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IV ETHICS AND LAW


In order to arrive at the causes of the phenomena to which the preceding section was devoted, we must go higher in the track of abstract ideas, and this we shall do unexpectedly simply by going back in mind to the oldest abstract ideas, namely to ethics. Mention has already been made of natural ethics and it has been explained in what the difference between ethics and law consists, how under compulsion ethical obligations change into obligations before the law. But this is a posteriori law, while artifical, a priori law sanctions not for developing conditions but projected conditions.

So much we discovered when considering ethics among primitive peoples, and natural ethics in general. This same theme nevertheless reveals new sides in new circumstances, and consideration of questions of ethics and law among societies at a level of development which enables them to create considerable States and to debate questions concerning the relation of private to public law, will necessarily reveal new sides of the problem of ethics and law, and sides of a higher order. To achieve a clarification of the ensuing inevitable complexities, a new issue, that of the sources of law, must be examined.

Primitive ethics tend to have reference only to one’s own people (kinsfolk, members of the same tribe, among Jews to co-religionists), and the peculiarity of enjoining careful observance of many details, while permiting things which are repulsive, like the right to murder one’s own children in order for instance that their bodies may become the corner-stone of a new building. In a review of the history of natural ethics once again it falls to be recorded that the Romans must be allowed not only the first, but also an entirely separate place, in many instances close to Christianity. After them, second place in the hierarchy of natural ethics is held by the Japanese, who are, however, very far from Christian ethics. They are similar to the Romans only in possessing a posteriori law, providing sanctions for the postulates which follow from their ethics. In these two cases the source of law is undoubtedly ethics.

There were and are differing views as to whence law was born and who created it. In sacral civilisations, the sacred books and the opinion of priests or those learned in the texts decide every detail. But there is one case — the Wedda — where apparently nothing remains of the sacred books, and only a few shibboleths continued to develop against a background of beliefs ranging from monotheism to the cult of animals; out of this grew the extremely strong Brahmin sacralism. Each caste has its particular sacralism. Where a thing exceeds sacral norms, the source of law is the will of the maharaja.

Jewish sacralism is more comprehensive. Interpretation of the law belongs to the rabbis. In the event of a difference of opinion, or where a problem is basically capable of differing solutions, there is no higher authority, but each rabbi has a free choice of interpretation. The source of law is the rabbi, the tsadyk — and the ruler, in so far only as the rabbi recognises his competence.

It was the Romans who discovered and perfected a lofty legislation completely separate from the sacral. The source of law was the free voice of the free citizen in councils and comitiae. For whole centuries the State as such did not create laws, but was obliged to obey laws passed by associations of citizens. Nobody could be above the law, not consul nor pontifex maximus. The power of office consisted only in the devising of ways to implement the law.

In the East of the same period the State was all-powerful and sole source of law, personified in the person of the ruler. These influences so far affected Rome that the principle came to be accepted that law is quod principi placuit. The struggle between the two attitudes is evident in the Pandecta and in the Codex. From it two ethics, Western and Eastern, emerged, although both were presented in Roman dress.

In Turanian civilisation the head of the State was always the sole source of law; this has survived even among Islamic members of the civilisation. The whole of Arabic civilisation enjoys non-sacral law as well; but Moslems of other civilisations recognise only sacral law, whose interpretation is for the ruler. In Arabic civilisation the fount of law is in principle learning, popularised with the aid of special schools of a superior type. Some recognise that law can exist outside the Koran, provided it is not in conflict with it.

In Chinese civilisation the fount of law is every father of a family, the clan elder, the superior of a trade union — and so up to the Emperor (now transferred by the Japanese to the Manchurian State). But the Emperor alone — supreme authority in everything — has the right to interfere with custom; he alone is allowed to devise new laws. The discrepancy between unparalleled conservatism of custom and the right granted State authority to destroy it has turned into a struggle of two outlooks on the world and life, in which there is also inherent something of the struggle of the two ethics — and which in the history of China has always turned into violent revolution.

In Turanian civilisation public life is in general non-ethical, so that there occurs a constant ethical divergence between the practice of the State, and private affairs which always need some kind of ethic. It was this feature of the East which, on its arrival in Rome with the Syrian gods, devastated Roman civilisation.

In Rome the two sets of ethics resulted in a state of affairs where summum ius could become summa iniuria. The fall of Rome began with the appearance of people who regarded as moral everything which was legal. On the one hand a Caesarist State with a praetorian programme, on the other consciousness that violence was being done to Rome. Honest people were obliged to withdraw to private life, since public had become non-ethical. As a result persons holding public positions dispensed with ethics in their private lives also, the immoral type of people becoming prevailing among them. When the principle finally emerged in public life that a man who kept the right side of the law by the very fact has a clear conscience, there was not long to wait for the conclusion that anyone knowing how to manage the law could forget about his conscience. It was then a case not of two ethics, but of the nonethical against any kind of ethic. In this way Rome grew easternised and fell into the ethical division between State and private life — which seems to be a feature of the development of natural ethics.

The Gospel arrived, Christian ethics shone out, the Church created Latin civilisation in the West. A return was made to the old Roman principle that the source of law is society, that is each estate for itself, with the royal authority exercising control in the event of dispute between estates. The aim of legislation was to approach ever closer to Catholic ethics, and for that reason the Church was granted a say in legislation.

It was different in Byzantium, in Orthodoxy. There traditions dating from the epoch of the decline of Rome were preserved, and the eastern despotisms copied. The worst of the tyrants of Rome were content to nominate a horse senator and to found some exotic (for example Syrian) temple in which it pleased Caesar to become a priest; only the Byzantine Emperor considered himself ruler of the Church also, as cupreme interpreter of conciliar canons. Only the Byzantine Emperors decided dogmatic disputes.

What was the origin of this? Orthodoxy did not acknowledge Catholic ethics as a whole, namely the fourth basic postulate (discussed in the section on Catholicism in the Chapter “Civilisation and Religion”), that the authority of the Church should be independent of that of the State. It was too contrary to the spirit of the East.

Thus in the West two kinds of power were distinguished, following from the distinction of physical and spiritual forces. On their mutual relation, and on which should have priority in the event of active opposition between them — on all this a Catholic could have no doubts. The answer inherent in Catholic ethics is that priority belongs to the moral force.

If Byzantine civilisation had not penetrated deep into the West (in the tenth and eleventh centuries reaching Spain) there would have been no struggle between Empire and Papacy, nor later, Protestantism.657 Both would have been impossible had it not been for Byzantine ethics, implanted in the very centre of Europe together with Byzantine ideas of the State. The question of the superiority of Papacy or Empire was ethical, of the ethics of public life. But meanwhile from the end of the fifteenth century it had been proclaimed that politics could not be ethical, and in the seventeenth it was added that it ought not to be. The Partitions of Poland put the seal on this “progress”. Later in Prussia this issue of issues was dubbed the struggle of force against law, for by force it was already only physical force that was understood. In the end it was discovered that law itself was nothing but a manifestation of force, all law being the law of the stronger. Law was thus acknowledged the plaything of material forces, of violence, and so of what in Catholic ethics is regarded as lawlessness. The first was the only real authority, and the abstract idea of law was to disappear. Mention of ethics in public life was regarded almost as a sign of mental illness.658

The progress of these differing outlooks and the struggle between them took place at the same time as the relation of society and State was being settled. A close connection arose between the two. Society creates ethics, but law comes from the State. The State must use force, and accordingly for it ethics is not sufficient; in the sphere of the State, physical, material power must accompany spiritual power. Between these two systems of power, harmony should reign. If, however, this is not the case in the State and in public life generally, then which system is to have supremacy? In other words, which organisation is to lead — society or State, and in the given case, Church or State? From this emerges a second question: since ethics are not enough for the State, are they necessary to it at all? Can, perhaps even should, public life not do without ethics? And so the question with ethics or without is raised on many sides.

All those civilisations in which the State is not based on society, and in which the will of the ruler is the source of law, declared in favour of public life without ethics. More-over physical forces are everywhere supreme, outside the one Latin civilisation. For where the State only preys on society, the expulsion of morality from the life of the State is a logical step, something extremely simple and highly desirable for the supporters of such States. And physical forces have so many ways of making sure of supremacy for themselves! In all civilisations except the Latin the aim is also the complete subjection of spiritual forces by material. Such is the actual state of this great matter, regardless of the theoretical argument put forward here and there.

These arguments continue and even develop in more than one country where deeds consistently belie all the arguments. In China and in Korea incomparably more time and paper has been devoted to discussion of moral themes than in Western Europe. From distant ages they have known that virtue and wisdom are worth more than riches. In Korea the virtue of officials has been a belowed subject of meditations in the field of practical philosophy. But in China and Korea these are empty words, only in Japan have certain institutions of a moral order been created. But in Japan also no consideration is given to the relation of the two fundamental systems of power, physical and spiritual, as a component in social or State institutions.

Nowhere in Turanian, Arabic or Chinese civilisation is there any question at all about the supremacy of physical or spiritual forces. In so far as account is taken of them, they are not segregated; it is taken as self-evident that the spiritual accompany the physical in public life: for the orders of the State are always moral and wise — the immorality would be to doubt it. Thus in fact there is an enduring supremacy of physical forces, as a result of which the authority of the State decides what is reasonable and moral. In Chinese civilisation for centuries governments have arranged revolutions: society never.

Emancipation of spiritual forces from the ascendancy of the physical has occurred nowhere where the emancipation of the family has not been completed; so far and high reach the consequences of monogamy. When the Spanish Moors began to adopt monogamy, immediately spiritual forces organised separately, outside the State organisation. Where that happens, a new opportunity is born for public life: the possibility of what in our language is called opposition; legal opposition, morally permissible, not constituting anything improper, and being a manifestation of the emancipation of spiritual forces.

Spiritual forces have never emancipated themselves where the State is based on private law. Such emancipation is closely linked — as the course of history and the present state of affairs teach — with the separate character of public law. And it is thus an outcome of Roman civilisation.

Only an inconsiderable minority of humanity knows of the existence of these problems. For if the average lama or Brahmin were to learn that it is possible for us to hesitate in anything and about anything, he would only draw a conclusion about the inadequacy of our sacred books. On the other hand, Brahmins like Rabindranath Tagore, with a European education, would retort that for them everything is always decided a priori in favour of the spirit, for it is decided religiously, and so spiritually; thus we are evidently materialists! An orthodox Jewish rabbi would rejoice in the same way that there are no similar dissensions in his civilisation because there is not that kind of problem. The question itself is really possible only in non-sacral civilisations, since they alone make possible the emergence of doubt.

Out of doubt all progress is born. Thus amid the hard intellectual struggles of the Middle Ages and against a background of physical struggle for the supremacy of an ideal, a thought was born, the loftiest so far in the whole of history: that circumstances may arise in which resistance must be offered to material forces for the good of the spiritual, resistance to the State in the name of society, resistance to law based on lawlessness in the name of ethics, resistance to secular authority in the name of the Church. The supremacy of the spiritual system of forces must be absolute.

Byzantinism developed differently on the ruins of Latin civilisation: and brings with it disappearancs of social and spiritual forces, disappearance of creativity and inevitable downfall for the State, which may sink to the level of a Kandzut. No Byzantine State was ever strong.

We have thus found the feature which above all others differentiates civilisations, possession of spiritual forces, and their emancipation from the physical.



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