17 Morality and Legal Right
© Springer International Publishing Switzerland 2015
Thomas Nemeth (ed.)Vladimir Solov’ëv’s Justification of the Moral Good10.1007/978-3-319-12775-0_18[399]Chapter 17 Morality and Legal Right
E] In B, this, the 14th chapter, spans pp. 484–512. As with Chap. 12, many passages in this chapter were also included in the separately published work, Solov’ëv 1899a, though the two are by no means identical. Solov’ëv, again, opposes in this chapter what he takes as the two extreme positions of Leo Tolstoy, on the one hand, and Boris Chicherin, on the other.
I
The very essence of the unconditional moral principle , understood as a commandment or demand (viz., to be perfect like our Heavenly Father,1 or to realize the image and likeness of God in oneself) contains the recognition of a relative moral element. For clearly the demand to be perfect can be directed only to someone who is imperfect. Morally obligating this someone to become like the supreme being, this commandment assumes lower stages and relative degrees of exaltation. Therefore, the unconditional moral principle, or the perfect moral good, is for us, in the language of Hegel , the unity of itself and its other, a synthesis of the absolute and the relative. The existence of the relative, or imperfect, as distinct from the absolute Moral Good, is an unavoidable fact and to deny it, to confuse the two terms with each other or to affirm their identity with each other by means of dialectical hocus-pocus and mystical outbursts, would mean to engage in playing a false or affected game. However, it is just as false to take the opposite attitude towards the matter, namely to separate the relative from the absolute taking them as two completely distinct spheres that have nothing in common with each other. Given such a dualism, the human being, whose aspirations for the absolute are inseparably combined with relative conditions, turns out to be the embodiment of nonsense.2 The sole serious point of view to which reason and conscience commit us lies in recognizing that the factual duality of the absolute and the relative is resolved in a free and complete unity (but [400] by no means in an empty identity or indifference). This unity is achieved by means of a real moral process of increasing perfection starting from the stagnant stone up to the freedom and glory of the children of God.3
At every stage of existence, the relative is connected with the absolute as one means leading to the actual perfecting of all, and in this regard the lesser moral good finds its justification as a condition of the greater moral good. At the same time, this is a justification of the absolute Moral Good itself, which would not be absolute if it could not connect to itself or include within itself in one way or another all actual relations. In fact, in no region of the world accessible to us do we ever find these two terms separately or in their bare form. The absolute principle is everywhere invested with relative forms, and the relative is intrinsically connected to the absolute and is supported by it. The entire difference lies in the comparative predominance of this or that aspect.
If any two spheres or two sorts of actual relations are demarcated and set against each other, ascribing to one of them an unconditional significance and to the other only a relative one, then we can know in advance that this opposition is itself only relative, that neither sphere has a purely absolute nor a purely relative character. There is only a special connection between the two, a connection that is different in both form and degree but identical in essence and ultimate purpose. This relation of each to the absolute forms a positive connection or solidarity between the two.
Within the bounds of the active, or practical, life of humanity, there is an apparent opposition between the moral sphere, strictly speaking, and the legal sphere. From antiquity (starting with the pagan Cynics and the Christian Gnostics) right up to our own day this opposition has been taken as absolute. An unconditional significance has been ascribed to morality alone, and law, being a purely contingent phenomenon, has been rejected in the name of absolute demands. One immediately feels that such a view is false. Moral philosophy obliges us not to dwell on this possibly deceptive feeling. Instead, we are to examine the concrete relation between morality and law from the point of view of the unconditional Moral Good. Is this Moral Good justified with respect to law? A person interested in etymology will note that the answer to this question already [401] lies in the terms of the question. We will pursue this philological fact further, but it must not in itself prejudice the philosophical problem before us.4
II
In the lectures on criminal law, Prof. N.S. Tagancev cites, among other things, the following Prussian edict from 1739:
If an attorney, procurator or some such person dares to present a memorandum to his royal majesty, either personally or asks another to do so for him, his royal majesty will take pleasure in seeing that such person be hanged without mercy and that a dog be hanged alongside him.5
The legitimacy or legality of such an edict is indisputable, and just as indisputable is its opposition to the elementary6 demands of justice. This opposition is, as it were, intentionally emphasized by extending the criminal responsibility of the attorney or legal agent to a perfectly innocent dog. Other similar, though not so glaring, cases of a divergence between morality and positive legal right , between justice and statutory law , are a common occurrence in history. How are we to deal with this; which side are we to take in this conflict between the two chief principles of practical life? The answer is apparently clear: Moral demands in themselves have an inner unconditional obligatory character that positive7 legal rights can completely lack. Hence, it seems one could8 conclude that the problem of the relation of morality to legal right is resolved by simply rejecting one’s legal right as the proper or obligatory principle of our actions. According to this view, all human relations must be reduced to purely moral interactions, and the sphere of legally rightful or lawful relations and determinations must be entirely rejected.
Such a conclusion is extremely easy but at the same time quite frivolous. This “antinomism” (anti-legalism), beginning with an unconditional opposition of morality to legal right, has never subjected nor does it now subject its basic assumption to any consistent or profound critique.
The contradiction with the demands of morality that we see in such [402] formal laws as the edict of the Prussian king, quoted above, is too obvious. However, do we not also find contradictions between it and the demands of legal right itself? The reader will get a better understanding of the possibility of a contradiction between the formal legality of certain actions and the essence of legal right if I present an actual example of an analogous contradiction between the formally moral character of an action and the essence of morality.
As the newspapers reported, not long ago in the middle of Moscow’s Nikolsky Street around St. Panteleimon Chapel a mob of people injured and nearly beat to death a woman suspected of bringing an illness on a boy by means of a bewitched apple. These people acted without selfish motives or external considerations. They had no personal hatred for the woman and no personal interest in beating her. Their sole motivation was a realization that such a flagrant criminal act as the poisoning of an innocent boy9 through sorcery should receive a just requital. Therefore, it is impossible to deny that the crowd’s action has a formally moral character, though everyone will agree that, in essence, it was decidedly immoral. However, if the fact that outrageous crimes can be committed for purely moral reasons does not lead us to reject morality itself, then on what basis do such essentially unjust, though lawful, decrees as the 1739 Prussian edict seem to us enough to reject laws? If, in the case of the crime on Nikolsky Street, the moral principle is itself not at fault but only that the semi-barbaric crowd had an inadequate level of moral awareness, then in the case of the absurd Prussian law what is at fault is not the idea itself of legal right or law but only the poor level of King Friedrich-Wilhelm’s legal consciousness. This would not be worth mentioning if, contrary to logic, the bad habit of deducing general conclusions from particular, concrete cases had not been recently reinforced precisely with respect to the juridical sphere.10
III
There is no real contradiction and incompatibility between legal right and morality, but between the different states of awareness of both legal right and morality. Besides [403] these states and their factual expressions, there lie essential and abiding norms in the legal as well as in the moral sphere. Even the lying spirit is passively conscious of this in its sophistic11 attack on jurisprudence:
Laws and rights are a hereditary illness
Passing through humanity
One after another, all generations
Carry them everywhere.
Reason becomes absurdity, and mercy suddenly mischief
So, suffer grandson on your appearance!
The right with which everyone is born,
About it, there is no question.12
Even Mephistopheles recognizes this natural right , complaining only that that is not the issue.13 This is, in fact, precisely the issue any time legal matters in general are discussed. It is impossible to judge or evaluate any fact pertaining to the legal sphere, any expression of legal right if we have no general idea, or norm, of legal right. Mephistopheles himself utilizes this idea, or norm, when he says that certain rational legal rights and laws, though once beneficial, have now become senseless and harmful. He, thereby, indicates only one side of the matter, namely, the so-called conservatism of law. This phenomenon does indeed have its rational basis, and the inconveniences that follow from it and on which Mephistopheles singularly dwells14 are eliminated by another phenomenon that the lying spirit, for its own reasons, does not mention, namely the phenomenon of a constant rise in legal consciousness and in an actual improvement in legal institutions. We can see this indisputable progress in legal right even in the case of the unjust law quoted above.15 This is not to say that such statutes as the 1739 Prussian edict have become quite impossible in any European country and that the foremost representatives of16 legal awareness long ago condemned the death penalty even [404] for the worst, obvious crimes. On the other hand, however, this edict represents indisputable progress in comparison with the conditions that prevailed earlier in Brandenburg and in Pomerania, as in the rest of Europe when every powerful baron, seeking personal revenge, could calmly kill peaceful people or do so in order to seize their property. In contrast, in the entire country during the reign of Frederick the Great’s father, the life of a person could be taken only by the king alone, who had no personal or self-interested goals. In this matter, it is clear that in composing this edict Friedrich-Wilhelm was interested only in suppressing slander and cavil by threatening capital punishment but by no means in actually putting lawyers, procurators and dogs to death. In committing acts of violence, the barons were, undoubtedly, murderers and robbers, whereas in this outrageous edict the king still acted as the guardian of justice albeit with a rather low level of legal consciousness.
However, this difference of degree, this actual progress in legal right, the unswerving attraction of legal regulations toward legal norms, conformable, though not identical, to moral demands, adequately shows that there is not merely a negative relation between these two principles. It also shows that it is impossible precisely from the point of view of morality itself to get rid easily of the whole sphere of juridical events and problems by a simple and idle rejection of them.
IV
One of the fundamental problems in practical philosophy is the relationship between the moral and the legal spheres. In essence, the issue concerns the connection between ideal moral awareness and real life. The vitality and fecundity of moral awareness itself depends upon understanding this connection in a positive way. Between the ideal moral good and evil reality, there lies the intermediate sphere of legal right and law, which serves as the embodiment of the moral good and to limit and correct evil.17 [405] Legal right and its embodiment, namely the state, condition the actual18 organization of the moral life of humanity on the whole. With its negative attitude towards legal right, as such, moral preaching that is devoid of objective means and grounding in the real, foreign environment would remain19 at best only innocent idle talk. On the other hand, with the complete divorce of its formal concepts and institutions from their moral principles and ends, legal right would lose20 its unconditional foundation. In essence, nothing would distinguish it from the arbitrary.21
Moreover, the fully consistent disconnection of legal right from morality would require a rejection of human speech itself, which, regardless of the language, invariably testifies to the fundamental internal connection between the two ideas. The concept of right and the correlative concept of obligation are so much a part of the sphere of moral ideas that they can directly serve to express these ideas. Everyone understands and no one will challenge such ethical assertions as: I am aware of my obligation to refrain from all that is shameful, or, what amounts to the same thing, I recognize as a human dignity (in my person) the right to my respect. I am obliged so far as I am able to help my neighbors and serve the common good. That is, my neighbors and the whole of society have a right to my help and service. Finally, I am obliged to harmonize my will with what I consider to be the unconditionally supreme. In other words, the unconditionally supreme has a right to a religious attitude on my part (on which all religious worship is originally based).
All moral relations can be correctly expressed in commonly understood legal terms. Obviously, one might ask what could be further from anything juridical than love for one’s enemies? However, if the supreme moral22 law obliges me to love my enemies, then my enemies clearly have a right to my love. If I refuse to love them, then I act unjustly. In other words, I violate a moral truth. Here, we have the term that uniquely embodies the essential unity of the juridical and moral principles.23 For a right is nothing if not an expression of a moral truth, and, on [406] the other hand, all virtues also amount to an expression of moral truth or justice, i.e., to what should be or is correct in the ethical sense.24 Here, it is not a matter of an accidental identity of terms, but of an essential homogeneity and inner connection25 of the concepts themselves.
It certainly does not follow from this that the spheres of law and morality coincide with each other or that ethical and juridical concepts can be mixed. The only thing that is indisputable is that between these two spheres there is a positive and close, intimate relationship26 that does not permit the rejection of one in the name of the other. The question is: What precisely is the connection and the difference between these two spheres?
V
Talk about moral right and moral obligation entails the elimination, on the one hand, of any idea about a fundamental opposition or incompatibility between moral and juridical principles. On the other hand, it indicates an essential difference between them. For by designating a given right (e.g., my enemy’s right to my love) as merely27 moral, we imply that in addition to the moral there is still another right, i.e., in another, narrow sense, a right as such,28 which does not have a direct and immediate moral character. In fact, let us take, on the one hand, the obligation to love our enemies along with their corresponding moral right to our love. On the other hand, let us take the obligation to pay off our debts on time, or the obligation not to rob and kill our neighbors along with the corresponding right not to be robbed, killed or cheated. Obviously, there is an essential difference between these two sorts of relations, and only the second of them is a moral right in the proper or narrow sense.
[407] The difference here amounts to the following three chief points:
1)
A purely moral demand, such as, for example, love thy enemies, is essentially unlimited or all-encompassing. It presupposes moral perfection or at least an unlimited aspiration for perfection. Every limitation, assumed as a principle, is contrary to the nature of the moral commandment and undermines its value and significance. Someone who in principle29 rejects the unconditional ideal thereby rejects morality itself and abandons the moral ground. On the contrary, juridical law as such is essentially limited, as we can clearly see from all the instances in which it has been applied.30 Instead of perfection, it demands the lowest, the minimum level of morality, i.e., the merely factual delay of certain manifestations of the immoral will. However,31 this opposition is not a contradiction that leads to real conflict. From the moral side, it is impossible to deny that such demands as to pay back promissory notes conscientiously, to refrain from murder, robbery, etc., are demands that, though elementary, are, nevertheless, a good and not an evil. If we must love our enemies, then all the more must we respect the lives and property of all our neighbors. Without the fulfillment of these lower demands, it is impossible to fulfill the higher commandments. From the juridical side, although civil or criminal law does not demand higher moral perfection, it also does not reject it. Forbidding anyone from murdering and cheating, it cannot, and indeed has no need,32 to prevent anyone who pleases from loving his or her enemies. Therefore, on this point (which in certain moral theories is mistakenly taken to be the only important one) the relation between the two principles of practical life can only be expressed by saying: A right is the lowest limit or definite minimum of morality.
2)
The second difference follows from the unlimited nature of purely moral demands, namely that their fulfillment is certainly neither caused nor exhausted by any specific external manifestations or material actions. The commandment to love one’s enemies does not indicate (except as an example)33 what precisely we should do as a result of this love, that is, what specific external actions are to be done and what we are to refrain from doing.34 At the same time, if we must express our love through specific actions, the moral commandment cannot be considered already fulfilled by these actions and as not demanding anything more. The task of fulfilling this commandment, which is an [408] expression of absolute perfection, remains infinite. On the contrary, a juridical law prescribes or entirely prohibits specific external acts, the performance or non-performance of which is in compliance with this law and nothing more is demanded. If I procure the money I owe in time and pass it to my creditor, if I do not physically murder and do not rob, etc., then I have satisfied the law and it needs nothing more from me. There is no contradiction in this opposition of the moral law to the juridical. The demand for a moral frame of mind not only does not exclude external actions, but in general directly presupposes them as its proof or justification. No one believes that a person is intrinsically merciful if the individual never performs any charitable deeds. On the other hand, the order to act in a specific manner is in no way a denial of the inner states corresponding to them, although it certainly does not demand them.35 Both the moral and juridical law concern, properly speaking, the inner human essence, the human will. However, the former takes this will in its universality and entirety, whereas the latter does so only in its partial realization with respect to certain external facts. These facts form the specific interest of a right, such as the inviolability of life and the property of every person, etc. The important point from the juridical view is precisely the objective expression of our will in carrying out or in barring certain acts. This is another essential characteristic of a right . If it is originally defined as a certain minimum of morality, then, in adding to this definition, we can say that a right is a demand to realize this minimum, i.e., to carry out a definite minimal moral good or, we could say, the actual elimination of a certain amount of evil. On the other hand, the moral interest, properly speaking, is immediately concerned not with the external realization of the moral good, but with its intrinsic existence in the human heart.36
3)
A third difference arises through this second one. The demand for moral perfection, as an intrinsic state, presupposes free or voluntary fulfillment; any [409] compulsion, not just physical but also psychological, is here essentially both undesirable and impossible. On the other hand, the external realization of a certain regular order supposes a direct or indirect compulsion , and insofar as we recognize that the direct and immediate goal here is precisely the realization, the external carrying out of a certain good, e.g., of public safety, to that extent the compulsory character of law becomes a necessity. For no sincere person just happens to believe that verbal persuasion alone can immediately stop all murders, fraud, etc.
VI
Combining together the three characteristics mentioned above, we obtain the following definition of right with respect to morality: A right is a compulsory demand to realize a definite minimal moral good, or to realize an order that excludes certain manifestations of evil.
Now someone might ask: What is the basis of such a demand and is this compulsory order compatible with the purely moral order, which apparently by its very essence excludes compulsion of any sort? Once the perfect moral good is established as an ideal within consciousness, does it not follow that everyone should be allowed freely to realize the good to the fullest extent possible? Why make the compulsory minimum of morality into a law, when a free fulfillment of the maximum is desired? Why announce with a threat: “Do not kill,” when we should gently suggest “Do not be angry”?
All this would be fair if the moral task were a theoretical one and if the perfect moral good were compatible with37 egoistic dispassionateness or indifference with respect to the sufferings of others. However, the true concept of the moral good necessarily contains the altruistic principle with a demand for a corresponding concern,38 i.e., compassion for the sufferings of others, that induces us actively to save them from evil.39 Thus, our moral obligation40 is in no way limited to a mere awareness and an announcement of the perfect ideal. In the natural course of things, which should not be approved or sanctioned but which it would only be childish not to consider, it happens that41 while some would freely aspire to the highest ideal42 [410] and seek dispassionately to improve themselves, others would, if unhindered, perform every possible outrage and certainly would eliminate the former before they could attain a high degree of moral perfection. Independently of this, even if, by some miracle, those who are evil did not eliminate those with a morally good will, these morally good people would themselves clearly turn out to be not good enough, since they agree to engage merely in nice conversations about the good, instead of actively helping their neighbors by protecting them from the extreme and destructive clutches of evil.43, 44
A necessary condition of moral interest is personal freedom , without which human dignity and higher moral development are impossible.45 However, only within society can a person exist and, consequently, improve one’s own freedom and morality. Thus, our moral interest demands that personal freedom not oppose the conditions for the existence of society. This task46 cannot be accomplished by the ideal of moral perfection, which is left to free personal efforts. This is because for our vital, practical goal47 it gives too much and at the same time too little. On the one hand, it demands too much from us, and on the other it yields too little. From those who know it, the ideal of moral perfection demands love for one’s enemies, but this ideal cannot force someone who does not recognize its demands to refrain even from murder and robbery. If a frank moralist says that we should not refrain from committing crimes unless it is done voluntarily, then he is guilty of an obvious48 injustice. He has forgotten to take into account those who were robbed and the families of the murder victim, as though the injury they suffered is the basis for an ultimate injustice. Moreover, the moral law is given to us so that we “shall live by it.”49 Without human society, morality would be only an abstract concept.50 However, the existence of society does not depend on the perfection of some, but on the security of all. The moral law by itself 51 does not guarantee this security, and it does not exist for those in whom anti-social instincts predominate. However, this security is protected by a compulsory law that has real power over them. To appeal in this case to the beneficial power of Providence, which should instruct and restrain villains and lunatics, is nothing [411] short of blasphemy. It is profane to charge the Deity with what can be successfully accomplished by a good judicial system.52