
 26. 
 
 "Nuove forme dello scetticismo 
 morale e del materialismo 
 giuridico, Le" (Petrone), 9, 
 155, 293. 
 
 "Nuovo saggio suUa coucezione 
 
 materialistica della storia, Un' ' 
 
 (Petrone), 157. 
 "Nuovo saggio suU' origine delle 
 
 idee" (Rosmini), 118, 119. 
 "Nyera Filosofis historie, Den" 
 
 (Hofifding), 234. 
 
 "Obbietto e limiti della Fllosofia 
 
 del diritto" (Fragapane), 39, 
 
 40, 42, 96, 98, 235, 318. 
 "Obligazione naturale" (Bonfante) , 
 
 252. 
 "Observationes de Principiis Juris" 
 
 (Leibniz), 322. 
 Occam, 72. 
 "OeffentlicheRechte, Ueber" (Ger- 
 
 ber), 195. 
 "Opera di R. ArdigS nella Filosofia 
 
 del diritto, L' " (Brugi), 320. 
 "Opere di Vincenza Gravina, 
 
 SuUe" (Poll), 93. 
 "Opera philosophica" (Leibniz), 
 
 319. 
 Organism and entelechia, 246. 
 "Origini del diritto romano, Le" 
 
 (Carle), 34. 
 Orlando, 188. 
 "Origini e progressi del cittadino e 
 
 del governo civile di Roma" 
 
 (Duni), 39. 
 "Osservazioni suUa Scienza nuova 
 
 di Vico" (Romagnosi), 29, 38. 
 Oswald, 227. 
 
 Pacchioni, 319. 
 
 Pachmann, 109, 184, 209, 213. 
 
 Pagano, 39. 
 
 "Pandekten" (Arndts), 177. 
 
 "Pandekten" (Brinz), 149, 173, 
 
 188, 190. 
 "Pandekten" (Gluck), 173. 
 "Pandekten" (Holder), 198. 
 "Pandekten" (Puchta), 92, 170, 
 
 177. 
 "Pandekten" (Windscheid) , 170, 
 
 173, 176, 177, 188, 189, 191, 
 
 213. 
 "Pandektenrecht" (Bekker), 204. 
 
INDEX 
 
 405 
 
 [The numbers refer to the pages.] 
 
 "ParergaundParalipomena" (Scho- 
 penhauer), 149, 220. 
 
 Partial uniformity of law — 
 Aristotle, 21. 
 conclusion, 23. 
 Grotius, 23. 
 "Jus Gentium," 22. 
 
 Pascal. 3, 4, 11, 283, 291. 
 the Sceptic theory, 11. 
 
 "Passions de I'ame, Les" (Des- 
 cartes), 138. 
 
 Past, ideal — 
 
 the myth of an, 288. 
 origin and function of an 
 erroneous belief in, 291. 
 
 "Patriarcha, or the Natural Power 
 Of Kings" (Filmer), 290. 
 
 Paulsen, 161, 220, 229. 
 
 "Pensges" (Pascal), 3, 4, 11, 283, 
 291. 
 
 "Ilepi 'kipiiiv, 'TSdrav, llnrav" 
 (Hippocrates), 32. 
 
 "Periodo del diritto naturale in 
 Germania, 11" (Brugi), 319. 
 
 Pernice, 179, 184. 
 
 Perozzi, 327. 
 
 Petrone, 9, 18, 19, 30, 52, 62, 69, 
 100, 113, 119, 150, 155, 157, 
 163, 166, 167, 191, 209, 228, 
 235, 244, 259, 293, 308, 324, 
 328. 
 
 Phenomena, co-ordination accord- 
 ing to the causal criterion, 224. 
 
 "Philosophia moralis" (Cathrein), 
 280. 
 
 "Philosophic du droit de succes- 
 sion" (Gabba),'320. 
 
 "Philosophie der Geschichte" 
 (Hegel), 64. 
 
 "Philosophie der Griechen in ihrer 
 geschichtlichen Entwicklung, 
 Die" (Zeller), 9, 10, 241, 242, 
 310. 
 
 "Philosophy of History in France 
 and Germany, The" (Flint), 
 26, 41, 44, 45. 
 
 "Philosophie des Rechts, Die" 
 (Stahl), 49, 63. 
 
 "Philosophie im Privatrecht, Die" 
 (Sokolowski), 108. 
 
 "Philosophie practique de Kant, 
 
 La" (Delbos), 264. 
 "Philosophie Shaftesbury's, Die" 
 
 (Gizycki), 304. 
 "Philosophie und Empiric in 
 
 ihrem Verhaltnisse zur posi- 
 
 tiven Rechtswissenschaft, 
 
 Ueber" (Feuerbach), 108. 
 Philosophical doubt and popular 
 
 certainty, 221. 
 "Philosophische Brief e iiber Dog- 
 
 matismus und Kriticismus" 
 
 (Schelling), 261, 294. 
 "Philosophische Einleitung in die 
 
 Rechtswissenschaft" (Geyer), 
 
 93, 195. 
 "Philosophische Weltanschauung 
 
 der Reformationziet in ihren 
 
 Beziehungen zur Gegenwart, 
 
 Die" (Carriere), 230. 
 "Philosophische Vertrage" (Las- 
 son), 302. 
 Philosophy — 
 
 positive, 75. 
 "Physics" (Aristotle), 78. 
 Physiocrats, 42. 
 "Physiologie des Rechts" 
 
 (Strieker), 2. 
 "Pietro Pomponazzi" (Ardigo), 
 
 222. 
 Plato, 25, 26, 33, 70, 72, 78, 80, 
 
 86, 95, 118, 155, 242. 
 Plato. Political modifications, 25. 
 Poll, 93. 
 
 Political modifications (Plato), 25. 
 "Political Theories of the Ancient 
 
 World, The" (Willoughby) , 
 
 332. 
 "Politics" (Aristotle), 26, 33, 241, 
 
 250, 253, 278. 
 Polybius, 27. 
 
 "Pomponazzi, Pietro" (Ardig6), 222. 
 "Popular Government" (Maine), 
 
 291. 
 Positive law. See Law, Positive. 
 Positive school of law, criticism 
 
 of, 98. 
 Positivism — 
 
 genesis of, 100. 
 
 immediate effects in juridical 
 philosophy, 95. 
 
406 
 
 INDEX 
 
 [The numbers refer to the pages.] 
 
 "Positivisme anglais, Le" (Taine), 
 
 5. 
 Post, 8, 12, 56, 69, 60, 61, 67, 
 
 205, 267, 296. 
 "Post, A.H., und die vergleichende 
 
 Rechtswissenschaft" (Ache- 
 
 lis), 296. 
 Prantl, 71. 
 "Presupposti filosofici della nozione 
 
 del diritto" (Del Vecchio), 
 
 pub. here as Part I, 1. 
 "Prime linee di un programma 
 
 critico di Sociologia" (Vanni), 
 
 43. 
 "Principes du droit natural" (Bur- 
 
 lamaqui), 177. 
 "Principes de 1789 et la science 
 
 sociale, Les" (Ferneuil), 44. 
 "Principii di Etice" (Spaventa), 
 
 130. 
 "Principi di Filosofia del diritto 
 
 suUe basi dell' Etica" (Prisco), 
 
 93. 
 "Principj di scienza nuova d'in- 
 
 torno alia comune natura 
 
 delle nazione" (Vico), 27, 36, 
 
 39, 103, 222. 230, 282, 305, 
 
 325, 326, 328, 329, 332. 
 "Principi fondamentali dei diversi 
 
 sistemi di Filosofia del diritto 
 
 e la dottrina etico-giuridica di 
 
 G. G. F. Hegel, I" (Mira- 
 
 glia) , 64. 
 "Principio di equity, Sul" (Miceli), 
 
 109. 
 "PrincipiorumjurislibriV" (Wink- 
 ler), 322. 
 "Principio dell' Etica e la crisi 
 
 morale contemporanea, 11" 
 
 (Tarantino), 326. 
 Principle — 
 
 causal, true validity of, 235. 
 
 coexistence of, final and 
 
 causal, 250. 
 "Principles of Morals and Legis- 
 lation" (Bentham), 144, 146. 
 "Principles of Psychology, The" 
 
 (Spencer), 65. 
 "Principles of Sociology, The" 
 
 (Spencer), 222, 230, 331. 
 
 "Prinzip und Zukunft des Volker- 
 rechts" (Lasson), 64, 205. 
 
 Prisco, 93, 130. 
 
 "Probleme einer allgemeinen Ent- 
 wicklungsgeschichte des 
 Rechts und der Sitte, Ueber 
 das" (Hildenbrand), 62. 
 
 "Probleme der Geschichtsphiloso- 
 phie. Die" (Simmel), 30, 260. 
 
 "Probleme delle origini del diritto, 
 II" (Fragapane), 9, 33, 37, 
 39, 98, 167, 168, 293, 294, 299. 
 310, 320, 332, 335. 
 
 "Problem! dell' universo, I" (Mor- 
 selli), 250. 
 
 "Profession de foi du vicaire 
 Savoyard" (Rousseau), 264. 
 
 "Pro Flacco" (Cicero), 171. 
 
 "Programma del corso di diritto 
 criminale" (Carrara), 133. 
 
 "Progrgs social, Le" (Caro), 291. 
 
 Progress, historical (Kant), 44. 
 
 "Prolegomena to Ethics" (Green), 
 259. 
 
 "Prolegomena zu einer allgemeinen 
 vergleichenden Rechtswissen- 
 schaft" (Post), 8. 
 
 "Pro Milone" (Cicero), 267. 
 
 "Prospetto d'un insegnamento di 
 Filosofia del diritto" (Carle), 
 35, 37. 
 
 "Protologia, Delia" (Gioberti) ,288. 
 "Psicologia" (Rosmini), 131. 
 "Psicologia contemporanea. La" 
 
 (Villa), 131, 137. 
 "Psychologic in Umrissen" (Hoff- 
 
 ding), 137. 
 "Psychologisch'e Ursprung des 
 
 Rechts, Der" (Hoppe), 2. 
 Puchta, 92, 150, 167, 170, 177. 
 Puffendorf. 23, 130, 177, 203, 285, 
 
 301, 316, 325. 
 Putter, 2. 
 Pyrrho, 9. 
 
 the Sceptic theory, 9. 
 "Pyrrhoniae hypotyposes" (Sex- 
 
 tus Empiricus), 10, 14. 
 
 Quesnay, 279. 
 
 "Quid juris" and "Quid jus," 83. 
 
INDEX 
 
 407 
 
 [The numbers refer to the pages.] 
 
 "Quid De Juris Principio et Essen- 
 tia Pascalis Senserit" (Dubuc) , 
 H. 
 
 Ranelletti, 195. 
 
 Rava, 274. 
 
 Realism and nominalism, 71. 
 
 "Recente libro suUa Dichiarazione 
 
 dei diritti dell' uomo e del 
 
 cittadino del 1789, Di un" 
 
 (Brugi),48. 
 "Recht und Macht" (Merkel), 158. 
 "Recht und Unrecht" (Spir), 61. 
 "Rechts als Kulturerscheinung" 
 
 (Kohler), 296, 297. 
 "Rechtliche Verantwortlichkeit" 
 
 (Merkel), 133. 
 "Rechts des modernen Staats, 
 
 Das" (Jellinek), 122. 
 "Rechtsbegriff, Der" (Bluntschli), 
 
 93. 
 "Rechtsbegriife, Ueber" (Eltz- 
 
 bacher), 109. 
 "Rechts- und Gesetzesbegriff in der 
 
 katholischen Ethik und moder- 
 nen Jurisprudenz, Der" (Har- 
 
 ing), 34. 
 "Rechts- und Staatstheorie des B. 
 
 von Spinoza, Die" (Kriegs- 
 
 mann), 234, 283. 
 "Rechtsgeschichte und Weltent- 
 
 wicklung" (Kohler), 329. 
 "Rechtsnorm und subjectives 
 
 Recht" (Thon), 111, 112, 
 
 169, 171, 172, 175, 178, 189, 
 
 191, 192, 195, 203, 210, 214. 
 "Rechtsphilosophie" (Lask), 277. 
 "Rechtsphilosophie des J. J. Rous- 
 seau, Die" (Liepmann), 40. 
 "Rechtsphilosophie als Naturlehre 
 
 des Rechts" (Warnkonig) , 318. 
 "Rechtsphilosophie und Rechts- 
 
 wissenschaft" (Stern), 308. 
 "Rechtsphilosophie und Univer- 
 
 salrechtsgeschichte" (Kohler), 
 
 35, 62. 
 "Rechtsphilosophisches aus Leib- 
 
 nizens ungedruckten Schrif- 
 
 ten" (Mollat), 120. 
 "Rechtswissenschaf t oder Volksbe- 
 
 wusstein?" (Stahl), 109, 
 
 "Reden und Aufsatze" (Riimelin), 
 
 3,30. 
 Reference to a universal, philo- 
 sophical need of, 219. 
 "Rfiformateurs et publicistes de 
 
 I'Europe" (Franck), 303, 310, 
 
 313. 
 "Regie de droit. La" (Roguin), 
 
 186. 
 "Ragles de la mfithode sociologi- 
 
 que,Les"(Durkheim), 79, 251. 
 Reichel, 308, 339. 
 Reid, 4, 5, 129. 
 Reincke, 250. 
 Reliance on the particular, pre- 
 
 philosophical, 221. 
 "Remarks on the Use and Abuse 
 
 of Some Political Terms" 
 
 (Lewis), 240, 278, 285. 
 "Rendiconto delle tornati e dei 
 
 lavori dell' Accademia di 
 
 scienze morale e politiche" 
 
 (Fadda), 297. 
 "Republic" (Plato), 25, 33, 86, 155. 
 Resistance, as action, 131. 
 "Responsibilita della Stato nel 
 
 diritto processuale penale" 
 
 (Rocco), 135. 
 Retslag, 109. 
 
 "Rhetoric" (Aristotle), 22, 293. 
 Ribot, 116. 
 "Richtige Recht, Die" (Maka- 
 
 rewicz), 308. 
 Richard, 247. 
 Rickert, 30, 229, 246, 249, 255, 278, 
 
 286. 
 Riezler, 289. 
 Right and wrong, 149. 
 Rights— 
 
 and utilities, 214. 
 
 bilateral, 189. 
 
 constitute the juridical sphere 
 of the individual, 183. 
 
 correspondence with duties, 
 186. 
 
 show possibility of action, 191. 
 "Rinnovamento della Filosofia 
 
 positiva in Italia, Sul" (Sici- 
 
 liani), 29, 39. 
 "Risposta" (Ferrari), 241, 
 
d08 
 
 INDEX 
 
 [The numbers refer to the pages.]_ 
 
 Ritchie, 240, 252, 278, 285, 286, 
 
 289, 293, 334. 
 Ritter, 309. 
 Rocco, 135. 
 Roguin, 186. 
 Romagnosi, 28, 38, 39, 82, 83,156, 
 
 172, 177, 214, 220. 
 "Romanisti della scuola storica e 
 
 la Sociologia contemporanea, 
 
 I" (Brugi), 49. 
 Romano, 196. 
 Roscellinus, 72. 
 Rosmini, 26, 30,71, 118, 119, 126, 
 
 131, 134, 137, 148, 156, 176, 
 
 181, 276, 328. 
 "Rosmini e Spencer" (Vidari), 65. 
 Rotteck, 1 69. 
 Rousseau, 3, 61, 157, 213, 256, 
 
 257, 264, 281, 290. 
 "Rousseau und Kant" (Stein), 264. 
 "Rousseau und seine Philosophie" 
 
 (Hoffding), 257. 
 "Rousseaus Einfluss auf die defini- 
 tive Form der Kantischen 
 
 Ethik" (Hoffding), 264. 
 "Rousseau und die deutsche Ge- 
 
 schichtspliilosophie" (Fester), 
 
 256, 264. 
 Ruffini, 319. 
 Riimelin, 3, 30, 109, 110, 121, 151, 
 
 195. 
 
 St. Hilaire. See Barthaemy-St. 
 
 Hilaire. 
 "Saggisopra I'evoluzione del diritto 
 
 private" (Cogliolo), 113. 
 "Saggi per la storia della morale 
 
 utilitaria" (Mondolfo), 300. 
 "Saggi filosofici" (Vera), 231. 
 "Saggio di Filosofia giuridica se- 
 
 condo i canoni della scuola 
 
 storica" (Cavagnari), 26, 49. 
 "Saggi politici dei principi, pro- 
 
 gressi e decadenza delle soci- 
 
 eta" (Pagano), 39. 
 "Saggio sulle idee morali e politiche 
 
 di T. Hobbes" (Torantino), 
 
 304, 311. 
 Salvemini, 30. 
 Sarchi, 29. 
 Sarlo, De, 244, 278. 
 
 Savigny, 51, 94, 167, 169, 170, 
 
 171, 173, 176, 188, 308. 
 "Savigny, F. C. v." (Stintzing), 94. 
 Sceptic theory, The — • 
 
 Montaigne, 11. 
 
 Pascal, n. 
 
 Pyrrho, 9. 
 
 Second and third academies, 
 10. 
 Scepticism, logical conclusion of, 
 
 223. 
 Schein, 109. 
 Schelling, 30, 48. 64, 244, 247, 254, 
 
 255, 261, 268, 271, 294. 
 Scherger, 330. 
 Schiattarella, 61. 
 Schleiermacher, 278. 
 Schlossman, 190. 
 Schmaltz, 126. 
 Scholiasts, 117. 
 Schopenhauer, 69, 127, 131, 143, 
 
 149, 152, 220, 228, 236, 254, 
 
 260, 262, 294, 299, 330. 
 Schuppe, 93, 100, 112, 118, 170, 
 
 175, 178, 201, 203. 
 Schwegler, 70, 71, 151. 
 "Sciences sociales en AUemagne, 
 
 Les" (Bougie), 209. 
 Scientific thought, process of, 69. 
 "Science au point de vue philoso- 
 
 phique. La" (Littre), 291. 
 "Science positive de la metaphy- 
 
 sique, La" (Liard), 330. 
 "Scienza del costume o sia sistema 
 
 sul dritto universale, La" 
 
 (Duni), 39. 
 "Scienza della legislazione" (Filan- 
 
 gieri), 39. 
 "Scienza della storia, La" (Mar- 
 
 selli), 26. 
 Scienza nuova. See Principj di, etc. 
 Scolari, 38. 
 Scotus Erigena, 279. 
 "Scuola del diritto naturale nelle 
 
 dottrine etico-giuridiche dei 
 
 secoli XVII e XVIII, La" 
 
 (Solari), 292. 
 "Scuola del diritto naturale nella 
 
 Filosofia giuridica contempo- 
 ranea. La" (Anzilotti), 17, 19, 
 
 65. 
 
INDEX 
 
 409 
 
 [The numbers refer to the pages.] 
 
 Segond, 357. 
 
 Selden,' 177. 
 
 Seneca, 125, 326. 
 
 "Sentimento giuridico, 11" (Del 
 
 Vecchio), 2, 61 154, 292. 
 Sextus Empiricus, 10, 14. 
 Shaftesbury, 304. 
 Sicilian!, 29, 39. 
 Sidgwick, 161. 
 Sidney, 290. 
 Siebeck, 231, 279. 
 Sigwart, 30, 102, 244, 246, 303. 
 Simiand, 30. 
 Simmel, 9, 30, 110, 133, 152, 260, 
 
 277, 287, 306. 
 "Sisteraa etico-giuridico di Her- 
 bert Spencer, II" (Vanni), 18, 
 
 65, 123, 292. 
 "Sittliche Verantwortlichkeit' ' 
 
 (Lasson), 133. 
 Smith, M., 333. 
 Social sense. The — 
 
 egoism, and, 303. 
 "Social Statics" (Spencer), 16. 
 "Socialismo di Fichte e le sue base 
 
 filosofico-giuridiche, 11" 
 
 (Rava), 274. 
 "Sociologia" (Ardigd), 114, 319, 
 
 333. 
 "Sociologia e storia" (Xenopol), 
 
 30. 
 Sociology — 
 
 Comte, 52. 
 
 Spencer, 63. 
 Socrates, 69, 95. 
 Sokolowski, 108. 
 Solari, 292. 
 Sophists, the, 9. 
 Sophocles, 293. 
 ' 'Soziale Frage im Lichte der Philo- 
 
 sophie. Die" (L. Stelin), 66. 
 "Spaccio de la bestia trionfante" 
 
 (Bruno), 229, 261. 
 Spaventa, 129, 254. 
 "Specimen Dynamicum Pro Ad- 
 
 mirandis Naturae Legibus" 
 
 (Leibniz), 245. 
 "Speculum juris" (Duranti), 11. 
 Spencer, 6, 12, 16, 17, 65, 64, 98, 
 
 167, 222, 230, 331. 
 
 sociology, 63. 
 
 "Spiegazione teorico-practica del 
 
 codice Napoleone" (Marcade), 
 171, 203. 
 Spinoza, 144, 156, 156, 230, 231, 
 
 232, 233, 234, 235, 236, 283, 
 
 284, 298, 313, 314, 315. 
 
 system of, 313. 
 "Spinoza" (Caird), 314. 
 "Spinozismus historisch und philo- 
 
 sophische erlaiitert' ' (Sig- 
 
 wurt), 314. 
 Spir, 61, 227, 245. 
 Stahl, 49, 63, 92, 109, 194, 233, 
 
 284, 299. 
 Staramler, 3, 93, 96, 100, 110, 112, 
 
 308. 
 "State and the Individual, The" 
 
 (Kechnie), 333. 
 Statutes, non-juridical, 172. 
 Stein, H. von, 264. 
 Stein, Lor v., 67, 113, 198. 
 Stein, Ludwig, 66. 
 Stellini, 39. 
 Stern, 308. 
 Stintzing, 94, 158. 
 Stockhardt, 108. 
 Stoics, 79. 
 "Storia della filosofla moderna" 
 
 (Hoffding), 231. 
 "Storia della giurisprudenza. Per 
 
 la" (Brugi), 319. 
 "Storia considerata come scienza. 
 
 La" (Salvemini), 30. 
 "Storia interna e il problema pre- 
 
 sente della filosofia del diritto, 
 
 La" (Petrone), 19. 
 "Storung und Bewahrung des 
 
 Rechts" (Bierling), 200. 
 Strieker, 2, 157. 
 "Streit der Facultaten, Der" 
 
 (Kant), 45. 
 "Streit der historischen und der 
 
 philosophischen Rechtsschule, 
 
 Ueber den" (Bekker), 94. 
 "Studi suir Etica di Hegel" 
 
 (Spaventa), 130, 254. 
 "Studi di H. S. Maine e e dot- 
 trine della Filosofia del Idiritto 
 
 GU" (Vanni), 43, 141, 167, 
 
 168, 205, 324, 331. 
 
410 
 
 INDEX 
 
 [The numbers refer to the pages.] 
 
 "Studi di psicologia del diritto" 
 
 (Miceli). 2, 19, 92. 
 "Studi e questioni di diritto 
 
 amministrativo" (Forti), 135. 
 "Studien zur Rechtsphilosophie" 
 
 (Wallaschek), 17, 122, 150, 201. 
 "Studies in History and Jurispru- 
 dence" (Bryce), 19. 
 "Studii giuridici dedicati A. F. 
 
 Schupfer, La" (Catellani), 62. 
 "Studio comparativo delle razze 
 
 inferiori nella Sociologia con- 
 
 temporanea, Lo" (Vanni), 55. 
 "Study of Sociology, The" (Spen- 
 cer), 98. 
 Suarez, 276. 
 Sully, 137. 
 "Summa Theologia" (Tliomas 
 
 Aquinas), 34, 130, 131, 276, 
 
 298. 
 "System der Ethik" (Paulsen), 
 
 161. 
 "System der heutigen romischen 
 
 Rechts" (Savigny), 94, 167, 
 
 169, 170, 171, 173. 176, 188. 
 "System of Logic, Ratiocinative 
 
 and Inductive, A" (Mill), 
 
 5, 83, 98, 127. 138. 
 "System der Logik und Geschichte 
 
 der logischen Lehren' ' (Ueber- 
 
 weg), 71, 121, 
 "System der Logik und Metaphy- 
 
 sik Oder Wissenschaftlehre" 
 
 (Fischer) , 72. 
 "System der Rechts- und Wirt- 
 
 schaftsphilosophie" (Berolz- 
 
 heimer), 308. 
 "System der Rechtsphilosophie" 
 
 (Krause), 93. 
 "System der Rechtsphilosophie" 
 
 (Lasson), 43, 55, 64, 109, 114, 
 
 119, 122, 150, 156, 203, 205, 
 
 216, 252. 
 "System der Sittenlehre, Das" 
 
 (Fichte), 226. 
 "System der subjektiven offent- 
 
 lichen Rechte" (Jellinek), 181, 
 
 188, 196, 198, 214, 217. 
 "System des transscendentalen 
 
 Idealismus "(Schelling) , 30, 64, 
 
 244, 268. 
 
 "Systeme de la nature" (Voltaire), 
 251. 
 
 "Systeme de la nature" (Hoff- 
 ding), 234, 235. 
 
 "Systeme de la politique positive" 
 (Comte), 45. 
 
 Systematizing function of defini- 
 tion, 5. 
 
 Tarantino, 304, 311, 326. 
 
 Taine, 5, 116. 
 
 Tarde, 62, 113, 332. 
 
 Telesio, 230. 
 
 "Telesio, Bernardino, ossia studi 
 
 storici su I'idea della natura 
 
 nel risorgimento italiano" (Fi- 
 
 orentino), 230, 256.' 
 "Teleologische und mechanische 
 
 Naturklarung in ihrer An- 
 
 wendung auf das Weltganze, 
 
 Ueber" (Zeller), 242, 245. 
 "Teoria del contratto sociale, Su 
 
 la" (Del Vecchio), 257, 307, 
 
 331. 
 "Teoria dei diritti pubblici sub- 
 
 jectivi. La" (Romano), 196. 
 "Teoria giuridica delle guarantigie 
 
 della liberta" (Orlando), 188. 
 "Teorica de sovranaturch" (Gio- 
 
 besti) , 290. 
 "Teorie social! dei sofisti greci, 
 
 Sulle" (Chiappelli),9, 33, 293. 
 "Theorie des Anarchismus, Die" 
 
 (Stammler), 112. 
 Thibaut, 54, 194. 
 Thol, 173, 179. 
 Thomas Aquinas, 34, 72, 130, 131. 
 
 276, 298. 
 Thomasius, 18, 23, 136, 142, 160, 
 
 177, 194, 280, 322. 
 
 Thon, 111, 112, 169, 171, 172, 175, 
 
 178, 189, 191, 192, 195, 197, 
 203, 210, 214. 
 
 Thought — 
 
 objective and subjective ori- 
 entation, 261. 
 Thrasimachus, 155. 
 Tissot, 61. 
 Tomasseo, 29. 
 Tonnies, 331. 
 T6jroi, 9. 
 
INDEX 
 
 411 
 
 (The numbers refer to the pages.] 
 
 "Tractatus Politicus" (Spinoza), 
 
 156, 234, 298. 
 "Tractatus Theologico-Politicus" 
 
 (Spinoza), 144, 155, 234, 298, 
 
 313, 314, 315. 
 "Transformations de droit, des" 
 
 (Tarde), 62, 113, 332. 
 "Transscenddentale Methoden- 
 
 lehre" (Kant), 3, 4. 117. 
 Trendelenburg, 3, 108, 109, 121, 
 
 122, 156, 200, 244. 
 Trojano, 314. 
 Tptnroi, 9. 
 Truth, 89. 
 Tryphoninus, 327. 
 Turgot, 44. 
 "Two Treatises of Government" 
 
 (Locke), 290. 
 Tylor, 167. 
 
 Ueberweg, 71, 121. 
 
 Ueberweg-Heinze, 252. 
 
 Ulpian, 4, 108, 125, 138, 206, 327. 
 
 Ulpiani Fragmenta, 206. 
 
 Ulrici, 251, 307. 
 
 "Unico principio e dell' unico fine 
 del diritto universale, Del" 
 (Vico), introduction to the 
 above by Sarchi, 29. 
 
 "Unite morale de I'espece humaine, 
 L' " (Janet), 61. 
 
 "UnmoralischeVertrag, Der" (Lot- 
 mar), 110. 
 
 "Unsere Naturerkenntniss" (Kro- 
 man), 228. 
 
 "Unsere Rechtsphilosophie und 
 Jurisprudenz" (Schein), 109. 
 
 "Unterschied zwischen Naturge- 
 setz und Sittengestz, Ueber 
 den" (Schleiermacher), 278. 
 
 "Ursprung des Rechts, Der" 
 (Post), 8. 12, 67. 
 
 Utilities, 214. 
 
 "Utilitarianism" (Mill), 2. 
 
 Vadala-Papale, 34, 35, 38, 39, 320. 
 Vanni, 43, 48, 55, 58, 65, 96, 111, 
 
 123, 127, 167, 168, 170, 205, 
 
 292, 324, 331. 
 Variance of law (Locke), 12. 
 Variety of historical data, 8. 
 
 "Vedute fondamentali suU' arte 
 logica" (Romagnosi), 83, 220. 
 
 Vera, 231. 
 
 "Vergleichung der Rechts- und 
 Staats-Theorieen des B. Spi- 
 noza und T. Hobbes" (Sig- 
 wart), 314. 
 
 "Verhaltniss der Rechtsphiloso- 
 phie zur 'positiven' Rechtswis- 
 senschaft und zum allge- 
 meinen Teil derselben, Ueber 
 das" (Merkel), 96, 110, 251. 
 
 "Verhaltniss der Theorie zur 
 Praxis im Volkerrecht, Vom" 
 (Kant), 45, 46. 
 
 "Vernunftrecht," 18, 91. 
 
 "Vernunft- und Volkerrecht," 
 (Glafley), 323. 
 
 "Versuche auf dem Gebiete des 
 Naturrechts" (Eberty), 118. 
 
 "Vertrag, Der" (Schlossmann), 
 190. 
 
 Vico, 27, 28, 29, 36, 39, 50, 61, 
 103, 208, 214, 222, 230, 241, 
 282, 298, 305, 325, 326, 327, 
 328, 329, 332. 
 historical modifications, 28. 
 relativity of law, 36. 
 
 "Vico, G. B." (Flint), 26, 36, 38. 
 
 "Vico, G. B., Studii critici e com- 
 parativi" (Cantoni), 26, 27, 
 30, 36, 38, 39. 
 
 "Vico, G. B., e i suoi critici catto- 
 lici" (Lablanca), 36. 
 
 "Vico, G. B." (Tommaseo), 29. 
 
 Vidari, 65, 291, 329. 
 
 "Vierfache Wurzel des Satzes 
 vom zureichenden Grunde, 
 Ueber die" (Schopenhauer), 
 229. 
 
 Vierkandt, 287. 
 
 Villa, 131, 137. 
 
 "Vita del diritto nei suoi rapporti 
 colla vita sociale. La" (Carle), 
 29, 34, 35, 153, 168, 292, 318, 
 332. 
 "Vita degli Stati, Delia" (Romag- 
 nosi), 29. 
 "Vocabulaire technique et critique 
 
 de la Philosophie," 117. 
 Voigt, 22, 23, 252, 327. 
 
412 
 
 INDEX 
 
 The numbers refer to the pages.] 
 
 "Volksgeist, 92. 
 
 "Volksrecht und Juristenrecht" 
 
 (Berseler), 169. 
 Voltaire, 251. 
 "Vorfragen der Ethik" (Sigwart), 
 
 303. 
 "Vorlaiifer des H. Grozius auf dem 
 
 Gebietc des jus naturae et gen- 
 tium, Die" (Kaltenborn), 322. 
 "Vorlesungen iiber die Geschichte 
 
 der Philosophic" (Hegel), 241. 
 "Vorlesungen iiber die Methode 
 
 des acadetnischen Studium" 
 
 (Schelling), 255. 
 "Vorlesungen tiber die Natur- 
 
 philosophie" (Hegel), 239, 243 
 
 254. 
 "Vorlesungen iiber Naturphiloso- 
 
 phie" (Ostwald), 227. 
 
 Wach, 180, 181. 
 
 Wallaschek, 17, 122, 150, 201. 
 
 Walter, 55. 
 
 Warnkonig, 173, 318. 
 
 "Was ist das Recht?"(Baumstark), 
 
 121. 
 Wautrain-Cavagnari, 19, 320. 
 Weber, 227. 
 "Welt als Wille und Vorstellung, 
 
 Die" (Schopenhauer), 69, 127, 
 
 149, 255. 
 "Weltrathsel, Die" (Haeckel), 249. 
 "Wendepunkt der Rechtswissen- 
 
 schaft, Der" (Kuntze), 109. 
 "Werthlosigkeit der Jurisprudenz 
 
 als Wissenschaft, Die" (Kirch- 
 
 mann), 109. 
 "Wesen des Naturrechtes und 
 
 seine Bedeuting in der Gegen- 
 
 wart, Ueber das" (Jodl), 17, 
 
 289. 
 "Wesen der Philosophie, Das" 
 
 (Dilthey), 220. 
 "Wesen und Arten der Privat- 
 
 rechtsverhaltnisse" (Neuner), 
 
 190, 191. 
 "Wesen des Rechtes von dem rich- 
 
 tigen Rechte" (Stammler), 
 
 308. 
 
 "Willen in der Natur, Ueber den" 
 
 (Spinoza), 233. 
 William of Champeaux, 72. 
 Willoughby, 332. 
 Windelband, 71, 222, 231, 286, 
 
 304. 
 Windscheid, 170, 173, 176, 177, 
 
 188, 189, 190, 191, 213. 
 Winkler, 322. 
 "Wirtschaft und Recht nach der 
 
 materialistischen Geschichts- 
 
 auffasung" (Stammler), 3, 
 
 96, 100, 112, 308. 
 "Wissenschaft des natiirlichen 
 
 Rechts, Die" (Schmaltz), 127. 
 "Wissenschaft des Rechtes oder 
 
 das Naturrecht in Verbindung 
 
 mit einer vergleichenden 
 
 Kritik der positiven Rechts- 
 
 ideen, Die" (Stockhardt) , 108. 
 "Wissenschaftlehre" (Fichte), 151. 
 "Worterbuch der philosophischen 
 
 Begriffe" (Eisler), 240. 
 Wrong, and right, 149. 
 Wundt, 30, 109, 225, 244, 246, 
 
 248, 329. 
 
 Xenopol, 30. 
 Xenophon, 24. 
 
 "Zeitliches und 2eitloses" (Las- 
 son), 133. 
 
 "Zeitschrift fiir das Privat- und 
 offentlichen Recht der Gegen- 
 wart" (Pernice), 179, 184. 
 
 Zeitschrift fiir Philosophie und 
 philosophische Kritik, 308. 
 
 Zeller, 9, 10, 231, 241, 242, 245, 
 278, 307, 310. 
 
 Zitelmann, 65, 179, 184, 318, 333. 
 
 "Zukunftsaufgaben der Philoso- 
 phie, Die" (Paulsen), 220. 
 
 "Zweck im Recht, Der" (Ihering), 
 57, 113, 123, 158, 172, 174, 
 184, 195, 209, 210, 211, 214, 
 305. 
 
 "Zweck und Mittel der verglei- 
 chenden Rechtswissenschaft" 
 (Bernhoft), 62, 296. 
 
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