Any person who walks by it has the same physical possibility as myself to work in that piece of land, or even of
destroying
it by placing chemical substances in the ground.
Hegel Was Right_nodrm
That being proved, how can they justify to do without morals whenever they want to?
Hegel refers to this in his Philosophy of Right when he says that the positive right, that is to say, the abstract right, is not true right, and that true right is only the ethicity in which the morality and right identify themselves. Already in his youth Hegel condemns this: "It may also happen that a conduct of right is not bound to the mentality
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of right, and even that there is an immoral mentality instead" (NH 253). Here we read a criticism against the hypocritical cynicism that has found today a 'scientific' rationalization in the juridical positivism of those who wield the law to commit, knowingly, atrocious injustices.
"An action like the affirmation of my property can be perfectly ju- ridical and yet there can be intention of evil, regardless of right and having the purpose of harming the other" (NH 228).
"When in politics, the only thing that prevails is law as such, the dominant thing is violence and the arbitrariness of the individual" (PR II, II 82s).
"The highest thing, if conceived finitely, is the worst" (PR II, II 238) [. . . ] "an animal kingdom of men" (ibid).
"Thus in right the particularity is not yet that of the concept, but only that of the natural want" (Rph 151 Z).
In order to do without the obligations of the moral imperative when it comes to the law, jurists have relied on a huge epistemological mis- take: the mistake of believing that the application of a law is a mechani- cal process that may be performed without judgments of value, without appreciations that are empirically unjustifiable. As a matter of fact, it is very unusual to find jurists that take the task of reflecting about the epistemological status of their own acts.
As we have seen, physicists and the biologists fall in that ingenuity as well, and they figure that if 'the whole world' thinks in a certain way, that is enough to say that what we have in our hands is an empirical judgment. Only that in the case of the jurists that lack of reflection has ominous consequences, for it has lead them to believe that the action of subsuming certain empirical fact under a law does not imply valua- tion and decision, because the 'whole world' would subsume the fact in question under that law. But the valuations do not stop being valua- tions because they are common or very frequent. To be sure, not even the sentences that allegedly describe a fact, that is to say, the so called 'fundamental propositions', are justifiable only by empirical data, since they decide precisely which is the content of the supposed empirical data. The empirical data does not consist in words; the descriptive sentence, on the contrary, consists in words. To judge if the sentence reflects 'sufficiently well' the sensorial data is always an appreciation, an evaluative estimation, not a mechanical process at all. The vocabu- lary with which one supposedly describes the fact in question decides beforehand under what law it will be subsumed. I am not reproaching
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this way to proceed; on the contrary, I am saying that it is the only one possible and that is the way one always follows. But the point is this: if the judge, the ruler or the jurist in general carries out judgments of val- ue even with the actions which are apparently more mechanical, if they are always carrying out moral judgments, how could one do without the moral imperative by saying right does not consider it? With what logic or justification can someone base himself on right in order to commit acts and deeds which his conscience unmistakably calls injustices and immoralities?
It is not the case that the unjust jurist does without morals. The im- portant thing here is that he embraces immorality. And in that mo- ment, his decisions are "the oppression of right" (GP I 142), "his right is a right that lacks right completely" (A? sth I 305).
The reader may have recognized among these Hegelian expressions the unmistakable thesis of iusnaturalism. We shall demonstrate that thesis is true.
The juridical positivists have not noticed yet that the word duty lacks entirely of meaning if one does without the moral absolute imperative. In the juridical jargon, the 'objective' right is synonym of law. On the contrary, the 'subjective' right is the faculty or power of making something. One should notice that the possibility of giving any meaning to the subjective right depends on that objective right has meaning. To say that someone possesses the right of something is tantamount to say that the others are under certain law or duty in relation with him. Thus, if the word duty or law does not succeed to get meaning, the word right lacks of content in its objective acceptation because in it the right it is a synonym of duty or law, and in its subjective acception because the existence of a faculty in a subject means only the existence of a duty
in the others.
It has been a superficiality to forget (cf. III,9) that historically speaking,
all the people supposed that it was a divine imperative to obey the laws, whether they were written or not; it was considered that the laws were originated by the divine will, regardless of the particular mediations they may have had. This is the only reason why the idea of duty or obligation could be once related to the effective precepts in a human conglomerate. Besides, it was assumed that every authority emanates from divinity.
Without that original meaning it would be absolutely impossible to apply the word 'duty' to merely cognitive information about the real
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results of certain kinds of actions. For instance: 'whoever makes such thing would be whipped'. Kelsen seems to ignore the difference be- tween categorical and hypothetical imperatives. As a matter of fact, the latter is not an imperative that is to say, it is not a duty; it is only some sort of knowledge. If I do not want to be whipped, I refrain from carry- ing out such kind of acts, because there is another agent who will apply me that punishment.
The same happens when I refrain from getting my hand close to the flames because I know that in such a close distance I will suffer a burning or some kind of pain. But I do not have a duty that prohibits me to draw my hand closer to the flames. From that kind of knowledge no duty can be derived; I can only infer from it how convenient it is for me not to do certain things. No one could ever come up with the idea of calling duties the threats of the strongest. The persons who are threat- ened by someone with a machine gun do not call duties the indications they are given by him; obeying them is simple reasoning of advantages or disadvantages.
This is like a joke, but many positivists believe that because 'the whole world' calls the statements of a positive legislation law and right, they think that law and right are empirical data. But one needs a bit of reflection to understand that the obligatory character of such statements is by no means empirical data; consequently, the fact that such sentences are law and right is not empirically perceptible, and therefore the existence of a law is not empirically verifiable. Kelsen, fortunately enough, does not fall in such ingenuity, so we can leave that problem aside.
We will prove this afterwards with a quote. It is important to have in mind that Kelsen says innumerable times that right is not sensible data. Kelsen affirms also that the anarchist who says right is nothing but the power of strongest is irrefutable, and that one cannot justify the hypo- thetical decision of the jurist and the theorist --Kelsen included-- who regard as right the prevailing order of a nation. And it is obvious that Kelsen omitted asking himself what, then, is the origin of the idea itself of right. The precepts or rather the sentences empirically perceptible do not raise in the human mind the idea of right. On the contrary, this is a contribution that the jurist introduces in order to look at them as right. That being said, where does that idea come from? How did it originate itself? Evidently, the only possible origin is the moral absolute impera- tive, the one that positivism eagerly denies.
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One last thing must be well considered. The constitutive thesis, the only essential one of juridical positivism consists in holding that there are no more duties than those consigned in the juridical positive order; to affirm that there are others is the constitutive thesis of the iusnatu- ralism, so that the positive laws are only true laws if they coincide with the moral law or are logical derivations from it.
Now, if the duty that the categorical imperative imposes was il- lusory, it would be inexplicable that Kelsen and his comrades call it illusory, since such qualification can only be given by contrast with a true duty, and the idea of a true duty does not arise from the empi- rical data or from the juridical positive order. The only reason why positivists can still distinguish true and illusory duties is because they have awareness of a duty that is not illusory. This demonstra- tion is definitive.
Only if one assumes that it is morally compelling to obey the ruler and the rules of that country can these be called laws, duties and right. And if people call them so, independently from the decision of the jurist, it is because they originally made such supposition, so that even by inertia one preserves such denomination in the entire world.
The jurist that denies the moral imperative does not have the right of using it, since without the imperative words like law, duty and right lack all kind of meaning. Kelsen mentions Kant several times, but, apparently, in the Metaphysics of Morals he overlooked this: "From the moral imperative which imposes us a duty, the concept of right can be developed afterwards, which is the faculty of obligating the others (op. cit. AB 48).
The concept itself of right only obtains content to the extent and de- gree in which it coincides with the moral imperative. Otherwise, as Hegel says, "instead of right it is oppression of right" (GP I 142), "it is entirely positive and with no validity or force" (A? sth I 305).
Saint Thomas expressed this with the same clarity, although with a vocabulary that we will criticize later with Hegel: "Every law put by men is a law insofar it is derived from the natural law. If it differs in something with the natural law, it is no longer a natural law but a cor- ruption of it" (I, II 95 2).
Before we move on forward, we shall document with words of Kelsen the non-empiricity of right: "The fundamental mistake consists in believing that the social order is a natural right, perceptible in the world of causal reality" (1965, 350); "in the kingdom of nature there
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are no 'robberies', 'juridical businesses, 'punishment, or 'execution'"
(1965, 62).
The Pure Theory of Law does not try to dissimulate that the specific normative signification of the so called juridical facts is the result of a possible inter- pretation, not a necessary one, which is linked to a fundamental hypothesis. Furthermore, it realizes that it is not possible to prove the existence of Right as if it were a natural phenomenon, or to refute with decisive arguments the conceptions of the theorists of anarchism, for whom the right that the jurists talk about consists in pure and simple force (1968, 99).
[. . . ] one cannot force an anarchist to recognize that the facts that from the point of view of the state law are interpreted as right constitute juridical acts and not acts of force. One can only demonstrate the possibility of under- standing the set of constitutive facts and norms of international law within a unitary system in which all juridical and state orders are contained. The material that is interpreted as law does not constitute a priori 'right', but it rather requires that quality by means of the juridical hypothesis which is useful to interpret it. (1965, 168)
As we have said, Kelsen did not consider that, in order to be true and have some meaning at all, the hypothesis itself needs first to have a meaning and be understandable. Since meaning does not have its origin in empirical data, it can only have its origin in the moral imperative. As Hegel says, right is something sacred by definition; no material or physical data gives raise to the idea of right. This idea is far beyond everything which is empirically verifiable; it is impossible to conceive earnestly the meaning of the word 'duty' without some sort of sacred. Kelsen himself emphatically insists in the fact that it is not sufficient that certain acts or statements emanate from a group or a person called legislator or gubernator to be called law, neither it is enough that they do not contradict constitution, for such a group, or a person, or the constitution itself would be first to be law, something which cannot be empirically corroborated.
Although the superficiality of those who believe that right is an empirical data, has been refuted, I would like to draw the attention of the reader to a point in which this superficiality has proved to be particularly stubborn and even childish: the right or property. On the one hand, the defenders of property wish it to be an empirically verifi- able data in order to affirm that it exists before or independently from
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the State. On the other hand, it is absolutely essential for Marxists that property --or at least possession-- is a physical and material fact, be- cause otherwise the thesis that the relations of production --which are relations of property that Marxists call 'infrastructure'-- determine the ideas of men would not be materialist.
Jurists have written thousands on volumes about how constitutive property is. Savingy and von Ihering have devoted a lot of their efforts to this issue. However, we are not going to quote any of them in order to solve substantively the question.
The fact that I am the owner of this typewriter machine is evidently not a physical nor a material fact; it does not consist on whether I can hold it in my hands or not, nor the fact that it is within my house, nor that it is in the surroundings of my body since I can lend it for many years to a friend, or leave it in a workshop in order to be repaired, and despite of that, I would still be its owner. Property is ideas. Property consists in that I have the right to determine what should be done with the object; in other words, the others have the obligation of not hindering me from doing with the object whatever I please.
But not even possession is a physical data. As a landowner of a field, I can be the possessor and yet not the owner; perhaps I live many miles away from it, while the other landowner has more physical contact with the field than myself. The same goes for the workers that plow my land. Despite of that, I am still the owner of that field.
Any person who walks by it has the same physical possibility as myself to work in that piece of land, or even of destroying it by placing chemical substances in the ground. This makes it clear that possession is also ideas. It consists in the right of using the object in the ways its owner commands.
Despite the intention and the wish of Marxists, the constitutive the- sis of Marxism does not have the slightest trace of materialism --and by the way, it is a false thesis, but we will not deal with that here--. The relations of property are the only decisive element in the mode of production: again, we are dealing with ideas, not with facts. To sustain that ideas are determined by ideas is a triviality that does not deserve our attention.
Let us address now another difference that treatise writers believe to have found between morals and right: the coercion of the latter. The principal difference, namely, that right pertains to the exterior and morals to the interior, has been refuted. They intend now to tell us that right is essentially coercive, that means to say, it recourses to coercion
? ? ? ? ? ? ? ? ? ? ? ? ? ? ? ? 300 Hegel was right
in order that people respect its precepts, while morals does not have that characteristic. Therefore, they affirm, there is a true distinction be- tween morals and right.
But this argument is completely thwarted. On the one hand, there are many norms that these very treatise writers would call merely moral and yet they are accompanied by a social sanction whenever they are not respected. On the other hand, there are not only many juridical precepts that necessarily remain without a sanction: the coerciveness of right is sometimes reduced to the moral permissibility of the use of coercive force.
Anyone who reflects a little knows that the liar is sanctioned with the collective rejection of everything he says and even with the con- tempt of his very person; the cruel person is sanctioned with isolation and with displays of horror that end up being a boycott against him; the deceitful person is excluded from taking part in businesses. The list is practically endless.
Those people --who, in view of the immorality that prevails nowa- days, do not regard highly the effectiveness of these sanctions-- take no notice of two important things. First, they are imagining that the legal and juridical sanctions have an extreme effectiveness, disdaining thereby, the opinion of many sociologists who think that most of the crimes remain unpunished. Second, they do not realize that saying 'moral precepts do not have any corresponding sanction' is a uni- versal negative proposition, which only needs a particular case that proves the contrary to be refuted. With the examples we have men- tioned we do not need to enlist all the sanctions that go along with all moral precepts.
But whoever considers things carefully will realize that, in fact, the 'social order' prevails not only due to the sanctions contained in the penal code, but to a much greater extent due to the sanctions that are not contained in it.
And this goes not only for underdeveloped nations. One would only need to look at works such as The Disputing Process (Law in Ten Societies) (1978) written by Laura Nader and Harry Todd Jr. , and the investigation of S. F. Moore called Law as Process (1978) to realize this. Not to mention the works of Sugarman, Fitzpatrick, Pospisil, etcetera.
In this context it would be useful to take a look of this issue from an anthropological point of view. Let us quote that Ino Rossi makes of Radcliffe-Brown findings:
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Radcliffe-Brown points out that in many primitive societies there are no courts or judges, nor any formally organized, central political authority, --but nevertheless people possess a sense of wrong-doing and the notion of public and private delicts. Whenever there is no political authority to apply organized sanctions (law), there are private groups and associations that apply organized sanctions. Moreover, there exist a series of unorganized mechanisms like ostracism, house-burning, blood feud, accusation of witch- craft and sorcery, and ritual sanctions which although not enforced by official authorities, are effective means of social control. (Rossi et al. , eds. , 1977, 348)
As for the developed countries, Nader and Todd refer to the investi- gations of Macauley and Sutherland, in which they describe: "avoiding the law as a means to form and maintain good business relationships; businessmen prefer not to use contracts, and even prefer not recurring to the law in the cases of criminal business activity" (1978, 17).
Let us only think about this: to lose one's prestige in the business world, the avoidance of any kind of deal with the transgressor, the rejection of providing him with credit and resources, are for a business- man sanctions which are infinitely more harmful than those prescribed by the law. The bills of exchange and promissory notes were in the 16th and 17th centuries a matter of honor and prestige for the traders. And even nowadays, the capitalist national systems would collapse without the trust in verbal agreements. It is obvious that even in our times the relations between capitalists cannot be based on the legal or juridical system: a juridical process is long and one can appeal its results, and at the end of that course of action my business would be surely broken or I would have certainly lost the possibility of doing the business move I had in mind. The only trust I can have in those scenarios it that which the verbal agreements can provide me: my own word.
Besides, in the little towns and in the neighborhoods strongly bound that we find in the big cities, the sanctions that are not legal can make life impossible for everyone: the mailman, the plumber, the gardener, the carpenter can all cooperate to impose me a sanction by not pro- viding me some elemental services. It is impossible that the positives argue that the legislator 'implicitly' approves and assumes the social sanctions, for many of them contradict the law itself.
The facts refute the thesis according to which the moral law does not have sanctions. We will later relate this fact with another idea. But now, let us concentrate on the second part: the one that affirms that law is essentially coercive.
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To begin with, we have international law: a law which that does not have a coercive character like many treatise writers affirm. Against a powerful nation that transgresses the international juridical norms there is no sanction, or at least, not a sanction that is different from those which are characteristic of moral norms. A superpower can be more powerful than the United Nations and the Permanent Court of Inter- national Justice.
And let us not forget this crucial point: there can be a criminal in each country stronger or more astute than the several governmental organizations and who remains hence unpunished. The robberies and aggressions that happen all day long are an evident proof of this; the most elemental realism tells us that many of these crimes remain with impunity. Therefore, in what does the coerciveness of law consist? Would one say that it consists in the fact that the law affirms that those crimes deserve a punishment? That is something which morality tells us as well, and the result that follows thereof that there is no difference between moral and right.
The right of self-defense, which is explicitly recognized by the ma- jority of legislations, cannot mean the real available force. The victim has this right in spite of the fact that his aggressor has stripped him of the possibility of defending himself. In this case we have a right without having effective coerciveness at all. The theorist that denies the victim this right by the circumstance itself that he is being attacked in a highly effective way, what he is doing in fact is admitting that force, far from being inherent to right, suppresses it. On the contrary, if the theorist affirms that in this case the right of self-defense subsists, he recognizes thereby that right is not essentially coercive, and conse- quently, it does not distinguishes itself from morals. As a matter of fact, the right of legitimate self-defense, which is acknowledged by every treatise writer, consists exclusively in the power of the victim to use violence in a morally licit way.
The thesis that we have been criticizing could not reply that the afore- mentioned authorization depends on that the positive law authorizes the victim to use violence, for that very positive law would not be coer- cive. Again, morals and right cannot be considered as separate things.
Aside from legitimate defense, there are at least two cases in which the right necessarily lacks coactivity.
The crime of not denouncing a criminal has to remain unpunished, because otherwise we would be in a processus in indefinitum. In the first
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link of the chain, the penal code speaks of penalties, but, what about the crime of not denouncing someone who commits the crime of not denouncing? This crime has to remain without a sanction, because otherwise one would have to sanction he who does not denounce the people who has not denounced, etcetera.
Necessarily, the crime of not denouncing someone who does not give away a delinquent must remain unpunished. One should notice that in the real existing codes there are many laws which forget to determine the penalty to the crime they prohibit, but the defenders of the thesis we have been criticizing would respond grandiloquently that these laws are not right and period. The argument we have been discussing, however, does have nothing to do with that. It is not about crimes which have remained unpunished by accident, but of a crime which, due to the very logic of things, will necessarily remain without a sanction. Consequently, it is false that right is essentially coercive.
As the thesis we have been refuting is a universal affirmative state- ment, one only needs to demonstrate that it is completely false. There is another example we can bring up in order to reinforce our point: the juridical order cannot determine a sanction in case in which the head of state commits a crime and resists the sanctions prescribed by law. The juridical order would have to create another instance which is authorized to employ more force than the one it originally granted to that head of state. That scenario, however, could repeat itself again in an endless process.
The result of the above is that the juridical order necessarily contains some precepts without a sanction. If it grandiloquently responds that those precepts are not right but morals, the very same thesis they are defending falls apart, because it would turn out that the juridical order necessarily contains some moral precepts and hence is false that right is different than morals.
This convergence and identification between right and morals has been our very subject: the Hegelian ethicity which is the truth of both right and morals: "Neither the juridical nor morals can exist by their own, they both need to have the ethical as carrier and fundament [. . . ] right only exists as a branch of a whole, as the plant that grows in a robust and independent tree" (Rph 141 Z).
"Imagination figures sometimes that the State remains united due to the force, but what sustains it, is the fundamental sense of order that everyone has" (Rph 268 Z).
? ? ? ? ? ? ? ? ? ? ? ? ? ? ? ? 304 Hegel was right
Positivists make a mistake of imagination when they do not realize that the actuality of the State is ethics and that there are innumerable ethical duties that one forcefully and logically needs in order that the legislator or a governor can give a command. Let us think of the duty of not lying, of the duty of taking the man that addresses me as a person and not as a bunch of atoms, of the duty of giving sense --to the extent I can -- to the content by itself chaotic of sounds that the person in front of me emits, of the duty of assuming the intersubjective obliga- tions that every 'verbal action' implies.
Let us stop for a moment in this last point. Both the speaker and the hearer must assume specific duties, which depend on the specific verbal action we are dealing with: promises, advises, regards, threats, etcetera. It is impossible that us humans understand each other if we do not hit the mark with each kind of verbal action that other speakers are trying to carry out, if we do not adopt the corresponding role; for instance, if we do not realize that what the other person is saying is a yoke, we are in fact not understanding anything. But for each kind of verbal action some specific duties follows, without the acceptance of which the verbal action could not have been possible.
If I made a promise, the duties that follow from that are obvious. But the same goes if I gave a piece of advice: I adopt therewith the obliga- tion of not being surprised if the other person behaved in accordance with what I said. If I made a plea, I should not be surprised if one pro- ceeds in the way I suggested. Besides, in that case, I also acquire the obligation of being thankful. If I made a statement, I am obligated to response for the logical consequences of what I said, and I am obliged to concur when somebody says the same thing I did. Every verbal ac- tion constitutes an ethical fact that has consequences: both the agent and the receiver who accept to participate in them assume their con- sequences. For instance, the person who was given an advice has the obligation of not being surprised of the negative outcome if he acted contrarily to what his friend said.
And not only are the duties related to language the ones which constitute the complex that we call society and state. Let us think in the duty of not aggressing each other; in the duty of not making fires; in the duty of producing the goods and services of what I am responsible; in the duty of behaving in a way that I do not hurt anybody; in the duty of prudence and moderation of movements so that my neighbor can live calmly and in peace, etcetera.
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This series of innumerable ethical duties is the condition of possibility to every act of authority, whether it is legislative, executive or judicial. To think that some governor or legislator creates out of nowhere human co- existence is pure lack of reflection. This series of rights and duties is prior to everything: it is the condition of the possibility even of speaking. Such a hypothetical 'founder' cannot be said to adopt and assume legisla- tively all these duties by transforming them into positive right, because they are innumerable: sociologists and anthropologists even nowadays would not be able to make a complete list. In what serious way can one say that the legislator or the judge make positive a series of duties that do not even know of? Evidently, there is no conscious act on the part of the legislator, the judge, or the politician in relation to these duties. The 'implicit' assumption that the positivist theorist would attribute them would be an act of such theorist and not of them, and therefore it would not be positive right but the imaginative lucubration of the theorist.
International law expert Clive Perry, who has defended the juridical character of international law despite its apparent lack of coerciveness, has rightly remarked:
No juridical system depends completely, either for its effectiveness, or for the definition and development of the norm it contains, on the application of imposition by means of a superior power. If men decided not to obey the law within these State, there could never be enough policemen that could force them not to behave like that. Exactly the same kind of recourse with which one counts for the preservation of the apparently high degree of order that prevails within the States of the world, are available to pre- serve the international order as well. Theoretically speaking, they can be employed with no lesser degree of effectiveness in both of these realms (Sorensen ed.
Hegel refers to this in his Philosophy of Right when he says that the positive right, that is to say, the abstract right, is not true right, and that true right is only the ethicity in which the morality and right identify themselves. Already in his youth Hegel condemns this: "It may also happen that a conduct of right is not bound to the mentality
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of right, and even that there is an immoral mentality instead" (NH 253). Here we read a criticism against the hypocritical cynicism that has found today a 'scientific' rationalization in the juridical positivism of those who wield the law to commit, knowingly, atrocious injustices.
"An action like the affirmation of my property can be perfectly ju- ridical and yet there can be intention of evil, regardless of right and having the purpose of harming the other" (NH 228).
"When in politics, the only thing that prevails is law as such, the dominant thing is violence and the arbitrariness of the individual" (PR II, II 82s).
"The highest thing, if conceived finitely, is the worst" (PR II, II 238) [. . . ] "an animal kingdom of men" (ibid).
"Thus in right the particularity is not yet that of the concept, but only that of the natural want" (Rph 151 Z).
In order to do without the obligations of the moral imperative when it comes to the law, jurists have relied on a huge epistemological mis- take: the mistake of believing that the application of a law is a mechani- cal process that may be performed without judgments of value, without appreciations that are empirically unjustifiable. As a matter of fact, it is very unusual to find jurists that take the task of reflecting about the epistemological status of their own acts.
As we have seen, physicists and the biologists fall in that ingenuity as well, and they figure that if 'the whole world' thinks in a certain way, that is enough to say that what we have in our hands is an empirical judgment. Only that in the case of the jurists that lack of reflection has ominous consequences, for it has lead them to believe that the action of subsuming certain empirical fact under a law does not imply valua- tion and decision, because the 'whole world' would subsume the fact in question under that law. But the valuations do not stop being valua- tions because they are common or very frequent. To be sure, not even the sentences that allegedly describe a fact, that is to say, the so called 'fundamental propositions', are justifiable only by empirical data, since they decide precisely which is the content of the supposed empirical data. The empirical data does not consist in words; the descriptive sentence, on the contrary, consists in words. To judge if the sentence reflects 'sufficiently well' the sensorial data is always an appreciation, an evaluative estimation, not a mechanical process at all. The vocabu- lary with which one supposedly describes the fact in question decides beforehand under what law it will be subsumed. I am not reproaching
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this way to proceed; on the contrary, I am saying that it is the only one possible and that is the way one always follows. But the point is this: if the judge, the ruler or the jurist in general carries out judgments of val- ue even with the actions which are apparently more mechanical, if they are always carrying out moral judgments, how could one do without the moral imperative by saying right does not consider it? With what logic or justification can someone base himself on right in order to commit acts and deeds which his conscience unmistakably calls injustices and immoralities?
It is not the case that the unjust jurist does without morals. The im- portant thing here is that he embraces immorality. And in that mo- ment, his decisions are "the oppression of right" (GP I 142), "his right is a right that lacks right completely" (A? sth I 305).
The reader may have recognized among these Hegelian expressions the unmistakable thesis of iusnaturalism. We shall demonstrate that thesis is true.
The juridical positivists have not noticed yet that the word duty lacks entirely of meaning if one does without the moral absolute imperative. In the juridical jargon, the 'objective' right is synonym of law. On the contrary, the 'subjective' right is the faculty or power of making something. One should notice that the possibility of giving any meaning to the subjective right depends on that objective right has meaning. To say that someone possesses the right of something is tantamount to say that the others are under certain law or duty in relation with him. Thus, if the word duty or law does not succeed to get meaning, the word right lacks of content in its objective acceptation because in it the right it is a synonym of duty or law, and in its subjective acception because the existence of a faculty in a subject means only the existence of a duty
in the others.
It has been a superficiality to forget (cf. III,9) that historically speaking,
all the people supposed that it was a divine imperative to obey the laws, whether they were written or not; it was considered that the laws were originated by the divine will, regardless of the particular mediations they may have had. This is the only reason why the idea of duty or obligation could be once related to the effective precepts in a human conglomerate. Besides, it was assumed that every authority emanates from divinity.
Without that original meaning it would be absolutely impossible to apply the word 'duty' to merely cognitive information about the real
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results of certain kinds of actions. For instance: 'whoever makes such thing would be whipped'. Kelsen seems to ignore the difference be- tween categorical and hypothetical imperatives. As a matter of fact, the latter is not an imperative that is to say, it is not a duty; it is only some sort of knowledge. If I do not want to be whipped, I refrain from carry- ing out such kind of acts, because there is another agent who will apply me that punishment.
The same happens when I refrain from getting my hand close to the flames because I know that in such a close distance I will suffer a burning or some kind of pain. But I do not have a duty that prohibits me to draw my hand closer to the flames. From that kind of knowledge no duty can be derived; I can only infer from it how convenient it is for me not to do certain things. No one could ever come up with the idea of calling duties the threats of the strongest. The persons who are threat- ened by someone with a machine gun do not call duties the indications they are given by him; obeying them is simple reasoning of advantages or disadvantages.
This is like a joke, but many positivists believe that because 'the whole world' calls the statements of a positive legislation law and right, they think that law and right are empirical data. But one needs a bit of reflection to understand that the obligatory character of such statements is by no means empirical data; consequently, the fact that such sentences are law and right is not empirically perceptible, and therefore the existence of a law is not empirically verifiable. Kelsen, fortunately enough, does not fall in such ingenuity, so we can leave that problem aside.
We will prove this afterwards with a quote. It is important to have in mind that Kelsen says innumerable times that right is not sensible data. Kelsen affirms also that the anarchist who says right is nothing but the power of strongest is irrefutable, and that one cannot justify the hypo- thetical decision of the jurist and the theorist --Kelsen included-- who regard as right the prevailing order of a nation. And it is obvious that Kelsen omitted asking himself what, then, is the origin of the idea itself of right. The precepts or rather the sentences empirically perceptible do not raise in the human mind the idea of right. On the contrary, this is a contribution that the jurist introduces in order to look at them as right. That being said, where does that idea come from? How did it originate itself? Evidently, the only possible origin is the moral absolute impera- tive, the one that positivism eagerly denies.
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One last thing must be well considered. The constitutive thesis, the only essential one of juridical positivism consists in holding that there are no more duties than those consigned in the juridical positive order; to affirm that there are others is the constitutive thesis of the iusnatu- ralism, so that the positive laws are only true laws if they coincide with the moral law or are logical derivations from it.
Now, if the duty that the categorical imperative imposes was il- lusory, it would be inexplicable that Kelsen and his comrades call it illusory, since such qualification can only be given by contrast with a true duty, and the idea of a true duty does not arise from the empi- rical data or from the juridical positive order. The only reason why positivists can still distinguish true and illusory duties is because they have awareness of a duty that is not illusory. This demonstra- tion is definitive.
Only if one assumes that it is morally compelling to obey the ruler and the rules of that country can these be called laws, duties and right. And if people call them so, independently from the decision of the jurist, it is because they originally made such supposition, so that even by inertia one preserves such denomination in the entire world.
The jurist that denies the moral imperative does not have the right of using it, since without the imperative words like law, duty and right lack all kind of meaning. Kelsen mentions Kant several times, but, apparently, in the Metaphysics of Morals he overlooked this: "From the moral imperative which imposes us a duty, the concept of right can be developed afterwards, which is the faculty of obligating the others (op. cit. AB 48).
The concept itself of right only obtains content to the extent and de- gree in which it coincides with the moral imperative. Otherwise, as Hegel says, "instead of right it is oppression of right" (GP I 142), "it is entirely positive and with no validity or force" (A? sth I 305).
Saint Thomas expressed this with the same clarity, although with a vocabulary that we will criticize later with Hegel: "Every law put by men is a law insofar it is derived from the natural law. If it differs in something with the natural law, it is no longer a natural law but a cor- ruption of it" (I, II 95 2).
Before we move on forward, we shall document with words of Kelsen the non-empiricity of right: "The fundamental mistake consists in believing that the social order is a natural right, perceptible in the world of causal reality" (1965, 350); "in the kingdom of nature there
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are no 'robberies', 'juridical businesses, 'punishment, or 'execution'"
(1965, 62).
The Pure Theory of Law does not try to dissimulate that the specific normative signification of the so called juridical facts is the result of a possible inter- pretation, not a necessary one, which is linked to a fundamental hypothesis. Furthermore, it realizes that it is not possible to prove the existence of Right as if it were a natural phenomenon, or to refute with decisive arguments the conceptions of the theorists of anarchism, for whom the right that the jurists talk about consists in pure and simple force (1968, 99).
[. . . ] one cannot force an anarchist to recognize that the facts that from the point of view of the state law are interpreted as right constitute juridical acts and not acts of force. One can only demonstrate the possibility of under- standing the set of constitutive facts and norms of international law within a unitary system in which all juridical and state orders are contained. The material that is interpreted as law does not constitute a priori 'right', but it rather requires that quality by means of the juridical hypothesis which is useful to interpret it. (1965, 168)
As we have said, Kelsen did not consider that, in order to be true and have some meaning at all, the hypothesis itself needs first to have a meaning and be understandable. Since meaning does not have its origin in empirical data, it can only have its origin in the moral imperative. As Hegel says, right is something sacred by definition; no material or physical data gives raise to the idea of right. This idea is far beyond everything which is empirically verifiable; it is impossible to conceive earnestly the meaning of the word 'duty' without some sort of sacred. Kelsen himself emphatically insists in the fact that it is not sufficient that certain acts or statements emanate from a group or a person called legislator or gubernator to be called law, neither it is enough that they do not contradict constitution, for such a group, or a person, or the constitution itself would be first to be law, something which cannot be empirically corroborated.
Although the superficiality of those who believe that right is an empirical data, has been refuted, I would like to draw the attention of the reader to a point in which this superficiality has proved to be particularly stubborn and even childish: the right or property. On the one hand, the defenders of property wish it to be an empirically verifi- able data in order to affirm that it exists before or independently from
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the State. On the other hand, it is absolutely essential for Marxists that property --or at least possession-- is a physical and material fact, be- cause otherwise the thesis that the relations of production --which are relations of property that Marxists call 'infrastructure'-- determine the ideas of men would not be materialist.
Jurists have written thousands on volumes about how constitutive property is. Savingy and von Ihering have devoted a lot of their efforts to this issue. However, we are not going to quote any of them in order to solve substantively the question.
The fact that I am the owner of this typewriter machine is evidently not a physical nor a material fact; it does not consist on whether I can hold it in my hands or not, nor the fact that it is within my house, nor that it is in the surroundings of my body since I can lend it for many years to a friend, or leave it in a workshop in order to be repaired, and despite of that, I would still be its owner. Property is ideas. Property consists in that I have the right to determine what should be done with the object; in other words, the others have the obligation of not hindering me from doing with the object whatever I please.
But not even possession is a physical data. As a landowner of a field, I can be the possessor and yet not the owner; perhaps I live many miles away from it, while the other landowner has more physical contact with the field than myself. The same goes for the workers that plow my land. Despite of that, I am still the owner of that field.
Any person who walks by it has the same physical possibility as myself to work in that piece of land, or even of destroying it by placing chemical substances in the ground. This makes it clear that possession is also ideas. It consists in the right of using the object in the ways its owner commands.
Despite the intention and the wish of Marxists, the constitutive the- sis of Marxism does not have the slightest trace of materialism --and by the way, it is a false thesis, but we will not deal with that here--. The relations of property are the only decisive element in the mode of production: again, we are dealing with ideas, not with facts. To sustain that ideas are determined by ideas is a triviality that does not deserve our attention.
Let us address now another difference that treatise writers believe to have found between morals and right: the coercion of the latter. The principal difference, namely, that right pertains to the exterior and morals to the interior, has been refuted. They intend now to tell us that right is essentially coercive, that means to say, it recourses to coercion
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in order that people respect its precepts, while morals does not have that characteristic. Therefore, they affirm, there is a true distinction be- tween morals and right.
But this argument is completely thwarted. On the one hand, there are many norms that these very treatise writers would call merely moral and yet they are accompanied by a social sanction whenever they are not respected. On the other hand, there are not only many juridical precepts that necessarily remain without a sanction: the coerciveness of right is sometimes reduced to the moral permissibility of the use of coercive force.
Anyone who reflects a little knows that the liar is sanctioned with the collective rejection of everything he says and even with the con- tempt of his very person; the cruel person is sanctioned with isolation and with displays of horror that end up being a boycott against him; the deceitful person is excluded from taking part in businesses. The list is practically endless.
Those people --who, in view of the immorality that prevails nowa- days, do not regard highly the effectiveness of these sanctions-- take no notice of two important things. First, they are imagining that the legal and juridical sanctions have an extreme effectiveness, disdaining thereby, the opinion of many sociologists who think that most of the crimes remain unpunished. Second, they do not realize that saying 'moral precepts do not have any corresponding sanction' is a uni- versal negative proposition, which only needs a particular case that proves the contrary to be refuted. With the examples we have men- tioned we do not need to enlist all the sanctions that go along with all moral precepts.
But whoever considers things carefully will realize that, in fact, the 'social order' prevails not only due to the sanctions contained in the penal code, but to a much greater extent due to the sanctions that are not contained in it.
And this goes not only for underdeveloped nations. One would only need to look at works such as The Disputing Process (Law in Ten Societies) (1978) written by Laura Nader and Harry Todd Jr. , and the investigation of S. F. Moore called Law as Process (1978) to realize this. Not to mention the works of Sugarman, Fitzpatrick, Pospisil, etcetera.
In this context it would be useful to take a look of this issue from an anthropological point of view. Let us quote that Ino Rossi makes of Radcliffe-Brown findings:
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Radcliffe-Brown points out that in many primitive societies there are no courts or judges, nor any formally organized, central political authority, --but nevertheless people possess a sense of wrong-doing and the notion of public and private delicts. Whenever there is no political authority to apply organized sanctions (law), there are private groups and associations that apply organized sanctions. Moreover, there exist a series of unorganized mechanisms like ostracism, house-burning, blood feud, accusation of witch- craft and sorcery, and ritual sanctions which although not enforced by official authorities, are effective means of social control. (Rossi et al. , eds. , 1977, 348)
As for the developed countries, Nader and Todd refer to the investi- gations of Macauley and Sutherland, in which they describe: "avoiding the law as a means to form and maintain good business relationships; businessmen prefer not to use contracts, and even prefer not recurring to the law in the cases of criminal business activity" (1978, 17).
Let us only think about this: to lose one's prestige in the business world, the avoidance of any kind of deal with the transgressor, the rejection of providing him with credit and resources, are for a business- man sanctions which are infinitely more harmful than those prescribed by the law. The bills of exchange and promissory notes were in the 16th and 17th centuries a matter of honor and prestige for the traders. And even nowadays, the capitalist national systems would collapse without the trust in verbal agreements. It is obvious that even in our times the relations between capitalists cannot be based on the legal or juridical system: a juridical process is long and one can appeal its results, and at the end of that course of action my business would be surely broken or I would have certainly lost the possibility of doing the business move I had in mind. The only trust I can have in those scenarios it that which the verbal agreements can provide me: my own word.
Besides, in the little towns and in the neighborhoods strongly bound that we find in the big cities, the sanctions that are not legal can make life impossible for everyone: the mailman, the plumber, the gardener, the carpenter can all cooperate to impose me a sanction by not pro- viding me some elemental services. It is impossible that the positives argue that the legislator 'implicitly' approves and assumes the social sanctions, for many of them contradict the law itself.
The facts refute the thesis according to which the moral law does not have sanctions. We will later relate this fact with another idea. But now, let us concentrate on the second part: the one that affirms that law is essentially coercive.
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To begin with, we have international law: a law which that does not have a coercive character like many treatise writers affirm. Against a powerful nation that transgresses the international juridical norms there is no sanction, or at least, not a sanction that is different from those which are characteristic of moral norms. A superpower can be more powerful than the United Nations and the Permanent Court of Inter- national Justice.
And let us not forget this crucial point: there can be a criminal in each country stronger or more astute than the several governmental organizations and who remains hence unpunished. The robberies and aggressions that happen all day long are an evident proof of this; the most elemental realism tells us that many of these crimes remain with impunity. Therefore, in what does the coerciveness of law consist? Would one say that it consists in the fact that the law affirms that those crimes deserve a punishment? That is something which morality tells us as well, and the result that follows thereof that there is no difference between moral and right.
The right of self-defense, which is explicitly recognized by the ma- jority of legislations, cannot mean the real available force. The victim has this right in spite of the fact that his aggressor has stripped him of the possibility of defending himself. In this case we have a right without having effective coerciveness at all. The theorist that denies the victim this right by the circumstance itself that he is being attacked in a highly effective way, what he is doing in fact is admitting that force, far from being inherent to right, suppresses it. On the contrary, if the theorist affirms that in this case the right of self-defense subsists, he recognizes thereby that right is not essentially coercive, and conse- quently, it does not distinguishes itself from morals. As a matter of fact, the right of legitimate self-defense, which is acknowledged by every treatise writer, consists exclusively in the power of the victim to use violence in a morally licit way.
The thesis that we have been criticizing could not reply that the afore- mentioned authorization depends on that the positive law authorizes the victim to use violence, for that very positive law would not be coer- cive. Again, morals and right cannot be considered as separate things.
Aside from legitimate defense, there are at least two cases in which the right necessarily lacks coactivity.
The crime of not denouncing a criminal has to remain unpunished, because otherwise we would be in a processus in indefinitum. In the first
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link of the chain, the penal code speaks of penalties, but, what about the crime of not denouncing someone who commits the crime of not denouncing? This crime has to remain without a sanction, because otherwise one would have to sanction he who does not denounce the people who has not denounced, etcetera.
Necessarily, the crime of not denouncing someone who does not give away a delinquent must remain unpunished. One should notice that in the real existing codes there are many laws which forget to determine the penalty to the crime they prohibit, but the defenders of the thesis we have been criticizing would respond grandiloquently that these laws are not right and period. The argument we have been discussing, however, does have nothing to do with that. It is not about crimes which have remained unpunished by accident, but of a crime which, due to the very logic of things, will necessarily remain without a sanction. Consequently, it is false that right is essentially coercive.
As the thesis we have been refuting is a universal affirmative state- ment, one only needs to demonstrate that it is completely false. There is another example we can bring up in order to reinforce our point: the juridical order cannot determine a sanction in case in which the head of state commits a crime and resists the sanctions prescribed by law. The juridical order would have to create another instance which is authorized to employ more force than the one it originally granted to that head of state. That scenario, however, could repeat itself again in an endless process.
The result of the above is that the juridical order necessarily contains some precepts without a sanction. If it grandiloquently responds that those precepts are not right but morals, the very same thesis they are defending falls apart, because it would turn out that the juridical order necessarily contains some moral precepts and hence is false that right is different than morals.
This convergence and identification between right and morals has been our very subject: the Hegelian ethicity which is the truth of both right and morals: "Neither the juridical nor morals can exist by their own, they both need to have the ethical as carrier and fundament [. . . ] right only exists as a branch of a whole, as the plant that grows in a robust and independent tree" (Rph 141 Z).
"Imagination figures sometimes that the State remains united due to the force, but what sustains it, is the fundamental sense of order that everyone has" (Rph 268 Z).
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Positivists make a mistake of imagination when they do not realize that the actuality of the State is ethics and that there are innumerable ethical duties that one forcefully and logically needs in order that the legislator or a governor can give a command. Let us think of the duty of not lying, of the duty of taking the man that addresses me as a person and not as a bunch of atoms, of the duty of giving sense --to the extent I can -- to the content by itself chaotic of sounds that the person in front of me emits, of the duty of assuming the intersubjective obliga- tions that every 'verbal action' implies.
Let us stop for a moment in this last point. Both the speaker and the hearer must assume specific duties, which depend on the specific verbal action we are dealing with: promises, advises, regards, threats, etcetera. It is impossible that us humans understand each other if we do not hit the mark with each kind of verbal action that other speakers are trying to carry out, if we do not adopt the corresponding role; for instance, if we do not realize that what the other person is saying is a yoke, we are in fact not understanding anything. But for each kind of verbal action some specific duties follows, without the acceptance of which the verbal action could not have been possible.
If I made a promise, the duties that follow from that are obvious. But the same goes if I gave a piece of advice: I adopt therewith the obliga- tion of not being surprised if the other person behaved in accordance with what I said. If I made a plea, I should not be surprised if one pro- ceeds in the way I suggested. Besides, in that case, I also acquire the obligation of being thankful. If I made a statement, I am obligated to response for the logical consequences of what I said, and I am obliged to concur when somebody says the same thing I did. Every verbal ac- tion constitutes an ethical fact that has consequences: both the agent and the receiver who accept to participate in them assume their con- sequences. For instance, the person who was given an advice has the obligation of not being surprised of the negative outcome if he acted contrarily to what his friend said.
And not only are the duties related to language the ones which constitute the complex that we call society and state. Let us think in the duty of not aggressing each other; in the duty of not making fires; in the duty of producing the goods and services of what I am responsible; in the duty of behaving in a way that I do not hurt anybody; in the duty of prudence and moderation of movements so that my neighbor can live calmly and in peace, etcetera.
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This series of innumerable ethical duties is the condition of possibility to every act of authority, whether it is legislative, executive or judicial. To think that some governor or legislator creates out of nowhere human co- existence is pure lack of reflection. This series of rights and duties is prior to everything: it is the condition of the possibility even of speaking. Such a hypothetical 'founder' cannot be said to adopt and assume legisla- tively all these duties by transforming them into positive right, because they are innumerable: sociologists and anthropologists even nowadays would not be able to make a complete list. In what serious way can one say that the legislator or the judge make positive a series of duties that do not even know of? Evidently, there is no conscious act on the part of the legislator, the judge, or the politician in relation to these duties. The 'implicit' assumption that the positivist theorist would attribute them would be an act of such theorist and not of them, and therefore it would not be positive right but the imaginative lucubration of the theorist.
International law expert Clive Perry, who has defended the juridical character of international law despite its apparent lack of coerciveness, has rightly remarked:
No juridical system depends completely, either for its effectiveness, or for the definition and development of the norm it contains, on the application of imposition by means of a superior power. If men decided not to obey the law within these State, there could never be enough policemen that could force them not to behave like that. Exactly the same kind of recourse with which one counts for the preservation of the apparently high degree of order that prevails within the States of the world, are available to pre- serve the international order as well. Theoretically speaking, they can be employed with no lesser degree of effectiveness in both of these realms (Sorensen ed.
