THE HISTORICAL ASPECT OF LAW

As the cognitive mind passes from feeling without noticing to noticing with disturbed and confused faculties, and thence to the reflection of the clear mind, so analogously the volitional mind passes from the state of nature to practical certitude and thence to practical truth. In the correlative empirical science, the transition is more or less that from the savage to the heroic or barbaric condition and from the latter to the civilised. In these three types of society, all the manifestations of life correspond: thus there are three kinds of character, three kinds of manners and customs, three kinds of law and therefore of states, three kinds of language and writing, three kinds of authority, reason and justice, and three divisions of history. Confused and sometimes self-contradictory though Vico may be in fixing the particulars of these various correspondences, his general idea is plain. Where reflection is at a low ebb and imagination flourishes, the passions also flourish, habits are violent, governments aristocratic or feudal, families subjected to strict paternal rule, laws severe, legal procedure symbolical, language couched in metaphor and writing in hieroglyphics. Where on the other hand reflection predominates, poetry becomes either separate from or charged with philosophy, manners and customs lose their violence, the passions are brought into subjection, the people take the government into their own hands, all members of the family are alike citizens of the state, law is mitigated by equity and its procedure simplified, language loses its metaphorical clothing and writing becomes alphabetical. Mixed forms, which some politicians aim at producing artificially, would be abortions: and though we do find natural hybrid forms which retain a tinge of the earlier, each one, by reason of its own unity, always tries so far as possible to divest its subject of every property belonging to other forms.

Which of the various social types forms the foundation of the others and supplies the criterion for judging them? or what is the criterion and standard by which they must all alike be judged? For Vico, such a question is meaningless. Governments, he says, must adapt themselves to the nature of the people governed: the school of princes is the morality of nations. We may shudder at war, at the law of the stronger, at the reduction of the conquered to slavery, that is, to chattels: but the society which expressed itself in these customs was necessary and therefore good. The worship of strength, as we have said, occupied the position and discharged the function of the as yet impossible rule of reason. Later came the period of fully developed human reason, when men no longer valued each other by the standard of force, but by virtue of their rational nature, which is the true and eternal human nature, recognised one another as equals. The change of time brought change of customs: and the new were no less good, but no more so, than the old.

It would be as useless to seek the common measure of these various social types, as to ask what is the real age of the individual life, the common measure of childhood, youth, maturity and old age. The comparison is one presented by Vico himself. As children shape all their ideas according to their whims and carry them out with violence, as youths animate everything by their imagination, as grown men guide their affairs rather by pure reason and old men by sound prudence; so it is with the human race, which after its feeble, isolated and poverty-stricken origins, grows at first in unrestrained liberty, then rediscovers the necessaries, utilities and comforts of life by genius and imagination (the age of poetry), and finally cultivates wisdom by means of reason (the age of philosophy). Similarly, natural right arose first in laws so to speak of just passion and just violence: then it was clothed in various myths of just reason: and finally it was openly proclaimed in its pure rationality and noble truth.

By such a method of handling and passing judgment upon governments, laws and customs, Vico, escaped another of the leading doctrines or suppositions of the school of natural rights, the abstraction and anti-historicism we mentioned in its own place, which resulted in the conception of a natural law standing above positive law and therefore constituting a kind of eternal code, a perfect scheme of legislation, not yet fully actual but to be actualised, whose outlines show up clearly in the works of the school through their veil of doctrine and philosophy. But this eternal code was in its most important part a contingent and transitory code; or at least it advocated a code in agreement with the reformatory and revolutionary tendencies of these writers, publicists as they were rather than philosophers.

Vico rids himself of the ideal eternal code without seeming to do so: though he is quite ready to recognise that the "philosophers' natural right," ius naturale philosophorum, is in idea eternal, and inexorably laid down "in accordance with eternal reason," ad rationis aeternae libellam. But from this verbal concession of eternity made out of respect for the old traditional scholastic philosophy, whose influence he felt now and then, he goes on to deny its real eternity and supra-historical character; since instead of placing it above and outside history he puts it in the place which belongs to it, within history. The law of violence or heroic law, after passing into the law of uncivilised society, gradually attains a certain limit of clarity, in which state the only thing wanting to its perfection is that some school of philosophers should complete it by establishing it with reasoned principles, upon the idea of eternal justice: and this reasoning and systematisation is the "ius naturale philosophorum" the extreme form of the historical development of law, not its unchanging rule; a product, not a standard. Hence Vico's charge against Grotius of confusing the "ius naturale philosophorum," the law composed of reasoned principles derived from moralists, theologians and, in part, jurists, with the natural law of nations, ius naturale gentium (in Grotius's language, confusing natural law with an arbitrary or positive form of law): of misunderstanding the Roman jurists, who intended to speak solely of the latter: and of offering to correct and venturing to criticise writers whose faults on inspection vanish.

The eternal code, considered in its essentials, is a Utopia: and since the first and greatest of Utopias is Plato's Republic, it is important, in order better to decide the point at issue, to examine Vico's attitude towards the political scheme of Plato. If we may listen to his own words, the Republic was another of his many incentives and examples when he conceived the New Science. With the study of Plato began the unconscious awakening in him of "the thought of conceiving an ideal eternal law, to be expressed in a universal state built on the idea or plan of providence, on which idea, indeed, are founded all the states of every period and race: an ideal Republic like that which Plato ought, as a consequence of his divine metaphysic, to have conceived." He ought, but could not, owing to his "ignorance of the first man's fall"; ignorance, that is, of the original state of nature and of the exclusively poetic or "common" wisdom which followed it: an ignorance maintained by the error, common to the minds of all men, of measuring by oneself the almost unknown nature of other people, as Plato exalted the rude and barbaric beginnings of Gentile man to the perfect state of his loftiest esoteric knowledge of the divine, and fancied these earliest men to possess a high degree of this esoteric wisdom, whereas on the contrary they were really "brutes, all stupidity and ferocity." In consequence of this learned error Plato, instead of conceiving an eternal Republic and the laws of an eternal justice by which Providence governs the nations of the world and directs it by means of the common needs of mankind, by which it is led to the common consciousness of the whole human race, "conceived an ideal Republic and a merely ideal justice, by which nations are not guided at all." In fact, they ought not to be guided by it: since among the determinations of the perfect state there are some which are dishonourable and detestable, such as the community of wives. Thus Vico took from Plato the idea of an eternal state, but entirely inverted it by the reservation which he added to it, that the true eternal republic is not the abstract state of Plato, but the course of history in all its phases, including the brutes at one end and Plato at the other. This is the "republic of mankind," the "great state of mankind," the "universal republic" (generis humani respublica, magna generis humani civitas, respublica universa) of which he means to investigate the "form, ranks, societies, occupations, laws, crimes, punishments, and science of jurisprudence" (formam ordines societates negotia leges peccata poenas et scientiam in ea tractandi iuris) and to follow the development of all these "from their origin, the beginnings of humanity, under the control of divine Providence, national custom and authority" (a suis usque primis humanitatis originibus, divina providentia moderante, moribus gentium ac proinde auctoritate), that is to say, "by means of the various elements of human utility and necessity, or even by means of opportunities arising by the spontaneous action of circumstances" (per varia utilitatum et necessitatum, humanarum rudimenta, sive adeo per ipsarum sponte rerum oblatas occasiones). The "great state of the nations founded and governed by God" is thus nothing else than History.

While refusing a fixed code and the draft of a model society, we do not mean to deny the possibility of a practical aspect of the science conceived by Vico, the New Science in its triple form of ideal history, typical history and historical history. Every truth has its practical side, that is to say, its practical consequences: and thinking in this or that way of the nature and development of mankind involves this or that practical line of conduct. A man who believes for instance in the docile innocence of savage races will approach them with a smile on his face, kindly words on his lips and the alphabet and catechism of rights and duties in his hand: one who believes in Vico's "brutes" will adopt somewhat sterner methods, perhaps even fire and the sword. One who, like Vico, believes that "custom is more potent than law" and that "custom changes not at a blow, but gradually and slowly" will not be inclined to hasty legislation, and will not delude himself into thinking he can remodel human nature after an ideal of his own devising. Such conduct in any case is not theory, but practice: and when the attempt is made to reduce it to theory, either a chaotic confusion of necessary and contingent determinations results, or else if we avoid these errors and strive to attain a strictly doctrinal form of conduct, we get neither more nor less than the scientific theory itself, from which our conduct derived.

The thought of following up the New Science with a practical theory appropriate to it evidently occurred to Vico. Even in the first Italian edition of the work he stated two "practical" corollaries: first, a new art of criticism, to serve as a light to distinguish the truth in obscure and legendary history; and secondly an art of diagnosis, so to speak, for determining the degrees of necessity or utility in human affairs, and as its ultimate consequence, the chief end of this science, consisting in the recognition of indubitable symptoms of the conditions of nations. Properly considered, these arts of criticism and diagnosis unite into one, namely the better knowledge which it was possible, owing to the principles laid down by Vico, to obtain concerning the past and present life of nations.

This idea is repeated and explained in other parts of the same work. The sciences, studies and arts developed up to now, says Vico, deal with particular objects: the New Science, on the other hand, investigating as it does the principles themselves which lie at the source of all studies, is able to establish the ἀκμή or state of perfection of the entire system, and the degrees and extremes by which and within which human nature like all other mortal things must run its course and come to an end: so that through this science we can answer the practical questions how a nation in its rise may come to its state of perfection, and how in its decadence it may be stimulated to new life. The state of perfection would consist in a nation's resting upon fixed principles both demonstrated by unchanging reason and put into practice by human habits; principles in which the esoteric wisdom of the philosopher would extend a helping hand to the common wisdom of nations, thus uniting men of the greatest academic reputation with all those of wisdom in the state, the philosophers with the statesmen; and the science of civil matters divine and human, religion and law, a theology and morality imposed by command and acquired by habituation, would be supplemented by the science of natural laws divine and human, a theology and morality imposed by reason and acquired by ratiocination: so that to transgress such principles would be true error, the wandering not of men but of wild animals.

The practical aspect of the New Science, then, was simply a summary or duplicate of the science itself, emphasising the two leading elements of spontaneous and reflective wisdom, certitude and truth, and the necessity of bearing both in mind.

Years later, in one of the elaborations of the second Scienza Nuova made by Vico, we again meet with the idea and the phrase of a practical aspect of this science, in the title of a special concluding paragraph which he proposed to add to his work. It begins thus: "The whole of this work has now been thought out as a mere contemplative science dealing with the common character of nations: for this reason it may seem to offer no assistance to human prudence in order either to prevent or to delay the entire ruin of nations on the path of decadence, and thus to lack the practical side which every science must have whose subject-matter is dependent upon the human will, all such sciences being called practical." Now in what could such a practical side consist? "This practical application can easily be found from the contemplation itself of the course of the history of nations: which the wise men (statesmen) and princes of states observing, could by means of good ordinances, laws and examples recall peoples to their ἀκμή or state of perfection." In other words: a man warned is half saved. Contemplation is the only principle of conduct which the New Science can supply. The other half of salvation depends not on the person warning, namely thought, but upon the person warned, upon action. It does not occur to Vico to try to determine the "ordinances, laws and examples" whose adoption would be of value in this or that crisis or situation. This would not be a philosopher's task, as in fact he himself clearly recognises next moment, when he says: "The only practical principles we philosophers can supply are ones which can be confined to the academic sphere."

It would certainly be rash to claim precise knowledge of Vico's reasons for omitting this note on practical principles in the final manuscript of the last edition of the Scienza Nuova, just as he had omitted in the second work of that title the assertions on the subject which had appeared in the first. But we may at least venture to guess that the principal reason was the obvious emptiness of this passage, promising as it did a practical application which it failed to provide, and finally confessing that such a practical application was either impossible or already included in the theory itself.

CHAPTER X