III. Moral and Justice

 

1.      The Ethical Foundation of Politics

 

I'm going to risk to enter into a dangerous field which is the problem of ethics. I know that I am entering into storming waters, but for a long time I have felt the need to do it, because I do think that there lies the Gordian knot of the evolution of the human kind. It is an undeniable fact that transcendental changes have taken place in some societies which has transformed the world, whereas others remain in the shadows of what today we can consider social prehistory. There have been many explanations to this evolution of humanity and likewise multiple assessments of them have been made.. I believe that there is a causality in social evolution and also as Popper says we don't live in the best of the possible worlds, but the Western democratic societies have reached the best we have ever known.”

To explain that causality is not only a scientific interest, or  a historic curiosity but the key that would open the door to the political, economic and cultural development of mankind. In that sense, I deny that there is a racial or religious fatality that places some societies at the highest level of history. I also refuse to accept that the life of s a similar process to that of the life of man where one is born, grows all and dies. Not withstanding that I do not believe in the possibility to find a paradise on earth and man life will always be dramatic by nature, it seems to me that given the advance of communications, every day will be more difficult to refer to individual societies  and we will be forced to speak of the human society as a whole. In other words, even though this process which has created this so called global village has been mainly the product of certain societies or nations that does not mean that it will be necessary to foretell the   their decadence as a condition for the development of others, that today are still relatively backward.

 

     I would reject any attempt to construe the above conclusion as the acceptance of Max Weber[1] theory respecting the protestant ethic, as determinant of the capitalist process. In his book The European Reform, E. T. Elliot has given more than sufficient reasons  to invalidate such thesis, but I want to add mine. The Reform took place in Germany, but it was in Great Britain, where Lutheranism was not accepted neither Puritanism, where if took place the philosophical system which gave rise to the so called Industrial Revolution. Anglicanism for a long time was no more than Catholicism without Rome and the Pope. Hence, being so it is difficult to assimilate it to the puritan concepts that Weber considers determinants of capitalism.

 

            Very recently I learnt that Steffan Zweig little before his death had said that the rule "to live and let live" was the golden rule of the social ethic and very much superior to any categorical imperative. Zweig had had to suffer in his own flesh the effects of the totalitarian ethic of the Third Reich. Hitler  tried to explain the nazi millennium through the historic sources of the Holy Roman Germanic Empire,  characterized by Charles Magnus as the First Reich and the German unity achieved under the Prussian aegis of von Bismark as the Second one.

 

The decade of the thirties saw continental Europe debated between the Hegelian and Marxist ethics and so Nazism and communism pretended to divide the world. This was not just a historical accident, but reflected the actual development of the Franco-German political philosophy. Obviously that was not applicable to England, and I do notthink that this was to its insularity limits, since Ireland was also an island and she did not develop in the same way.

 

It is from these two relevant historical realities that I have undertaken the analysis of the ethical foundation for these societies and for that purpose I have chosen two giants of the universal thinking. From Great Britain, the transcendental figure of David Hume and from Germany the genius of Koenigsberg, Emmanuel Kant. It is not possible to doubt the genuine ethical objectives of these two philosophers. Though there  is no doubt with regard to the  genuine ethical objectives of these two philosophers, I concur with Steffan Sweig that the political and social findings of the Scottish philosophers were more positive for humanity than the ethical rationalism of the German philosopher and his categorical imperative.

 

David Hume was born in Glasgow in 1711 and when he was 24 years of age, after studying in the Jesuits School of La Fletche in France, where Descartes also studied, he produced his opera magna: A Treatise on Human Nature[2]. It is from Book III of this work: Of Morals, that I will analyze the Anglo-Saxon ethical foundations of the golden rule: to live and let live. Emmanuel Kant was born in Köenigsberg in 1724,so he was almost contemporary with Hume but he lived long enough to see the French Revolution of 1789, since he died in 1804. Kant tried a third position between the Humean empiricism and the continental rationalism in order to save knowledge from Hume skepticism. Even though Kant, in his theory of knowledge, took into account Hume's empirical and skeptical approach with respect to scientific knowledge evidently he did not know Hume’s principle regarding moral and justice. In the analysis that I made I took into account Kant’s essay The Foundation of the Metaphysics of Morals[3] published in 1785, that is four years after his Critic to Pure Reason. That is the year before The Critic to Practical Reason. As we may see the comparative analysis made refers to two partial aspects of the works of these philosophers. However I believe that it contains enough elements as to be able to arrive to meaningful conclusions over the ethical and political evolution of their respective countries and the influence that they have had on the universal culture. In any event I think that I'm just giving the first kick to a controversy that I consider of the utmost importance.

 

2. A Critical Analysis of Book III of the David Hume’s Treatise on Human Nature

 

Respecting morals, there is a common principle in Hume and Kant. Both contend that morality belong to the realm of intention. So Hume says in his Treatise on Human Nature: "It is evident that when we praise any actions we regard only the motives that produced them, and consider the actions as signs rf indications of certain principles in the mind and temper. The external performance has no merit. We must look within to find the moral quality.”It appears, therefore, that all virtuesactions derive their merit only from virtues motives, and are considered merely as signs of those  motives.”

 In these two philosophers, I believe we can find two paradigmatic ethical conceptions which defined two distinct historical evolution of society and consequently determined different behavior of individuals and governments. From these two conceptions arose, the opposition between the open and the totalitarian society. A result that was not
necessarily the will of their expositors. That is I'm not judging the good will of each one of these philosophers, but the success or the failure which resulted in society from the empirical implementation of their respective ethical approaches.

Hume started developing a moral concept which was already present in Aristotle's Nicomakean Moral. There the Stagirist  says: “The distinction that we make of judgment are truthful or false but not good or bad; These lasts are mainly applicable to the intention, to reflexive preference. If we have such a moral character is because we choose intentionally the good and the evil, not because we judge  or think. Our intention applies to look for one thing and to run from some other or practice other similar actions, whereas judgment help us to understand what things are, what are they for, and how we can employ them. But it not by means of the judgment that we decide to prefer one thing from other. The intention is laudable because it is directed to the object that it should, even more because it right but judgment is appreciated mainly because it is true.”

 

In the above statement  we can perceive the Aristotelian distinction that later on was expanded by Hume, between passion (feeling) and reason. The first one is what Aristotle refers to as the intention whereas, judgement is the word used to mean reason. In that sense, Hume says: “Morals excite passions and produce or prevent actions. Reason of itself is utterly impotent in this particular. The rules of morality, therefore are not conclusions of our reason”. As Aristotle indicated  about the judgment, Hume says: “Reason is the discovery of truth or falsehood. Truth or falsehood consist in the agreement or disagreement either to the real relations of ideas or to real existence and matter of fact.” Then Hume concludes that given that our volitions and passions cannot be qualified as true or false, morality cannot be contrary or according to reason.

 

According to this logic, Hume contends that the above conclusion has a double advantage. The first one is that it shows that actions don’t derive their merit per se for being conforming to reason, neither their blame; the second is that indirectly it also shows that given that reason is not able to prevent or produce any action whether it approve it or contradict it, reason cannot be the source of good or evil.

 

That is that for Hume, morality is within the realm of passions, or feelings. The above position may be construed as a sort of Hume romanticism in a Rousseaunian style, but actually his ethical analysis is neither romantic nor rational. That is why Hume in his moral approach declines the general principle of liberty as a precondition for moral values, which he considers as chance –probability– and considers that it is subject to necessity.

 

Hume arguments with respect to the alternative of liberty and necessity are rather subtle and for many people even controversial. In order to avoid that qualification, Hume distinguish between necessity in men conduct and determinism as it  affects matter. We may say then that he finds a difference between necessity, which is a sort of conditionality and material determinism. So he says: “Let no one, therefore, put an invidious construction on my words, by saying simply that I assert the necessity of human actions, and place them on the same footing with the operations of senseless matter. I do not ascribe to the will that unintelligible necessity, which is supposed to lie in matter”. And a little after he continues: “It is only upon the principle of necessity that a person acquires any merit or demerit from his actions, however the common opinion may incline to the contrary.”[4]

 

It is from this point of departure of the concept of necessity which operates upon the will that Hume considers that morality is found in the field of feelings, which in some ways are impressed into the human soul. In that sense, he asserts that since reason always implies four kinds of relations which are resemblance, contrariety, degrees in quality, and proportions in quantity and numbers, morality should fall then on the object and not on the will of the acting subject. In such case, even the inanimate objects could be capable of beauty or moral deformity.

 

Morality, then Hume contends, is more felt than judged. Since reason only permits us to know what is true or false, it can only act upon our  will in two ways. So Hume says[5]: “Either when it excites a passion by informing us of the existence of something which is a proper object of it; or when it discovers the connection of causes and effect, so as to afford us means of exerting any passion.” Passion is the true active principle and this cannot be promoted or prevented by reason which is passive. Mistaken reasoning or false judgments can induce us to unduly action, either as a consequence of an erroneous appreciation in respect to the influence of some objects to produce pain or pleasure or for not knowing which are the proper means to satisfy our wishes. That is why Hume contends that such conducts cannot be assessed neither immoral or irrational, but it is only the judgment which has been wrong.

 

We can conclude with Hume first that moral merit  only  derives from  intention or the motives of the will and the actions are just the signs of such intentions, and it is in this approach that he coincides with Kant. In the second place, that the appreciation of such actions depends on the approval or disapproval that arises as a consequence of the pleasure or pain that they caused on the observer. Such approval or disapproval is just a feeling and it is not derived from a rational analysis. And third, that such appreciation does not mean that morality is subjective, but that it derives from necessity, that is the motive which operate upon the individual, like the affection for the offspring. Thus if such motives did not exist as a precedent to the conduct , then it should not be expected.

 

Hume analysis is more than interesting when as a consequence of the first of our conclusions stated above, he asserts that the virtuous motive that grants the merit to the action cannot be the virtue of the action itself, but it most exist another natural motive. Hence he says: “We blame the father for abandoning his son. Why? Because that shows  a want of natural affection which is the duty of every parent. If the natural affection would not be a duty, the care of the son would not be a duty”. And finally he concludes: “No action can be virtuous or morally good, unless there is in human nature some motive which produces it, different from the sense of its morality”. In this conclusion, Hume fully contradicts Kant’s idea respecting that the moral conduct cannot have other motive but the rational acceptance of the sense of duty.

 

It is from the above moral approach that Hume wisely distinguishes between moral and justice. While he contends that it was not possible in general to determine whether vice and virtue were natural or artificial, justice was the product of human artifice. Consequently, while morality was intentional, justice was consequential, that is it is considered utilitarian. This distinction between morality and justice is of the major importance for the organization of society and it is what permits the open society founded on tolerance.

 

Justice is artificial but not arbitrary and it has as a fundamental reason the social interaction which might permit to overcome the lack of sociability of men in spite of their need of sociability. So Hume recognizes that: “In general, it may be affirmed that there is no such passion in human minds, as the love of mankind, merely as such, independent of personal qualities, of services, or of relations to ourselves”. At the same time, Hume recognizes that the happiness or the misery of any one affect us when it is close to us. But that feeling comes from sympathy and not from a universal love to mankind. So Hume explains how sex attraction is real an it is common passion in men and nothing similar to it is the love to mankind. Hence, neither public nor private benevolence could be the original motive of justice. Then, justice is an artificial instrument, though not arbitrary notwithstanding that there is no more natural virtue than justice.

 

From the very idea of justice, Hume derives the idea of property and says: “After this convention concerning abstinence from the possessions of others is entered into and everyone has acquired a stability in his possession, there immediately arise the ideas of justice and injustice; as also of those of property, right and obligation.” And he continues saying : “A man’s property is some object related to him. This relation is not natural but moral and founded on justice… The origin of justice explains that of property. The same artifice gives rise to both”.  In this way Hume explain the nature of justice and property as a requirement to limit men passions, who always prefer themselves and their friends and not to strangers. Justice and property are to solve the inconveniences caused by on one side the very nature of men mind (selfishness and limited generosity) and on the other, the facility of the exchange of external goods, together with their relative scarcity in relation to men aspirations. Hume’s conclusion in this respect is really sublime and it is the corollary of the above assertions: “Encrease to a sufficient degree the benevolence of men or the bounty of nature, and you render justice useless by supplying its place with much nobler virtues, and more valuable blessings”. Justice as a system is then an indisputable necessity of society for the reasons explained above.” But however single acts of justice may be contrary either to public or private interest it is certain that the whole plan as scheme is highly conducive or indeed absolute requisite both to the support of society and the well being of every individual.” And hence, he arrives to the conclusion that “This self interest is the original motive to the establishment of justice; but a sympathy with public interest is the source of the moral approbation which attends that virtue”.

 

3. A Critical Analysis of Kant’s Foundation of the Metaphysics of Moral

In the first chapter of the Foundation of the Metaphysics of Morals, Kant says: “Neither in the world, nor in general outside the world it is possible to think anything that could be good without restriction outside of a good will”. It is here and only here that he concides David Hume that moral pertains to the field of intention, that is of the will that principle is elaborated by Kant: “good will is not good due to what its effects or accomplishes, it is not good for its suitability for achieving something that we have proposed for ourselves: it is good only because of the will; it is good in itself.

 

            Then, Kant develops his theory of moral value in relation to happiness and reason. In that sense, he points out that reason is far from being the instrument to achieve happiness and that instinct is the best instrument to attain it. So he asserts that the vulgar men live a happier life without the problems created by reason and so he says: “In reality we find that  the more a cultivated reason worries about the purpose of the pleasure of life and attaining happiness that  much more man becomes distanced from true satisfaction.” He concludes then that giving that reason has been granted to us, it has a more dignified end than the mere search for happiness. And in that respect Kant continues: “ As reason has been given to us as a practical faculty, that is as a faculty that should have an influence on the will, hangs, the true destiny of reason ought to be to produce a good will, not in such or other respect but good in itself”

            This means that the happiness sought by reason can not be the one that derives from inclination, even though they might coincide, but the one which arises from an end that is only determined by reason. So Kant thinks that any maxim  only has a moral content when the action is performed against inclination. Kant then gives some examples to show that evaluation and among them he says: “that when a person is naturally commiserative and derives pleasure from giving, his action has no moral content and so he concludes: “It lacks the moral content, that is, that such actions be made not by inclination by duty”.

            Kant establishes then the following maxims to define the moral value of the conduct which are:

 

1. That everyone should pursue his own happiness not by inclination but by duty only in this case has his action a moral value.
2. An action made by duty has its moral value not on account of the objective that it wants to reach through it, but in the maxim for which it has been decided.
3. Duty is the necessity of an action for the respect to the law.

 

Once Kant defined the moral value of any conduct, as compliance with the law and contrary to inclination, he had to find what was the general law. From this arises the categorical imperative, as the only principle of the will and which is defined in the following way: “I should never act in other way that I could wish that my maxim should be converted into a universal law.” Kant considers that such universal principle is accessible to the vulgar man, who “knows” by that mean to distinguish in each case in accordance with his reason what is good and what is evil. And so he says: “It is not necessary any science or philosophy in order to know what should be done to be honest and good, and even wise and virtuous.”

 

Kant, in this sense, makes a truly surprising inference when he argues that practical  reason reaches a degree of universal validity, transcending experience what he denies to pure reason which according to him enters into contradiction when it transcends the limits of experience. And says: “In practice, for a change starts the faculty of judging, showing itself very advantageous when the vulgar understanding excludes from the practical laws every sensible motives”. Maybe it is in this principle where we find a major contradiction with Hume’s postulates to which we are going to refer to in the conclusions.

 

It is important then to stress that for Kant practical reason is not a concept related to experience. The popularity of common reason would have not been achieved as an empirical knowledge, but as a metaphysic of customs which has a priori universal validity, regardless of the fact that any time we may find such a conduct empirically. Kant emphasizes this point saying: “Given everything that have been already said, we can clearly see that all moral concepts have their seat and origin completely a priori in reason and in the most ordinary human reason as well as in the higher speculative one: they cannot be derived from any empirical knowledge, which for that very reason it would be contingent, and in that purity of origin resides its dignity to serve as a paramount practical principles… Given that moral laws should be valid for every rational being in general…”

 

This metaphysic of moral apparently deprived of every concept of finality seems to be an invalid exercise for humanity’s purposes. However notwithstanding Kant’s moral absolutes implied by the categorical imperative, he  seems to accept that at the end this a priori and intentional moral conduct determines a greater good for the world. Except that this good could be measured only in the conscience and independently from results, there we find a contradiction between the abstract hypothesis of the a priori reason and the good of the world.

 

Then in what way can we interpret the following Kant’s conclusion with respect to the possibility of an anthropology which could influence customs  in determining the duty .He says:” It would not be even possible, in the mere vulgar practical use of moral instruction to base customs on their true principles, and promote in that way pure moral dispositions of the will or instilled on the spirits for the greater good of the world.”

 

Two interrogations present themselves as a consequence of this conclusion in front of the Kantian hypothesis respecting the common reason. The first one would be: If common  reason is able to know the a priori principles of good and evil, what for would it be necessary to foster and educate man in this a priori metaphysic, which seems to be closer to the common  man than to the philosopher, according to Kant’s own words.? In second place, surges another interrogation even more problematic. What does Kant means when he states  “for the greater good of the world?” If good is only the will, the result for the world (for society as a whole) would seem alien to the concept of good. Otherwise, it would be necessary to assume that Kant recognizes a non expressed causality between the “good will” (intention) and the general good, at least as a probability.

 

Then, the categorical imperative, notwithstanding that it could be considered as such in the individual realm, it would be hypothetical when it is considered in a universal field, that is of society as a  whole. According to Kant a hypothetical imperative is such when an action is good only as a means to reach an end, whereas it is categorical when it is good in itself, because the will is conforming to reason. Yet what sense the set of categorical imperatives , or the conformity of the will to reason posses if it does  case, then the categorical imperative for the individual conduct , would transformed into a hypothetical when considering the conduct of the society as a whole. 

 

It is obvious however that Kant does not consider happiness as an object of reason, hence it is outside the field of morality. So he says: “To determine with universal  certainty  what action promotes the happiness of a rational being is completely impossible.” Hence, the hypothetical imperatives are not commands but just advices. On the other hand, from the morality of a categorical imperative we can deduce that there is no relation between morality and happiness, because in that case it would be transformed into a hypothetical imperative. So Kant defines duty as a universal law, absolute and a priori, but at the same time he makes the following warning: “None  ever dare to derive the reality of this principle from the particular character of human nature”.

 

It seems to me that in the above observation over human nature Kant creates an essential dichotomy. Human nature would be related only to feelings (passions)   whereas rationality would be outside of that nature. Moreover we may conclude from his assertions that humanity is contingent and more than that the cause of human fallibility. Rationality on the other hand would be an absolute category self determined and omniscient in the moral realm, since according to the categorical imperative it is able to elucidate between good and evil without the possibility  of being mistaken. The mistake in any event would never be rational but the influence of the subjective and contingent elements which influence the will and deviate it from the rational, hence  moral course. This conclusion is rather explicit when Kant commands more than explains: “not to expect anything from human inclination but from the paramount authority of the law and the respect for it, or otherwise to condemn man to depreciate himself and execrate in his interior.”

 

It is from this absolute rationality of men that Kant derives the nature of the person and differentiates it from the things. So he proposes his second categorical imperative which complements the first one and says: “The rational being are called persons because their nature distinguish them as ends in themselves, that is as something that cannot be used merely as a mean and consequently it limits in that sense every whim. It is from this conception that he derives his practical imperative that says: “Act in such a way that  uses humanity in your person as well as in the person of any other always as and end and never as just a mean.”

 

The third principle derived from this rational quality is the idea of the will of  all rational being as a “universal legislative will”. This is obviously an amplification of the Rousseaunian general will. In the same way, Kant considers that will not only subject to the law but it is itself legislator. And that will cannot be founded on any interest . It is this principle according to which the will is not only subject to the law but also a law giver itself and it is not founded on any interest ,what Kant calls the “autonomy of the will” in opposition to any other that he qualifies as heteronomy. This is the kingdom of the ends ignoring the differences among the rational beings as well as every private end. Even though Kant himself considers that possibility as an ideal, it is not less certain that as Hume states, if human conduct could be subject to those maxims, then the  very idea of justice would disappear and neither law or government would be necessary. The autonomy of the will is for Kant the paramount principle of morality that he defines it as follows:” The autonomy of the will is the constitution of the will according to which it is a law of itself independently of how the objects of desires are constituted. 

 

From here Kant pass from the metaphysics of morals to the critic of pure practical reason. In this step, Kant delces into the concept of liberty as the condition of morality and he starts in the following way: “Will is a sort of causality of the living beings as much as they are rational, freedom is the property of that causality, that’s why it can be efficient independently from strange causes which determine it.” For Kant, then the freedom of the will is the autonomy, that is the will to be a law for itself, but only as  long as it can be an object of a universal law. Consequently Kant  contends that “free will and subject to moral laws are one and the same thing.”

 

In fact Kant admits that it is necessary to assume  liberty, since its existence has not been demonstrated , but it is a necessary condition to be able to consider man as a rational being and consequently subject to moral rules. But at the same time, he enters into a vicious circle in this assumption of liberty and in this respect he says: “We consider ourselves as free in the order of efficient causes, to be able to consider ourselves as subject to these laws because we have attributed to us the freedom of the will.” Like Hume, Kant also considers that we do not know the things in themselves (noumenos) but only as they affect us, that is phenomenally. It is from that starting point that Kant tries to break that vicious circle, distinguishing between two points of view respecting which men are able to consider themselves. “The first one pertaining to the sensible world under natural laws (heteronomy) and the second as pertaining to the intelligible world under laws which though independent from nature are not empirical, but are founded only on reason” (autonomy of the will). We have then that in the intelligible world man can think the causality of his own will, only under the assumption of liberty. Hence freedom is necessarily united to the concept of autonomy, and to the universal principle of morality which serves as the foundation of rational beings actions.

 

The intelligible world according to Kant, contains as such the sensible world, but the actions in accordance with the former as an expression of the autonomy of the will are based in the paramount principle of morality; while on the contrary those which conform to natural law in the sensible world are based on the principle of happiness (heteronomy). Now, given that that intelligible world contains the sensible world, it is only because of the former that man has to be subject to the law of reason. And he asserts: “Consequently, based on the laws of the intelligible world I should consider them for me as imperatives, and the actions conforming to this principle as duties.”

 

Here we can see Kant’s dramatic dichotomy between happiness and morality to which I had previously referred to. So he contends that even the most bastardly of rascals has good  feelings, or better appreciates the good feelings, but he is preluded from carrying them out, on account of its inclinations but he is precluded from carry them out, as a consequence of his inclinations. Kant had already pointed out that morality is only dignified when deeds are realized  because of duty and only for that reason, and not even when they conform to man inclinations. Obviously, this dichotomy should have transcendental effects on a society in which it would be necessary that all morality should avoid the pursuance of happiness because it is contingent and heteronomous.

 

 

4 .Comparative Analysis

 

The purpose of the above analysis has been to find the philosophical sources of the political differences between the Anglo-Saxons and continental Europe. In that sense, and as I already explained in the introduction I have chosen David Hume and Emmanuel Kant as the most outstanding representatives of the respective ethics that produced two diametrical opposing political processes.

 

This analysis is most interesting concerning the fundamental  role of reason, while I have made abstraction of the religious connotations that  have influenced  the historical developments of the cultural breech that has arisen at both sides of the English Channel. Needless to say that civilization is the process by which reason acquire a relevant role in society in order to overcome religious fanaticism. That’s why I have considered of major importance to analyze the ethical approaches from the time when Europe at both sides of the Channel had started to separate God  from Caesar. We find then, and not withstanding some exception as Spain, the different ethical conceptions produced very different societies. I do think that England was reborn through the empiricism which was the instrument of the Socratic doubt and so created the open society based on the respect of the individual rights and human liberty. On the other hand, continental Europe found in Kant the continuation of the Cartesian Discourse of the Method applied to the rational absolutism of the Rousseauian morality. I also certainly think that regardless of Kant’s good moral intentions, his ethical rationalist approach gave the fundamental guideline that were to develop the political theories that ended up in the totalitarian systems of the 20^th century. Hence, totalitarianism is no more than the rationalization of despotism sustained on the absolute of reason as the moral starting point which ignores human fallibility not only in the sensible world but also in the intelligible one. Even Friedrich Nietzsche in his On the Genealogy of Morals finds that there is something cruel in the categorical imperative.

 

Both, Hume and Kant base morality on intention, that is on the will. That is the one and only coincidence between the two ethical theories. From that point of departure, Hume defines the nature of morals in the sensible world and consequently on experience. Kant on the other hand, establishes that reason is the paramount character of the person. Hence  morality is only related to reason, and as a consequence has a universal a priori character.

 

When Hume bases morality on the sensible world he finds in experience that men develop in a world of necessity and not necessarily of liberty. The necessity as opposed to liberty, which he considers the true realm of contingency ,is not the same as causality in the world of material things. It is from the above conclusion that he derives the existence of biological conditions of the will which somehow prescribe the moral behavior. So he contends that the affection for the off springs is a feeling that if it did not exist in the human nature as  such, it would no be required the care of the parents for them.

 

     For that very reason Hume distinguishes the character of morality as a virtue andthat of  justice which  he considers as an artificial virtue. This distinction is of major importance. Morality is more felt that judged by the impartial spectator. Actual deeds then are no more than signs of the moral intention of the subject. Justice on the other hand is the instrument for the social intercourse and from that point of view its judgments have a finality and consequently transcend or even ignores intentionality. That is justice is consequential and not intentional

 

     Kant morality is found in the intelligible world, and from that he infers the necessity of liberty as the substratum of the will. It is this relationship between will and liberty what Kant call the double character of the will as subject to the law and universal legislator. This character as universal legislator of the will which operates as causality does in the material world, is based on the categorical imperative. That is, that one which command to act in every case conforming to a principle that should  have a universal character.

 

It seems to me that this autonomy of the will decidedly implies that rationalization of the “general will” as a legislator of itself, that was originally proposed by Rousseau in his Social Contract. From there also arose the Hegelian ethics, according to which bureaucracy was the representative of the general interest (in Kantian terms) against the  concupiscence (private interest) of the civil society. This ethical dichotomy is also present in Kant when he despises prudence as “the mere purpose to fill the purse”. And then he also says that in the field of ends morality is the only thing with dignity, whereas every other act has a price. Hence by definition trade is not moral. According to Kant, the trader has the possibility to charge an overprice or competition hamper him from doing so, but in no case, his behavior responds to duty ,that is to honest principles.

 

I believe that Hegel imbued with the same  rational  morality, as an absolute value, found that such realm of the ends was in contradiction with the possibilities of the general will so expressed as  the interaction among honest men. Consequently, he found in the monarch the teleological expression of the general will and bureaucracy as the instrument of universal morality.  The pursuance of happiness then is considered as a mere whim of those who are carried away by the happiness of the sensible world (heteronomy of the will), unable  to comply with the categorical imperative, which in the Hegelian world is expressed as the true will of the monarch. We can see in this transcendental step in the moral realm the origin of the intellectualization of despotism that constitutes totalitarianism..

 

In Hume, on the other hand, we can see the attempt to use the natural drives of human nature in order to achieve the ends of social harmony. We may argue whether the concept of liberty as mere probability (chance) is valid; and in this respect I do agree with Popper’s view that it is incomplete. But the world of necessity as described by Hume is the attempt to find  human motivation and its capacity or incapacity for social harmony. Justice as the artificial instrument of society transcends morality as mere intention, and constitutes the mean that shows the empirical reason to achieve the stability of social harmony.

 

 Acknowledging human preference for immediate good as well as the scarcity of the material goods with respect to men  aspirations and wants, Hume finds justice as the counterpart of property, rights and obligation. From this, he determines that social stability is based on the security of possession, the transference by consent and the fulfillment of promises. Hume as well as Kant knows that happiness is contingent, but far from forbidding the pursuance of it based on an absolute moral imperative, he establishes the rules according to which it is allowed to every one the pursuance of his own happiness. There is then no a priori contradiction between private and public interests. The realm of individual right, considered as the lack of coercion is expanded  in the Anglo-Saxon society, while it is reduced on the other side of the Channel. Democracy and freedom were the results of this conception in front of the totalitarian system and oppression resulting from Kant’s absolute moral rationalism. There is no doubt that moral rationalism more or less influenced the political views of continental Europe till the Second World War and I could add that  they are back, through social democracy.

 

The well-being of society cannot depend on the moral intentions of the citizens actions. It is for that very reason that since morality is related to the intensions that reflects human drives on one side, and our rational fallibility on the other, the distinction with respect to justice is fundamental. It is this Kantian confusion between moral and justice what actually hinders a moral mean in the expectation of a categorical imperative impossible to comply with and which in any case, it is not perceptible for the impartial spectator. That is why Ayn Rand once said: “A morality that cannot be practiced is an unlimited cover for any practice. Altruism is the rationalization for the mass slaughter  in Soviet Russia –for the legalized looting in the welfare state– for the power lust of politicians seeking to serve the “common good”. The sense of duty that is the ultimate cause which impulse the individual to fulfill the rule, in any event is only perceptible for himself. Justice in Hume terms has a decided utilitarian sense, even though he never tried to measure the attained well-being. On the contrary, the Kantian ideal fails absolutely and  consequently allows the creation of a political structure, that  based on that absolute morality, it is imposed on the conscience of the society and ends up eliminating any trace of liberty and justice. These are the different political results between the maxim “to live and let live” and the categorical imperative as it was observed by Steffan Zweig.

 

 

1 .Roman Law and the Rule of Law

 

 

 

            Now then, the alternative between law of nature and what we call positive law is immaterial if we don’t define what is justice and its purposes. And this distinction comes from the very nature of Roman law which as Pound says: “the jurisconsults   were practical lawyers and the paramount interest in the general security was ever before their eyes…” “But the juristic empiricism by which the ius civile was made into law of the world needed something more that a theoretical incentive”. The creation of the ius civile was more the empiricism of the ius gentium which was in charge of the “preator peregrinus”. And so Pound recognizes then that: “It was a process very like that by which Anglo-American judicial empiricism has been able to make a law of the world on the basis of the legal precepts of 17^th century England”.

 

            In England of the 17^th century, the idea of law was influenced by John Locke, who used the idea of natural law in order to justify his concept of individual rights. So in his letter concerning toleration he wrote: “Civil interests I call Life, Liberty, Health and Indulgency of Body and the possession of outward things”. Here we have the individual rights as such, which in his view are the natural rights. So much so that whether we agree or not (and I don’t) with him in that very letter of toleration he establishes  that it is not possible to be tolerant with the atheist, because they don’t respect the law of nature. Later on, Locke in his Second Treatise on Civil Government repeats the above sentence, but in a different way and  considers that the law of nature provides the rights of men “to preserve their property, his life, his liberty and his Estate”.

 

            Pound however contends that there is a difference between the American and the British approach to natural law. So he says with respect to the American variant of natural law: “It was not that natural law expressed the nature of man. Rather it expresses the nature of governments.” I certainly don’t agree with this contention since in fact the nature of government as conceived by the Founding Fathers reflected precisely their conception with respect to  the fallibility of man nature.

 

 

 

 

 

 

 

 

 

a)      The Judiciary Power

 

 

 

 

 

b)      Ius Gentium and Codification

 

 

 

 

 

 

 

 

 

c)      The American Legal System