MORALITY AND LAW

With the dazzling light of his originality still shining before our eyes, it is impossible to fix our attention upon those doctrines and classifications which Vico drew from the traditional philosophy and placed especially in the first book of the Diritto universale: though it is precisely these that have become favourites with many readers, and are now almost common property through the frequent quotation of them. That God is "infinite power knowledge and will" (posse nosse velle infinitum) and man "finite power knowledge and will struggling towards the infinite" (posse nosse velle finitum quod tendit ad infinitum): that the state is the image of God, and because "it has all things beneath it, nothing above" (omnia infra se, nil superius habet), therefore "it renders account to God alone and to no one else" (uni Deo, praeterea reddat rationem nemini), and that just as in God freedom is inherent in his eternal reason, so the state freely obeys the laws it has itself established: that justice "directs and equates utilities" (utilitates dirigit et exaequat), directing, like an architect, in the building-up of the state, the two particular kinds of justice, commutative and distributive, the two divine artisans that measure utility with the two divine measures, arithmetic and geometry, so that "what is equal when you measure is also just when you choose" (quod est aequum cum metiris, idem est iustum quum eligis), these and similar assertions seem not merely lacking in originality but even false or meaningless, adorned though they may be with the name either of Aristotle or of Campanella or of other philosophers of the ancient world or the Renaissance. If, to take one, justice consisted in measuring, a philosophy of justice would be unnecessary, for the science of calculation and measurement would be enough. Vico himself at one point involuntarily and ingenuously discloses the vicious circle of this metaphor substituted for a concept, by saying that men ought "to share utility equally among themselves, only preserving a just difference where it is a question of desert, and that to preserve the equality."

More profitable than collecting these second-hand formulae would be to collect the many acute observations of moral psychology found here and there in his writings, expressed in his gem-like style; or to recall his little-known theory of laughter, which he derives from disappointed expectation and from the weakness of the mind, and therefore denies the faculty both to animals and to the perfect man, considering a man who laughs to be a satyr or faun, intermediate between a brute and a man. But abstaining from such a collection, which forms no part of our plan, we would rather observe that even in the commonplace distinctions and classifications mentioned above Vico shows a certain merit: he recognises, even while he propounds them, the necessary confusion and identification of all or many of these distinctions. Thus after distinguishing the two kinds of justice, the three kinds of virtue and the three kinds of law, he ends by declaring that these dualities, triplicities and multiplicities each form a unity.

Justice and virtue also, for Vico, form a unity, since that power of truth, or human reason, which is virtue in so far as it struggles with selfishness, is also justice in so far as it directs or equates utilities. This implies that Vico does not distinguish, at least in the systematic exposition of the Diritto universale, between law and morality: a distinction which indeed received little emphasis in the doctrine of natural rights, and is barely indicated in Grotius, for instance, as one between a greater and less degree of morality. Vico's doctrine of punishment is also purely moral, and deduced from the ethical concept of remorse. It is inflicted, he says, by the law, and is nothing but a social reinforcement of the individual conscience, in the case where the offender does not himself expiate his crime by means of remorse and internal punishment.

But the more the problem of the relation between law and morality is absent in Vico's theoretical formulation and systematic treatment, the more present it is in his particular observations; indeed it may be said to pervade the whole of the New Science. Nor could it be otherwise, seeing that this relation refers to the distinction between the moral will and the inferior or earlier forms of will; and we know that all Vico's tendencies were towards exploring the lower and obscure region of the mind, both cognitive and practical, in the sphere alike of imagination, will and passion.

He always realised the supreme importance of the passions; and if he could not approve of giving them the upper hand, if he always considered the Epicurean morality a morality "of idlers shut up in their pleasure-gardens," he did not at all approve of excessively severe moralities such as that of the Stoics, which was no less than the other a morality of "solitaries," not one for men living in a state. Stoicism certainly preaches an eternal and immutable justice, and makes honour the criterion of human action; but it does violence to human nature, dehumanises it, annuls it and drives it to despair by pretending that it is quite insensible to the passions, by ignoring the utility and necessity of the bodily nature, by inculcating that rule—a rule "harder than iron"—that sins are all equal and that he who strikes a slave is as guilty as he who kills his father. The same doubts must have been aroused in Vico's mind by Jansenism, as he complains that "out of hatred of probability, Christian morality in France is becoming rigidified." We ought to follow not these solitary philosophers but rather those political ones, especially the Platonic type, which recognises that the passions should be not eradicated but moderated and "converted into human virtues." Thus out of cruelty, avarice and ambition, the three universal faults of mankind, Providence elicits the warrior, the merchant and the judge; the bravery, wealth and wisdom of states. From these three failings, which would destroy mankind on the earth, civil prosperity is formed.

Concerning matters of utility, Vico observes that "in themselves," ex se, they are neither good nor bad (neque turpes neque honestae) but become so merely through their relation to the moral consciousness ("but their unfairness is baseness, their fairness, honour: sed earum inaequalitas est turpitudo, acqualitas autem honestas"). In the empirical science of utility, he defends against Grotius a "prior natural law," ius naturale prius, to which belong self-defence and the procreation and upbringing of children: and this right he connects with the Stoic ἀδιάφορον. That it has no moral authority is proved by the fact that the law which follows it in the historical order, the "posterior natural law," ius naturale posterius, defined by Justinian as "that which is established among all men by natural reason and is preserved by all nations alike" (quod naturalis ratio inter omnes homines constituit et apud omnes gentes per aeque custoditur), is prior in the order of right, prius iure, overcomes the former when they conflict and sets upon it the seal of immutability. Now, although this first natural law is defined and exemplified in a merely empirical manner, it is surely at bottom nothing but pure law, law not yet moralised.

But it is upon the concept of "certitude" that law as distinct from morality properly, according to Vico, rests. The word certitude is used by him in many senses, neither clearly distinguished nor harmonised nor deduced one from another: though they all as we have seen unite, rather confusedly, in the general idea of the spontaneous as distinguished, from the reflective form of the mind. Certitude in its practical signification implies among other things an opposition to the "truth" of volition, and is, in a word, force as against equity and justice, authority as against reason, mere will as against the moral will. These are distinctions occurring to our own thoughts, rather than stated by Vico, who both distinguishes and fails to distinguish. For instance, he affirms that "certitude proceeds from authority, truth from reason" (certuni ab auctoritate est, verum a ratione) and immediately afterwards adds that "it is quite impossible for authority to conflict with reason, for in that case there would be not laws but abortive laws" (auctoritas cum ratione omnino pugnare non potest, nam ita non leges essent, sed monstra legum). At any rate, the New Science seems to him, by reason of this treatment of certitude, to contain a philosophy of authority, which, he adds, "is the source of what theological moralists call external justice." That is to say, he connected the concept of certitude with the distinction and terminology of external and internal, already employed by the scholastic morality, which, used about this time by Christianus Thomasius, were destined without any great philosophical merit on his part to give an impetus to the investigation of the philosophical relations between law and morality.

Another and kindred meaning of practical certitude in Vico is the so-called letter of the law, formula legum; which may stand in opposition to reason and the moral consciousness, but none the less has its own peculiar value: "dura lex, sed certa: durum sed scriptum est—the law is harsh, but it is certain; it is harsh, but so it is written." It is in a word the value of law simply as law, which though devoid of any real ethical content yet has always the value that comes from a command over the will. "The certitude of law" (writes Vico) "is a darkening of the reason supported merely by authority, and makes the law harsh in practical experience by laying down their certitude, which in good Latin (certuni) means particularised, or in the scholastic terminology individualised." To a certain extent Vico grasped the individual character which lies at the root of every law. That one must "judge according to law, not according to example" (legibus non exemplis iudicandum) is a comparatively late principle: the first laws were strictly "exempta," exemplary punishments. From real examples were derived the ideal examples employed by logic and rhetoric: and when the intelligible universal was understood, it was recognised that law had a certain universal character.

The primitive society sketched by Vico is, in its juristic aspect, the myth so to speak of pure law or practical force. Once upon a time men lived possessed of immense bodily strength, and proportionately feeble in understanding, who thought all strength greater than their own divine, and this belief constituted their law. They thought of the gods simply as beings stronger than themselves, whom they were compelled to obey, though with a bad grace: like Polyphemus, who if he had been strong enough would have fought Zeus himself, or Achilles, who told Apollo that if only they were equally matched he would not hesitate to try his strength against him. The wisdom of providence decreed that these fierce men, not tamed as yet by the rule of reason, should at least fear the divine nature of force and measure reason by its standard. This is the foundation of the principle of the "external justice of war." But the myth of the period of force cannot have the strictness of a philosophical concept, and consequently these strong men are considered by Vico from another point of view as ethically the best: "strongest" and "best," fortissimi and optimi, are regarded as synonymous terms: and their law, though not truth or rational law, is not pure certitude, but truth "mixed with certitude," ex certo mixtum. But the very mixture of certitude with, and its preponderance over, truth, which is here asserted, postulates the concept of pure certitude as presupposed by Vico.

When Vico accused Grotius and the school of natural rights of commencing their history half-way, with the civilised ages, and overlooking the earlier periods, the accusation, in its bearing upon the philosophy of practice, may be translated into a charge of ignoring the ideal moment of force and confining the attention to justice, equity and morality. The moment of force, constituting the other and earlier "half," was the field chosen by Hobbes, before him by Machiavelli, and still earlier by Epicurus, all of whom treated of this moment alone, "with impiety towards God, infamy to rulers and injustice towards nations." Hence the conclusion is easy, that in refuting the utilitarians and the theorists of force, Vico was at the same time recognising and absorbing the need which they represented, their only mistake having been that they developed this need in an abstract and one-sided way. His "state of nature" is in some respects like that of Hobbes, with the difference that mankind transcends the latter owing to the recognition of utility, the former owing to the religious and moral consciousness. But Vico does not on this account express any gratitude to Hobbes or Spinoza, Machiavelli or Epicurus, since he believed himself to have found in a classical author all the materials and the stimulus he required, all the counter-poise necessary to the Platonic philosophy. This was one of his "four authors," the one of whom we said earlier that we had still to see the use which Vico made, namely Tacitus. This writer for his part contemplates with his unequalled metaphysical powers man as he is, while Plato contemplates him as he ought to be. Just as Plato in his universal science explores every corner of nobility, so Tacitus "descends into every scheme of utility," in order that among the infinite chaotic chances of malice and fortune the man of practical wisdom may act well. To the union in his mind of Greek philosopher and Roman historian, which he interprets, as is easily seen, in the manner usual among the "Tacitean" politicians of the seventeenth century, Vico attributes his own success in sketching a real idea of eternal history, "which the wise man would construct both of esoteric wisdom such as Plato's, and of common wisdom such as that of Tacitus." To Tacitus, finally, he owed the impulse towards the supreme task of making concrete his ideal, and realising the republic of Plato in the "dregs of Romulus."

CHAPTER IX