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Concept of Law in Ethics,

THESIS ACCEPTED BY THE FACULTY OF CORNELL UNIVERSITY
FOR THE PH. D. DEGREE IN PHILOSOPHY.

Ferdinand Courtney French, A. B. (bkown)

Fellow in the Sage Scliool of Philosophy of Cornell University.

PROVIDENCE, R. I.

PRESTON & ROUNDS.
i8q2.

GIFT or

Digitized by the Internet Archive

in 2007 with funding from

IVIicrosoft Corporation

http://www.archive.org/details/conceptoflawinetOOfrenrich

THK

Concept of Law in Ethics,

THESIS ACCEPTED BY THE FACULTY OF CORNELL UNIVERSITY
FOR THE PH. D. DEGREE IN PHILOSOPHY.

Ferdinand Courtney French, A. B. (b«own)

Fellow in the Sage School of Philosophy of Cornell University.

PROVIDENCE, R. I.

PRESTON & ROUNDS.
1892.

fi)T^

* « «• • • •

5«ur bag ©efe^ fann un§ bie grei^eit gcben.

Goeike.
Romans xiii.y lo.

4274J0

CONTENTS

CHAPTER I.
Jural Aspects of Ancient Ethics.

PAGE.

§ I. Customary Law, ......... i

§ 2. Written and Unwritten Law, ....... 4

§ 3. Law and Nature, ......... 5

§ 4. Stoic Law of Nature, ........ 6

§ 5. Ethical Application of this Conception, .... 8

§ 6. Stoic Doctrine and Roman Law, ...... 12

CHAPTER II.

Christian and Medieval Ethics.

§ 7. Tendencies towards Juralism in Christian Ethics, . . 17

§ 8. Thomas Aquinas, 20

CHAPTER III.

Modern Ethics.

§ 9. Beginnings of Modern Ethics— Grotius, .... 24

§ 10. Hobbes, 26

§ II. Cudworth, Locke, Cumberland, ...... 30

§ 12. Paley, 32

§ 13. Kant, 34

CHAPTER IV.

The Moral Law.

§ 14. Forms of the Concept, 38

§ 15. Source of the Moral Law, ....... 42

§ 16. Ends " " <. 44

§ 17. Motive, 49

Bibliography, .......... 50

/-;

^/^aX(</

CHAPTER 11

§ I. AJ^ST, in the primary sense of the term, is a rule of
human action prescribed by authority. - The use of this term
to express the order of nature is a derived one which became
current only after considerable historical development, i Even
this first-mentioned usage is primary only in a relative sense.
^At the dawn of history we find men ruled by custom rather
than law. Clans, tribes and village communities were ruled
by institutions which mythology might explain as established
by the gods, or by the ancestors of the race, but in either case
for the living generation they were a fixed body of rules that
could not be infringed without incurring on the individual
and on the community the severe displeasuy^ of the gods,
and which men regarded as no more subject t6 change on their
part than the paths of the sun, moon and stars. History
opens with this reign of custom, but it must have been only
by a long evolution in prehistoric times that this ' cake of cus-
tom ' was established. -J In the struggle for existence among
primitive men nothing could have been of more importance
than organization. 2 The elimination of unorganized groups
by their better organized contemporaries must have brought
about the survival of those customs and common norms of
conduct which served to unify each group into ap organic
body. It was of little matter whether these customs wett such
as we should call good or bad, provided only they brought
the individual into subordination to the community, and en-

1 So. Holland, Elements of Jurisprudence, p. 15, and Zeller, Ueber Be-
griff und Begr'Undung der Sittlichen Gesetze, Vortrdge u. Abkandnngen,
Satnml, p. 189. Max Miiller points out a possible exception to this in the
Sanskrit /?/ta, which he explains as meaning originally the order of na-
ture and afterwards being applied to the moral order.

2 Bagehot, Physics and Politics.

, « « • « *
" c « c • c c

2 THE CONCEPT OF LAW IN ETHICS.

abled the latter to stand together as a unit against all foes
from without, y We have, perhaps, an illustration of the pre-
historic state of society in the description of the Cyclops in
the Odyssey, a description that may well have been sug-
gested to the poet by the mode of life among some alien
and less advanced people : ^

"They have neither assemblies for consulta^tion nor judi-
cial decrees, . . . but every one exercises jurisdiction
over his children and wives, and they pay no regard to one
another."^

But whatever may have been the course of this prehistoric
evolution of institutions and ideas, the earliest historic pro-
totype of law is custom. ^ Or, if we may extend the term to
this pre-natal state of the concept, we may say that custom-
ary law was the progenitor of positive law.^ The etymology
of the word law, '' that which lies or is fixed or set," * and of
similar words in other languages, points back to the time
when laws were the established norms of immemorial custom
rather than the commands of a sovereign authority. The
head of the tribe, or the village council, in administering jus-
tice, were regarded as possessing only a judicial and never a
legislative function.^ ""

^Among primitive peoples we find no distinction made be-
tween laws of the state, requirements of religious ritual, and
the demands of morality. Conduct in all these respects was
governed by an undifferentiated mass of rules, which were
enforced upon the individual, not only by the severest hu-
man penalties, but by the even more terrible fears of super-
human powers. Little real force, however, is required to se-
cure obedience to customary law. The immobility of habit,
public opinion, and superstition, all combine to make disobe-
dience well nigh impossible. -'

1 Maine, Ancteni Lavj^ p. 125.

2 Odyssey ix., 1 14.

3 Maine, Early History of histitutions. Lect. xiii.

4 Century Dictionary.

5 Maine, Ancient Law—''' It is certain that in the infancy of mankind,
no sort of legislature, not even a distinct author of law is contemplated
or conceived of. Law has scarcely reached the footing of custom ; it is
rather a habit." p. 8.

THE CONCEPT OF LAW IN ETHICS. 3

''There is no system of recorded law literally from China
to Peru," says Sir Henry Maine, " which, when it first emerges
into notice, is not seen to be entangled with religious ritual
and observance." 1

The general conclusion thus expressed by Maine as the
result of his studies of institutions in India, is equally true
of the early Greeks. This primitive confusion of law, relig-
ion and morality among the Greeks is well described in the
following passage from Grote :

^ ** In historical Athens the great impersonal authority called
* The Laws,' stood out separately, both as guide and sanc-
tion, distinct from religious duty or private sympathies ; but
of this discriminated conception of positive law and positive
morality the germ only can be detected in the Homeric poems.
The appropriate Greek word for human laws never occurs.
Amidst a very wavering phraseology we can detect a grad-
ual transition from the primitive idea of a personal goddess
Themis, attached to Zeus, first to his sentences or orders
called Themistes, and next by a still farther remove to vari-
ous established customs, which these sentences were believed
to sanctify — the authority of religion and that of custom co-
alescing into one indivisible obligation." ^

The word vofio:;, denoting etymologically "that which is
assigned or appointed," ^ is the proper Greek term for law.
This is the first word to acquire and retain anything like the
meaning which we now express by law. The Romans trans-
lated vofioQ hy lex and then carried over into Latin and handed
down to modern nations the conception which the Greeks
had acquired and embalmed in the word. The English word
has derived its meaning not so much from etymology and early
Teutonic uses, as from the combined influence of Greek, Latin
and Hebrew terms which it has been used to translate. In
tracing the development of the Greek concept of vofio^, there-
fore, we are studying the early history of our own concept of
law. This word was not used by Homer. It is found first in
Hesiod. At Athens i^6//oc was the name given especially to

1 Maine, Early Law and Custom. Chap. i.

2 Grote, History of Greece, vol. ii., p. no.

3 Liddell & Scott, Lexicon.

4 THE CONCEPT OF LAW IN ETHICS.

the laws of Solon (those of Draco being called deaiiol) and then
generally to laws, ordinances, particularly to fundamental
laws in distinction from (pi^cpcafia special bills, or decrees. i

§ 2. Since in early times legal and moral ideas were
indiscriminately combined under the general notion of cus-
tomary law, we must look for the beginning of the history
of the concept of law in morality, where the tendency to
discriminate between the two fields of conduct first manifests
itself. It is not a case of a concept developed in one sphere
of life and then carried over by analogy or metaphor to
another ; it is rather a case of differentiation. -^ We do not
find moral and legal institutions existing side by side and then
after a time the notions developed in one sphere transferred
to the other. Rather is conduct as a whole ruled by one
homogeneous mass of customs. The first beginning of the
distinction between moral and civil law is seen in the division
of custom or law into written and ?/?/wnV/^?2, ^The written
law, being the expressed will of the king or state, enforced by
penalties, corresponds to our notion of law in the jural
sense, while the unwritten law, which depended for its bind-
ing force on habit, public opinion, religious belief and con-
science, answers in a general way to our notion of moral law.
The unwritten law was regarded as the foundation and source
of the written. The latter only is changeable, the former
is original and abiding. ^This division of the law is very
common in Greek literature.^ One of the earliest and most
famous examples of this is in Sophocles. Antigone defies
the king, who has forbidden her to bury her brother in these
words :

" Nor did I deem thy edicts strong enough,
That thou, a mortal man, should'st over-pass
The unwritten laws of God that know not change.
They are not of to-day nor yesterday,
But live forever, nor can man assign
When first they sprang to being." ^

Aristotle classifies laws as peculiar and universal — peculiar
laws being such as have been marked out by each people in

I Lexicon.
^ 2 Schrriidt, Die Ethik der Alieti Griechen, p. 201.

3 Sophocles, Antigone, 1. 450, (Plumptre's translation.)

THE CONCEPT OF LAW IN ETHICS. 5

reference to itself, and being partly written and partly un-
written— universal laws being those which are conformable
merely to the dictates of nature. " For there does exist
naturally one universal sense of right and wrong, which in a
certain degree all intuitively divine even should no inter-
course with each other, nor any compact have existed." ^ In
this connection Aristotle cites Empedodes as saying of a cer-
tain maxim "that it is not right here and wrong there, but a
principle of law to all. It is extended uninterruptedly
throughout the spacious firmament and boundless light."
Another term for the unwritten law is equity which has to
do with the intention of the lawgiver rather than the lan-
guage of the law, and with the whole tenor and principle of
the agent's conduct rather than with specific acts.^ Equity
may controvene the written law. In the Ethics he says of
the nature of the equitable, that it is a correction of law when-
ever the law is defective owing to its generality.^ Again he
says of equity that it "remains forever and varies not at any
time, neither does the universal law, for this is in conformity
to nature, but the written law does frequently vary." '^

The reduction of a portion of the ancient customs to
writing and the notion thus introduced of a written law in
contrast with the unwritten law, must have been one of the
first steps toward the development of the concept of posi-
tive law. But even the written law differs essentially from
our modern notion of enacted law. It was not looked upon
as the recorded will of an established legislative authority, but
rather as a written precipitate of ancestral customs. Plato
and Aristotle regarded the distinction between law and cus-
tom as quite unessential. ^

§ 3. Another influence in developing the notion of posi-
itive law was the contrast which the Sophists, and later the
Cynics,^ made between law and 7iatiire.'^ The Sophists were

1 Aristotle, Rhetoric^ I., xiii., 2, (Browne's tranlation.)

2 Rhetoric, I., xiii., 17.

3 Ethics, V. 10.

4 Rhetoric, I., xv.

5 Schmidt, Die Bthik der Altefi Grieche?i, p. 202. -^

6 Zeller, Socrates ajid the Socratic Schools, p. 322.

7 VOjiOQ and ifuac::.

6 THE CONCEPT OF LAW IN ETHICS.

the individualists and iconoclasts of custom in the fifth
century. Hippias is represented in Xenophon as "disput-
ing the moral obligation of laws because they so often change,
while he acknowledges as divine or natural law only that
which is everywhere equally observed. In Plato he says that
law, like a tyrant, compels men to do much that is contrary
to nature." ^

This opposition of law to nature must have made much
more definite in men's minds, than ever before, the notion of
a positive law dependent upon the will of men. It brought
out the distinction between legislation as a voluntary act,
creative of law, and the mere formulation of already existing
customs. Some of the Sophists went so far as to declare all
positive law to be arbitrary enactments set up by those in
power for their own advantage, and as laws and usage had
been regarded hitherto as the only moral authority, this doc-
trism seemed to dissolve at once all moral as well as political
obligation. The distinction between written and unwritten,
and the opposition of law to nature combined to develop and
make definite the notion of law as the enacted will of ra-
tional beings.

§ 4. With Stoicism another idea came into prominence,
the idea of natural law or the law of nahire. In the Greek
conception of natural law we have something quite different
from the natural laws of modern science. We find here the
universal, unwritten norms of conduct and the order of physi-
cal phenomena combined under the single notion of law of
nature. Laws which prevailed among all nations and were
acknowledged as binding by all peoples, such as the sanctity
of oaths, the duty of hospitality, etc., could not, it was evi-
dent, have been founded by any prince, or city, or revealed
by the divinities or oracles of any particular people ; they
must have their source in the universal divine will and be re-
vealed by nature to all men in their own consciousness.^
Such universal and unwritten laws as norms of human con-
duct, we have already seen, were widely recognized by the

1 Zeller, Tre-Socratic Philosophy. Vol. ii., p. 476,

2 Zeller, Ueher Begri^ tind Begyundutig der Sittlichen Geseize, p. 190.

THE CONCEPT OF LAW IN ETHICS. 7

Greeks. Heracleitus was, perhaps, the first to connect ex-
pressly this divine law with the order of things in the physi-
cal world. 1 Often the two were set in opposition, and even
those who insisted most emphatically on the invariable neces-
sity of the natural order as, e. g, Empedodes, Plato, and
Aristotle, did not designate this by the term law.2 With
very few exceptions before the time of the Stoics this word
was applied exclusively to norms of human conduct, the
laws of nature, when this expression was used, meaning such
rules of conduct as were common to all men and binding
upon them by virtue of their very nature.

" It was the founder of the Stoic school," says Zeller,
"who first brought into common use the concept of law as
applied to the natural order of things." 3 The extension of
law from the sphere of human action to the physical world
was a natural consequence of the fundamental doctrines of
Stoicism. The Stoics believed in an ultimate ground and
cause of the world which was not merely the material sub-
stance of things, but was at the same time the creative
Reason. The natural order and necessity in the universe
they regarded as the expression of the will of that Ultimate
Reason and hence called it the law of nature. As man and
nature are both under the same divine lawgiver, no distinc-
tion was made between natural law and moral law.^ In the
absence of scientific precision the same confusion prevailed
throughout the Middle Ages. The laws that determine the

1 Zeller, Pre-Socratic Philosophy^ p. 41. An early example of the
concept of law in its broadest aspect is the saying of Pindar :

Nbfio^y 6 ndvTcov ^aadeh^

duazcov T£ xal d&avdzcov.

2 Zeller, Ueber Begrzf, etc. Plato in the Trimaeus 83 E seems to use
the phrase Maws of nature' in something like the modern scientific
sense. Zeller finds one such case in Aristotle, see essay Ueber Begriff^
etc., note 11.

3 Ibid. p. 192.

4 Chrysippus, according to Diog. Laert., vii. 88, calls the " common
law right reason which pervades all things, being identical with Zeus, the
ruler of the government of the universe."

VOyLOC, was frequently called by the Stoics Xoyoq, dpOo^, and Cicero says
Lex vera ratio est recta summi Jovis. — De legt'bus, ii. 4. For furtherex-
amples see Zeller, Stoics, Epicureans and Sceptics, p. 241, note. ^^

8 THE CONCEPT OF LAW IN ETHICS.

order of nature and those which express the duty of man
were regarded alike as divine commands. It is only since
the sixteenth and . seventeenth centuries that philosophers
and men of science have held a clear conception of natural
law as the expression of the uniformities of the phenome-
nal world, in distinction from the primary use of law as ap-
plied to norms of human conduct.

§ 5. Were we tracing the history of the concept of law in
physical science, we should have now to consider what use
the Stoics made of this law of nature in explaining the mate-
rial world. Our interest here, however, is in the use they
made of the concept in their moral philosophy.

The central problem of Greek ethics was not to determine
the moral laws, but rather to find the chief good and the
mode of conduct which would secure it. It was the doctrine
of goods, rather than the doctrine of duties which gave the
key-note to the whole moral philosophy of the Greeks. With
the Stoics, as with their contemporaries and opponents, the
Epicureans, and with Aristotle before them, the aim is to de-
termine the highest good of life.^ The Epicureans pro-
nounced pleasure the highest good ; the Stoics, virtue,^ and
virtue they explained as conduct according to the laws of
nature.^ These laws of nature are not conceived so much
as imperatives of the divine will which ought to be obeyed
because thus commanded, but rather as ordinances of the
divine reason, compliances with which can alone secure weal
to rational beings.

The fundamental being of the universe was described by
the Stoics by a variety of terms, all meaning the same, one
primary force permeating the v/hole world — God, Soul of the
World, Providence, Destiny, Reason of the World, Univer-
sal Law, Nature.'^ The good in every system of thought
must be based on the general arrangement of the world, and
as the Stoics understood the world to be a cosmos governed
by Reason, they consequently found the good of the indi-

1 Zeller, Stoics, Epicureans and Sce't>tics, p. 225.

2 Ibid. p. 229.
\ 3 Ibid. p. 254.

'4 Ibid. p. 148 ff.

THE CONCEPT OF LAW IN ETHICS. 9

vidual in submitting himself to the laws of this universal rea-
son. Obedience is not imposed upon men by authority
from without, but men are bound by their very desire for the
highest good to obey the laws of their own rational nature,
which are at the same time the laws of the rational universe.
The grand principle of human life, then, is to live according
to nature. But by nature the Stoics meant almost the oppo-
site of what is ordinarily meant by that term. To follow
nature with them is not to give loose rein to one's native
passions and emotions ; it is to conform to the universal and
rational.'^ Emotions and passions they regarded as a product
of the irrational elements^ in our make-up and as such to be
neglected by the wise men. Hence the modern usage of the
term " Stoical." This failure to provide for the legitimate ex-
ercise of the emotions is the prominent defect in the Stoic
theory of morals — a consequence which followed quite easily
from their too exclusively rational interpretation of nature.
An adequate ethics will find scope for all of man's faculties
and powers, for the symmetrical development of all sides of
his nature.

The Stoics denounced existing customs and preached the
doctrine of nature, but it was the rational, not the emotional
nature, and it was the nature of the future, and not the na-
ture of the past. They did not look for improvement in a re-
turn to some golden age of innocence, but in a progressive
moral culture of men according to the laws of the rational
nature. They set before themselves the type of a perfect
wise man, a type which they admitted no one had yet realized
in himself, but which was to them, nevertheless, the ideal
goal of moral effect. "Zeno and the rest, though they do
not claim to be wise, yet claimed to be ' advancing.' This no-
tion of conscious moral progress and self discipline is too
familiar now for us easily to believe that it was first intro-
duced into Greece in the third century B. C. It may be said,

1 Ibid. p. 240.

2 Grant, The Ethics of Aristotle, Vol. I., Essay vi. The A?icie7it Stoics,

p. 319-

3 " Emotion or passion is a movement of mind contrary to reason and
nature." 'Zeller, Stoics, etc., p. 244.

10 THE CONCEPT OF LAW IN ETHICS.

indeed, to be contained implicitly in Aristotle's theory of
* habits,' but it is in reality the expression of a new and
totally different spirit. By this spirit we shall find the later
Stoics deeply penetrated. It constituted perhaps the most
purely 'moral' notion of antiquity, as implying the deepest
associations, which are attached to the word moral." ^

Closely connected with the modern concept of moral law
is the idea of duty. Though quite in harmony with their gen-
eral mode of thought and intense moral earnestness, the no-
tion of duty as a distinct moral concept does not seem to
have been grasped by the Greek Stoics.^ In the term
xa^yjxov, 'the suitable,' 'the fitting,' 'the proper,' we have
the 'lineal antecedent' of our duty. This is the term
which was translated into Latin by officium. It was probably
under the influences of the Roman sternness of character
and reverence for law that this notion of duty as the correlate
of law first came to consciousness.^

The Stoics exalted the individual in contrast with the insti-
tutions and laws of human states, but only to subordinate him
again to the universal Reason and the laws of the cosmic
state. The cosmopolitanism of the Stoics was an integral
part of their moral philosophy. It was a cosmopolitanism,
too, in the broadest etymological sense of the term ; ^ it not
only brought the individual into a common citizenship and
brotherhood of all nations, but also made him as a rational be-
ing a partaker of the rational life of the whole cosmos.
The universe is one city governed by the one law of nature
and hence all rational beings, as subjects of this law, must
be fellow-citizens of the one world-city.^ The fact that the
founders of the Stoic school were men of foreign birth*^ who

r Grant, Ethics of Aristotle. Vol. I., p 324.

2 " Und so fehlt denn der Begriff der Pflicht den Sjstemen der Griechen
vollig." Ziegler, Die Ethik der Griechen uttd Roiner, p. 241.

3 Grant, The Ethics of Aristotle. Vol. I., Essay vi., p. 325.

4 Ibid. p. 326.

5 Zeller, Stoics, etc., p 326. " Reason is the common law for all, and
those who owe allegiance to one law are members of one state." p. 330.

6 Zeller says (vS/o/c.t, etc., p. 36) : " Nearly all the most important Sto-
ics before the Christian era belong by birth to Asia Minor, to Syria, and
to the islands of the Eastern Archipelago." Grant gives a list of the

THE CONCEPT OF LAW IN ETHICS. II

came to Greece in adult life, was doubtless influential in en-
abling them to transcend the limitations of Hellenic insti-
tutions. The conquests of Alexander, too, had broadened
Greek knowledge of the barbarians and made it possible for
the thinkers of the third century to realize the common
humanity in all peoples as it had never been possible before.
But while the foreign birth of the early Stoics may have
made it easier for them to deduce the cosmopolitan conclu-
sions of their system, and the Macedonian conquests may
have made their hearers more accessible to such views, yet
despite all the influences of these two concurrent circum-
stances, we must regard the cosmopolitanism of the Stoics
as a necessary consequence of their fundamental conception
of the universe as rational, and all men as subject to the law
of universal reason. Plato had sunk the individual in the
state. The Sophists regarded men as lawless atoms, essen-
tially unrelated. By the doctrine of the Universal Reason
and the law of nature the Stoics escaped both of these ex-
tremes. While doing full justice to the individual, they still
emphasized his subordination to law and order.

Due weight had been given to the moral significance of
the state and legal institutions in the earlier systems,^ but
the Stoics were the first to take the term law out of its
strictly jural sense and apply it in a wider and more distinct-
tively moral field. The deep ethical import of law is per-
haps nowhere more clearly manifested than in the famous
hymn of Cleanthes to Zeus : " Thou makest order out of
disorder, and what is worthless becomes precious in thy
sight ; for thou hast fitted together good and evil into one
and hast established one law, that exists forever. But the

earlj Stoics and their places of birth {Ethics of Aristotle, Vol. I, p. 308),
and advances the theory that the peculiar moral earnestness of the Stoic
philosophy was of Semitic origin and ' alien from the childlike and
unconscious spirit of the Hellenic mind, with its tendency to objective
thought and the enjoyment of nature.'

I Schmidt Die Ethik der Alteti Griecken, p. 198. " Euripides refers
the distinction of right and wrong to the laws. Kallicles in the Gorgias
(482e-483 c) designates the content of morality as that which corresponds
to the law and so takes law and morality as meaning the same." Ibid,
p. 200.

12 THE CONCEPT OF LAW IN ETHICS.

wicked fly from thy law, unhappy ones, and though they de-
sire to possess what is good, yet they see not, neither do they
hear, the universal law of God. . . . O Zeus, giver of
all things, who dwellest in dark clouds, and rulest over the
thunder, deliver men from their foolishness. Scatter it from
their souls, and grant them to obtain wisdom, for by wisdom
thou dost rightly govern all things ; that being honored we
may repay thee with honour, singing thy works without
ceasing, as is right for us to do. For there is no greater thing
than this, either for mortal men or for the gods, to sing rightly
the universal law." i

§ 6. The notion of law thus borrowed from jurisprudence
was destined to be returned with interest. The most signal
triumph of the Stoic doctrine of natural law was on the field
of Roman law. Ziegler says of the philosophy of the Stoa
that it ''is of the greatest significance for the history of
Ethics not only on its own account, but also above all, be-
cause it entered the Roman world as a ferment and exercised
there in troubled times a mighty influence on the best minds
theoretically and practically. "2 Xhe conception of a law of
nature furnished the statesmen and jurists of Rome with a
moral basis for their law and an ideal by which to direct its
reformation and development.^ No other- idea of Greek
philosophy found such a keen appreciation at Rome or exer-
cised anything like as great an influence on Roman thought.
The Romans had no taste for metaphysics and Greek specu-
lations in general excited only a dilettante interest among
them.

Two kinds of law were early recognized at Rome. At the
the time when Greek philosophic thought began to be felt
among the Romans these two bodies of law had been develop-
ing for centuries not entirely without influence on one an-

1 This hymn is preserved by Stobaeus, EcL Phys., i, 30. The Greek is
given by Ueberweg, History of Philosophy, Vol. I., p. 197. The selection
quoted is from the rendering of Grant, Ethics of Aristotle, Vol. I, p. 329.

2 Ziegler, Die Ethik der Griechen u»d Rovier, p. 165.

3 For the influence of Stoicism on Roman Law see Grant, Ethics of
Aristotle, Vol. I., p. 340, ff; Morey, Outlines of Rotnan Laiv, p. lo^, ff;
Maine, Ancient Laiv, Chap HL, ' Law of Nature and Equity.'

THE CONCEPT OF LAW IN ETHICS. 1 3

Other, but yet each by itself and along its own path. The
civil law {jus civile) was the law of the Roman citizen. It
owed its origin to the religious conception of the early
Romans^ and was regarded as binding upon and applicable to
such only as participated in the religion of the city. This
law was first put in writing in the former Twelve Tables.
The presence of foreigners in the city and the needs of com-
merce early showed the necessity of a law applicable to those
who were not citizens. Since strangers could not be judged
by the sacred civil law of Rome, the Praetor to whose court
such cases were brought sought out and applied the various
legal principles common to the surrounding Italian tribes.
It was the custom for the Praetor each year, on beginning his
term of office, to publish an edict setting forth the principles
on which he proposed to adjudicate the cases brought before
him. Each new Praetor published the edict of his prede-
cessor, making such additions as he deemed advisable. As
this body of law was established to judge foreigners by, and
was supposed to consist of laws common to all the tribes and
nationalities represented at Rome, it was called the jus gen-
tium or Law of Nations. Constructed thus from principles
common to a number of tribes, tho. jus gentium was much less
cumbered by legal technicalities and formulas and was much
more liberal and equitable than the jus civile. In spite of
the contempt which the Romans had for it as the law of for-
eigners it still exercised a humanizing influence over the civil
law itself.

From the middle of the second century B. C. on, Greek
philosophy was studied by the leading minds at Rome.
Epicureanism helped to break down the superstitious fears of
the old gods, but its ethics met with no marked response.
The ethics of Stoicism, however, appealed to the moral sense
of the nation. Law took on a new and profoundly ethical
aspect. Its ultimate seat and authority was seen to be not

I " This religion had produced laws; the relations among men — prop-
erty, inheritance, legal proceedings — all were regulated not by the princi-
ples of natural equity, but by the dogmas of this religion, and with a view
to the requirements of its worship." De Coulanges, The Anctetit City,
P- 519-

14 THE CONCEPT OF LAW IN ETHICS.

in the founder of the city or in the will of changeable deities,
but in the unchangeable nature of things. As the Romans
compared their actual laws with the Stoic ideal of natural
law, they saw that the despised yV^i- gentumt came much nearer
to that ideal than their revered jus civile. It possessed in a
far higher degree those marks of simplicity and harmony
which have always been regarded as characterizing the works
of nature. The old feeling of contempt for the jus geiitiuvi
gradually gave way and the Roman Jurists brought up under
Stoic teachings came to look upon it with reverence as a par-
tial embodiment, or perhaps as a remnant of that ancient
law of nature. No one contributed more to this change of
sentiment than Cicero. 'The first important attempt made
by the Roman writers to ground law upon nature we find in
the ' Laws ' of Cicero where the fundamental proposition is
laid down that man is born for justice and that law and equity
are not a mere establishment of opinion, but are an institu-
tion of nature.'i

Legal development and reform under the Republic had
been empirical, unconscious, so to speak, the result of pro-
cedure. Under the Empire, however, guided and stimulated
by the ideal of natural law, progress was conscious and rapid.
The old civil law became more and more circumscribed and
one after another of its formalities was abandoned. 'The
preference accorded by jurists and judges to the jus gentium
over the jus civile is insufficient to account for these and
many other changes in the same direction, as well as for the
ever increasing tendency evinced to subordinate word and
deed to the voluntas (intention) from which they arose.
They are rather to be attributed to the striving on the part
of many after a higher ideal, to which they gave the name of
jus naturale'^ Among the intensely practical Romans this
ideal of law worked a reformatory and never a revolutionary
influence, as has been the case in modern times. 'The
value and serviceableness of the conception arose from its
keeping before the mental vision a type of perfect law and

"- 1 Morey, Outlines of Roman Law.
^ 2 Muirhead, Lavj of Rome^ p. 297

THE CONCEPT OF LAW IN ETHICS. 1 5

from its inspiring the hope of an indefinite approximation to
it, at the same time that it never tempted the practitioner or
the citizen to deny the obligation of existing laws which had
not been adjusted to the theory. ... 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. In this
one exceptional instance, simplicity and symmetry were kept
before the eyes of society whose influence on mankind was
destined to be prodigious from other causes, as the charac-
teristic of an ideal and absolutely perfect law.'^

The laws of Rome as finally formulated by the great jurists
and handed down to posterity was the happy union of Roman
practice and Greek theory. The Stoic notion of natural law
furnished an ideal and ethical basis for the practical legal
institution of Rome, and in so doing gave them a breadth
and depth of meaning that has made them of incalculable
value for all time.^ In the code of Justinian the theory of
law of nature was preserved through the Middle Ages. Un-
der the influence of the Church and of the Romanized cities
the old law as a body of practical rules was kept in use by
the Germanic conquerors even in the darkest ages. Scien-
tific study of the law and its principles, however, was sus-
pended and not revived till about the beginning of the twelfth
century. It was then that the University of Bologna be-
came famous as a seat of legal studies, and never since has
the law of Rome ceased to be studied in the principal insti-
tutions of learning in Western Europe.

It would be a most interesting historical study to go on
from this point and trace the influence of the Stoic doctrine
of law of nature embodied and preserved as it was in Ro-
man law ;3 to show how this doctrine effected the develop-

1 Maine, Ancient Laiv, p. 76, 78.

2 (Roman Law) " endures still, furnishing the spirit, principles, and to a
great extent the substance of all modern bodies of law, second in for-
warding civilization to no single force save Christianity." Andrews, In-
stitiUes of General History, p. 78.

3 Maine, Ancient Laiv, Chap. IV. ' The Modern History of the Law
of Nature.' " The importance of this theory to mankind has been much
greater that its philosophical deficiencies would lead us to expect." p. 74.

1 6 THE CONCEPT OF LAW IN ETHICS.

ment of jurisprudence in France ; how the alliance with the
lawyers enabled the king to solidify and centralize the mon-
archy; how, later, Rousseau made of this jural doctrine a
political doctrine, which thus became the watchword of the
French Revolution ; ^ how the same doctrine gave a theo-
retic basis^to the men who carried through the English Rev-
olution, and how again the same thought learned from' Locke,
Montesquieu and Rousseau animated the American Revolu-
tion. We must not turn aside, however, to follow this notion
of natural law through the tangled web of jurisprudence,
theories of the state, and practical politics. Our purpose here
is to trace the notion of law in the principal systems of ethics
noticing the ethical ideas in jurisprudence and politics only
so far as they have had a reflex influence on moral philosophy.

1 Ibid. p. 80: "The theory of Natural Law is the source of most all
the special ideas as to law, politics and society which France, during the
last hundred years has been the instrument of diffusing all over the
western world."

THE CONCEPT OF LAW IN ETHICS. 1 7

CHAPTER II

§ 7. In the Middle Ages morals and religion, ethics and
theology, were inextricably confounded. Nor could we ex-
pect it to have been otherwise. Classical culture had gone
out and the only intellectual life of the times was in the
Church. Philosophy was the handmaid of theology. It is,
therefore, in the works of the Christian theologians that we
must look for a continuation of the stream of ethical thought.
Remembering the stern denunciation which the founder of
Christianity pronounced against the legalism of the Scribes
and Pharisees, and his constant insistance upon 'inwardness'
i. e., a rectitude of heart and spirit and a positive good-will
(/J dydTTTJ), we might expect to find the notion of law playing
but a small part in Christian Ethics. Three facts may be
mentioned whose influence on Christianity combined to give
a jural form to its moral teachings :

I. The Hebrew origin of Christianity.
' As among all early peoples, so in the case of the Israelites,
religion, morality and civil law were presented to the popu-
lar consciousness in one undifferentiated mass of rules.
The law of Moses, the code of ancient Israel, combined in
its scope rules of worship, norms of moral conduct, and the
legal ordinances of the nation. All alike indiscriminately
were regarded as the express commands of Jehovah. The con-
ception of their national god as a god of righteousness gave a
peculiar prominence to the ethical portion of these com-
mands. We find, therefore, the Decalogue combining, as it
does, the fundamental principles of religion and the most es-
sential moral norms, early regarded as the core of the He-
brew code, and after the early Christians had freed them-

1 8 THE CONCEPT OF LAW IN ETHICS.

selves from the trammels of the old ceremonial law, the
*Thou shalt ' and the 'Thou shalt not' of Sinai still thun-
dered in the consciences of men as the veritable law of God.
2. A second fact which had an influence in giving a jural
form to Christian conception of morality was the three cen-
turies of hostility and practical separation between Christian-
ity and the Empire.

In its attitude toward the state Christianity presents a
marked contrast to both Judaism and paganism. The con-
queror of the nations had a place for the gods of all the na-
tions conquered. But Christianity was not a national religion
and the Roman government could find no place for it. Its
aim was to establish a kingdom not of this world, a spiritual
kingdom which the rulers of this world could not understand.
The clear demarkation of the two fields of duty in the princi-
ple of the founder, * render unto Caesar the things that are Cae-
sar's and unto God the things that are God's,' presented a
distinction between religion and jurisprudence that was
wholly foreign to ancient philosophy and statecraft. This
distinction in thought became an actuality in practice during
the centuries of persecution to which the new religion was
subject.- Even when Christianity became the religion of
the state, the result was rather to free the state from the
cumbersome formalities of the ancient religion, than to
impose upon it any new ones.^ However later ecclesiastics
might endeavor to subordinate the temporal to the spiritual,
the distinction in thought at least was never lost sight of,
and we have again to-day in this country, if not in Europe,
the separation of Church and State in practice as well as in
theory.

Now during this period of antagonism between the Chris-
tians and the Empire, they made a constant effort to have
just as little as possible to do with the secular courts. The
Hebrew scriptures were regarded as revealing a divine code
of laws, and by means of this code the Christians constituted
themselves * an ordered community essentially distinct from

I "Christianity is the first religion that did not claim to be the source
of law" — last chapter of De Coulanges, The Ancient City.

THE CONCEPT OF LAW IN ETHICS. 1 9

the state.' This very separation from the jurisprudence of
the state served to stamp upon the peculiar moral maxims of
Christianity a jural form, since for the first three hundred
years they had actually taken the place of all civil law. The
use of penances and excommunication as temporal sanctions
of the divine law intensified the legal aspect of Christian
ethics.

In comparison with Greek ethics, Sidgwick says that "the
first point to be noticed as novel is the conception of mo-
rality as the positive law of a theocratic community, possess-
ing a written code imposed by divine revelation, and sanc-
tioned by express divine promises and threatenings." ^ We
have already seen that among the Greeks the unwritten laws
and later the law of nature, had a highly ethical import, and
were often regarded as of divine origin. But the notion of
command, the expression of a will, was never more than dimly
conceived in the background. These laws were principles of
conduct by which alone virtue or happiness could be attained,
rather than the imperatives of a divine lawgiver sanctioned
by rewards and punishments. In Judaism and Christianity
the notion of the imperative came into the foreground.

3. Besides the Hebrew origin and the peculiar circum-
stances of its early history, Christianity in the West was sub-
ject to a Roman influence which made for legalism.

The peculiar jural bent of the best Roman thought and
the high success of Rome's legal institutions exerted a power-
ful effect on Latin Christianity. The very language was sat-
urated with legal concepts. The mere translation of the
New Testament into Latin gave to Christian doctrine a de-
cided jural tone that had been quite unsuspected in the Greek.
God was no longer the Heavenly Father of the common man,
or the Universal Reason of the Greek philosopher, so much
as the Moral Governor of the world bound to maintain a just
government.

Besides this general influence upon Christian thought from
the jural cast of the Roman mind, there was an even more
specific influence from Roman law itself. The Church was

I Sidgwick, History of Ethics, p. no.

20 THE CONCEPT OF LAW IN ETHICS.

in many ways the successor and heir of the Empire and it
received no heritage more valuable to itself or for modern
civilization than the civil code of the Eternal City. The ec-
clesiastical authorities not only exerted all their influence
over the Teutonic invaders towards maintaining Roman ju-
risprudence, but they adopted the Roman law as the Canon
law of the Church.

§ 8. All of these legalizing influences had had time to
work thfeir full effect on Christian thought when a century
afCer the revival of the scientific study of Roman law at Bo-
logna '* a genuinely philosophic intellect, trained by a full
study of the greatest Greek thinker, undertook to give
complete scientific form to the ethical doctrines of the Cath-
olic Church."! In the ethics of Thomas Aquinas, as in-
deed in his whole philosophy in general, there is an attempt
to combine and harmonize the teachings of the New Testa-
ment and the Church Fathers with those of the Greek philoso-
phers, or more specifically still, to harmonize Augustine as
the representative of Christian doctrine with Aristotle as * the
philosopher ' J^ar excellence.

In this system the notion of law occupies a highly prominent,
if not the first place. It was the influence of Aristotle, doubt-
less, that led Aquinas to give the first place in his system to the
doctrine of goods and virtues. The most complete statement
of his moral philosophy is given in the first part of the sec.
ond division of the Summa Theologica. He begins with a
discussion of the chief good which he finds to be the blessed-
ness of union with God. He next treats of the virtues and
following * the philosopher ' divides them into intellectual and
moral. The moral virtues again are classified into the natu-
ral or acquired and the theologic or instilled. Those virtues
which may be acquired by the natural man are the four cardi-
nal virtues of the Greeks, Prudence, Temperance, Fortitude^
and Justice. Besides these, as necessary to the highest
end of man, communion with God, are the three theologic
virtues which are instilled in men by divine grace — Faith,
Hope, and Love. This analysis of the virtues is followed by

I Sidgwick, History of Ethics, p. no.

THE CONCEPT OF LAW IN ETHICS. 21

a subtle discussion of sin and then the subject of law is taken
up.^ UThomas defines law as "an ordinance of reason for the
common good which is promulgated by him who has charge
of the community."^ Four kinds of law are distinguished —
eternal, natural, human, and divine.

The eternal law is the divine reason of the supreme gov-
ernor of the universe by which all creatures, rational and
irrational are ruled. This law, in so far as it applies to ra-
tional creatures, is given to them in two ways — naturally and
by special revelation. Hence the two kinds, natural and di-
vine, corresponding to the two modes by which the law is
made known to men. A portion of the eternal law God has
so implanted in men's minds as to be known by natural rea-
son. ^ This is the law of nature. All rational action aims
at some good. The first principle, therefore, of natural law
is that good should be done and sought, and evil avoided.
Upon this principle are founded all the other precepts of the
law of nature for the sake of whatever the practical reason
naturally apprehends to be human goods.* Human laws are
the special rules of particular communities deduced by the
reason from the precepts of natural law. The process of the
practical reason is the same as that of the speculative reason ;
both proceed from certain principles to certain conclusions.
"Just as in the speculative reason from indemonstrable prin-
ciples naturally known are drawn conclusions of different
sciences, with the knowledge of which we are not naturally
endowed, but which is found out by the industry of reason ;
so also from the precepts of natural law, as if from certain

1 For a brief account of Thomas's ethics see Sidgwick, History of Eth-
ics, p. 140 ff; also Ziegler, Oeschickte der Christlichen Ethik^ p. 282, ff.

2 Thomas Aquinas, Smnma Tkeologica, Prima Secundae, Quaest. xc,
Art. IV. " Et sic ex quatuor praedictis potest coUigi definitio legis, quae
nihil est aliud quam guaedam rationis ordinatio ad bonum commune, et
ab eo qui curam communitaiis habet, promulgata."

3 " Promulgatio legis naturae est ex hoc ipso quod Deus eam mentibus
hominum inseruit naturaliter cognoscendam," Qii. xc, Art. IV. "Lex
naturalis nihil aliud est quam participatio legis aeternae in rationali crea-
tura." Qu. xci., Art. n.

4 Ibid. Qu. xciv., Art. II.

22 THE CONCEPT OF LAW IN ETHICS.

common and indemonstrable principles, it is necessary that
the human reason proceed to more particular rules, and
these are human laws provide the other conditions deter-
minative of law be observed."^ --^

Unjust laws, i. e., such as are contrary to human good, are
not binding in the forum of conscience, though for the sake
of avoiding scandal and disturbance, it may be better to obey
them. But laws contrary to divine good are in no wise to
be observed.2 We ought to obey God rather than man. All
inferior governors derive their authority from the eternal law
of the supreme governor. Human law, therefore, in so far
as it accords v/ith right reason, is derived from eternal law.^

Obedience to the law of nature suffices for attaining to the
natural or acquired virtues. Since, however, man is ordained
to an end higher than the natural, it is necessary for the
direction of human Hfe that we have besides natural and
human law divine law given by God to men by special reve-
lation. This divine law is double^ — the one revealed in the
Old Testament through the instrumentality of angels, the
other in the New Testament by God himself made man.
The old law seeks sensible and terrestrial good, the new one
intelligible and celestial good. The first summoned the peo-
ple to the earthly kingdom of the Canaanites, the latter to
the kingdom of heaven. The old promises temporal things,
the new promises eternal life. The old controls the hand,
the new the mind. The motive of the old was fear, of the
new love. Of the old law the ceremonial and judicial pre-
cepts are no longer obligatory, but the moral precepts, par-
ticularly as given in the Decalogue, are still binding
upon Christians. The new law is variously designated
as the law of the Gospel, law of love, law of grace, etc. Be-
sides giving commands it also confers upon the faithful
strength for the fulfilment of these commands. The divine

1 Ibid. Qu. xci., Art. III.

2 Ibid. Qu. xcvi., Art. IV.

3 Ibid. Qu. xciii., Art. III.

4 These two laws are not related to each other as two species, e. g.,
horse and cow, but as the imperfect to the perfect, e. g., boy and man.
Qu. xci , Art. V.

THE CONCEPT OF LAW IN ETHICS. 23

law is ordained to secure the communion of men with God.
To its positive commands "without which the order of virtue,
which is the order of reason, could not be observed," it adds
as counsels the monastic virtues of poverty, celibacy, and
obedience, which, though not obligatory, afford a superior
means for attaining to the perfect life.i

In Thomas Aquinas we have the culmination and epitome
of Scolasticism, " the crowning result of the great construc-
tive effort of mediaeval philosophy." 2 His influence has
been very great, both on the theology of the Catholics, by
whom he is still regarded as the official philosopher of the
Church, and also on the theology of Protestants. The part
which the jural view of morality plays in his ethical system
illustrates very fairly the position of this view in Christian
ethics in general. The Decalogue, with its never-faiUng ap-
peal to the moral consciousness, has been to Christians and
to all who have come under the influence of Christianity the
preeminent summary of moral principles, and, being expressed
as the command of God, it has appeared as a moral law.
Thus the notion of morality as a code of laws has been deeply
stamped on popular thought and in only a slightly less de-
gree on the would be scientific systems of ethical philos-
ophers. Morality and obedience to the Ten Commandments
are to many almost synonymous terms, and this fact, together
with the other influences already mentioned, has given a
prominently jural form to the ethics of the Church in all
ages — in modern times as well as in the Middle Ages.

1 " Lex divina convenienter proponit praecepta de actibus omnium vir-
tutum, . . . but yet quaedam sine quibus ordo virtutis, qui est ordo
rationis, observari non potest, cadunt sub obligatione praecepti ; quae-
dam vero quae pertinent ad bene esse virtutis perfectas, cadunt sub ad-
monitione consilii." Qu. c, Art. II.

2 Sidgwick, History of Ethics, p. 147,

24 THE CONCEPT OF LAW IN ETHICS.

CHAPTER

§ 9. Having thus briefly sketched the influence of jural
concepts in ancient and mediaeval ethics, we come now to
modern systems. Mediaeval philosophy was characterized
by submission to authority — on the one hand to the Church,
and on the other to Aristotle. Modern philosophy yields to
no authority, but facing freely the problems of the universe,
seeks a solution which shall force irresistible conviction upon
every intelligence. In the modern attempt to establish mo-
rality on an independent foundation, /. ^., independent of spe-
cial revelation and of ecclesiastical authority, the notion of
the law of nature was the first principle seized upon. If
we examine the moral philosophy of Aquinas two points pre-
sent themselves on which conceivably an independent, ra-
tional morality might be founded — (i) the acquired virtues,
(2) the law of nature. It was the latter of these principles
which actually served as the starting point of modern ethics.

After the combined influences of Renaissance and Refor-
mation had effectually undermined the traditional confidence
in the old authorities, the need of a new ethics was first felt
in politics. Wherever there was a difference of faith be-
tween king and subjects, a new question as to the duties of
allegiance was raised, and now that the general supremacy
of the Pope over the nations was no longer recognized a new
theory was required to determine the relations and duties of
independent states to one another. It was for the purpose
of solving the problems arising from the changed relations
of nations that Grotius composed his epoch-making work,
De Jure Belli ct Paeis^ — the work which is universally recog-

I Paris, 1625.

THE CONCEPT OF LAW IN ETHICS. 25

nized as the foundation of the modern system of Interna-
tional Law. The basis on which he erected his system was
the old Stoic theory of the law of nature as it had been
handed down by the Roman jurists and ecclesiastical mor-
alists.

Grotius defines natural law as the " dictate of Right Rea-
son, indicating that an act, from its agreement or disagree-
ment with man's rational and social nature, is morally dis-
graceful or morally necessary." ^ Here we find the law of
nature defined in a manner broad enough to include a moral
as well as a legal code. According to the theory of Grotius,
though God is the creator of nature and her laws, yet the
nature of things when once created remains ever after un-
changeable and unaffected by the divine will. In the nature
of man, then, by the use of the reason, we may find the fun-
damental principles of morals and jurisprudence. Now man
is distinguished from other animals by his peculiar capacity
for society, hence from the nature of man as a social being
may be deduced the principles which should govern his con-
duct in society. The utility of social laws is also recognized
as a secondary principle. But the utility is only secondary.
Even if there were no advantage to be attained from it, man's
very nature as social would require him to submit to the laws
of society. Since now these are laws of man's nature itself,
they are binding upon him in the natural state before he has
united with his fellows and by an ** express or tacit pact"
formed a state. Just as individuals, while in the state of na-
ture and as yet subject to no sovereign power, were never-
theless bound by the laws of nature, so modern nations which
are related to each other like persons independent of any au-
thority, are still under obligation to observe the laws of na-
ture in their dealings with one another.^

r Sidgwick, History of Ethics, p. 160.

2 "The grandest function of the Law of Nature was discharged in giv-
ing birth to modern International Law and to the modern Law of War."
Maine, Ancient Lavj, p. 96.

For a brief account of Grotius and his place in the history of ethics see
Jodl, Geschichte der Eihik in der neueren Philosofhie, Bd. i., Cap. III.,
Absch. 5.

26 THE CONCEPT OF LAW IN ETHICS.

§ 10. The theory of the state propounded by Thomas
Hobbes may be regarded as the beginning of independent
ethics in England. Beyond a few pregnant suggestions
Bacon had done little in moral philosophy. The current
view of the law of nature furnished Hobbes with a starting
point. But while employing much the same language his
theory of morals is in essence almost the antithesis of that
of Grotius. In both men the aim was to establish a theory
of the state, and they concern themselves with ethics only
so far as is necessary for this purpose. While the chief aim
of Grotius's work was to determine the relations of independ-
ent states, Hobbes devoted himself to determining the rela-
tions of sovereign and subject in the same state. Both seek
a foundation for their theories in morals, but while Grotius*
finds that in the social impulses of man's nature, itself,
Hobbes regards man by nature as impelled only by self-
interest and all moral norms as springing from the state and
the civil law. The ethical speculations involved in Hobbes's
theory of the state and the attacks called out in opposition
determined the development of moral philosophy in England
for nearly a century.

Ths psychological basis of Hobbes's theory is frankly ego-
tistic. "Of the voluntary acts of every man the object is
some Good to himself." ^ Since man naturally seeks only
his own satisfaction the original state of nature was a condi-
tion of war of every man against every other man. In this
state of affairs there was no law and no morality. " The de-
sires and other passions of man are in themselves no sin.
No more are the actions that proceed from those passions,
till they know a law that forbids them ; which till laws be
made they cannot know, nor can any law be made till they
have agreed upon the person that shall make it. . . . To
this war of every man against every man, this also is conse-
quent ; that nothing can be unjust. The notions of right
and wrong, justice and injustice, have there no place. Where
there is no common power, there is no law ; where no law,

I Hobbes, Leviathan^ p. 66. (I quote from Thornton's reprint, giving
the pages of the original edition of 165 1.)

THE CONCEPT OF LAW IN ETHICS. 27

no injustice. Force and Fraud are in war the two cardinal
virtues. Justice and injustice are none of the faculties, nei-
ther of the body nor mind." ^ Reason, however, is no less
of the nature of man than passion, and since this is the same
in all men, directing them to seek their own good, there can
be no other law of nature than reason. Accordingly Hobbes
defines the law of nature as a ''precept, or general rule,
found out by reason, by which a man is forbidden to do that
which is destructive of his life, or taketh away the means of
preserving the same ; and to omit that by which he thinketh
it may be best preserved." ^ From this definition is deduced
the fundamental law of nature ^ to seek peace and follozv it,
and failing in this ' by all means we can to defend ourselves!
Such rights as being retained hinder the peace of mankind
ought to be given up, if we can be assured that others will
do the same. This gives us a second law of nature, and
from it follows the third, which is ' that men perform their
covenants made.' ^ The validity of the covenant depends
upon the assurance that it will be observed. ' Therefore be-
fore the names just and unjust can have place, there must
be some coercive power to compel men equally to the per-
formance of their covenants, by the terror of some punish-
ment greater than the benefit they expect by the breach of
their covenant ; . . . and such power there is none be-
fore the erection of a commonwealth.' Justice is the 'keep-
ing of covenant,' and, as this is a rule of reason by which
we are forbidden to do anything destructive to our life, it is
consequently a law of nature.

From these primary laws of nature Hobbes goes on to de-
duce a number of others ; in fact he makes nineteen in all,
but to * leave all men unexcusable, they have been contracted
into one easy sum, intelligible even to the meanest capacity ;
and that is, Do not that to another which thou wouldest
not have done to thyself.' ^ These laws are always binding

1 Ibid. pp. 62, 63.

2 Ibid. p. 64.

3 Ibid. p. 71.

4 Ibid. p. 79.

28 THE CONCEPT OF LAW IN ETHICS.

on our desires and intentions, but we are under no obligation
to put them in act unless we have a reasonable assurance
that others will observe the same laws towards us. 'The
laws of nature are immutable and eternal,* for these are the
precepts of peace and ' it can never be that war shall pre-
serve life and peace destroy it.' i All of these precepts may
be termed indifferently laws of nature, as being the dictates
of natural reason, or moral laws * because they concern men's
manners and conversations one toward another,' or, again, di-
vine laws ' in respect of the author thereof, God Almighty.'2
The true doctrine of the laws of nature Hobbes declares to
be 'the true and only moral philosophy.'

In order that men may enjoy the blessings of peace as nat-
ural reason dictates, there must be a sovereign power capable
of enforcing obedience to compacts. The only way to erect
such a power is by mutual consent to confer the power and
strength of all upon one man or upon one assembly of men
that may reduce all their wills unto one will. In this way a
real unity of them all is established in one and the same per-
son.3 ' The right of all sovereigns is derived originally from
the consent of every one of those that are to be governed ;
whether they that choose him do it for their common defence
against an enemy, as when they agree among themselves to
appoint a man or assembly of men to protect them ; or
whether they do it to save their lives by submission to a con-
quering enemy.' * After the sovereign power is once estab-
lished it is the duty of every one to yield implicit obedience
to it in all matters. The sovereign is under obligation only
to God and the laws of nature. The civil laws which he in-
stitutes are to determine without question the conduct of the
subject. They are to him the ultimate standard of right and
wrong, good and evil. * By the law of nature the civil sov-

I Besides these laws of nature which dictate peace and are necessary to
the existence of civil society, whatever tends ' to the destruction of par-
ticular men as drunkenness and all other parts of intemperance,' Hobbes
regards as forbidden by the law of nature.
— 2 Hobbes, Elements of Law, Pt. I, Chap. i8.

3 Leviathan, p. 87.

4 Ibid. p. 314.

THE CONCEPT OF LAW IN ETHICS. 29

ereign in every commonwealth is the head, the source, the
root, and the sun from which all jurisdiction is derived ' ^ —
ecclesiastical as well as political. It is heresy for a private
person to maintain any doctrine prohibited by the state.^
Thus while the laws of nature served Hobbes as the theoret-
ical basis of the state, the criterion of morality for the indi-
vidual, according to his doctrine, is the positive civil law. To
obey the laws of the state is the whole duty of man, ethical
and religious.

In a double way, therefore, the ethics of Hobbes takes on
a jural aspect in its fundamental theory, being based on the
laws of nature, and in its practical outcome referring all de-
terminations of duty to the civil law. The jural elements in
this theory are widely different from the divine commands
of Paley's system or the categorical imperative of Kant's.
In fact the laws of nature are for Hobbes's jural only in the
mode of expression and not at all in the concept itself. The
phrase ' law of nature ' was one held in high respect by jurists,
ecclesiastics, and rationalists. It was, therefore, a very ad-
vantageous phrase for the founder of a new theory of the
state to have continually in his mouth. Hobbes himself is
careful to state that he does not in reality attach any jural
significance to the term. At the end of the two chapters*
of the Leviathan, which he devotes particularly to the defini-
tion and deduction of the natural laws, he says :

" These dictates of reason men use to call by the name of
laws, but improperly, for they are but conclusions, or theo-
rems concerning what conduceth to the conversation and de-
fense of themselves ; whereas law properly is the word of
him that by right hath command over others. But yet if we
consider the same theorems as delivered in the Word of God,
that by right commandeth all things, then are they properly
called laws."** The reference of the laws to God serves
simply to explain the term, and perhaps is intended also to

1 Ibid. p. 312.

2 Ibid. p. 317.

3 XIV. and XV.

4 Ibid. p. 80. y

30 THE CONCEPT OF LAW IN ETHICS.

conciliate religious sentiments, but it is quite outside the
line of argument of the theory itself.

§ II. Such a system as that of Hobbes's *in which the
only fixed positions were selfishness everywhere and un-
limited power somewhere' could but excite the strongest
opposition from the moral sense and liberty loving spirit of
the English people. While the absoluteness of the sovereign
power offended the liberals in politics, the making of self-
regarding motives the only determinants of conduct and the
civil law the standard of good and evil aroused the antago-
nism of moral philosophers. Each of these three points, the
absolutism of the state, the egoism and relativism of morality
called out answers from moralists. Locke championed the
natural rights of the individual citizen, Cumberland main-
tained that the common good of all is the supreme end and
standard of conduct, and Cudworth taught that moral prin-
cipals are eternal and immutable.

In the writings of Cudworth, who was the foremost of the
Cambridge Platonists, we find a noteworthy opposition to
jural conceptions of morality. In his view neither civil law
nor divine law can determine morality. Good and evil are
essentially and eternally distinct, and no mere will, not even
that of God Himself, can alter this distinction. Surely the
transitory and changeable laws of the state cannot be the
source of that which in its nature is eternal and unchange-
able. Moral truths are immutable ideas of the divine reason
and, like the truths of mathematics, are apprehended by the
human reason, and are, therefore, equally valid for all ra-
tional beings. In the ethics of Locke and Cumberland, how-
ever, we find the jural concepts again regnant. Both of these
philosophers treated morality as a code of laws promulgated
by God, revealed in the natural reason and sanctioned by
rewards and punishments. ''Moral good and evil," says
Locke, " is only the conformity or disagreement of our volun-
tary actions to some law, whereby good and evil is drawn on
us by the will and power of the law-maker; which good
and evil, pleasure or pain, attending our observance or
breach of the law, by the decree of the law-maker, is that

THE CONCEPT OF LAW IN ETHICS. 3 1

we call reward and punishment. "1 These sanctions are in-
sisted upon by Locke as absolutely essential to morality. It
is only * by rewards and punishments that will overbalance the
satisfaction any one shall propose to himself in the breach
of the law,' that moral laws have the power to curb and re-
strain inordinate desires.^ Locke distinguished three classes
of laws : (i) divine laws, (2) civil laws, (3) laws of opinion or
reputation. Virtue and vice in general are the names given
to such actions as receive the approval or disapproval of
public opinion, but when these names ' stand for actions in
their own nature right and wrong,' then they are * coincident
with the divine^ law.'^ The moral laws are not innate in
the human inind, but they are 'knowable by the light of
nature,' and it is, therefore, 'our own fault if we come not
to a certain knowledge of them.'^ For Locke, as for all the
philosophers of the 17th century, mathematics was the
ideal science, and mathematical demonstration the type of
certainty. Moral truths he believed to be equally necessary
and capable of demonstration, though on account of their
complexity and the impossibility of presenting them to the
eye by diagrams, their demonstration is more difficult.^

Cumberland^ like Locke regarded morality as a code of
laws and as capable of demonstration as mathematics. The
only respect in which he is of distinctive interest in this
connection is his presentation of the general welfare as the
fundamental law of nature and its essential agreement with
individual interest, in this attacking the universal selfishness
of Hobbes's system. A law of nature in his view is " a
proposition proposed to the observation of or impressed upon
the mind with sufficient clearness by the nature of things,
from the will of the first cause, which points out that pos-
sible action of a rational agent which will chiefly promote

1 Locke, Essay concerning Human Understanding, Bk. II., Ch. 28, § 5.

2 Ibid. Bk. I., Ch. 3, § 13.

3 Ibid. Bk. IL, Ch. 28, § 10.

4 Ibid. Bk. I., Ch. 3, § I.

^ 5 Ibid. Bk. IV., Ch. 3, § 18, 19.

6 His chief work, De Legibus Naturae (1672) shows him to have been
greatly influenced by Grotius.

32 THE CONCEPT OF LAW IN ETHICS.

the common good, and by which only the entire happiness
of particular persons can be obtained." " The greatest be-
nevolence of every rational agent towards all forms the hap-
piest state of every and of all the benevolent, as far as in
their power ; and it is necessarily requisite to the happiness
which they can attain, and therefore the common good is
the supreme law."i As Hobbes is the founder of egoistic
hedonism in English ethics, so Cumberland is the founder
of universalistic hedonism.

The law of God which formed the ultimate authority in
morals for Locke and Cumberland was considered as know-
able by natural reason and is thus to be distinguished from
the divine law of the Hebrews and mediaeval moralists.
This distinction might be expressed by calling the ethics of
former theologic juralism, the latter Hebraic juralism.

§ 12. The most thorough going presentation of theologic
juralism in moral philosophy, the culmination of the ethical
theories of 'natural theology' as taught in the 17th and
1 8th centuries is found in the system of Paley. With him
the law of God is no mere incidental factor or theoretic
basis, but the moving principle of the whole system. The
moral law is conceived in complete analogy with civil law.
It is the express command of a lawgiver who has the
authority and power to enforce his will by rewards and pun-
ishments. To be obliged is to be * urged by a violent motive
resulting from the command of another,' and just as we should
not be obliged to obey the civil law except for the rewards
and punishments, the pleasures and pains dependent upon our
obedience, *so neither should we without the same reason, be
obliged to do what is right, to practice virtue, or to obey the
commands of God. '2 Between prudence and duty 'the dif-
ference and the only difference' is that *in the one case we
consider what we shall gain or lose in the present world, in
the other case we consider also what we shall gain or lose
in the world to come.'^

1 Quoted from Porter's appendixto the translation of Uberweg's History
of Philosophy, Vol. II., p. 362.

2 VzXty , Principles of Moral and Political Philosophy ^ Bk. II., Ch. 2.
3lbid. Bk. II., Ch. 3.

THE CONCEPT OF LAW IN ETHICS. 33

Not only are the moral motives, according to Paley, of a
purely utilitarian nature, but the moral law itself is to be dis-
covered by the same principle. To learn this law we need
only inquire what is the will of God, for moral obligation de-
pends upon God's will and right signifies consistency with
this same will.i Since now the predominant tendency of the
contrivance indicates the disposition of the designer, we may
conclude that God wills and wishes the happiness of his
creatures. In order, therefore, by the light of nature to
come at the will of God concerning any action, it is only
necessary for us to inquire into the tendency of this action
*to promote or diminish the general happiness.'^ Paley's
whole theory, both in its jural and in its utilitarian aspects,
is summed up concisely and completely in his definition of vir-
tue : " The doing good to mankind, in obedience to the
will of God, and for the sake of everlasting happiness."^

In the ethical systems thus far considered we have found
the law of nature, the law of God in two forms, and the law
of the state playing a more or less prominent part. Natural
juralism, Hebraic juralism, theologic juralism and civil ju-
ralism have one element in common ; they all involve the
notion of a lawgiver apart from man who imposes laws upon
him. These systems, therefore, may all be designated as
heteronomoiis . We have now to consider a system which in
this respect stands out in signal contrast to all of the fore-
going, a system which finds the moral law in the man him-
self and which in distinction from the rest we may call au-
tonomus. The claim of Kant to be the Copernicus of spec-
ulative philosophy may be also admitted in the field of prac-
tical philosophy. Just as he found that space and time and
the laws of the physical world are not given to us from with-
out but are imposed by us upon the world of phenomena, so he
showed that the moral laws are not given to us by God or
the state, but every man by virtue of his own rational nature
imposes these laws upon himself.

1 Ibid. Bk. II., Ch. 9.

2 Ibid. Bk. II., Ch. 4, 5.

3 Ibid. Bk. I., Ch. 7.

34 THE CONCEPT OF LAW IN ETHICS.

§ 13. In the same year (1785) in which Paley's Moral
Philosophy appeared, Kant published the first of his great
ethical works, Grundlegung zur Metaphysik der Sitten. The
contrast between these two works is one of the most strik-
ing presented in the whole history of speculative philosophy.
Compare with Paley's definition of virtue, **the doing good
to mankind in obedience to the will of God and for the sake
of everlasting happiness," the statement of Kant that in or-
der for an action to be morally good ** it is not enough that
it conform to the moral law but it must be done for the sake
of the law."i

With Paley the source of the law is God, the end is human
good, the motive everlasting happiness ; with Kant the source
of the law is the pure reason, the end is not to be taken into
account at all, and the only moral motive is reverence for the
law its elf <

Had nature intended man for happiness only, instinct would
have been all sufficient, but reason has a higher purpose. Its
office is to produce a will that shall be good not only as a
means to something else, but good in itself. In fact nothing
in the world can be conceived as unconditionally good but
the Good Will.^ All other goods are but means only. The
good will is an end in itself and to the production of such a
will reason is absolutely necessary. The moral law must
have its seat in the pure reason. None of the peculiar cir-
cumstances of man's nature are to be taken into account lest
some empirical taint sully the a priori purity of the law. That
law only is truly moral which is valid for every rational be-
ing as such. Hence it is the pure reason alone apart from
all the interests of particular beings that can be the lawgiver.
Thus the law is imposed by each man upon himself and is at
the same time valid for all rational beings. Only such a law
can command the respect of men, and however they may fail
to obey it, they nevertheless instinctively reverence it. Were
the law conditioned by inclination or imposed by any power

1 From the preface to the Grundlegung zur Metaphysik der Sitten,
Abbott's translation of Kant's ethical works, p. 4.

2 Ibid. p. 9.

THE CONCEPT OF LAW IN ETHICS. 35

outside of ourselves, obedience to it would produce only le-
gality and not morality. To be of moral worth an act must
be done from duty. Even though the effects of the action
be quite in accord with duty, it cannot be regarded as moral
unless it is done solely from duty or respect for the law. The
act done from duty possesses the same moral worth whether
its effects be useful or injurious. Particularly must the act
have no regard to inclinations. Indeed it is only in cases
where we act directly contrary to inclinations that we can be
perfectly sure that we are acting morally at all. If inclina-
nation and duty command the same act there will be a doubt
whether we do the act solely from duty, and it is only in so
far as done from duty alone that the act is worthy to be des-
ignated as moral.

Our knowledge of the moral law, the principles of the prac-
tical reason is obtained just like the knowledge of all rational
principles. " We become conscious of pure practical laws
just as we are conscious of pure theoretical principles, by at-
tending to the necessity with which reason prescribes them,
and to the Telimination of all empirical conditions." i "The
moral law is given as a fact of pure reason of which we are
a priori conscious, and which is apodictically certain, though
it be granted that in experience no example of its exact ful-
filment can be found." ^ "All moral conceptions have their
seat and origin completely a priori in the reason and that,
moreover, in the commonest reason just as truly as in that
which is in the highest degree speculative." 3

The formula for the rational principle which is to deter-
mine the will of an imperfect being is called an imperative.
If the imperative commands an action good only as a means
to something else, it is called a hypothetical imperative. If,
however, the action is conceived as good in itself and con-
sequently as being necessarily the principle of a will which
of itself conforms to reason, then it is categorical. Hypo-

1 Kritik der praktischen Vernunft, Bk. I., Ch. I, § VI., Abbott's trans-
lation, p. 1 18.

2 Ibid. p. 136.

3 Grundlzgung zur Metafhysik der Sitten, trans, p. 28.

36 THE CONCEPT OF LAW IN ETHICS.

thetical imperatives are rules of skill or counsels of prudence;
only a categorical imperative can be a law of morality. Duty
as a practical, unconditional necessity of action must hold
good for all rational beings and so for all human wills. The
fundamental formula of the moral law, the categorical im-
perative is : "Act so that the maxim of thy will can always

V at the same time hold good as a principle of universal legis-
lation . " ^ or, in other words, make a law which you could
will to be universal the rule of your conduct. Since man
and generally any rational being exists as an end in himself,
not merely as a means to be arbitrarily used by this or that
will, a secondary form of the categorical imperative is : " So
act as to treat humanity, whether in thine own person or in
that of another, in every case as an end withal, never as
means only." 2 In renouncing all individual interests the
will becomes universally legislative and thus acquires for hu-
manity the highest possible dignity. The moral will is sub-
ject only to the laws of which it can regard itself as author.
"Looking back now," says Kant, "upon all previous at-
tempts to discover the principles of morality, we need not
wonder why they all failed. It was seen that man was bound
to law by duty, but it was not observed that the laws to which
he is subject are only those of his own giving, though at the
same time they are universal, and that he is only bound to
act in conformity with his own will ; a will, however, which

[^ is designed by nature to give universal laws." ^

In the present century the tendency of ethics on the
whole has been away from the jural type. The phrase
'Moral Law ' however, has continued to occupy a prominent
place in ethical discussions. The popular conception of mo-
rality as the command of the deity, the long and honorable
history of the term in philosophy, the majesty of the civil
law, the appropriateness of the term to express the uncondi-
tioned necessity of moral duties — all of these circumstances
combine to keep the term in use even though it is regarded

1 Kritik der praJttischen Vernunft, Bk. I., Ch. I., § VII., trans, p. 119.

2 Grujidlegung zur Metaphysik der Sitten, trans, p. 47.

3 Ibid. p. 51.

THE CONCEPT OF LAW IN ETHICS. 37

as only a metaphor. Perhaps, too, the respect for the word
law, arising from its use in the physical sciences, has made
moralists who retain little of the old jural sense of the term ,
still cling to the word. ** Metaphors from law and metaphors
from war," says Bagehot, " make most of our current moral ^
phrases, and a nice examination would easily explain that both
rather vitiate what both often illustrate." i The 'metaphors
from law,' however, will doubtless long continue to furnish
the most effective means for popular instruction in morals,
and if the different senses of the term be carefully distin-
guished perhaps no more useful term can be found for the
•ethical scientist.

I Bagehot, Physics and Politics^ p. 79.

38 THE CONCEPT OF LAW IN ETHICS.

CHAPTER IV

The Moral Law.

§ 14. In all the sciences of to-day the term law plays an
important part. While the one term is used with equal free-
dom in all, the corresponding concept takes on almost as
many different forms as there are different sciences. We
hear continually such expressions as laws of chemistry, laws
of motion, laws of logic, laws of poetry, laws of the state,
laws of etiquette, etc. Among all these various uses of the
term we may distinguish two typical forms of the concept :
(i) law in jurisprudence, (2) law in physics. The first is the
original form of the concept, the second a derived form. All
the other uses of the term are varieties of one or the other
of these fundamental species of the concept, or else more or
less confused combinations of the two.

"The term law," says Zeller, "in all languages meant
originally a rule of conduct established by some person,
whether human or divine, with regard to the conduct of men ;
a law is what the community requires or the deity com-
mands." ^ It is precisely in this same sense that we use the
term to-day in jurisprudence. Holland gives the definition :
"A law is a general rule of external human action enforced
by a sovereign political authority." 2 This form of the con-
cept involves three essential elements. To see these clearly
we may state the definition thus : a law is (i) a rule of con-
duct which (2) a will in authority imposes upon (3) a subject
will.

1 Zeller, Vortrage und Abhandlungen, j Satnm. p. i8g.

2 Holland, Elements of yurtsprudence, p. 37.

THE CONCEPT OF LAW IN ETHICS. 39

(i) The essence of this first element, rule of conduct, is
uniformity in action. Without prescribed rules one man may
act in one way, another in another, or the same man in differ-
ent ways at different times. Wherever uniformity is ob-
served in the conduct of men, it is abscribed to laws of some
kind, as the laws of the state, laws of custom, laws of na-
ture, etc. Thus the law is an expression of uniformity in ac-
tion. (2) This rule of action is always thought of as estab-
lished by some power in authority. Hence as a second el-
ement we must recognize the legislative will (3) The rule
of action is laid upon some person i. e.y upon a free will, who
may or may not conform to it. The freedom of the subject,
or Xho. possibility of non-conformity is always contemplated in
this sense of the term. This first typical form of the con-
cept involves, therefore, these three essential elements : uni-
formity in action, a legislative will, and freedom or the possi-
bility of non-conformity on the part of the subject.

As the Greeks became better acquainted with other na-
tions, especially after the conquests of Alexander, they found
many of the same rules of conduct in force among the bar-
barians as among themselves. These common norms and
customs, they saw, could not have been established by the
lawgiver of any one city or people. Common to all men,
they must have been established by a power having authority
over all men in common. The legislative will became now
Zeus, Nature or the divine creative Reason. In Sophocles,
as we have seen, the unwritten laws of the gods are clearly
distinguished from the written laws of human kings. Hera-
cleitus connected this divine law with the order of things in
nature. The Stoics were the first, however, to bring into
general use the term law as applied to the natural order of
things. They believed that the ultimate cause of the world
was not merely a material substance, but also a creative power
^ and Reason. The natural order and necessity in the uni-
verse they explained as the expression of the will of that
Ultimate Reason. They used the phrase law of nature in-
differently for the order in the physical world and for the
principles of moral conduct. In the Stoic concept of law of

40 THE CONCEPT OF LAW IN ETHICS.

nature as applied to the external world we find the element
of uniformity of action as in the first form, the legislative
will broadened into a universal Reason, but the third element
that of freedom, completely vanishes. In this case the law
is not imposed upon persons who may or may not obey, but
upon inert matter which always conforms to the law neces-
sarily.

The elimination of the second element converts the Stoic
concept into the modern scientific idea of natural law. The
legislative will as well as the possibility of non-conformity
has disappeared and we have left only the first element — ^uni-
formity in action. The metaphysical philosopher may still
resort to an ultimate rational will to explain the order in na-
ture, but the physicist as such uses the term law without any
implications of a lawgiver. To him the law is the expression
for the mode of action in things, not for something outside
of things. It is simply the statement of the fact of a cer-
tain uniformity in nature. The general form of a law in
physics is : under certain conditions, certain events always
happen. This unexceptional validity of the physical law is
its characteristic mark. Of the three essential elements"
in the jural sense of the term we find only one in the
physical law, viz., uniformity in action.

What now is the relation of the concept moral law to
these two typical forms of law }
y The moral laws are those rules of conduct which we feel
ourselves under obligation to obey. Briefly put, the moral
law is the code of dutiesy In this general formal definition
all moralists would agtee, I think. It is in regard to the
source, end, scope, and content of the code of duties that
the schools differ. According to the Hebraic or the theo-
/^logical conception of morality these norms of conduct are
/ laid upon man by the divine lawgiver. In this case the
moral law is of precisely the same type as civil law. a The
three elements of this type are all present — the.^prescribed
^uniformity of con'duct, the legislative will, and the subject
will.i Or, if with Hobbes we regard the state, or, with cer-
tain recent writers, society or humanity as the source of the

THE CONCEPT OF LAW IN ETHICS. 4 1

law, we find the same essential agreement with the jural
form of the concept.

But, as Kant has so well shown, any command which is
put upon us by an external will can have of itself only the
force of legality. It acquires the force of morality, obedi-
dience to it became a duty and not merely a matter of pru-
dence, only as we bind it upon ourselves and it is brought
by self under the feeling of obligation. (No imperatives of
parents, the state, or even of divine revelation, could com-
mand anything but a prudential, legal conformity, unless
at the samejimeth£ya£pe^^^^^

Such externally imposed imperatives may well be the ratio
cognoscendi ; but never of themselves the ratio essendi of the
moral law. *'It is the very essence of moral duty to be im-
posed by a man upon himself. . . . What we primarily
understand by 'law' is some sort of command given by a
superior in power to one whom he is able to punish for
disobedience ; whereas it is the essence of moral * law ' that
it is a rule which a man imposes on himself, and from another
motive than the fear of punishment. . . . The spirit of
man sets before him the ideal of a perfect life, and pro-
nounces obedience to the positive law to be necessary to its
realization."^ Thus in rnorality the legislative will is one
with the subject will. But the concept of law still remains
of the same general type. We still have the three elements
of law as in jurisprudence.

While the term law in ethics is generally used as above
described in the jural sense, we should not forget the exist-
ence of laws in the physical sense. In moral phenomena
we find certain uniformities of sequence as well as in physi-
cal phenomena. Conduct and character are causally related,
and their relation it would seem possible to express by gen-
eral formulas, i. e., by laws. The general form of such a
natural law of ethics is : such and such conduct produces such
and such states of consciousness and such and such charac-
ter. Selfishness brings unhappiness — violation of duty is
followed by stings of conscience — lying degrades character ;

I T. H. Green, Pf^egomena to Ethics, p. 354.

42 THE CONCEPT OF LAW IN ETHICS.

these are examples of laws in the moral sphere in just the
same sense and of just the same validity and necessity as
the facts that ice melts at 32 degrees and that a falling body
increases in velocity as the square of the distance. Spencer
says : ** I conceive it to be the business of Moral Science
to deduce from the laws of life and the conditions of existence
what kinds of action necessarily tend to produce happiness,
and what kinds to produce unhappiness. Having done this,
its deductions are to be recognized as laws of conduct."^
Now without making this the whole business of ethics, it is
certainly a part of its work to discover the 'laws of conduct/
We may not believe as Mr. Spencer seems to, that these
laws can be deduced from biology. We may have to dis-
cover them empirically rather than deductively. We may,
too, be more interested to know what sort of conduct makes
for perfection of character or for the * health of the social
tissue,' but at any rate besides investigating ends and
motives ethics must formulate the laws of conduct by which
these ends if chosen may be attained. In logic and aesthet-
ics, and indeed in all the practical sciences, we find this
same double use of the term law. The laws of logic as state-
ments of the mind's procedure in thinking are necessary se-
quences of the same type as physical laws. But when from
these laws of thought we form rules of argument we have
imperatives which we bind upon ourselves in view of certain
ends, i. e., laws in the jural sense of the concept. So, too,
in aesthetics from the principles of beauty we derive rules of
art, and use the term law indiscriminately for both the prin-
ciples and the rules. Since these two widely different con-
cepts are both expressed by the one term law, and since we
have laws of both types in morals, ethical writers have often
confused them. Where the context does not make the
meaning of the word perfectly clear, ambiguity might be
avoided by the use of imperatives for one sense and uniformi-
ties for the other.

§ 15. On the basis of this analysis of the concept of law

I Spencer, Data of Ethics, p. 57.

THE CONCEPT OF LAW IN ETHICS. 43

in ethics, we will make a brief examination of the source,
ends, and motives of the moral law.

In one sense of the term the moral laws as psychical uni-
formities are constitutive principles of man's being, a part of
his very nature. To ask for their source could have no
other meaning than to ask the source of the man himself.
The origin of the moral principles of man's nature demands
no special explanation apart from that of the intellectual or
any other class of powers of the human spirit. To explain
the origin of the moral consciousness would seem to involve
essentially the same difficulties to the evolutionist, neither
less nor more, than to explain the origin of the intellectual
consciousness, and should an evolutionary origin be accepted
it can no more invalidate the duties of the former than the
truths of the latter.

The fundamental source of the moral imperatives is these
constitutive principles of man's moral nature. They are not
given to him from without but are the expression of the
character of his inmost being. Not in these principles taken
absolutely, however, is the source of imperatives to be sought,
but in them as related to the whole man, and the man too
as related to society and the universe in general. Man is to
live and develop the capacities of the nature which he has
and in the relations in which he finds himself. Morality is
a certain function of the relation which the individual self
sustains to the world. This might be expressed in a quasi
mathematical formula as follows :

This is indeed a highly complicated ratio, for the S, the indi-
vidual, is both physical and spiritual in his nature, and in the
W is included not only the physical world but the animal
kingdom, society and the invisible, eternal, spiritual reality
of things. The due adjustment of this complex ratio, as far
as it lies within our power, is the problem of moral conduct.
The moral law is the code of rules derived from the study of
this relationship and imposed upon the individual by his own
sense of duty.

44 THE CONCEPT OF LAW IN ETHICS.

By far the largest and most important part of this prob-
lem, the part most fully in our own power, consists in the
adjustment of the individual to society. The historical de-
velopment of this adjustment has furnished us with the
greater part of our present moral code. Lawgivers and
moral reformers have doubtless had .a large influence upon
the evolution of moral norms. But the continual interaction
of man upon man and the attitude of rulers and the state
toward the individual, in short society has been the control-
ing element in establishing the moral laws that are generally
recognized. ^Our actual code of morals has not been given
by revelation, discovered by intuition, or deduced by a con-
scious study of man's relation to the world, but it is the
product of the historical interaction of individuals and so-
ciety upon one another. Had man not come into social re-
lations the sense of duty would probably have lain dormant
in the human breast. It is society that has actualized and
brought to light the latent morality of mankind. In man's
moral nature as developed by society, therefore, we find the
source of the moral law.J 'Nor is the law any the less binding
because it is the product of evolution. As has often been
remarked, to explain the origin of a thing is not to explain it
away. The keenest analysis leaves the sense of duty, the
feeling of obligation, as an ultimate, irreducable fact. Such
being the case we must admit that the moral imperatives
are at bottom not hypothetical but categorical in fonn. But
while we find Kant and the intuitionists right as to the form
of the law, the empiricists are, equally right as to the con-
tent. Men of moral sanity feel within themselves the cate-
gorical imperative to do duty, or, stated one degree less ab-
stractly, to will the good. But as to what is duty, or what is
the good to be willed, only experience can tell us.

§ 1 6. Accepting the command — Will the good — as the
simplest and most comprehensive statement of the moral
law, we must at once raise the questions, Whose good and
which good .'' The end of the moral law must accordingly
be examined from these two standpoints : What are the

THE CONCEPT OF LAW IN ETHICS. 45

goods aimed at and who are to receive these goods? We
will consider the latter question first.

Good is a relative term and has no meaning apart from
some sentient being who is to experience it. Who, then, is
the sentient being whose good is aimed at by the moral law ?
Or, to use a German phrase, who is the end-subject {zweck-
subject) of morality } There are three possible answers to
this question, animals, men, God. We cannot admit the last
as a proper end-subject of our morality. Accepting the full-
est theistic conception of God, we cannot suppose him to be
wanting in anything which our acts can supply. Regarding
him as the lawgiver and as most sympathetically interested in
us as his children, still he is not the end-subject of our conduct.
In saying this we would not be understood as in any degree be-
littling the importance of religious duties. These duties are
a part of the objective end of the moral law, but they are
due to society and to ourselves as spiritual beings, rather
than to God as their end-subject. We take the medicine that
the physician prescribes not for his sake, but for the sake of
our own health.

Are animals end-subjects of our moral acts.? Yes, in so
far as they are susceptible to weal at our hands. Modern ab-
horrence of cruelty to animals may be explained by the be-
lief that one who is cruel to dogs and horses will also be
cruel to men in his power. Were it not, however, that the
horse is sentient and therefore so far deserving of our sym-
pathy, beating his horse would not beget cruelty in his
driver. We may justly fear that the boy who has no regard
for the pains of the pony he rides will grow up devoid of sym-
pathy for the sufferings of his fellow men. However hard
the boy may lash his whip about a post, we do not think
that he is thereby acquiring the habit of cruelty. The pony
is sentient and the post is not. The boy who beats his pony
is acquiring the habit of cruelty because he is violating the
duty to further the good of sentient beings. The degree to
which any being is susceptible to weal at our hands deter-
mines the extent of our duty to it. The father of a family
has not the same duty to the babe in arms as to the son of

4^ THE CONCEPT OF LAW IN ETHICS.

ten or to the daughter of twenty. In the case of the lower
animals our duty is of course very small. A proper satisfac-
tion of their physical needs, infliction of no unnecessary pain,
and in the case of certain of the finest breeds of domestic
animals a gentleness and kindliness of tone in their pres-
ence, make up perhaps the sum total of our duties to ani-
mals. A recognition of duties to animals in so far as they
are susceptible to weal does not, as Ihering, for example,
maintains, preclude the slaughter of animals for food or vivi-
section in the cause of science. We do not hesitate to justify
the infliction of pain on our own bodies for a greater good.
If life or health demand it, we suffer any surgical operation,
however painful, and for the greater good to man we are
justified in inflicting pain upon and taking the lives of lower
animals.

While we thus regard animals as true end-subjects of our
duties as far as they are susceptible to weal at our hands,
still this forms scarcely more than an infinitesimal part of the
demands of the moral law. The proper end-subject of the
great mass of our moral acts is man. In this connection we
may view man in three ways — self, other in'Hividuals, and so-
ciety as an organized unit. Which of these, or in what re-
spect is each of these a true end-subject of the moral law }

Since duty commands man to will the good and he is him-
self susceptible to weal, his own good must surely fall under
the imperatives of the law. He is thus himself a true end-
subject of his own moral conduct. As a large part of the
needs of the individual are provided for by his egoistic im-
pulses, comparatively little is left to the moral law or con-
scious feeling of duty. Yet this little is of the highest im-
portance. It is the sense of duty to self which commands
us often in spite of all egoistic impulses and inclinations, to
seek the highest good, the lasting or the spiritual good, in
place of the lower, temporary, or sensuous goods. It is self-
respect which enforces the duty of the present self to the
future self and of the lower self to the higher self. The
sublimity of the moral law and the dignity of character are
manifested quite as clearly in the victory of the higher over

THE CONCEPT OF LAW IN ETHICS. 47

the lower nature in cases concerning the individual himself
alone as in the more public examples of the sacrifice of self
to the good of others. Our own immediate susceptibility to
the higher forms of good is a sufficient justification of duties
to ourselves. It seems a forced, circuitous, and altogether
superfluous explanation to ground such duties on our rela-
tion to society.

Bearing in mind our criterion of susceptibility to weal
and the fact that the egoistic impulses are generally pressing
us on with a much greater intensity than the sympathetic,
we find accordingly the principal end of morality in the wel-
fare of our fellow men. The great majority of our moral im-
peratives have others as end-subjects. So overwhelmingly
large is this portion of the ethical code that it is often
thought to include the entire content of the moral law. But
as we have already seen, it would seem necessary to reserve
to self and even to the lower animals some place within the
sacred precincts of Duty's temple.

Now are our duties to others due to them as individuals
or as members of society ? Only a being who is susceptible
to weal, who has the knowledge of good and evil, only a con-
sciousness can be of intrinsic moral worth or be an end -sub-
ject of the moral law. The social organism is not a sentient
being, a consciousness. It is only its members that possess
real consciousness. Society is an interrelated, interacting
aggregate of individuals. As far as they have common aims
and purposes, they can seek them through society as an
organized body. But when we apply the term organism to
society we must recognize the essential difference between
the social organism and the organism of the human body.
Society is susceptible to weal only in its members ; the hu-
man body not in its members but only as a whole. In the
one case the whole is a means, the members the end ; in the
other the members are the means and the whole is the end.
The individual consciousness is the only real human conscious-
ness of which we have any knowledge. Such an expression as
the national consciousness may be highly useful as a figure of
speech. The personification of the nation or of society is con-

48 THE CONCEPT OF LAW IN ETHICS.

venient in discourse. But we must not be misled by such a
figure into supposing that the nation is a person with feel-
ings, intellect, and will. It is only individuals, after all, who
have feelings, who are susceptible to weal. Only where
there is an autocrat who arrogates to himself to be the state
could there be any meaning in calling the state an end-sub-
ject.

Individualism has erred in regarding the single man in a
'state of nature ' as complete in himself. Apart from latent
social capacities and needs such a being would be only an
animal and not worthy of the name man at all. Indeed the
lone individual is only an abstraction ; we know men only
in society. Man as man is a social being, ^cooy TzoXixixbv,
as Aristotle long ago taught. It is only in interrelation with
his fellows that the distinctively human qualities are capable
of development at all. Man is not possessed of innumerable
rights in a state of nature which he agrees willingly or un-
willingly to abrogate in order to enjoy certain social advan-
tages. It is only in society that he acquires any 'rights' or
rises to a place of moral worth. Powers and capacities latent
in the natural or isolated man, were there any such, are
actualized in society. To live is to be in interactive rela-
tions,— the broader and deeper the relations the broader
and deeper the life. For self-realization or living the com-
pletest possible life society is intrinsically necessary. This
is the truth that has led Wundt and Ihering, conscious of
the defects of the old individualism, to make society the end
and aim of all morality. Society is not the end-subject.
The individual is the only possible end-subject. But society
is the absolutely indespensible means for this end. Man is
in his very nature a social being. His welfare can be wrought
out only in company with his fellow men. But ultimately,
after recognizing to the full the unique and indispensable
value of society to mankind, we must say that society exists
for man and not man for society. Society is the means, in-
dividuals are ends. Only persons susceptible to weal and
capable of character possess intrinsic moral worth.

The discussion of the ends of the moral law, as already

THE CONCEPT OF LAW IN ETHICS. 49

stated, involves not only the question whose good, but also
what goods. Besides the end-subjects of , the law we must
consider the objective ends of the law. These objective
ends must correspond to the nature of the end-subjects. In
order to determine the content of our duties to self and to
others, we have only to inquire : What are the kinds of
goods to which man is susceptible ? What are the needs of
our nature whose satisfaction is necessary that we may at-
tain to the full perfection of our manhood } These needs
may be summed up under four general classes : physical, in-
tellectual, aesthetic, and religious. History has already de-
veloped for us the formulas and institutions by which we can
attain to an approximate satisfaction of these wants. Our
primary duty therefore is to obey the moral code and further
the institutions established by society. Since this code and
these institutions are the product of evolution, we may trust
that they will be subject to a still higher development in the
future. An important secondary duty, accordingly, is to
aid in this development.

§ 17. After what has already been said of the nature and
ends of the moral law, little need be added about the motive.
For a rational being ends and motives must correspond.
We intuitively recognize that the good is worthy to be
chosen and that we ought to choose it. This deepest of all
realities of our nature, the feeling of moral obligation, is the
ultimate motive. This imperative within us calling upon us
to choose the good of others before our own, is for the
most part justified by our peculiar dependence upon the so-
ciety of others. That the imperative sometimes overrides
the will to live and demands the sacrifice of life itself to
others is indeed a moral antinomy. Only the postulate of a
future life, in which the individual may continue his self-
realization in the society of those other selves whose realiza-
tion he has aided, seems to offer any solution. That our
moral nature should demand of us an absolute self-sacrifice
seems impossible to believe.

50 THE CONCEPT OF LAW IN ETHICS.

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(in Andover Review, October, 1890).

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Bagehot, Physics and Politics.

De Coulanges, The Ancient City.

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Eucken, The Fundamental Concepts of Modern Philosophic
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Hoffding, Ethik ; Law of Relativity of Ethics (in Interna-
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Holland, Elements of Jurisprudence .

Hume, Treatise on Human Nature.

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Ihering, Zweck im Recht, Vol. II.

Jodl, Geschichte der Ethik.

Kant, Grundlegung zur Metaphysik der Sitten ; Kritik der
praktischen Vernunft ; (Abbott's translation of Kant's ethical
works).

Locke, Essay Coficerning Human Understanding.

Maine, Early History of Institutions ; Early Law and Cus-
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Morey, Outlines of Roman Law.

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Max Miiller, Origin and Growth of Religion.

Paley, Principles of Moral and Political Philosophy.

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Riimelin, Reden und Aufsdtze : ueber Gesetze der Geschichte^
Eine Defenition des Rechts.

Schmidt, Die Ethik der Alten Griechen.

THE CONCEPT OF LAW IN ETHICS. 5 1

Schurman, Kantian Ethics and the Ethics of Evolution ; The

Ethical Import of Darwinism.
Sidgwick, Methods of Ethics ; History of Ethics.
Stephen, Science of Ethics.
Spencer, Data of Ethics'.
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and Begriindung der Sittlichen Gesetze ; History of Greek

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^'T'l

aeasisi'

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