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The Law of Relativity in Ethics Author(s): Harald Hoffding Source: International Journal of Ethics, Vol.

The Law of Relativity in Ethics Author(s): Harald Hoffding Source: International Journal of Ethics, Vol. 1, No. 1 (Oct., 1890), pp. 30-62

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30

International -7ournal of Ethics.

formoralcultureappearsto be the indispensablepositivecon- ditionof a new avatar of the religious spirit. A new moral earnestnessmust precede the rise of larger religious ideals. For the newreligioussynthesis,which manylong for,will not be a fabrication,but a growth. It will not steal upon us as a thiefin the night,or burstupon us as lightningfromthe sky, butwill come in timeas a resultof the gradual moral evolu- tion of modern society,as the expression of higher moral aspirations,and a responseto deeper moralneeds.

THE

LAW OF RELATIVITY

I.

FELIX

ADLER.

IN ETHICS,

IT is the intentionofthisessay to prove thatthevalidityof all the moral laws rests on definiterelationsand conditions, and thatthe law of relativity-thefundamentallaw of knowl- edge-therefore applies also in the sphere of ethics. It will appear in the sequel that this view helps to bring out the essentialpointsof the natureof ethical perceptionand moral laws. We will begin by inquiring in what sense and with what justice we speak of moral laws at all. The term" law" is not used here in the same sense as it is employedin naturalphi- losophy,psychology,or sociology. For it is notthe business ofethicsto point out the rules which are the basis of actual human desire and conduct, but those principles and ideals which oughtto underliethem; the standardto which it must submit. That meaningofthe word" law,"which maybe em- ployed in philosophical ethics, remindsone of the way the word is used in positivelaw, in theological ethics,and in the scienceofpositivemorality,-viz.,ofmannersand theprinciples on whichpublicopinionis founded. But philosophical ethics is distinguishedfromthese sciencesin thatit is notdependent on any external authority,natural or supernatural. On the

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The Law of Relativityin Ethics.

3'

contrary,it attemptsto draw its principlesand ideals out of human nature itself,as we know it by experience. Some have concluded,fromtheforegoing,thatitis unwarrantableto speak of morallaws.

A law,accordingto JohnAustin,presupposestwo parties,-

one who formulatesit and theotherforwhomitis formulated;

and its bindingqualitylies in the factthathe who formulated it has the power to maintainit by attachingpain to its in- fringement.While, therefore,the law, upheld by authority, producesuniformityof action,on account of particulardeeds

being determinedby

the same time mean a general rule illustratedin particular cases. It is the latterpartofthe conceptionof law, and only that,whichwe have in mindwhen we speak of naturallaws. We think,therefore,of the regularsuccession of phenomena, withoutfindingit necessaryto conceive the regularityas an effectofan authoritativewill. And even ifthecommonuse of the termbe allowed, it is yet definitelydeniedby Austin that thisconceptionoflaw mayfindapplicationinthoserulesofcon- duct whichthe individualman establishesforhimselfand ac- knowledges. For here there is neithera natural law nor a power above the individualthat might maintainthe law in case of its being infringed. " For though he may fairlypur- pose to inflicta pain himself, if his conduct shall depart fromthe guide which he intendsit shall follow,the infliction of his conditionalpain depends upon his own will."* But does therenot exista psychologicalbasis oftheconceptionof morallaw which indicatesthe threeelementsto be foundin Austin's strictdefinition? Those elementswere (i) a relation betweena higherand a lower; (2) a generalrule ofaction; (3) the maintenanceof this general rule by the inflictionof pain in cases of transgression. There are in man differentfeelings,each one characterized by its special sensational and intellectualcontents. Among these feelingsthere is one attachedto the self-preservationof the individual,and there are otherimpulseswhichpermitthe

its express

demands, the word may at

* "Lectures on Jurisprudence,"i. p. 214.

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32

International -7ournal of Ethics.

individualto enterintothejoys and sorrowsofothers. Every feelingis also a motiveto action; consequentlyit is possible thata motivewhichregardsthecomprehensiveorderofthings and the well-beingof a greatergroup should assertitselfin the presenceof anotherwhich is only determinedby the par- ticular limited interestsof the individual. In such a case therewill be somethingin the individualwhich reaches be- yond himself,and whichassigns to him a place as a particular partofa greaterwhole. From whichit followsthatthewell- being of the aggregatemay sometimesrequirethe sacrificeof thatwhichregardforthe well-beingofself may demand of a single being. There will then result two unlike feelingsin the self-sameindividual; one, an impulse bound to the con- ception of a wider order of things; the other an impulse attachedto a narrowersphere. Here, then,we have the first elementin the conceptionof law. No other relationexists, as a matterof fact,even when the partythat formulatesthe law is an external authority. For this authoritymustneces- sarily reveal itselfby raising a feeling,be it one of fear or reverence,and the law will thereforemake itselfknownin this case, too, by the relationof two feelingsor impulses within man. For him who can exterminatethe emotion of fearor reverence,thelaw does notexist. It followsthatphilosophical ethicsapplies thatconceptionof law withthe same justice as jurisprudence,theology, and positive morality. I do not enterhere more closelyintothe questionas to how this inner contrastbetween a wider and a narrowerregard originates withinthe sphere of emotion and impulse. Under the in- fluenceof social lifethis contrasthas graduallydeveloped in man accordingto psychologicallaws. In philosophicalethicswe shall meetwiththe thirdelement in theconceptionoflaw as we have alreadymetwiththe first. Austin believed that it depended only on the individual's will as to whetherhe feltpain fromthe violationof the laws springingout ofhis own nature. But ifthemorallaw be only the formulationof an impulse determinedby referenceto a greaterwhole,it will not be able to experienceresistanceand contradictionfromother parts of the nature of individuals

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The Law of Relativityin Ethics.

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withoutexcitinga moreor less severepain. When theimpulse, rebellingagainstthe acknowledged moral law, cannotwholly displace or eradicate the other impulses which led to its recognition,there springs up an inner discord,which we call bad conscience or repentance. And it does not depend on the arbitrarychoice of the individual whetherthis pain shall arise or not; it follows with psychological necessity fromthe given conditions. That which is expressed in the guiltyconscience and in repentanceis nothingaccidental or arbitrary,but an inevitable result under the actual circum- stances,-as inevitable as the external punishment,when the state is strong and clever,and quick to seize the trans- gressor of civil laws. The state is not always successfulin capturingthe criminal. In the same way it may happen that repentancedoes not appear when the impulse drivingone to the acknowledgmentof a greaterwhole is extinguished,or when the latterimpulse is not sufficientlystrongand vivid to assertitselfagainst the contraryimpulse. Finally,it is possible to show thatthe propertyof being a universal rule is part of the moral law. In the idea of the greaterwhole to whichthe individualfeelshimselfattached- the family,the clan, the nation,humanity-he has a principle fromwhichhe is able to deduce universalrules as to his will

and conduct. If he does

obliged to judge the condition and the inclinationof his will by the loftiestand most universalstand-pointhe knows of; and this stand-pointis the thoughtofthe greattotal ofwhich he feelshimselfto be a part. The particularrules followthen withlogical necessityfromthisthought,ifonce acknowledged. The science of ethics is only a developmentof thatwhich is implicitlycontained in universal sympathy as gradually developed in the humanrace. If,therefore,the use of the conceptionof law in ethicshas been proved justifiable,it followsfromthe evidenceproduced thattheuniversalprinciple,as wellas therulesdeduced fromit, havevalue onlyin relationto,andunderthecondition of, a positive psychologicalbasis. Ifmenshouldbe foundinwhomthisbasis could notbe shown to exist,itwould resulttherefromthatthey

not wantto contradicthimself,he is

VOL. I.-No.

I

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34

InternationalY7ournalof Ethics.

would not,and could not,acknowledgemorallaws. What posi- tion to take towardssuch individualsis a question whichwe shall touchlateron. We onlymaintainherethatall morallaws are solid only in relationto a positive psychological.,presup- position. This is thepsychologicalrelativity of ethics.*

I I.

But it is not sufficientto determinethe psychological basis and the correspondingethical principle. The circumstances underwhichthe rules deduced fromthe principleneed to be applied are so entangledand complex thatit is difficult,nay, impossible, to find rules which might be applied without hesitancyin all special conditionsand circumstances. The universallaw cannotforeseeall possible circumstances in which a man might be forcedto make a final resolution. This difficultythe moral law has in common with the legal

and theologicallaw, as well

rality. Life is too richand manifoldto be forcedinto a cut- and-driedsystem. The conditionspass into one anotherby manydifferentshades and colors. There are no sharp divid- ing lines. The general law, underwhich all cases should be classed,soon becomes inapplicablein a particular,definite,and unique instance. The morallaw must,therefore,-ifit is not to sacrificethe true rightof lifeto a seeming con?istency,- only judge the general directionor the tendencyof the will;

and not give any special instructionas to how one should act unconditionallyon particular occasions. In no other way can the general validityof the law be reconciled with the varying circumstancesthat differwith occasions and ages. This may be called the historicalrelativityof the contentsof themorallaw.t On thesame psychologicalbasis,and accord- ing to the same universalstandard,differentdecisions mustbe made under differenthistoricalconditionsand circumstances, as well in regardto the order of societyas in regardto the

as with the laws of positivemo-

* I have developed this thoughtbefore,but more froma methodological pointof view in my"Ethik" (Dan. ed., i887, pp. 35-37; Germ.ed., I888, pp.

39-42).

t Comparemy" Ethik," Dan. ed., p. i6o f.; Germ. ed., p. i84.

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The Law of Relativityin Ethics.

35

actions of the individual. What is possible at one point in the stage of developmentis not possible at another. A type ofthe state,or the family,which mightbe introducedevery- wherewithoutdelay,can as littlebe constructedon the prin- ciple ofuniversalwelfareas on any other. Everysocial order presupposesthat the individualswho are to compose it live under certainpositiveinner and outerconditions. No social

structurecan grow on barrenground. Hence the moral laws do not lose their significance. It is truetheycannottell us how to meeteveryswellingbillow on the sea of life,or how we should cross in a certain definite course. But theycan informus in what directionwe should steer; and they make it possible that our compass should guide us unerringly,even if the way be not straight. The moral laws formulatethe general demands made by the highest aim of our endeavor. The means to the satisfying of thesedemands mayvarywithinwide limits. But whenthe generaltendencyof the will is understood,and when a man's characterhas sufficientstrengthand consistency,the par- ticularways and means will be foundwithoutany danger ofa conflictwiththefinalaim. Kant has justlysaid thatcasuistry is not a science, but an art, " not a theory of how to find something,but a practicein how to seekfortruth."

Casuistrytreats of the problemswhich are given

birth to

by thecomplex natureofobjectiveconditions,whena decision in accordance withethical principlesis to be made. It seeks to resolve the conditionsinto theirelementsforthe purpose of drawing fromthe general principlesa conclusion adapted to the given circumstances. It establishes general rules for

doubtfulcases, or seeks, by the help offictitiousexamples, to develop the power of findingthe rightcourse. But analyses and universalrules cannotalways transferus fromone case to

another. It

broaderaim should overridea lower and limitedone; but to decidewhichis the morecomprehensiveaim in any givencase is just thedifficulty.For all aims areboundtogetherso closely

that,even apartfromthevaryingmultiplicityofcircumstances, one cannot be touched withoutleading to changes in a great

may be right,for example,that a higher and a

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36 InternationalYo7urna/of Ethics.

many ofthe others. And how are we to decide withcertainty beforehandwhetherthe good or the bad effectsof a certain class are overbalancedby interferingwiththem? It cannot be laid down unconditionallythat,in a definite case, the largeraim should be preferredto the narrower; so that forinstance,when the interestsof the stateare clashing with those of the family,the interestsof the latter should always yield, or that my interest should always give way when it comes intocollisionwiththose ofseveral others. For the healthy developmentof life is not only founded on its extent,but also on its power and depth,-not only on its breadth,but also on its intensity. A deeper and fullerlife maybe enjoyed in a narrowercircle ofsocietythan in a wider

one. The

developed and nourishedin the narrowercircles of society; so thatthe livingstrengthof the formeris dependenton that of the latter. A feelingofcommunityariseswithinthe limits of the narrowercircle,which,afterhavinggrownappreciably,

expends itselfuntilit becomes an importantpartofthatwhich sustainsthe largercommunities. True productivityis bornin the narrowercircles. The new thoughtsand the new powers originatein them. In cases of conflict,therefore,to have re- gard to compass merelyshould not be considered decisive. Something similar holds in referenceto the preservationof

the individual. The life of

portionas its individualmembershave the power to maintain and assert themselvesmateriallyand intellectually. Within the range of individualethics,self-assertionshould not,with- out furtherconsideration,be sacrificedto social devotion,-as little as the interestof the smaller part of the community should be sacrificedunhesitatinglyto the larger part. How difficult,then, to give a right decision in a particularcase withoutdoing damage to theevennessand depthoflife,or to its widthand duration.

Anothercase of casuistryis presentedby the position men should take in regardto other men's prejudices. Bentham *

* "Of the Influenceof Time and Place in Mattersof Legislation"(Works, p.I x80).

power itselfthatholds the wider circletogetheris

mankind gains in vigor in pro-

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The Law of Relativityin Ethics.

37

has given us the followingrule: " He who attacks prejudice wantonlyand withoutnecessity,and he who suffershimselfto

be led blindfolda slave to it,equally miss the line ofreason." But how are we to decide in an isolated case, whether an attackbe necessaryor not,or whetherit is degradingslavery to accommodateone's selfto prevailingprejudices? The cir-

cumstancesvaryhere to a special extent. And

the question

is, whetherthe individualsin question are able

to overcome

theinneras well as outerdifficultiesintowhichwe mayplunge

them,whenwe attackwhat theyconsidered unshakable,and whatlenttheirlifefulnessand strength. Benthammeans thatwe are too much inclinedin our day to denythat the best laws of our timewould have been the best ones for formertimes. Butlin these strikingwords he enunciatesthe principleof historicalrelativity:* " Were I to choose to what I would (most trulyand readily) attribute these magnificentprerogativesof universalityand immuta- bility,it should ratherbe to certaingrounds of law than to the laws themselves;to theprinciplesupon whichtheyshould be formulated;to the subordinateprinciplesdeducible from those principles,and to the best plan upon whichtheycan be put together; to the considerationsby which it is expedient

the legislator should

thanto any laws whichit is expedienthe should make forthe governmentof those who stand committedto his care."

sufferhimself to be governed,rather

III.

i. Besides thepsychologicalbasis and thehistoricalcircum- stance,a third factorhas to be taken into account,-a third conditionby which the moral decision has to be determined. This essay aims to draw attentionparticularlyto this third factorbecause of its not being generallymade as conspicuous as the two others (especiallythe second). This factorenters when differentindividualswith like ethical principlesand in like circumstances,butwithdifferentdispositionsand capacities, have to be considered. Justas like principlesdo not lead to

* Ibid., p. 193.

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38 InternationalYournal of Ethics.

like results undervaryingcircumstances,so theydo not lead on like occasions to like results,when the individualswho will and act have differentnatural dispositions. This is the individualrelativityof ethics,or its personal equation.* The severalethicaltheoriesseem to agree on thepoint that the moral laws or commandmentsare valid forall men under thesame circumstances. The theoryofethics,whichis based on the principleof authority,startswith the assumptionthat the authoritydemands the same things of all persons. On the one hand we have the eternalwill,and on the other hand those who are to followits commandments. The laws of the state and the imperativesof custom are in like mannerthe same for all men. Respect forpersons, it is said, there is none. According to the intuitiveschool a universallaw flows out of humanreason,which everyone is obliged to follow,if he is not to come into conflictwith himself,-that is to say, withwhatcorrespondsto the universallyhuman in his nature. The disciples of the principleof universalwelfarehave often been inclinedto conceive it similarly. They deduce themoral laws fromthe principleof universalwelfarein relationto the given circumstances,and thenconsiderthose laws to be valid forall. That a mistake is made here may be proved as follows:

On accountof their different capacitiesand impulsesthesamne demandswill have a highlydifferentpractical bearing on in- dividuals. The demand of a certain degree of self-control over a naturalimpulsewill,forinstance,have a verydifferent significancefor differentindividuals,because the impulse in each mayvaryin intensity. That whichthe one accomplishes withoutthe slightesteffort,because of the harmonybetween thedemandand theoriginaldisposition,theothermayachieve only aftera hard and prolonged struggle,while the thirdis perhaps utterlypowerless to overcome his intractabledis-

* I have alreadypointedthisoutin my " Ethik" (Dan. ed., p. I33 f.). It is treatedmorepositivelyin theGermanedition(p. 154 f.),whereI have described thelaw of individualrelativityas the law of relativityin ethics. In thisarticle

I employthephrase "law of relativity"in a broader sense,makingit embrace psychological,historical,and individualrelativity.

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TiheLaw of Relativityin Ethics.

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position. That which agrees with the inclinationof the first becomes with the second a moral action carried out with

great effortand conscious will-power,and

thirdan insoluble task on account of his having lost sight of the conditionsfromthe beginning. The law is in reality not the same forall three. And it is of no use to distinguish here betweenthe law itselfand the differentcapacitiesof the individualsto fulfilit. For the differentiationof the moral law fromthe theologicalor judicial law lies in the factthatit takes its origin in human nature itself. It does not come fromwithout,but ought to issue froma man's innermost being. But,in thatcase, it cannotbe reachedby merededuc- tion fromgeneralprinciplesand commoncircumstances,with- out regard to the idiosyncrasiesof the special individuals. As long as onlythese two pointsare taken account of when the law is deduced,so long it is not yet the law forthe in- dividual,but onlyan abstractand impersonalclaim. The real morallaw mustnotonlybe addressedto theindividua/,butmust also beindividualizedin sucha mannerthattheverybeingofthe individual,throughthefulfilmentof the law's tendency,should receivea higher development.Account must be taken of the special starting-pointof volition and action that lie in the nature of these particularindividuals. Else the law would ask somethingdifferent(be itmoreor less) fromone individual than fromanother. Only when it is expressed differentlyfor each individual,accordingto his capacities,does the law really ask the same thingof all. This naturallyfollowsfromthe principleof universalwel- fare. The singleindividualis notonlysubordinatedto the law which expresses the conditionsof the welfareof mankind, but he is himselfa peculiar memberof mankind. Two con- siderations must,therefore,be harmoniouslyunited in the rightlaw,-regard formankind,and regardforthe individual. The law is not discovered-it is not the right law-if both requirementsare not fulfilled. While the individual in his acts and endeavors works for the welfare of mankind,he shouldwork at the same timeforhis own welfare,considering thathe himselfis a part of mankind. He musthave, there-

signifieswith the

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40 International -7ournal of Ethics.

fore,his own particularethics,whichwill differqualitatively as well as quantitativelyfromthe ethicsof other individuals. His natureand his disposition,too, are determiningfactorsin the formationof the law.

It would be a

serious misunderstandingif one were to con-

clude fromthe above that all self-sacrificeis wrong. Self- sacrificeresultingfromenthusiasticlove and free resolve is the expression of the innermostbeing of an individual,-the feelingofan ardentdesirewithinhim. Self-assertionand self- sacrificemeltintoone, in an act of devotion. Life has only value now,howeverstrangethismayseem,inbeing sacrificed. But the question in each particularcase is, whetherthe in- dividual has the abilityof such self-sacrifice.This kind of action can be demanded,withas littlejustice as otheractions, from every individual alike, because the ability and the impulse to devotion and enthusiasm are reallynot alike in differentpersons. Accordingto Weber's law, a sensation does not depend on the absolute strengthof the external impression,but on the relationbetween the presentand the past impression,which

latterhas already determinedthe conditionof the percipient. So, froman ethicalstand-point,mustthe thingrequiredof an individual be deduced, not fromgeneral principlesand the given conditions,withoutreferenceto the constitutionof his character,butfromthe relationbetweenthe objectivedemand and the demands or dispositionsof the individual,the pro- portion of which will be differentfor differentindividuals.

The purelyobjective demand may be compared to a burden whichis, in itself, of the same weight,but is differentlyfelton theshouldersof differentpeople.

A complete individualizationof the moral laws is conse-

quentlyrequired. A formulawhich should embraceall, or a greatnumberof individualsonly,would be rough and super- ficial. When g is to be determined,we may be satisfied sometimeswith the fraction2n2; but when greater demands of exactitudeare made, we get to several hundreddecimals, and may stillthinkofa greaterexactitude. Justas we always miss somethingwhen we givea psychologicaldescriptionand

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The Law of Relativityin Ethics.

41

explanation of a man's character,because we are unable to grasp all shades and individual traits on account of their great complexity; so when we want to determinethe indi- vidual task,we shall findin everyman shades of differences whichcannotbe exhaustivelyexpressed in a generalformula; or,to put it more clearly,in the same formulaseparate co- efficientshave to be insertedforeach individual. The judi- cial laws are the same forall, and the currentmoral laws are formedon the patternof the judicial laws. A finesense of individualdifferencesin respectto qualityand quantityis 'still extremelyrare. The same train of thoughtwhich caused the moral judg- ment to go back fromthe action to the motive mustneces- sarilygo back one step further,and consider the capacities and dispositionswhich condition the origin of the motives. The possibilityof the springing up of a motive is not the same in all individuals. Only an extremeindeterministwould assume, as a German lawyer has recentlydone,* that " the moralpowerto represslawless impulses mustbe an unalter- able quantitywhichhas to be assumed as normallypresentin all men,withoutregardto individualcapacity." An assump- tion'like the above conflictsso stronglywithall psycological experience,that there is no doubt of its becoming rarer in scientificcircles. A motive may not only assert itselfwith varying strength,but its influenceon the will is dependent on the relationbetweenits own strengthand the strengthof the other motives present. Thus it will happen,as Butlert has alreadypointed out,thattwo men have the same degree of pity; but one has a strongfeelingof ambition or revenge, while these feelingsare veryweak in the other. They will occupy,as regardsethics,verydifferentpositions.

2. Aristotleis thefirstthinkerwho directedhis attentionto

the problem we are discussing. When presentinghis well- knowndoctrineof virtueas the rightmean,he lays it down expresslythat,objectivelyconsidered (xar' abr3 tA 7rparda), the

* Quotedin " VierteljahrschriftffirwissenschaftlichePhilosophie,"vi. p. 20I. t Sermons,xii. (Works,Oxford,i874, ii. p. 159 f.).

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42 Inernational Yournal of Ethics.

mean is the same forall, because of therebeing two pointsto be kept equally distant from; buit,subjectivelyconsidered (7rp6fboa), the relationis a differentone on account of the in- dividual's dispositions. Justas the same amount offooddoes not sufficeboth the practisedathleteand the merebeginner in gymnastics,so the true mean of the emotional lifecannot be foundat the same pointin all men(-otro 8' oVX &Yovae TO avTO

raa~c)*.

That which may be called courage in the one, be-

cause it presupposes the suppression of strong fear,may be practisedby the otherwithoutany effortof the will and the overcomingof self. This idea is applied by Aristotle in an interestingmannerto all the special virtues. This Aristoteliandoctrine,which gives proof of a surpris- inglyfineappreciationof the importanceand the rightof the individual,is in strangediscord,as I have shown elsewhere,t with the conspicuous positionwhich Aristotle allots to the stateincontradistinctionto the individual. Hie has made no attemptto explain howthatseeminglyindividualisticdoctrine may be reconciledwith his objective social theory. More is oftendemanded socially fromthe individual-so it seems at least-than he is able to fulfilaccordingto the " rightmean" determinedby his nature. There is a range of problems, dealing with the relations of the individual to society, of which the ancient thinkershad not yet any clear concep- tion. Aristotle's theory remains, nevertheless,one of the most ingenious thoughts to be found in the realm of

ethics.1

It may perhapsbe said thatAristotle,in his doctrineof the individually determined right mean, unwittinglyraised a problemwhich is in itselfinsolvable. It may seem thatwe have to choose betweentwo equally doubtfulexpedients,the one landingus in an ethical objectivism,according to which

* Eth. Nicom.,ii. 5 (p. iio6 a, 32).

t " Ethik," Dan ed., p. 133; Germ. ed., p. 154. 4 The idea oftheindividualizationofthemorallaw has been drawnattention to in latertimesby Jakobi,Schleiermacher,and especiallyby Beneke (" Physik

der Sitten,"i822);

the LimitsbetweenTheoryand Practice" (181I).

also in Danish literature,by A. S. Orsted,in a paper " On

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The Law of Relativityin Ethics.

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a universallyvalid morallaw is untenable,because the law has to be formulatedquite differentlyfor every individual; the other,intoan irreconcilableconflictbetween personal ethics and the moral demands of the social lifeof mankind. But the elucidation of the morallaw we have attemptedabove will enable us to get out of this dilemma. Subjectivismis disposed of by the fact that,though the morallaw mustassume a multiplicityof formsin and forthe differentindividuals,thetendency,theaim,mayyet remainthe same for all. The moral laws formulate,as we have seen fromanother point of view,tendencies or directionsforthe conduct and order of life. When several boats are sailing against the wind,theyattain,-on account of their different dimensionsand structure,-withequal efforts,differentresults. But this does not hinderthemfromobservingthe directionof theirdestination,forthe destinationlies in the continuationof their course. The objective view, therefore,does tot fall away when we plead forthe individualizationof the moral law. Ethics must consider individual differencesin capaci- ties and dispositionsas actual starting-points,which are not to be destroyed,but to be made as fruitfulas possible. It is truethat theyare a barrierto ethicsconsideredas a science; but a barrierwhichnot only indicates the limitsof thought, but also the rich manifoldnessof lifethat cannotwholly be classed under particularheadings, although the feelings of manyindividual beings are directedagainst the final aim of human action. This aim,at the same time,is so loftythat the importanceof individualdifferencesin the application of an ideal standarddiminishesin great measure,if it does not altogethervanish. The otherseemingconclusiondisappearswhenthe relation betweenthe individualand societyis clearlygrasped and the real meaningof the moral law rightlyconceived. The indi- vidual is, frombeginningto end,a partof society,and thelife of societyis no otherthan thatcontainedin its members. The goal of humanityis consequentlyunattained so long as its claims on theindividualcause an irreconcilablediscordwithin him. When thewill of societycannotbe carriedout without

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44 International -7ournai of Ethics.

involvingthe deteriorationand the exterminationof the indi-

a proofof some imperfectionin the orderof so- ideal is reached onlywhenthe individual'sefforts

in the cause of societyalso servethe freeand harmoniousde- velopmentof his own facultiesand impulses. The greatest welfareis to be foundwhereeveryindividualdevelops him- self in his own manner,and stimulates a similar develop- ment in other individuals. The individual is, then,at once means and end. The point is thatwork in the directionof the moral aim accomplishes itselfwithinthe individual,but thatthe amnountof work that may be accomplished depends on, and varies with,the stored-upcapabilities. Every law which gives not only the direction of work, but also its quantity-" thequantumsatisofthe humanwill,"to use Hen- rik Ibsen's expression-can only state an average or a mini- mum. Thus it fareswiththemorallaw in its positivehistoric form. The standardapplied by the individualto himselfin a certainage and a certaincountrywill bear the stampof his time,his social rank,and his race. He judges his conductas he thinksan impartialspectatorof his people would judge it. And even if the claims he thus makes on himselfbe fulfilled, ratherby the general tendency-the innermostsoul-of his desires than by a numberof adequate actions,it has still its greatpedagogical value in thatthedemandsbear the stampof objectivityas well as thatof ideality. The desireto rise be- yond his actual conduct will animate him the sooner and easier. The contrastbetweentheideal and the social demand, on the one hand, and the actual desire of the individual,on the other,may oftenbe a necessarytransitionalstage to the settingfreeof those moral effortsthatlie withinthe power of the individual. A spark is necessary to give freedomto the locked-up energy. And there are natures whose energies can only be set freeby a painful conflict with objective principles. The way to harmony leads with them through discords. The two propositions-that the morallaw should formulate the directionof conduct,and that it should act educatively- stand in close connectionwith one another. For both de-

vidual, it is

ciety. The

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The Law of Relativityin Ethics.

45

mands are fulfilledby the typesor ideals whichthe moral law holds up beforeus. The directionpoints to an ideal and calls to imitationat the same time. The clear distinctionbetween scientificand actual ethics, between moral philosophyand moral exhortation,obtrudes itselfhere. It is of importance,practicallyspeaking,thatthe aim forall should be high,in orderto develop the energies. It seems necessaryto ask too muchwhenwe desireto get the necessaryamountof work done. But scientificethics,in de- terminingthe conception of the moral law, can take no cognizance ofpracticalnecessities. It does not enterintothe scientificconsideration,whetherit be easy or difficultin prac- tice, to findthe law which is appropriateto the particular nature of a certainindividual. Scientificethics,on the other hand, in spite of seeming contradiction,presents an ideal to the art of rightconduct,forit can hardlybe doubted that moral teaching will become efficientin proportionas it is individualized. General moralizing cannot be held to be effectual.

asked, " Is not the moral law deduced from

the principleof welfare? Is this not a conclusionwhich no regardforthe natureof the individualcan shake? What is thereforefairand just accordingto the generalprinciple,must be valid forall individuals." But, as we have alreadypointed out,each individual,withall his capacities,is partand parcel of thatorganismwhose well-beingis to be promoted. When,

consequently,an inexorable demand is made for something whichtranscendshis powers,thereresultsan incongruitybe- tween societyand the individualwhich contradictsthe prin-

ciple of welfareitself,-an incongruitywhose cause other than the individual. That sufferingwhich is

on the individual by the irreconcilabledemands of his own

nature and those of societyis to be looked upon

a punishment,-like the sufferingthat arises from the dis-

agreementof the individual natureand externalnature,-but also as a misfortune, When it is found that changes in the structureofsocietyand the consequent conditionsestablished fortheindividualhave oftenmore influenceon theoccurrence

3. It may be

may be

inflicted

not only as

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46 International _7ournal of Ethics.

ofcrimesthan penal reforms,*thenit is clear thatit is wrong to considera given communityand its demandsas absolutely just, and theindividualand his definitenatureand dispositions as absolutelyresponsible. The individual,as regardssociety, is bothcause and effect,and,whatneeds to be speciallypointed out, he is an effectbefore being a cause. Even if in the natureof the individualthereshould be the germsofan anti- social disposition,theirdevelopmentmighthave been checked by a betterstate of society,or theymighthave been turned intootherchannels,or transformedintoharmlessways,while the presentstateof societyoffersthem,perhaps,the conditions of a full development. The 'more,then,the governmentof societyis consciouslyundertaken,the greaterbecomes its re- sponsibilitytowardsthe individualsconstitutingit. If thispointof view be correct,we may expect intimations of it in theologyand in law,althoughthesedisciplinesassume the absolute antithesisbetween the objective law and the in- dividualswho are subject to it. Now, I finda trace of the in- dividualizationof the moral law in the partwhich grace and pardon play in these two disciplines. For in grace or pardon there is expressed more or less clearlya regard for the in- dividualityof the actorand his mentalstates. The orthodox theologicalschool goes so faras to maintainthatthe natural man is unableto fulfilthelaw. Grace,consequently,in assert- ing thatthe whole personalityof a man is not appealed to by the law,contradictsit. The verypossibilityofa reconciliation implies that the law is not absolutely authoritativeas over against the individual,else therewould be a down-rightcon- tradictionin the reconciliation. And when,in agreementwith the orthodoxdoctrineof reconciliation,the sacrificeby which the transgressionis propitiatedis made by God himself,who is the giver of the law, one might recognize in this a sym- bolical expressionof the factthatthe real injustice must be

* G. Tarde,"'La Criminalitecomparee,"p. 6i: "Changez les conditions,s'il se peut, de la soci&t6,bien plut6tque son systemede penalit6,et sa criminalityse modifiera."On thesocialcausesofcrimes,compareMischler,in " Handbuchdes Gefangnisswesens,"published by Holtzendorffand Jagemann,ii. p. 474, 48i, f.

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The Law of Relativityin Ethics.

47

attributedto the law and not to the individual. A pardon is consideredlegally as the self-correctionof the law,*or,as an older jurist puts it,t "To help to eke out the,imperfections of the laws, to do away with the incongruitybetween the legal punishmentand the desertoftheindividualtransgressor, and also to harmonizewiselythe inflexible rigorof theimmu-

tablelaw withthe fickleinconstancyofindividual-guilt,and thus to reconcilejustice withfairness, is the power put into the

hands of the supreme head

don." If justice itselfis in need of a reconciliation,it must be on accountofitsimperfection. Betweenthe opposite legal theological poles of sin and grace,crimeand pardon,oscilla- tions take place in the directionof the two extremepoints whichhave truthfortheircentre. On accountofthedifficulty

of findingthe exact centrewe go beyond our aim,-first in the one direction,then in the other. Instead of moving diagonally,we move firstto the one and afterwardsto the opposite side of the parallelogram; and thereare natures,as has been remarkedbefore,who cannot develop unless these contrastsexist,and who are unable to move diagonally.

I findthisthoughtmore or less consciouslyunderlyingthe whole modern development of penal reform. When the minimumofoutwardmoralitydemandedofitsmembersby the state requires differentefforts,forthe naturesof individuals are different,it becomes the dutyof the stateto take cogni- zance of these differences,and to seek in the naturesof its membersforstarting-pointsofa developmentin the direction of thatwhichthe law demands. The fixingof the law and the punishmentis only part of its duty. It seems not to have enteredmen's minds thatthe administrationof punish- mentis ofno less importancethan penal legislationand penal decisions,and that the experiences in the administrationof punishmentare of essentialimportanceforthe penal legisla- tion of the future. That the personalequation has imperfect

in the formof the rightto par-

* H. Jhering, " Der Zweck im Recht,"i. p. 428.

t Anselm von Feuerbach," Aktennllssige Darstellung merkwUrdiger Ver- brechen,"Giessen, 1828,i. p. 353.

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48 International -7ournal of Ethics.

justice done to it,in the penal law and penal decision,comes out clearlyat the timeofthe execution ofthe sentence. The experiences in this departmentwill, therefore,in the future evermorereacton penal legislation. Franz von Holtzendorff said not long ago, " Modern theories of punishmentmustbe built on inductionand on the experiencesofpenal administra- tion,ratherthan that the lattershould be built on a prior theories."* It has come to be admittedmoreand more thatin penal laws one has to do withthe personalityofthe criminal, and not withthe crimeas an objective occurrence. There is

a demand forsentences,in the place of irrevocabledecisions, which shall leave the termof punishmentundetermined,and also leave room forthe considerationof the characterof the individualat the timeofthe executionof the punishment. A distinct classificationof criminals with treatmentdiffering accordingto characteris also demanded. The penal reforms in this century(fromthe timeofJohnHoward) are permeated by the idea that the criminal,if possible, should returnto human society,not only humiliatedand restrained,but really reformed.The facthas been generallyacknowledgedthatsome people, according to theirinner and outer circumstances,are next door to crime,while others are far removed from it. The rightof the individualagainst abstractimpersonallaws is thus gradually being recognized. Individualizationand humanitygo hand in hand,and are in realityinseparable. In an ideal stateonly thatwould be demanded of each in- dividual whichlay withinhis range and power. The demand would be suitedto his peculiaritiesin the same manneras in the educationof a child the demand is suitedto its stage of growth,producingtherebythe developmentof its forcesand preventingthe suppression of its individuality. The social disadvantageswhichwould arise fromrequiringunlikethings of differentindividualswould have to be balanced by special measures. As long as we cannotrealizethisideal ofa state,-

all

the institutionsand laws of which have an educational in-

* " Handbuch des Gefangnisswesens," i. p. 387.

The followingremarks

relatingto thedevelopmentof prison-justiceare takenfromthiswork.

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The Law of Relativityin Ethics.

49

fluence,-so long must the state do that partof the workby

its administrationofpunishmentwhich it has failedto accom- plishin a moredirectlyethicalmanner. The establishedorder leads to thehardand painfuloscillationof contrastsaround the invisiblecentreof the ideal order.

4. Casuistical problems will oftensolve themselveswhen

the individualfactoris takenintoaccount. Viewed ina purely objective light,it may be impossible to decide in a particu- lar case whetherone should workfora largeror fora smaller community,orwhetherthestressshould be laid on the exten- sion of the resultsof civilizationamong as manyas possible, ratherthan on the bringingforthof a new civilization,which would provisionallyserve only a few. Questions of thatsort will,as a rule,be resolved by the fact that each person has facultiesand dispositionswhich determinehis calling. For it is partof the conceptionof a calling thata man's duty is not only fixed by general ethical principles,but also by his indi- vidual capacities. The conceptionof a calling is founded on the idea that mastershipimplies limitation,-all willingand actingbeing concentratedon somethingdefinite,-andthatthe limitationis mainlythe outcome of individual capacity and individualenergy. It is theseimpulsesthat" call;" forenergy has a tendencyto awaken a correspondingdesire. If,forex- ample, we consider proficiencyin the service of culture,we shall meet men whose facultiesare fitonly for activityin a

narrow sphere,and whose efficiencyis, therefore,limited to care forthewell-beingoftheirown selves and theirneighbors, theirworkconsequentlybeing at best of only indirectimpor- tance outsidethe narrowersphere. Again,therewill be other men who are fittedto impress their fellow-menand work for them,and who are properlyemployedin the extensionof the benefitsof culture. And still otherswill have sufficientin- stinctand energyto open new paths and discoverfreshpossi- bilities. These latterwill followtheirhandicraftand tendthe firstblossomsofthecivilizationofthefuture,in spiteofcontra- dictionand wantof understandingon the partof the people. The individualwhoknowshimselfwillnotwaveras towherehe should turn. But the main difficultyis just thatof knowing

VOL. I.-No.

i

4

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50 InternationalYournal of Ethics.

one's self,as Socrates,the founderofethics,taughtso impres- sively. The greatimportanceof the fundamentalthought of Socrates shows itselfhere. Self-deceptionis veryeasy when we tryto discoverour capacityand determineits limits. No objectivecriterionis whollysufficientin this case. One must always risk something. Every choice is here a practical

hypothesisto be verifiedby experience.

introducesincorrectco-efficientsin his ethicalformulawould

not be

An individualwho

able to accomplishhis task.

The same holds when,as an example to illustratethe law of relativityin ethics, we consider self-controlinstead of vocation. Self-controlin some things may coexist withtotalabsence of self-controlin otherthings. The Indians,forinstance,are able to bear the most horrible sufferingswhen theyfallinto the hands oftheirenemies,or when,by voluntarysubmission to castigationsand tortures,theyaim to propitiateand do honor to their gods. Illness, too, they sufferwithout com- plaint; and theydemand oftheirwives to bringforthwithout exclamationsofpain. In theiroutwardbehaviortheyalways preserveperfectcalmness,spotless gravityand decency,even when the strongestpassions upheave them inwardly. But in the presence of enjoymentsof food,drink,and games, they cannotrestrainthemselves. It needed greatexertionon the partofsome chiefsto lay down the rule thatdrunkennessis a

vice. This is a proofthatself-controlis not a constantfactor, independentof all otherpartsof the innerlifeof man.

A special application of the principleof individualization

has to be made in relationto the sexual instinct. Different individualsare verydissimilarin this respect. There are per- sons whose instinctharmonizeswiththeir moralfeelings,not demandingsatisfactionwhereit is notthebasis ofa deep devo- tionto anotherindividual,who is looked upon withjoy and admiration. This is the moreimportant,consideringthatthe satisfactionof the sexual instinct,not being possible without relationto another,is speciallysubject to a moral judgment. Apart fromthis relationand the resultingresponsibility,the satisfactionof the sexual instinctwould have to be judged

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The Law of Relativityin Ethics.

5'

only froman individualor egoisticpointof view,-that is to say, by hygienicconsiderations,or withregardto the harmo- nious developmentof the mentaland bodily healthof the in- dividual. But the great problem,the moraldifficulty,origi- nates in the factthatthe powerfulinstinctwhich gives riseto such strongfeelings,and is so importantforthe development ofthe individual,is to be satisfiedwithoutcausing physicalor moralharmto otherindividuals,or interferingdisastrouslyin the rightsocial order. Besides the happilyconstitutedindi- viduals we have mentioned,thereare othersin whom the in- stinctexists in its originalbrutalityas a merephysicaldesire, the satisfactionof which may go along with indifferenceto- wards its object. With others,again, the instinctis com- parativelystrong; but theyare able to divertit by thought or other labor. There are, on the whole, countless grada- tions,up to the " morbidlyincreased sexual desire,"which shows itself,according to KrafftEbing,* in "neuropathic constitutions." There are individuals who suffer"greatly duringa greatpart of theirlifetimeunder the burdenof the constitutionalanomalies of their emotional life." The two sexes are generallyin this respect differentlydisposed. The harmonybetweenthe sexual instinctand the truedevotionto anotherindividualis certainlyfarmoreprevalentwithwomen than withmen. -Butwithmen also, as we have just said, the strengthofthe instinctand its relationto othermotivesvaries immensely. The numberlessindividualdifferencesare gener- ally overlooked,and yet theyare the mostimportantpointin

the sphereof sexual

made by two opposite parties. On the one hand,strictuni- versal commandmentsare formulatedwithout seeing that a very differentburden is laid on the shoulders of different people. On the otherhand,a physiologicalnecessityis pro- claimed,to which all must submit. The one, as well as the other,is unwarrantedby thefactsofthe case. The sexual in- stinct in man arises under differentconditions than in the animal world. When the instinctbecomesmaturein a human

ethics. Equally absolute assertions are

* ccPsychopathiasexualis," Second

Edition, p. 34.

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52 InternationalY7ournalof Ethics.

being, there has already taken place a developmentof the powerofself-controlin otherdirections. Ideas and emotions flow exist which do not readily yield to the instinct,and

which,when the attentionand interestfor moral self-mainte- nance are roused,weaken it and bringit intoagreementwith

the other demandsof life.

Only let it not be forgottenthat

self-control,consideredas a negativevirtue,is a psychological impossibility. It is too oftenleftout of sightin ethicsthat one impulsecan only be displaced by another. The strength ofthe inclinationto be suppressedis not the only thingto be considered. It is also necessaryto take notewhetherthereis room forotherinclinationsthatcould absorb the store of en- ergy. Deep love and great enthusiasmare wantedto fillthe heart. The law of relativityin ethics is here a pure conse- quence ofthe law oftheconservationofenergy.* The energy at the disposalofour mindor brainis,at anygiven momentof time,limited. The moreenergyexpendedinthesatisfactionof theone desire,theless remainsatthedisposaloftheothers. An- nihilationis impossible;buttransformationintootherformslies withinthe range ofpossibility. The greatheroes of self-con- trolhad a profoundenthusiasmfor other aspects of life than thatwhich theywantedto forsake. The powerofself-control whichthe Indians exhibitwhen theyare wounded in war,or sufferpain in prisonor in religiousdevotion,is determinedby theirideas ofhonor,theirdispositions,and theirreligiousbelief. The circumstancesunderwhich theylived did not favor the growthof motives opposed to licentiousness. In proportion as an individualprogresses in intelligence,taste,and sympa-

thy,there is an evolution of a higher sensibility,which, as Leslie Stephent has remarked,produces a feelingof disgust and contemptfor sensual excesses, even apart from their probableconsequences,-a sensibilityacting as promptlyand imperativelyas any otherelementarysense. The struggleof self-controllasts until the new application

* The law of inertiacould also be applied here. By thislaw

Spinoza proves

thefollowingimportantproposition:" Affectusnec coercerinec tollipotest,nisi per affectumcontrariumet fortiorem"(Eth., iv. 7).

t "1 Science of Ethics,"pp. 192, 198, 200.

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The Law of Relativityin Ethics.

53

of energygains completeascendency. This struggleassumes verydifferentproportionsin differentindividuals,in accord- ance with the relative power of their original or acquired tendencies. With some men the transitionis never com- pleted without a struggle. There are others who have to strugglehard,and yet are unable to gain a sure footing. The will-powerexpendedby thelatteris farmoreseriousthanthat expended by the former,however small the outward result appears. The reason thatJesusassociated morewiththefallen womenthanwiththe Phariseesmaybe,perhaps,thathe found in the prostitutesan inwardendeavorand desirewhich were,

it is true,unable to break down the opposing barriers,but yet stood in more intimaterelationwiththe ideal moral law than the self-satisfieduprightnessof the Pharisees. The law ofrelativitythrowslighton manymoral problems thatwould otherwiseremaininsolvable,by showing that the actual moral development starts from differentpoints. It teaches us to combinethe theoryof ethicswiththe practical acknowledgmentofthe manifoldnessof life.

5. Wherethereis anagreementbetweenthetaskarisingfrom

the general principlesand the particularcircumstances,and the capacities and desiresof the individual,we have the hap- piest man, and, if the task be sufficientlygreat,the greatest

man. The points to be noticed in such men are the inner securityand harmonywithwhichtheyfilltheirstationin life, in spite of inner and outer struggles. Here we have the " organic morality"spoken of by Herbert Spencer. That thereare people of this kind is a fact,whatevermay be its explanation. They are patternsforothermen. It musthere be maintainedthatthe task laid on the individualis not based merelyon unchangeablecircumstancesfixedonce forall; but thatthe individualmay make it his dutyto change the given circumstances,if possible, by dint of his own capacity and desire,and his allegianceto thehighestprinciples. The great pioneersof humanityexperiencea developmentof capacities and desireswhich,underthe actual conditions,cannotbe sat- isfied,and which,therefore,give rise to new conditions. In- dividuals of this type arise probably through one of those

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54 International -ournal of Ethics.

variationswhich are, according to Darwin, the condition of developmentof newformsof life. Their rightis at one with theircapacity. They become also, throughthe verydevelop- ment of that which lies in their nature,emblems of a new tendencyin one of the departmentsofhuman life,and, there-

fore,helps to theprogressof the race. Natureand art,nature and duty,act here in immediateunison. These men possess

the law in a

not contain the possibilityof a higher development. But

"organic morality"may, of course, also exist in the latter, forthe harmonyof natureand task is conceivablein both.

higher sense than may be said of those who do

The complete opposite of such natureswould

be foundin

individuals in whom not the slightestdesire or

ambition in

the directionof the moral law could be detected. All the co- efficientsof the ethical formulawould alike be zero. No demand,howeverpedagogically formulated,would meetwith any response. Among otherthings,the problemarises now, whetherthere are incorrigiblecriminals. This is a question whichhas been positivelyaffirmedwithinrecentyears by the Italian criminal-psychologicalschool. This school has greatscientificmerits. The ordinarymoral and legal viewgoes no furtherthantheactionand the motives lying nearest to it, and fails to investigatethe cases which producedthewhole characteroftheactor. The indeterminism formerlyrulingwas favorableto thisview. The anthropology and psychologyof crime,which owe so much to the Italian school,seek to do awaywiththisone-sidedness. The intention ofthisschool is to discoverthebodilyand mentalpeculiarities of the criminal,and to trace them to their causes. On this basis it has singled out the criminaltype (homodelinquens) as a special varietyof the general human type. Among the bodily peculiaritiesof the type,Lombroso specially mentions markson the cranium,the brainand the features,which must be regardedas retrogressivedeviations fromthe type of the civilizedman,such as the small capacityof the craniumand the small and narrowforehead. Among the mentalpeculi- aritieshe alludes especiallyto a marvellousinsensibilitytopain, withwhicha not less strangelack of pityprobablystands in

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The Law of Relativityin Ethics.

55

natural connection. The vaso-motoricreflexesare weak on the whole,and typicalcriminalscan rarelyblush, Moral sen- sibilityis wanting,and shows itself,as Despine had already pointed out,in the great rarityof remorse. The whole type is to be explained according to Lombroso and the Italian school by atavism. This disease arises in our day by deep prehistoriclayers protrudingin the midst of civilization. The absence of motiveand the utterregardlessnessoftypical criminalactionsarethoughtinexplicableon any otherhypoth- esis, and the frequentrelapses and meagre effectof the best considered systems of punishmentare held intelligibleonly when such reappearingprimitiveforcesare assumed. The moralsense,says a prominentItalian scholar,Garofalo, in his " Criminologie,"is the workof centuries.When,there- fore,as experience proves, some individuals have not been benefitedby it,but are sufferingfrominnate moral insensi- bility,showing itselfin the total absence of pity,even in its most elementaryforms,how could one imagine that any im- pression or education could accomplish in a lifetimethat whichthe race had to acquire through repeated experiences during thousands of years? Man is good frominstinct,not fromreflection. If the instinctis wanting,what other force is to take its place ? Individuals,who are notvictimsofpass- ing temptations,but who go back repeatedlyto theircriminal haunts,or whose comparativelyslight motivesto action and revoltingmannerin carryingthemout give us insightintoa rooted.antisocialdisposition,-such individualsitis impossible for a civilized communityto assimilate. They would have been in theirplace in formercivilizations,and even now,per- haps, in Dahomey or on the Fiji islands; but it is' hopeless to wish themrtobe incorporatedin our social life. Towards themsocietycan have no duties. On thecontrary,itis a duty it owes to itselfto eliminate" molecules" harmfulto the life ofthe remainingpartsofthe organism. It is also an individ- ualisticone-sidednessto assertthatcriminalsofthattypehave any rightsat all in oppositionto society. Social necessityis unconditional,and social reactionsuffersno resistance. Thus fargo Lombroso and Garofalo. The view advanced

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56 International -ournal of Ethics.

by these scholars is of interestto us in this place, because theyassume absolute moral insensibilityin some men. Not only individual relativity,but also psychological relativityis thus done away with. An orderwould have to be supposed in criminal natures diametricallyopposed to the order on which human development,conscious and unconscious, is based. And there would be no means of overturningthe formerorder, unless by a war of extermination. Before we give our assent to such a doctrine,we must firstsubject it to

a close examination.

(a) To deduce the innermostcharacterof a man and the

possibilitiescontainedin him fromisolatedinstancesis always unsafe. According to Garofalo the crime need not be even

exceptionallygreat,and yet the examinationof the criminal's characterby a judge versed in anthropologyand psychology may be sufficientto determinewhether the individual can

accommodate himselfto the demands of

society,or whether

he should be eliminated. Nay, not even an action is always necessary,an attemptis consideredsufficient. The conclusion drawn fromthe absence of repentanceis equally unreliable. It is metwithin criminalswho have been sentencedto death,or in prisoners,such as Doctijevski saw in Siberia, who have not been subjected to true pedagogical treatment. The fact that repentance cannot be awakened

withinthe shorttime that elapses between the committalof the crimeand the executionof the sentenceof death,or that repentancehas notbeen aroused in prisonerssubmittedto the ordinarytreatment,customarydown to our present time, does not entitleus to conclude that it could not be aroused underany circumstanceswhatever. The frequencyof relapses,

too, points to rooted tendencies ratherthan to incorrigible ones. Garofaloobjects to fixingthe timefor criminalssentenced to prison, " because it is impossible to determinein the crime the partwhichis owing to thesurroundingconditionsand the partof whichthe individualhimselfis the cause." Onlyafter

a prolongedtrial,in which one comes to be moreintimately acquaintedwiththecharacteroftheindividual,maythe period

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The Law of Relativityin Ethics.

57

of punishmentbe fixed.* By what right,then,can one de- mand absolute eliminationin some cases ? For the unrelia- bilityof the insightinto a criminal's character,which causes the period of punishmentnot to be fixed beforehand,must also destroythe possibilityof layingdown eliminationas the only possible expedient.

(b) A new problem arises when the incorrigibleantisocial

dispositions are explained by atavism. How could such marked peculiarities that influencenot only one side of an individual's character,but his whole nature maintainthem- selves in the racealong withpeculiaritiesofa totallydifferent kind? How could the threadwhich connects the individual withthe primitiverace escape beingwoven togetherwiththat otherthreadwhichlinks it to the directlypreceding genera- tionsand the institutionsand traditionsproduced and trans- mitted by them? To put it in other words: granted that the explanationby atavismis correct yet atavismis noproof that societyowes no debt, and consequentlyno dutyto the indi- vidual. For if the antisocial germs have maintainedthem- selves in the race in a latent formfor so long a timewithout being transformed,thatmustbe the resultof failingsand im- perfectionsin the life of mankinditself. The perfectionof social conditionsand the morallife generallymustbe meas- ured,not by the positive advance alone, but by the lost and neglectedpossibilities. The moreperfectthe state of society is, the more does it act on the innermostbeing of individuals. Atavism,therefore,is in itselfa sign of social imperfection, and does not justifyplacing society and the criminal over against each otheras absolute rightand absolute wrong. In placing criminals,both as regardsbody and mind,outside the

*

t

" Criminologie," p. 395.

G. Tarde has criticisedthis explanation in his"

Criminalite comparee. " He

arrivesat theconclusionthat,thoughthereare unquestionablephysiologicaland anatomicalanalogiesbetweenborncriminalsand savages,and thoughcriminals, like all monsters,exhibitretrogressivetraits,yetthesetraitsare combinedin them

in apeculiar manner. It is wrong,therefore,to judge our ancestorsby this method(p. 46). The combination,then,mustbe explained,and it surelycannot be independentof social evolution.

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58 InternationalYournal of Etkics.

limits of society,the Italian school, strange though it be, reaches the same conclusionas indeterminismand individual- ism,though these in otherrespectsare theirdirectantipodes.

(c) When Garofaloteaches,as formerlyDespine had done

(and beforehimAnselm von Feuerbach), that moral insensi- bilitymay remain latent until outward occasions bringit to light; when he teaches that,thoughpovertybe not the cause ofcrimes,yet manymenwouldhave remainedlatentcriminals only,if theyhad lived amidstdifferentsurroundingsand had notbeen poor,thenit is clear that societymust be a concur-

ringcause, its orderalways moreor less conditioningthe sur- roundingsof the individual. We may make as sharp a dis- tinctionas we likebetweenmereopportunityand actual cause, it mustalways remainmore or less artificial,forthesufficient cause consistsbothof theexternalopportunityand theinnerdis- position. This point must be made all the moreprominent, because those " opportunities"constitutethe tremendousdif- ferencebetween two latent criminals,declaring the one in- capable of assimilation,and admittingthe other to continue his lifeas a social molecule undisturbed.

(d) Inheriteddispositionshave always a certainindefiniteness

whichrenderit possible,througheducationand externalcon- ditions,to develop them in various directions. A fatalistic tendencyin nature,nullifyingall experience,occurrences,and endeavors,cannotbe provedto exist. Even if a good educa- tion and favorablecircumstancesshould be powerlessto stifle the evil germ,but were able only to effectits growthwithout causing social mischief,it is all the same truethata bad edu- cation contributesextraordinarilyto its growth. It will be, therefore,impossibleto draw a sharp line betweenthatwhich is owing directlyto the individual and the circumstances underwhich he lives (which are mostlythe outcome of the social order). Absolute egoism is veryoftennot presentat all. Regard forthe familymay oftenbe highlydeveloped in criminalnatures,preventingthe rousing of the criminalin- stinctsexcept at the sightofstrangers. A possibilitymaybe found here to awaken wider sympathy. For human love itself, in the firstinstance,has started from regard to the

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The Law of Relativityin Ethics.

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family,and graduallyembracedlargercircles. Anotherstart- ing-pointshould be looked forin the egoisticfeelingsof the criminaland in his desire to assert his personality.