On the idea of law from a philosophical standpoint
Added: 2017-10-30
Added: 2017-10-30

"Przegląd prawa i administracji", year: 1894 (volume XIX), pp. 709 – 720.

The word “idea” has a different meaning in philosophy than in everyday life. This word has been overused in Western languages to such a degree that “idea” in French and in English means a notion or a vision. Such a change did not occur in the Polish language , as here, in everyday speech, an idea means an objective pursued by the whole society or its fraction.

In philosophy, however, “idea” means something absolutely different. An idea is not a notion which one can entirely possess. Every object, even the simplest one, has its idea and this idea is the notion which the spirit would have, knowing the essence and all the properties of this object. An idea of an object is the notion of this object that the infinite spirit has – as this spirit would encompass the object’s entire past, future and presence solely with one glance.  “Idea” is a permanent and unchangeable notion which may be present only in God’s mind.

Therefore, how could we talk about an idea of any object if our knowledge is by all means limited and inaccurate? It would be difficult to comprehend, even in an  approximation,  an idea of a non-living and universal object, so it would be significantly more difficult to talk of the idea of such an intangible object as political or social law whose formation and end are unknown to us all! This is an object, the idea of which is truly more difficult to discuss than any other lofty and incomprehensible object of human  reflexion. Perhaps it is more difficult to say what the deepest essence of law (out of which all fears arise) is than to say what the idea of morality is.      

However, we want to overcome this difficulty and search for an idea of law in the same way in which the knowledge of any idea is gained. Hence, wanting to know an idea of any living creature, one searches for its idea. An idea and an ideal are two separate and different things. An ideal falls into an idea, yet the content of an idea is the pursuit to fulfil the ideal. Let me quote an example which is far from legal terminology in order to explain the difference between an idea and an ideal. An ideal of an oak would be an oak which would grow among the most favourable surroundings and reach full development. Such an oak would be the most beautiful. An ability to admire is a sense that shows whether some object is more or less close to an ideal; the sight of a less perfect beauty gives us this an intuition of a perfect beauty; and an inspired art creates an image of the ideal, unseen by any human eye.

Thus an idea of a tree encompasses all the phenomena possible at the origin of a tree, the principle of a tree development and even the manner in which a tree might behave in relation to varied unpredictable and incidental conditions, among the circumstances which are less or more favourable, like wind or drought or an axe of a  forester. In order to comprehend an idea of a tree, one must know the ideal whose realisation is made possible and, at the same time, pursued by any creature of the kind expressed by an idea. Similarly, if one wants to know an idea of law, one needs to examine its past and the presence and, having understood the origin and development of law, become aware of the objectives which one definitely and consistently pursues.

Hence a question arises at a very start of these reflections with an answer the most difficult to provide: how did law originate? This answer was once searched in the remote past, in the ages not evidenced in history by any way, and some hypotheses were made with no grounds for them, based solely on conjectures or even dreams. The first one, perhaps the oldest hypothesis was a theological one, advocated, even in this century and outside the strictly Catholic camp, by the famous German philosopher Johann Gottlieb Fichte. According to this hypothesis, each law, even a social or political one, was solidified by the direct revelation of a God and humankind, which, at the beginning was a virtuous servant of law; but after this law was broken, it had to be replaced with an imperfect surrogate, a positive, written law  made by people. Law-obeying and strict followers of the theological hypothesis claimed that the primitive, revealed law was a perfect thing, which would never be restored and that the entire development of humanity is an continual decline towards perish: a moral decline cannot be reversed in spite of perfecting material assets, since primitive harmony of the law given by a god, had once been violated by human liberty. In the theological fraction there was also – let me put it in this way –  an oppositionist team, to which Fichte belonged. This opposition  claimed that a primitive departure from the revealed law was the blessed fault - culpa felix, thanks to which humanity may pursue higher perfection, going through the historic period of struggle and confusion towards the moment when the order of freedom should replace the order of captivity and the rule of reason should replace the rule of instinct. In  Fichte’s opinion, primitive happy people who lived in a paradise during the golden age, were admittedly happy and longevous, yet they were not completely human, as they resembled ants in an anthill or bees in a hive, and they could not be lost only because they were devoid of their own thought or will.

The violation of the primitive law was the outcome of the appearance of the free will, the finest attribute of human being. This act resulted in a formulation of a thought which could choose freely the means to gain its ends and led to the future creation of a perfect law, whose essence would mean that every human being, with the awareness of the goodness, would freely and consciously stand firm in their virtues, without being forced to do so. By all means there was a golden grain of truth in this theological hypothesis, formulated by Fichte.

Other philosophers, quite contrary, imagined primeval humanity as a group of animals, devoid of any large sense of virtue, driven by an animal passion, incapable of either happiness and unhappiness. Jean Jacques Rousseau, a great advocate of this hypothesis, says furthermore that these animals gathered, in the manner that cannot really be understood, for a joint debate and they established with a resolution, not only a social system, but also the very principles of speech. These laws must have been evil, as it gave rise to violence and hypocrisy, rendering virtue almost impossible; yet under these laws, humanity reached great intellectual development and should start a new social system which should give all people equal rights making happiness possible for everybody.

These were the two main opinions which struggled against each other in the last century and until the middle of this one. Our century forged the third hypothesis which contradicted both the revealed law and the free covenant, stating that law was formed within the course of history as a natural process, unaccompanied by a conscious participation of a human will. The creation of a state and the first common law originated from human nature and not from a human debate, and the reason came later with the written laws. During the last century, it was stated that all the laws were the creation of reason; yet in this century, a contrary opinion holds true, stating that the reason allowed for writing down all the things which had become laws, and many people believe that it was a grave mistake when the positive laws were made as they were not the same as the codification of what was previously a custom and that from the moment of creation of arbitrary (and hence poor law) and changed into a costume that was too tight and distorting a human  figure.

This was the past view of the creation of laws, still held by many people who search for examples of creation of the first laws only in the remote past, whilst all these hypotheses cast only an erroneous light on the path leading to the cognition of the idea of law.

However, if one wanted to know the way in which a law originated, one does not have to resort to the ancient times about which nothing can be certain; it is sufficient to have a look at the contemporary world. Now also new societies are created and new laws originate there. In the recent and very well-known past, one can read the story of the origin of law, amongst the societies operating in natural circumstances and without learned debates; however, it is seen everywhere that it was not only due to blind instincts and historical necessity that gave rise to law. The factor present everywhere is the human individuality and the influence of its decisions. Apart from the necessity to limit everyone’s freedom for the sake of the freedom of others, there are also deeds and decisions which put the history in motion.

Let us have a closer look at how barbaric law originates among barbaric peoples. A mighty person conquers other people and becomes despotic. A ringleader of a gang of bandits uses fear to force them into obedience and, thanks to oppression, puts this yoke on an increasing numbers of tribes. Such states are created for short periods of time among peoples alien to European civilisation; similar states are sometimes created even in Europe inside great and regular states with whom they fight and then a pack of bandits becomes a state for itself, having its own laws and showing us what the origin of laws can be like. A despotic leader of a more numerous group may rule it without the regulations specifying its internal life and method of functioning. Without such regulations, even the most powerful mind would not be able to control a large group, not to mention a whole tribe or a nation. A group will only grow larger and set up a state when it recognises the laws which may guarantee the safety of individuals inside it which may give it superiority over the local folk.

Let us call a pack of bandits an originating state, and its armed members – the citizens;  the lawmaker there will be the leader, who, with the effort of a conscious mind will make laws which would guarantee the subjects some unquestionable benefits and which would show then what kind of behaviour may subject them to penalties, at the same time enabling them to gain the state which they regard as happiness. Such as pack may grow into a large state and the society may desire something more than pure happiness in a rogue state; then the laws ruling this state should be changed in the way that again they could satisfy the citizens. Otherwise they might revolt, in distraught, and pull down the state or slowly die out or also, finally get dispersed to the world’s ends.

One might also see another origin of laws, this time among more enlightened peoples, each time when the colonists occupied a new, previously empty, territory, in the United States. Groups of immigrants set up new laws which should govern them before even they managed to settle permanently in the new site. This law, initially inaccurate, was so clearly set that the people could gain their objectives with the least possible harm.

Law is this a regulation standardising human actions in the way that could provide them with some happiness. Law might be unjust or lawless once it provides only for the happiness of some limited group, harming the majority of citizen of a given country.

An idea of law specifies the way in which people pursue the establishment of some standards guaranteeing the happiness of all people. One can talk about laws in nature – and rightly so – as the changelessness present in nature allows for a rational and virtuous life, being a core of happiness. What is more, law in nature is the prototype of human law: it is the first law that guarantees a joyful development of human beings. Let us imagine a material and moral world not governed by any laws; let us imagine an enchanted magic world in which nothing happens in accordance with any law, and in which nothing is predictable: everything is a capricious surprise. Even a wizard ruling such a world who could transform everything according to his own wish, would be unhappy as he would not fulfil his task. He would not pursue the realisation of an ideal, coined by a human idea. A bodily ideal of human being exists together with the spiritual one: a development of a body is only a condition for the development of the spirit, a body should be only a servant of the spirit which must know the law and act in accordance with the law (not a human law, but the one give as the birth-right). A human being ready to sacrifice their body and all sensual pleasures for moral, i.e. spiritual objectives seems to be the most beautiful and closet to human ideal. The existence of changeless law in nature is necessary for the superior half of human being i.e. their reasonable part could develop, act and judge, get to know difficulties and fight against the things that counteract against them, serve one’s body and subdue it if necessary. Lawlessness in nature would destroy the possibility of moral development and all possibilities of reflection, reasoning and learning. Each detail contained in law in nature serves the development of our mind and our will, and this is the only possibility of  gaining substantial happiness.

The political law should have exactly the same objective and no other.

A human being comprehends the essence of another human being not only with their senses and understanding, but also directly, intuitively, in the way sometimes difficult to understand both by the scholars and laymen, whose attention is mainly directed at reflecting on sensual impressions and understanding based on the experience gained in this way. The comprehension of the spiritual part of one human being by another cannot, however, be inferred, either directly or indirectly from sensual experience – as this kind of knowledge has, let us say, an extra-sensual origin. Only then one can expect the  repetition of usual outcomes of any phenomenon and only then can one conclude that unknown circumstances accompany a phenomenon that one already knows, when the sensual experience proved the connection of both phenomena. Each of us knows only themself and knows, only in relation to themself which mental and moral phenomena accompany their movement, words and facial expressions. This fact, however, does not allow anybody to conclude that spiritual being is present also in those who move and speak in a similar way, or that they want, think and feel in the same way as we do.

A human being comprehends the spiritual essence of another person as a result of the fact that he or she, seeing this person, experiences directly the existence of the law, which is not as absolute like the law of the spiritual or physical nature, both of which cannot be changed by human will, yet they are binding in some way. The other law, experienced here, is the moral law, which, in all nations and religions specifies that: treat your neighbour like you would like to be treated!  Moral law compels us to respect others – this is the same pursuit to realise the moral ideal which we feel in our own hearts.

Once there is an occasion to fulfil the moral law, we feel two opposite tendencies in ourselves: on the one hand we are pressed by our lusts and selfish desires to disrespect the feelings and needs of the fellow creatures; on the other hand, we are admonished by a distinct voice to respect the our neighbours and to control our lusts, even in the most painful manner, under the risk of losing our ideal objective and being devoid of the true happiness. An aesthetic opinion of our own essence forces us to act virtuously, whilst the ethical feeling, the sense of dignity of another person or a sense of pity or love among people lead us to the fulfilment of aesthetic ideal.

The changelessness of the law of nature makes it possible to act in the way that makes it possible to act reasonably which fulfils our inborn needs and forces us to think reasonably which is a condition of the moral development. In nature there are also psychological laws the cognition of which teaches us that similar occurrences breed similar feelings and deeds in all, or almost all people. Thus whoever wants to avoid their own misery, they must act in such a way in the society that their own deeds should not make them enemies, which means acting naturally in the way that results from the existence of psychological laws. This prudence, however, differs from the pressure of moral law, calling that only the one who respects the efforts to gain fulfil ideal, and thus necessary, objectives in others, is able to fulfil their own ideal.

However, these three laws: physical, psychological and moral one force us to be reasonable, consistent and moderate so that to develop our moral essence; all the three laws are made in such a way that we could develop this essence. Therefore, both Kant and Fichte were right in stating (perhaps not definitely enough) that this universe exists in relation to us in order to enable us to develop our human ideal; that all the external phenomena exist for us to pursue the fulfilment of our spiritual ideal and the moral obligation in the reasonable and effective way, so that our deeds bring the predictable outcomes  allowing for a moral development and moral happiness of all people, and that we could improve our spirit, overcoming internal difficulties in a reasonable way.

The political law aspires, out of its nature, to make the happiness of the citizens possible. The law that allows for the happiness of some people only may, out of necessity, and under the pressure of psychological laws be superseded by the laws that aspire for the happiness of all people as the necessary historical revolutions will result in such a situation. Yet law may understand the happiness which it pursues, in a twofold manner: it may lead either to the sensual or to spiritual and moral happiness of its citizens.

The contemporary European legislation aims at enabling people to acquire sensual  benefits which serve only the development of the inferior part of human nature and thus this legislation resembles the barbaric legislation of the leader of a pack of bandits, whose aim is to collect goods. The objective of the contemporary legislation is to enable every citizen to work on the multiplication of their own possession and, if the law requires gaining some knowledge, it is only because to allow people to control the forces of nature in the smartest possible way.

The above concept is a foundation of the struggle between two large teams in contemporary times. One of the teams claims that everybody who is able to grow rich in any manner should be supported unless the wealth is built with violence which discourages others from work, assuming that whoever is able to gain wealth, he or she is also able to use their possessions to multiply the common wealth. The other team, refers to an ethical belief that nobody is allowed to gain wealth by harming others, and that material gains should be equally shared by everybody. The first team is right in contradicting that common wealth is possible wherever the state distributes the sensual goods equally between all the citizens irrespectively of their efforts, as such legislation, in the opinion of this team, would lead to omnipresent sloth and then to an omnipresent poverty, by depriving people of any stimuli and hope of personal gain which encourages them to work reasonably and diligently. This kind of legislation would destroy the ability to have steadfast intentions, based on independent decisions. The other – socialist team is right in contradicting everybody’s right to gain wealth which could only serve their own pleasure; this team is right in opposing the liberals’ opinions stating that whoever earned some assets they have the right to dispose it according to their own wishes, irrespectively of the general needs and welfare of all society.

I have already said that these two teams are fighting a battle and came to one opinion that the objective of the currently binding human law is only to exploit physical laws and satisfy sensual human needs. The objective of the contemporary law is that people should give up the work in satisfying higher needs, and serve only their bodies, with some detriment to the higher, more spiritual aims, which in fact should be served by the law.

This is a wrong aim. If you changed everything you touch into gold, like the ancient king Midas, you will not be happy, if your mind is not active, if you have no moral motivation to gain victory over nature and yourself, if you have no moral ideal which you can pursue with all your strength.

Some minds a very long time ago understood that one must abandon the standpoint which contradicts all ideals, which is a moral suicide of all humanity, which demands that social law should not only use the physical laws but also use psychological laws to its purposes. In this way rather a theoretical and political school of utilitarians have been created, laying emphasis on the fact that nobody can be truly happy without the respect for the will, needs and visions of other people. A utilitarian, in their selfish objectives, works to gain a general respect and, since he or she, wants to have it, they must also have moral motivation, even if it is imperfect and distorted. A utilitarian respects somebody else’s opinion and provides favours to others, expecting rewards and respect in exchange for that. He or she is glad to be admired or loved by others and enjoys the happy feeling of satisfaction in being friendly towards others and in loving them.

Thus, as a result of reasonable selfishness, one reaches the thresholds of true moral law. This law, however, requires that one should respect every other person, not because this person might prove useful, or because that this person is nice to you, but only because this person is obliged to fulfil the moral human ideal, similarly as you are, and has the ability to do so.

Therefore, law should not only comprise the regulations which provide for sensual happiness of the citizens, but also should organise humanity in such a way that it should pursue the moral ideals in which the humanity will find the only permanent and not illusive happiness.

Yet how such law can be organised? Should there be any regulations which force any person do commit only virtuous acts? Or should we rather create a state, which, according to Fichte, existed at the dawn of times, in the primitive Paradise and in which nobody could be rewarded for virtuous acts, as it was impossible to act in a different manner? This would be a creation of a herd of docile sheep whose passive virtue would not have any moral value, as they would not be able to commit either anything good or bad. This would be a group of persons who serve only low instincts, who are slavishly  obedient out of fear for the low instincts, incapable  for heroism or devotion.

Thus penal or police regulations can by no means lift the essence of humanity and the task of political law is not to bring virtue down to earth. And yes – the more numerous prohibitions and the larger legal constraints, the more malicious human moral strengths become. Freedom should absolutely restrict the power of law. Law is too omnipotent and thus it does not meet its objective; it should obey and serve freedom and be used only to prevent the limitation of the freedom of all citizens. The moralisation of humanity should be left for those who use moral weapon, by convincing and teaching. The freedom of consciousness is the most necessary freedom, yet one cannot be confined to this kind of freedom. Law should be limited to the tasks necessary to protect human life and human freedom in order to guarantee the expected outcomes of the reasonable and legal acts. Law will act in accordance with its idea and pursue the fulfilment of its ideal, by establishing as few prohibitions and injunctions as possible, and by imposing only those of them which protect human freedom and allow people who are still immature to reach the state in which they could use their freedom in a morally acceptable way. Law should restrict the arbitrariness of citizens and officers and also its own omnipotence so that everybody should be free and responsible for their own deeds in front of the court of their own conscience, so that independence of every citizen should be protected before the law yet it should not exceed law.

This will be the ideal law of future, the late-coming fruit of the primitive law, planted perhaps with a hand of a despot, greedy of selfish gains.


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